Child pornography is a toxic subject, but a very important one that cannot and should not be ignored. This is an attempt to bring the topic to a serious discussion, and explain why possession of child pornography need to be re-legalized in the next ten years, and why you need to fight for it to happen.

ABSTRACT

This article argues that our current laws on the topic are counterproductive, because they protect child molesters instead of bringing them to justice, they criminalize a generation of normally-behaving teenagers which diverts valuable police resources from the criminals we should be going after, and they lead to censorship and electronic book burning as well as unacceptable collateral damage to innocent families. Child abuse as such is not condoned by anybody, and this article argues that current laws are counterproductive in preventing and prosecuting it.

When possession of this type of information was criminalized, those who opposed that criminalization (which I didn’t, at the time – this was before my activism) pointed at four major objections:

It would not be effective, and possibly counterproductive, in catching child molesters.

It would lead to censorship without accountability.

Reporters complained it would undermine journalistic freedom that has stood intact for centuries.

Constitutional and political science scholars pointed out that it undermined centuries of free speech/expression traditions in a way that would be used by special interests to silence opponents of business interests unrelated to child porn.

In retrospect, all of this has come true. This is bad enough in itself; it is downright catastrophic. There are three overarching reasons why possession of child pornography must be re-legalized: the ban prevents catching child molesters, especially in light of new technology; it creates a generation of branded sex offenders that did nothing wrong; and it is the battleground for free speech itself. Let’s take these one at a time.

1. The ban prevents catching/jailing child molesters.

This is bad enough as it is today, but it is going to get significantly worse with new technology that is just around the corner. Are you aware of Google Glass? It is a prototype new mobile phone in the shape of eyeglasses.

Essentially, we’re looking at how our mobile phones are turning into devices that look like ordinary glasses, and which let us share what we see in real time, in the present tense. It’s a quantum leap over Facebook’s photo sharing, seeing how photos are always in retrospect, changing into real-time vision sharing and storage. It’s a change as large as when CNN’s reporting of the First Gulf War was being reported in the present tense, for the first time ever: “The night skies over Baghdad are lit up by tracer fire…”.

This change is going to be significantly larger than when we went from semi-smartphones with buttons to iPhones and Android devices with touchscreens, as our communications devices become wearable and blend seamlessly with our senses.

So imagine a scenario ten years down the road, as you’re taking a stroll in the park. Your glasses (“mobile phone”) are on, as are mostly everybody else’s. You’re broadcasting and recording what you see in public, as is mostly everybody else, in case a friend drops in on your feed and starts chatting about it, or in case you observe something where you need to back up your story later, if you’re so inclined – kind of why people use dashcams in cars and constantly record everything that happens.

So, on your lovely stroll in the park, you turn a corner, and to your shock, see a 12-year-old being brutally raped right in front of you.

WHAM. You are now a criminal, guilty of recording, distributing, and possessing child pornography. You are now guilty of a crime that carries higher penalties than the rape and molestation of a child right taking place right in front of you.

The rapist notices you and laughs, knowing that you can’t do anything. If you were to call the police and offer to be a witness to the rape taking place before you, you would lose your job, children, and house over the worse crime you have just committed. As you struggle in panic to delete any and all imagery that could be used to convict the child rapist, hoping that nobody was able to make a copy, you see another person coming into view of the rapist and reacting just like you did.

And on the ground, a 12-year old who is being raped watches helplessly as witnesses turn away and delete all evidence of the crime being committed against her.

This is not some far-fetched science fiction scenario. This is exactly what will happen as our mobile phones take the next step, which has already started, and we will be there in less than ten years. (The very first iPhone was released to sales about five years ago, for perspective – imagine what will happen in twice more the time since then.)

[UPDATE: Some people have complained that no court would ever convict in this scenario, since you also recorded your unintentional approach. But possession of child pornography is a strict liability offense, like possession of cocaine, at least in the entire United States, as well as several other countries. Intent, mens rea, is irrelevant: if you have it and know you have it, no matter why, you’re guilty.]

This brings us to the crucial question why we have the ban on child pornography in the first place.

Is possession of child pornography harshly banned because we want to catch child rapists and molesters, or because we’re so uncomfortable with its existence that we want to legislate it out of our own field of view, raped children be damned as long as we’re feeling comfortable ourselves?

I would argue that the ban on possessing child pornography is already preventing the capture of child molesters, and it will get many, many times worse so in the coming decade. I also have a very strong feeling that the ban is in place because we’d like to pretend that things like this don’t happen, and legislate it out of our field of view, throwing actual victims of crime to the wolves in the process. That’s not worthy.

[UPDATE 2: Since the publication of this article, several people have pointed out that this is a far-fetched example today. But do note that this section of the article isn’t primarily discussing today’s technology, but the tech around the corner and the changes it will bring. Furthermore, a lot of people have contacted me with examples of how this is already true anyway – where people reporting child pornography and child abuse to the police have been accused of possessing and distributing it, and even lost their children over just trying to report child abuse. People in general learn very quickly to turn a blind eye to these crimes when news of events like this spread, just as described, because of the current laws. One example is here, another in the followup article here. As I argued, the overreach of the current laws protects the criminals who abuse children and are therefore counterproductive.]

The question also begs asking – why is it only documentation of sex crimes against minors that are being banned in this way? The lawmen are perfectly fine with a video documenting how a teenager is being stabbed with a screwdriver in both eyes, then murdered (warning: the link is very real, but contains a transcript before you get to the actual video, which you probably don’t want to watch). It’s not the documentation of victimization that we prohibit, nor is it molestation as such – why is the ban just related to anything sexual, and not to the bodily harm itself, which is what it sounds like from the proponents of the ban?

Moving on to a solution, this scenario and problem doesn’t necessarily mean that every part of our child porn laws must or should be torn up. The necessary legislative change would primarily mean that you would always, as in always, be allowed to record and distribute what you see with your own eyes. A journalistic protection law that supersedes all other laws, if you like. The slightest risk of a gray area here, and people will delete all evidence of witnessed crimes against children rather than risking their own jobs and families – there must be no doubt or uncertainty whatsoever, not a shadow of it. As a side-effect consequence, deliberate recording and distribution of child porn from a first-person perspective would also be legalized with this change – but that brings us back to the question why the ban is there in the first place: is it to catch child molesters, or is it there for our own sake, to make us feel good regardless of whether it helps molested children?

2. The laws brand a whole generation as sex offenders.

Our current laws treat the video of a seven-year-old being brutally raped, on one hand, and two seventeen-year-olds who have eyes for nothing in the world but each other making consensual passionate love, on the other hand, as the exact same thing. This is mind-bogglingly odd.

The former is one of the most horrifying things you can think of – trying to picture it makes you cringe in your chair. The latter is one of the most beautiful things you can possibly picture – trying to see it makes your eyes well up with tears from joy. Why are one of the most horrible things and one of the most beautiful things in the world considered one and the same by the law? They’re obviously nowhere similar and have nothing whatsoever to do with each other. I’ll return to the answer to that.

But first, let me say that I started watching porn at age ten, as did most of my friends, and I enjoyed it. I actively sought it out and kept seeking it out (as I still do). Since I didn’t have access to the net at my age ten, I imagine people would start seeking it out earlier today, basically as soon as they get past the “boys/girls are icky” phase.

This is natural.

Let’s see what else is natural for the generation growing up today:

Exploring and understanding their bodies as they go through puberty and afterwards, just like every single generation of Homo Sapiens has done before them.

Communicating like crazy. Communicating everything. All the time. In text, voice, images, and video.

Documenting everything. Including themselves naked. Including sex. It’s a memory like any other, and they’re not limited to 24 photos per roll like I was in my teens.

Technically, most people growing up today lose their virginity through rape. I say “technically”: they lose their virginity through rape because legislators have redefined “rape” to include consensual, voluntary, loving sex between people of typical age of sexual debut. Such a legislative redefinition makes as much sense as redefining the act of murder to include friendly hugs, then complaining that murder rates are up. It also creates a lot of technical rapists and sex offenders who never harmed a single person, but did go against the morals of legislators. (This is not strictly information policy, but is relevant to the context up ahead.)

We observe here that today’s laws have as a horrible and completely unacceptable side effect of branding the entire growing-up generation as sex offenders, ruining their lives if caught with it, under the pretext of protecting small pre-pubescent children. This side effect includes the completely normal communication that teenagers have with each other, which would brand them as child pornographers (of themselves).

This type of dissonance between the pretext and the actual effect of the law can be seen in many lobbying efforts. I call it murder-and-jaywalking argumentation. Here’s an example:

“98% of all children have witnessed a murder or jaywalking firsthand by age seven. Witnessing a murder or jaywalking firsthand can be devastating to a child’s psyche, according to experts. Therefore, we need tougher laws against murder and jaywalking.”

Note how the “or” transforms into “and” at the end, implying that the two should be covered by the same piece of legislation. This conflation is deliberate, and is an attempt to piggyback a petty crime or harmless activity onto something vehemently detested.

In order to understand murder-and-jaywalking legislation, we turn to an ancient Latin phrase: Cui bono? (“Who benefits?”) More often than not, this gives the answer for the underlying reason for legislation.

Let’s take an example. If somebody starts talking about “rape and shoplifting”, and you discover that a chain of grocery stores is behind the wording, two things become obvious: a) they are trying to raise the penalties for shoplifting, possibly to include being branded as a sex offender for shoplifting, and b) they don’t care in the slightest that using rape as a pretext for this special interest dilutes the concept of rape and disrespects rape victims immensely.

The copyright industry has long done a similar stunt, talking about “counterfeiting and piracy”, trying to assert that teenagers who share music between them should be covered by the same legislation as people who manufacture fake and fatal medicine for profit. Pretty much all enforcement treaties of the copyright monopoly are created under the pretext of preventing counterfeiting. Take ACTA, for example (“Anti-Counterfeiting Trade Agreement”). That’s another tangible example.

This is where we start tracing where the idea of banning child porn comes from. Cui bono?

It turns out that the pressure for banning possession of child pornography comes from a whole fruit salad of Christian fundamentalists, under the pretext of protecting children. In the United States, this is pretty much every nutjob in the entire Midwest. In Sweden, this role is primarily dominated by the front organization ECPAT, which pretends to care about abused children, but which has its roots in the fundamentalist Christian organization ECTWT (where the E stands for Ecumenical), and where these Christians keep being in majority at every general ECPAT assembly. Every time these fundamentalists have mentioned child abuse as a pretext to demand new laws, we end up with new criminalization of teenagers instead.

This is where we connect the dots of cui bono with the murder-and-jaywalking deception method, and hairs rise on our arms and chills go down our spine as we connect the dots mentally:

Making insecure teenagers feel guilt, fear, and shame over their own bodies and natural desires, causing them to suppress their instincts in fear, even criminalizing natural behavior and destroying their lives, was never a side effect. It was the whole idea.

In Sweden, ECPAT has pushed through laws that make you a jailable criminal for possessing images of yourself from before your 18th birthday. Can we have a show of hands to see how many think this makes any kind of sense? That this would catch any child molesters?

So does the fact that this law exists – criminalizing people who have photos of themselves, pushed through by Christian fundamentalist organization ECPAT – rhyme better with a concern to catch molesters, or better with the hair-rising conclusion above: an effort to scare teenagers into submission with fear of their own bodies?

Using child molestation as a pretext for shoving your fundamentalist religious morals down the throats of insecure teenagers is about as low as you can sink in my eyes. These people stand lower than earthworms in terms of human value to me.

The fix for this particular problem is to tell the fundamentalist Christians in ECPAT and similar organizations to fuck right off with their perverted high-horse dogmatic morals, throwing them out of the legislative process headfirst, and limit the child pornography laws to cover pre-pubescent children only. Murder and jaywalking should not be covered by the same legislation, because they are not the same thing. Rape of a seven-year old and two seventeen-year-olds making love should not be covered by the same legislation, because they are not the same thing. In case a hard age limit is needed, I would suggest separating children from teenagers at that exact age – children are children until they become teenagers. Many enough have their sexual debut at 13 today. (This suggestion doesn’t mean porn of 13-year-olds could, or indeed should, be sold. Commercial exploitation can always be separately regulated. What it does mean is that teenagers cannot and should not be branded as sex offenders for something they do voluntarily, happily, and consensually.)

If these despicable Christian fundamentalists – including ECPAT – really cared about children, they would welcome such a change, for all the reasons described above. But if you proposed it to them, you would see them fighting it tooth and nail. Cui bono?

(I predict some people will have problems with a 13-year age limit. The countries that already have this limit, e.g. Spain, display no problems at all. In contrast, those with an 18-year age limit have piles and piles of stories of destroyed teenage lives – victims of law, not victims of crime. I like evidence-based policymaking and much prefer it to moral-based policymaking, and a 13-year limit is evidenced to work well.)

3. The free speech war is won/lost at the battle of child porn.

When possession of this type of information was banned, only the net generation saw this as bringing back the book burning times. To the rest of the population, it was about “things on a computer”; the net generation doesn’t see a difference whether a book is on a computer or sitting in a bookshelf.

If regular people had had these laws re-worded into police being able to come into their homes, ransack their bookshelves, and if they found a banned book, they would burn it and arrest the owner – if regular people had understood that this is what the law says, they would be horrified. But those who don’t live online don’t make the connection.

As long as the ban on child porn remains, special interests will use this open wound in our enlightenment traditions of information freedom to infest it with their own ideas of what other information, speech, and communication should be banned and prohibited. We’ve seen everything from gambling companies to the copyright industry use child porn as a pretext for censoring business competition, consequences to society at large be damned, just like in the “rape-and-shoplifting” example above.

(There is a reason the copyright industry loves child pornography. This reason. It opens the door to censorship.)

European Commissioner Cecilia “Censilia” Malmström successfully pushed for an EU-wide censorship regime on the pretext of child pornography. Others have not been late in its wake to attempt exploiting and expanding the censorship regime to suit their own purposes.

Politicians have even gone as far as saying that child pornography is “not a legitimate expression”, and therefore not covered by constitutional freedom-of-expression, even if there isn’t an explicit exception in law. This is a legislative hair’s breadth from saying that your political opinion “isn’t a legitimate opinion”, and therefore not constitutionally protected speech.

Child pornography is horrible and awful from every angle and in every aspect. But it is not dangerous to the fabric of society. Censorship and electronic book burning, however, is.

The overall freedom of speech is won or lost with restoring freedom of information and, as a result, re-legalizing possession of child pornography. Yes, it’s awful – but so is the video of a teenager being stabbed in the eyes with a screwdriver; that’s no reason to create a censorship regime. Today, we have an open wound in our constitutionally protected right to speak freely that is being infested again and again.

We must heal that wound, exactly like the constitutional scholars warned when the child porn ban was first enacted. And that requires you, and every other information freedom activist, to let go of the stigma associated with this toxic subject and stand up for the enlightenment traditions.

Just daring to talk back will take many people completely by surprise. They won’t understand what’s going on and won’t have a script to follow. You won’t have to defend against “defending pedophiles” – you can refer to many others that take the same stance, like the Swedish Association of Journalists, who demand the ban on child porn to be repealed (the linked article is a statement from their chairperson). The entire journalistic profession doesn’t demand this from a desire to harm children – there is obviously something else that causes the entire reporters’ association to be sternly against, and demand a repeal of, the ban on possession on child pornography. That “something else” is a care for the open and transparent society.

“The Swedish Association of Journalists has taken a clear stand against the child pornography legislation, which prohibits possession of works classified as child pornography.” — quote from the linked article

This is where the battle stands, and this is where the war is lost or won.

If we lose the battle over freedom of information, we will lose it over the ban on possession of child pornography and infestations spreading from there until the open society has been killed. If we win it, we will win it over repealing the ban of possession of child pornography [as well as any other kind of information] and healing this wound. This is where the battle stands, this is where the war for freedom of speech and the open society is won or lost. This is the wound we must heal.

Also see the follow-up article: Child Porn Laws Aren’t As Bad As You Think. They’re Much, Much Worse.

UPDATE: Lars Hallberg wrote a comment on G+ to this article that makes for a very good summary, so I take the liberty of copying it in as a conclusion and a TL;DR:

It’s not illegal to film a murder.

It’s not illegal to possess a film of a murder.

But it’s still illegal to murder people.

And it’s illegal to initiate a murder for the purpose of filming it.

If you have taken part in a murder and have film of it, the film may be usable as proof against you.

I can’t see that Rick suggests anything different here – i.e., I see no suggestions that it should be OK to molest children for the purpose of filming it. That’s good.

In the end it’s as simple as this: it should never be illegal to merely possess information, any information.﻿