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Re: [PLUG] VoiceNet Rumors?
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> To Which Jon replied:
>> Although I agree with this statement I think it is overly broad in the
context of this discussion. I don't know of too many constitutional
challenges to the possession of child pornography of known child
victims.
>> Once again I must emphasize that none of us know all the facts of this
case.
> I enthusiastically agree that we don't know the facts regarding
Voicenet.
> Moreover, my point was that we don't know enough of the
Buffnet/Dreamscape
> facts because of the guilty plea.
I disagree. If you read this link from a previous post:
http://www.exn.ca/Stories/1998/10/29/04.asp
I think it gives us enough facts for our discussion in this tread.
Specifically where it states:
"Known as "Pedo University," the child porn ring included at least the 13
suspects, plus two Internet service providers -- Dreamscape and Buffnet --
both of which failed to take action when an undercover investigator on the
team informed the ISPs that newsgroups they hosted were transmitting child
pornography."
>> As far as Buffnet and Dreamscape go, they were told that they had child
pornography on their servers and they were being used as a conduit for
distribution of same. With this knowledge they chose to do nothing and
allow this practice to continue. This is were they crossed the line.
None of these ISP's are required to monitor the content on their
servers
>> nor should they be. They are required to report the presence of child
pornography when they become aware of it.
> I believe the argument is that, being an involuntary, passive conduit, they
> had no obligation to take any action, or possibly that the statute was
unconstitutionally vague as to what precise action they were obligated
to
> take, and how much time they had to take it before they themselves
became
> criminally liable.
The law clearly states that the mere possession of child pornography is a
crime. Once they are made aware of it's presence and they do nothing to
remove it, in my opinion, they are no longer an "involuntary, passive
conduit". If they could document they they started to take steps to
remove the sites in question and told the officer that they were, I don't
think any one would hold them liable. It's when they refuse to remove the
illegal material that they step over the line.
> That is if you can envision Judge A in County X allowing, say 30 days while
> Judge B in County Y sustains charges when no action is taken within 24
hours,
> then the statute is constitutionally flawed in my opinion.
Judges don't decide whom to charge and when to do it. Charging someone in
a crime is up to the descression of each officer aside from the statute of
limitations. Then it is up to the District Attorney's Office to decide to
prosecute or not. (Federally this may be different).
Based upon your above argument all criminal statutes are constitutionally
flawed.
> Further, what constitutes a ¨known child victim¨? For example, one of
the
A "known child victim" is exactly that. It is someone who was under the
age of 18 and was either photographed or video taped while engaged in a
"prohibited sexual act" (See Below) and this child is known to law
enforcement. The Nation Center for Missing and Exploited Children (NCMEC)
keeps a database of md5 hashes of such images. They can also recognize a
number of them by sight. In their database they have They names and ages
of the children as well as the police department who investigated the
original abuse.
> more interesting questions in this area involved the noted photographer,
Jock
> Sturgis who photographed nude families in France, including the minor
children. After a several yearlong nightmare where his archives and the
implements of his livelihood were seized, Sturgis was eventually
cleared.
> Would a server carrying his photos, prior to the resolution of the
charges
> against him create liability to the ISP? What if the photos in question
are
Naturalist photos are not in and of themselves illegal. As defined in
PACC § 6312. Sexual abuse of children:
"(a) Definition.--As used in this section, "prohibited sexual act" means
sexual intercourse as defined in section 3101 (relating to definitions),
masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd
exhibition of the genitals or nudity if such nudity is depicted for the
purpose of sexual stimulation or gratification of any person who might
view such depiction."
Remember the burden of proof is on the prosecution. Where "Naturalist"
photos are concerned, you have to look at the totality of the
circumstances to determine their legality. What other information is
found on the website/hard drive, statements the defendant made, etc..? I
wish criminal law was more cut and dry, but it's not and I don't think it
ever will be or could be. With that said there are a number of laws that
need to be updated/removed/added to the books.
I don't believe that the Buffnet/Dreamscape solely dealt with "Naturalist"
photos. Especially when the "Pedo University" was operating within these
newsgroups.
Pedophilia as defined by Merriam-Webster:
Main Entry: pe·do·phil·ia
Pronunciation: "pE-d&-'fi-lE-&
Function: noun
Etymology: New Latin
: sexual perversion in which children are the preferred sexual object -
pe·do·phil·i·ac /-'fi-lE-"ak/ or pe·do·phil·ic /-'fi-lik/ adjective
> not clearly purient? Is the ISP responsible for making these
assessments
> at
> its peril?
Yes. As we all are. If they feel something is questionable then they
should contact an attorney.
>Is the ISP bound by the opinion of law enforcement as to the
> illegality of the underlying subject material?
Of course not, but if you are ready and willing to refuse to take action
be prepared for the consequences.
I am sorry. I am trying to be understanding, but I really don't see why
were are arguing this. If the police come and tell you that you have
illegal child pornography on your servers and that you can remove it
voluntarily or your servers will be seized. You check and there are
pictures of children having sex, why would you not shutdown the site?
It's the same with pawn shop owners. Many of them unknowingly purchase
stolen goods and offer them for sale. But when the police tell them that
a TV is stolen and they can't offer it for sale, they don't tell the
police to get lost.
> I don't know the answers to any of these questions, but I don't think it
is as
> clear as you have stated it, and it is this very lack of clarity that
troubles me. Clearly the constitution prohibits criminal prosecution
when
> the prohibited conduct is not clearly defined. We can not be required
to
> speculate -- at our criminal peril -- whether our conduct may or may not be
> judged criminal after the fact.
If that was the case why do we need Judges and Juries? Thats what trials
are for.
Police officers are human beings not robots. We put are lives on the line
every day and have to make split second decisions that effect peoples
lives in both positive and negative ways. We also can make mistakes, we
all try not to but it does happen. We do the best job we can, but
ultimately it is not up to us. Judges and juries have the final say and
that is one of the great things about Democracy and America.
Jon
--
Trooper Jon S. Nelson, Linux Certified Admin., CCNA
Pa. State Police, Bureau of Criminal Investigation
Computer Crimes Unit
Work: 610.344.4471 Cell/Page: 866.284.1603
jonelson@state.pa.us
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