On Mon, 22 Jan 2001, Blank Frank wrote:
Jan 22, 2001 - 10:29 AM
Justices Will Review Ban on Virtual Kiddie Porn
The court said it will hear the government's argument that by banning sexual images that do not actually portray children, a 1996 law "helps to stamp out the market for child pornography involving real children."
Which, actually, I'm reasonably sure it does. But only by making the posession of such pictures a very serious legal risk. This argument says, "as long as we are jailing people for having these images (and subjecting them to public humiliation and ostracism via 'sex offender notification' laws when they get out), a fair number of people who might otherwise want to have them won't consider it worth the risk." Now that may be killing a *market*, but it doesn't have a damn thing to do with killing *demand*. This gets at something that I think is a very general principle; they wanted to get the suppliers who were abusing kids, fine. They decided that in order to get the suppliers they'd have to destroy the market, so they made posession of kiddie porn illegal -- This is already overstepping bounds, because there were less restrictive methods available. They could have made the posession of kiddie porn produced *after a particular year* illegal, for example. But then they got so eager to kill the market that they made posession of anything which *appears to be* kiddie porn illegal.... which had no effect whatsoever on the suppliers who were abusing kids in the first place. They lost sight of the fact that killing the market was a means to an end in the first place, and not an end in itself. Now, I think that there is a fundamental legal principle here, which is that every time you pass a law you ought to know exactly why you're passing it. Every law ought to be passed pursuant to some clearly stated principle or set of principles, and the admission of new items to the set of principles that are considered just basis for law ought to be very carefully considered. There's probably a fancy latin term for this, but I don't know what it would be. Anyway, what has happened here is that there was a law passed (against kiddie porn) on the principle that we ought not allow people to profit from abusing kids. And then a second law was passed (against CG pseudo-kiddie porn) on the principle that we ought not allow kiddie porn (a simplification or wilful misinterpretation of the purpose of the original law). Basically, a new principle got elevated into the set that laws can be passed to uphold, without anybody actually stopping and thinking about it and making a decision. And a bad law resulted. There is a fundamental rule here, which is that in a society governed by law you have to make decisions about and keep track of what principles laws can be passed to uphold. In the long run, given the availability of crypto, any laws against posessing some particular flavor or type of bits are doomed to be unenforceable. But still, that rule will always be with us, and while it remains unrecognized (or unimplemented) by governments, "regulatory creep" will continue to advance by the passage of bad laws. Bear