Karen Kraft
29
- Joined
- May 18, 2002
- Posts
- 36,253
The term “child pornography” generally refers to pornography featuring a child, however the precise definition of "pornography" and "child" varies by region and country. It is widely prohibited by law, and faces the disapproval of most members of society. Generally speaking pornography is “protected speech,” where “obscenity” is “unprotected speech.” Child pornography is “unprotected speech” and can lawfully be regulated by the government (U.S., for example) and/or by the States, to even a greater degree than “obscenity.” Since “community standards” tests are applied in the identification of obscenity, difficulties arise when trying to assign a useful definition in the internet/global environment. Internet jurisdiction is another issue, however, and I don’t discuss it here.
Globally: The definition of "child pornography" differs depending on what country you are in. Literotica.com serves people from many countries, so it is impossible to define what would constitute child pornography in this website. It is up to Laurel and Manu and their attorneys to determine what they will and will not permit. Most countries prohibit depictions of sexual activities involving children of a specified age (13-16, 13-18, 2-18, etc.). Some countries carry their definitions further and prohibit all depictions of nudity of minors, regardless of whether the minor is depicted in a erotic pose or engaging in a sex act. But other countries permit so-called “naturist magazines” with depictions of nude underage persons, deciding that these do not fall under the definition of child pornography.
Some countries prohibit written works, posted stories, poems, messages, etc. that explicitly describe or suggest sexual activities of minors. Simulated child pornography such as paintings, drawings, or computer-generated images, has been included in some countries' definition of child porn, but that law was ruled unconstitutional in the United States. It’s hard for many people to grasp the idea that “The First Amendment” is local to USA. I was once in a courtroom in London and a young man (the accused) refused to be questioned, asserting instead that he was “going to stand on the Fifth [Amendment to the United States Constitution – not the bottle he was carrying]. The age in which a person may legally participate in pornography varies from country to country, with some countries setting different age requirements, depending on the graphic nature of the work: one standard for hardcore, another standard for soft core pornography. In many (but not all) countries, depictions of underage sex are exempt from prosecution when they are judged to have artistic merit (Romeo and Juliet (the play and films), Lolita (the novel and films), and so on.
In the United States, child pornography is prohibited under both federal and state laws. Under federal law, child pornography is defined as visual depiction of minors (i.e. under 18 years of age at the time the depiction was created) engaging in any sex act (intercourse, oral sex, or masturbation, and “lascivious depictions of the genitals.” Various federal courts in the 1980s and 1990s have concluded that "lewd" or "lascivious" depiction of the genitals does not require the genitals to be uncovered. Thus, for example, a video of underage teenage girls dancing erotically, with multiple close-up shots of their covered genitals, can be considered child porn. United States vs. Knox, for example.
In the 1990s questions arose whether depictions of mere nudity of minors - such as those found in some nudist magazines and videos - were legal under federal child pornography laws.
A U.S. Supreme Court case in 1999 determined that mere nudity involving minors does not come under the federal definition of child porn, nor is it” obscene,” as the Supreme Court had ruled previously that mere nudity in and of itself does not constitute “obscenity,” for adults or children. This ruling does not specifically address state laws, which may differ.
What about membership websites with some sort of age verification scheme that don’t “monitor” and delete questionable or objectionable materials? Can they be shut down due to allegedly “obscene” posts? It depends:
In the U.S. context, if a website habitually has that sort of thing, it might lose its ISP “safe harbor” status. Similarly, if the operators of a website, or the servers that provide its hosting, receive communications informing them that legally objectionable materials are present on their website and they ignore those communications, they may also lose their “safe harbor” protections in the United States. Since prosecutions of local websites happen locally, it is by the local laws that the content is judged. That having been said, if the operator of a website says (or permits to be said) things that might be considered “obscene” or “blasphemous” or “indecent” under the standards of some other country (Saudi Arabia, Monaco, etc.) the website and server operators can be “cited” in those countries (who have no jurisdiction over them here) and be arrested and tried were they to venture to those countries. Unlikely, but it could happen.
U.S. so-called “safe harbor laws” try to protect websites and servers, as I said before, but the nature and extent of the safe harbor protection is extremely complicated, with some [Federal] District Courts saying one thing and others saying something entirely different. The battle will be won or lost on the copyright issue, long before the pornography issue; and the rules finally established with respect to safe harbor provisions in that context will most likely apply to child pornography, obscenity, and pornography as well. Needless to say, the reason the courts will hear those issues first is because they involve big companies and lots of money, not merely free-speech and expression rights. I doubt that there is a single circuit that does not have at least one [Federal] case involving the internet and safe harbor provisions. But I might be wrong. I almost always am wrong. Don’t listen to me: If you have read this far, too late.
----
An example of a “safe-harbor” law or provision [From U.S. (Federal) Codes]:
TITLE 47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
COMMON CARRIERS
COMMON CARRIER REGULATION
47 USCS § 230 (1999)
§ 230. Protection for private blocking and screening of offensive material
(a) Findings. The Congress finds the following:
(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
(b) Policy. It is the policy of the United States--
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
(c) Protection for "good Samaritan" blocking and screening of offensive material.
(1) Treatment of publisher or speaker. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of--
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
(d) Obligations of interactive computer service. A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
(e) Effect on other laws.
(1) No effect on criminal law. Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this Act [47 USCS § 223 or 231], chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code [18 USCS § § 1460 et seq. or § § 2251 et seq.], or any other Federal criminal statute.
(2) No effect on intellectual property law. Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
(3) State law. Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
(4) No effect on communications privacy law. Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
(f) Definitions. As used in this section:
(1) Internet. The term "Internet" means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2) Interactive computer service. The term "interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3) Information content provider. The term "information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
(4) Access software provider. The term "access software provider" means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
Globally: The definition of "child pornography" differs depending on what country you are in. Literotica.com serves people from many countries, so it is impossible to define what would constitute child pornography in this website. It is up to Laurel and Manu and their attorneys to determine what they will and will not permit. Most countries prohibit depictions of sexual activities involving children of a specified age (13-16, 13-18, 2-18, etc.). Some countries carry their definitions further and prohibit all depictions of nudity of minors, regardless of whether the minor is depicted in a erotic pose or engaging in a sex act. But other countries permit so-called “naturist magazines” with depictions of nude underage persons, deciding that these do not fall under the definition of child pornography.
Some countries prohibit written works, posted stories, poems, messages, etc. that explicitly describe or suggest sexual activities of minors. Simulated child pornography such as paintings, drawings, or computer-generated images, has been included in some countries' definition of child porn, but that law was ruled unconstitutional in the United States. It’s hard for many people to grasp the idea that “The First Amendment” is local to USA. I was once in a courtroom in London and a young man (the accused) refused to be questioned, asserting instead that he was “going to stand on the Fifth [Amendment to the United States Constitution – not the bottle he was carrying]. The age in which a person may legally participate in pornography varies from country to country, with some countries setting different age requirements, depending on the graphic nature of the work: one standard for hardcore, another standard for soft core pornography. In many (but not all) countries, depictions of underage sex are exempt from prosecution when they are judged to have artistic merit (Romeo and Juliet (the play and films), Lolita (the novel and films), and so on.
In the United States, child pornography is prohibited under both federal and state laws. Under federal law, child pornography is defined as visual depiction of minors (i.e. under 18 years of age at the time the depiction was created) engaging in any sex act (intercourse, oral sex, or masturbation, and “lascivious depictions of the genitals.” Various federal courts in the 1980s and 1990s have concluded that "lewd" or "lascivious" depiction of the genitals does not require the genitals to be uncovered. Thus, for example, a video of underage teenage girls dancing erotically, with multiple close-up shots of their covered genitals, can be considered child porn. United States vs. Knox, for example.
In the 1990s questions arose whether depictions of mere nudity of minors - such as those found in some nudist magazines and videos - were legal under federal child pornography laws.
A U.S. Supreme Court case in 1999 determined that mere nudity involving minors does not come under the federal definition of child porn, nor is it” obscene,” as the Supreme Court had ruled previously that mere nudity in and of itself does not constitute “obscenity,” for adults or children. This ruling does not specifically address state laws, which may differ.
What about membership websites with some sort of age verification scheme that don’t “monitor” and delete questionable or objectionable materials? Can they be shut down due to allegedly “obscene” posts? It depends:
In the U.S. context, if a website habitually has that sort of thing, it might lose its ISP “safe harbor” status. Similarly, if the operators of a website, or the servers that provide its hosting, receive communications informing them that legally objectionable materials are present on their website and they ignore those communications, they may also lose their “safe harbor” protections in the United States. Since prosecutions of local websites happen locally, it is by the local laws that the content is judged. That having been said, if the operator of a website says (or permits to be said) things that might be considered “obscene” or “blasphemous” or “indecent” under the standards of some other country (Saudi Arabia, Monaco, etc.) the website and server operators can be “cited” in those countries (who have no jurisdiction over them here) and be arrested and tried were they to venture to those countries. Unlikely, but it could happen.
U.S. so-called “safe harbor laws” try to protect websites and servers, as I said before, but the nature and extent of the safe harbor protection is extremely complicated, with some [Federal] District Courts saying one thing and others saying something entirely different. The battle will be won or lost on the copyright issue, long before the pornography issue; and the rules finally established with respect to safe harbor provisions in that context will most likely apply to child pornography, obscenity, and pornography as well. Needless to say, the reason the courts will hear those issues first is because they involve big companies and lots of money, not merely free-speech and expression rights. I doubt that there is a single circuit that does not have at least one [Federal] case involving the internet and safe harbor provisions. But I might be wrong. I almost always am wrong. Don’t listen to me: If you have read this far, too late.
----
An example of a “safe-harbor” law or provision [From U.S. (Federal) Codes]:
TITLE 47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
COMMON CARRIERS
COMMON CARRIER REGULATION
47 USCS § 230 (1999)
§ 230. Protection for private blocking and screening of offensive material
(a) Findings. The Congress finds the following:
(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
(b) Policy. It is the policy of the United States--
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.
(c) Protection for "good Samaritan" blocking and screening of offensive material.
(1) Treatment of publisher or speaker. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of--
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
(d) Obligations of interactive computer service. A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
(e) Effect on other laws.
(1) No effect on criminal law. Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this Act [47 USCS § 223 or 231], chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, United States Code [18 USCS § § 1460 et seq. or § § 2251 et seq.], or any other Federal criminal statute.
(2) No effect on intellectual property law. Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
(3) State law. Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
(4) No effect on communications privacy law. Nothing in this section shall be construed to limit the application of the Electronic Communications Privacy Act of 1986 or any of the amendments made by such Act, or any similar State law.
(f) Definitions. As used in this section:
(1) Internet. The term "Internet" means the international computer network of both Federal and non-Federal interoperable packet switched data networks.
(2) Interactive computer service. The term "interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(3) Information content provider. The term "information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
(4) Access software provider. The term "access software provider" means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
(A) filter, screen, allow, or disallow content;
(B) pick, choose, analyze, or digest content; or
(C) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.
