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Teenager Who Reads News Online? According to the DoJ, You May Be a Criminal (eff.org)
195 points by sp332 on Apr 3, 2013 | hide | past | web | favorite | 145 comments



Minors cannot enter into binding contracts, so the parts of the terms of service that specify a code of conduct, waive liability, etc. are not enforceable. Minors are legally toxic because of this, and no self-interested American business would ever knowingly interact with a minor online.

Conveniently ignored in all the stories about teenage whiz-kids who make money off internet businesses is that they are invariably committing federal felonies. There is not a single payment processor that doesn't require its users to be 18. Apple's developer program also requires its users to be 18. So does AdSense. These services also require users to input a birthday, so the minors using them needn't worry about "hacking" charges - they've committed fraud.

Obviously we need to fix the legal situation that makes this necessary, but that's why. (And because my parents follow rules, I wasn't allowed to do anything vaguely entrepreneurial on the internet until I turned 18).


That's false. Minors can enter into binding contracts, however contracts cannot be enforced against minors (but the minor can enforce the contract). Indeed, if this was not the case, there would be no child actors, singers, athletes, endorsers, etc.

If you want to enforce a contract involving a minor against the minor, you need to get the parents to sign, because the enforcement action would proceed against the parent, not the child.

It's unfortunate that your parents misunderstood basic contract law. Maybe if they had spoken to a lawyer, you could have avoided delaying your entrepreneurial ambitions.


>however contracts cannot be enforced against minors

Which is why businesses don't like them, and put provisions in the contract to prohibit minors.

My parents would have let me enter a contract had one been available, but because businesses knew they could never use the contract to their advantage (and against me), they wouldn't make one in the first place.


> Conveniently ignored in all the stories about teenage whiz-kids who make money off internet businesses is that they are invariably committing federal felonies.

Or, y'know, they've had their parents sign up for such things for them. That's what I did.


But they still agreed to a terms of service which prohibits sharing account credentials with the intent to break that agreement. (There could be a service that doesn't, but "no account sharing" seems to be boilerplate in ToS documents).


Or they don't share account credentials. Many parents wouldn't let their children anywhere near something with their banking details in it.


Then your parents must have been technically competent enough to work with Paypal's API or the App Store. Which is pretty rare.


I haven't used a developer account on either PayPal or the App Store. However, it's not that difficult to shoulder-surf and copy down an API key.


That's silly, am I breaking the TOS if I pay a contractor to setup the API for me?


Stripe's TOS appears to say nothing about sharing credentials, but PayPal explicitly disallows sharing passwords.


How did you make the leap from "account credentials" to "banking details"?


Payment processors need some place to send the money to; therefore, often (though I suppose not always), such accounts will have banking details linked to them.


Not at all. Many logins don't have cards associated with them. Even my iTunes account is solely powered by gift cards.


iTunes is not a payment processor for business transactions.


Right! So we agree then.


As someone who legally sold a business as a minor (still a minor today), you are mistaken. Take a look at this article: http://en.wikipedia.org/wiki/Emancipation_of_minors


Emancipation is a pretty drastic step that most families would never consider.


Not really. I still live with my parents to this day - all it means is that I become an adult in the legal sense of the word and any contracts I sign are binding and nonvoidable.


Don't you have to prove that you're economically independent? I think that's how it is in Wisconsin.


They way it was explained to me is that I had to prove I was capable of providing for myself - not necessarily that I was receiving no financial support from my parents.

The law in WA (http://apps.leg.wa.gov/rcw/default.aspx?cite=13.64&full=...) reads "the petitioner [must indicate] that he or she has the ability to manage his or her financial affairs".


After both his parents had died, Howard Hughes got himself emancipated at age 19 (in 1924) so that he could take over the family business.


Hang on,so you cannot open a bank account before you are 18 in the US? In most EU countries you need to be 13 to open your own bank account.


Nope. You can have access to an account with your name on it, but it needs to be held jointly with an adult (typically a parent) and they have to accompany you to the bank and give permission to open it.


We just opened a checking account for our 17 y/o daughter.

To be specific, the account must be opened in the minors name with a legal parent or guardian as a co-signatory.

Either way, you're right. Minors can not, in the United States, enter into a legally binding contract. They can't even legally purchase a car as there is an implied or express purchase contract.


Minors can enter into a legally binding contract in the U.S. However, the seller in a purchase contract cannot enforce a contract against the minor if the minor does not pay (though the minor can enforce the contract against the seller if the minor pays but does not receive the purchased item, i.e., the car). The purpose of making the parent a co-signatory to the contract is to enforce the contract against the parent if necessary.


Correct. Technically, the contract is voidable by the minor in most cases. There's exceptions, and state rules come into play. For instance, I believe, in CA if a minor misrepresents his/her age, then the contract can not be avoided. In IL, I believe, that's not the case, the contract can still be avoided.


Yep. A Wisconsin auto title has a "parent signature" line - your parents must give you permission to hold the title for a car you purchase with your own money.


.....nothing is going to surprise me about the US anymore.


A bank savings account has no liability, so I was able to open mine when I was 15 or so without any parental involvement.

A bank checking account has all kinds of interesting legal issues WRT bounced checks, so I couldn't open my checking account until after my 18th birthday. Also no credit cards until I was 18.

Nothing defines arbitrary and capricious like our financial and legal systems, so this could have changed last week, probably to "protect us from the terrorists" or "save the children".


At my bank, they won't touch you without a parent if you're under 18. A lot of 12-18 kids "have" savings accounts but they're custodial - they're the child's in name only, and only parents have withdrawal privileges. The tellers seemed confused every time I had to tell them that yes, I do have permission to withdraw my own money.

Only one of my friends was allowed to use their bank account - for everyone else it was college savings only, and all spending money had to be cash.

With my parents' permission, I was able to have a debit card (which processes in the payment network like any MasterCard but has no line of credit) attached to my checking account at 17.


IIRC, when I got a bank account at 15 or so, my parents had to go with me to the bank and they had to also have their names on the account.


How I love crazy interactions between laws and the unintended consequences.

And laws related to children are seemly really prone to that, like the prohibitions in taking photos of naked minors, that had three important results in my view:

One, allow stupid cases, like ones that DO happened in the US, where for example a 15 year old girl was prosecuted for giving photos of herself to her boyfriend (also a minor).

Two, makes illegal to take photos of some real crimes, for example if you take a photo of a guy raping a minor girl in a park and hand to the police, you can still be prosecuted for taking the photo.

Three, meddles with human sexuality in ways that few people understand, although many people now believes that people below 18 are incapable of having sex with responsability, I refuse to believe that my mother (met my father when she was 15, they are still married) or my grandmother (married my grandfather when she was 14, they are still married and VERY happy) were some sort of stupid children that did not knew what they were doing.


In this case however, and in two of the examples you mentioned, these are no "unintended consequences".

The laws are deliberately broad to allow the interest groups that lobbied for it to basically lay down the law without pesky democratic interference.

In this case, it's corporations that want to arbitrarily add new restrictions they haven't even thought of yet (or perhaps have already), so they want a broad law they can later redefine and apply as they please. Making breaking the terms of service crime allows them to do that. It basically allows them to write their own laws, including absurd ones.

In two of the examples you've given we're talking about laws that have be devised by people that want to enforce a repressive sexual morality on society. It absolutely is their intention to make any sexually oriented activity by anyone under 18 illegal.

And the sick part of it is, that by making it illegal in practice, they slowly manage to convince the rest of society things that used to be perfectly normal and harmless are now Very Bad Things(TM), which in turn allows them to push even further. See also: the history of copyright.

This currently happens in every Western country. We are considerably less free than the previous generation, and things are getting worse. This is not "unintended", there's a method behind it.


Very well put, I agree with every word. Yes, it is definitely intended, including the following:

'And it’s no excuse to say that the vast majority of these cases will never be prosecuted. As the Ninth Circuit explained, “Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.” Instead of pursuing only suspects of actual crimes, it opens the door for prosecutors to go after people because the government doesn’t like them.'

People lobbying for these laws and the legislators passing them are not stupid. They are as well aware of the above effect as the Ninth Circuit or anyone else. You really have to question their intentions before it is too late.


I agree. It's a shame legislators don't see this sort of thing in the same light as the court described in the article. Laws like this have far reaching and sinister consequences.

This sort of problem is summed up nicely in the original post - "As the Ninth Circuit explained, “Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.”"


I'm not so sure about not seeing it in the same light. It's more likely that they either don't know or worse, don't care.


I think it has more to do with their priorities. They want to be reelected, which has become less a matter of policy stance and more of financing campaigns.


While I agree with the gist of your post, I don't think it's correct to say there are no "unintended consequences". For some, most likely including those who originally introduced or lobbied for the law, the consequences may be entirely intended. Even so, there were many people that had to examine (to a large or small extent, depending) the law before it was ratified, and I think it's likely not all of considered or wanted all the consequences.

I think that's an important distinction to make (it's not every legislator that's a corporate shill or working to repress an aspect of free choice based on their own perceived moral superiority).


The lawmakers who passed the CFAA generally assumed that computers were industrial equipment, and that computer networks were like the railroad network. It was still assumed that home computer access would be in the form of online services and thin clients, and that PCs were just a hobby (if they had even heard of PCs). To them, unauthorized use of a computer was the equivalent of stealing a freight train.

None of the consequences of the law were unintended. The lawmakers never gave any thought to the idea of hackers being something other than criminals. The idea of PCs being the dominant mode of computing remains foreign to most of our lawmakers, who think that their laptops, desktops, and tablets are just terminals used to connect to industrial systems. Killing the hacker spirit is not unintended; the law envisioned a world without hackers at all.

It is still assumed by those in power that programming is something you do for pay (and for the maximum pay you can find), that source code is a valuable industrial secret, and that the Internet is divided into "clients" and "servers" (i.e. it is just a shadow of the world, which is "producers" and "consumers"). Sure, there are "hobbyists" out there who play with computers, but the serious work and the dissemination of technology is done by industry. It is the same worldview that says that research can only be done by those with an affiliation and that legal documents can only be read by lawyers (hence the prosecution of Aaron Swartz).


This is really simple. Unless you think every legislator that voted to ratify this believes that the outcomes posited by the article are valid, correct, and without problem, then there are unintended consequences. That is, literally, a consequence of the law they didn't intend.

Do you really think that every legislator has no problem with any eventual use of this law?


> devised by people that want to enforce a repressive sexual morality on society. It absolutely is their intention to make any sexually oriented activity by anyone under 18 illegal.

A little off topic, but I just have to ask, at what age does it go from repressive to appropriate?


At the age where harm is seen. A bit of retroactive analysis may be necessary at first.


>We are considerably less free than the previous generation

This is patently false. The internet and other technologies have opened up massive vistas of freedom. Your bunker siege mentality, exciting as it may be, is an illusion.


The internet and other technologies have been followed directly by new, repressive laws that make what was legal before illegal, and criminalized what used to be mere misdemeanors.

It has also increased surveillance on all citizens to a point former East European totalitarian regimes could only dream of.

They only freedom we've gained it the freedom to globally bitch about it. Any action we may actually take with the help of the internet is rapidly being criminalized. Those "massive vistas of freedom" are just a matter of inertia.

This "bunker siege mentality" is not an illusion when every week new measures and laws are introduced to take away freedoms we used to have 25 years ago.


While the internet has liberated many aspects of humanity (communications, publishing, artistic and scientific collaboration, etc.) there has been diminishment of meatspace freedoms, in some cases as a direct reaction by the former captors.


I'm guessing you're not black, are you? Were your Japanese parents placed in an internment camp during WWII? Were you a communist in the McCarthy era?

It's not that we have less freedom now, it's that freedom is different. Now, we torture people and hold them indefinitely in Guantanamo. We spy on our citizens. We still haven't overcome racism or sexism. But there are definitely areas where we've improved greatly.


Perhaps "considerably less free" was meant to refer to the enormous increase in this country's prison population over the past few decades. That increase was driven by a ballooning legal code, vast expanses in law enforcement power, and a general disregard for the most important civil rights in this country. While most non-prisoners walk about freely, as though they are entirely innocent, it is nearly impossible for any US citizen to claim that they have not committed any felony offenses.


Prison population is driven almost entirely by a few drug prohibitions and general poverty issues, not a ballooning legal code.


They mean 'negative liberty,' you mean 'positive liberty.'


>I refuse to believe that my mother (met my father when she was 15, they are still married) or my grandmother (married my grandfather when she was 14, they are still married and VERY happy) were some sort of stupid children that did not knew what they were doing.

Your parents and grand parents grew up in a time when divorce wasn't culturally acceptable and likely just "toughed it out".

http://divorce.lovetoknow.com/Historical_Divorce_Rate_Statis...


Sorry, I don't think your information is useful. Admission is data relating to divorce rates of people that were married in their mid teens. The yearly marriage and divorces tallies you're offering include quite a bit of "churn" from the subset of serially married. Particularly since the overall number of marriages per year has decreased significantly despite population growth.


I recall one study that showed that simply the pressure of marriage was the source of many divorces. Perhaps the pressure that comes with marriage has changed over the years and couples of older times felt less of a need for divorce?


A divorce is never a good thing, certainly not if children are involved. But toughing it out is not an option either. Marriage is a human decision and we are known for making mistakes, aren't we? And if we did make a mistake, we have to rectify it or try to rectify it.

Over the time, the increase in divorce rate has has a lot to do with (personal) freedom, education and exposure especially of women; and not to the mention the era of women-emancipation and after.

Each period in the article correlates with women's status in society at the time, and is mentioned in there.

It would be interesting to know what were the % of divorces where women initiated it(it's recorded, right?).


Women initiate about 70% (or more) of no fault divorces.

http://www.divorce-lawyer-source.com/faq/emotional/who-initi...

Unfortunately the link does not provide further link to sources, but it claims it comes from US census.

I had seen the US census links, and it is correct, also the same is true in Brazil (our laste census resulted in also about 70% of women initiating divorce with no provided reason). Later if I have time I will edit this post to post the census links.


These laws also outlaw the sorts of pictures my parents have in their house -- photos of my sister and I splashing around naked in the kitchen sink when we were infants.


IANAL but I don't think those pictures would qualify as CP under the law (in the US), unless they are "suggestive" in nature.


Maybe, but the fact that the standard is so completely subjective is extremely troubling. Equally troubling is that the law covers cartoons and even written text.


>Equally troubling is that the law covers cartoons

There actually isn't very good legal precedent for this yet. In each case where someone was convicted of possession of CP involving cartoons and drawings, there has also been possession of photographs, with one exception. In that exception, the defendant plead guilty. However, even in that case the judge ruled that the "visual depiction of any kind" part of the law was unconstitutional.

>even written text

I am pretty sure that's false. Do you have a citation?


The PROTECT Act of 2003 criminalizes written text that is meant to cause someone to believe that any material is child pornography; this is the "pandering" provision. The Supreme Court overturned an appeals court decision that found that clause to be unconstitutional, paving the way for prosecutions over something as simple as telling someone that a link will lead to them child pornography (which, in fact, was what the case was about). To put it plainly, if you email me random numbers and claim that they are an encrypted child pornography image, you are a felon.

https://en.wikipedia.org/wiki/PROTECT_Act_of_2003

https://en.wikipedia.org/wiki/United_States_v._Williams

It is also not the case that only one person has been prosecuted over cartoons but no real child pornography; there have been at least two notable cases so far (and likely others that have not made the news):

http://www.sankakucomplex.com/2008/10/24/american-faces-20-y...

http://comipress.com/special/miscellaneous/down-the-slippery...

Really though, even if we ignore the fact that here in the United States we are talking about illegal cartoons, my point was that the law is not meant to protect minors. It should be clear from the fact that no minors are involved in the creation of such cartoons that that is the case. The point of these kinds of laws is to increase the power of the police to conduct searches or to arrest people, and to give prosecutors more power in plea bargaining and at trial.

The theory behind this kind of law is that the police are too limited by things like civil rights, and that prosecutors are too limited by our justice system; therefore, more laws must be passed to compensate for such restrictions on executive branch power. The way our politicians view this issue, if prosecutors are unable to convict lots of people for possession of child pornography because of constitutional restrictions on evidence gathering or the fact that defendants are allowed to actually defend themselves in court, then the prosecutors must be allowed to tack more charges on. After all, if a prosecutor is unable to build a strong case for one charge, they might still be able to convict a person by building a weak cases for multiple charges. If a defendant believes they can successfully defend on charge, they might not believe that they can successfully defend many charges and will thus forfeit their civil rights and just take a plea bargain.

This is a troubling attack on our most important rights. The fact that we cannot be arbitrarily thrown into prison is one of the things that makes America a great country. Every expansion of police and prosecutor power etches away at that fact and attacks our rights.


There is some information I did not know about there. However, regarding this:

> It is also not the case that only one person has been prosecuted over cartoons but no real child pornography; there have been at least two notable cases so far (and likely others that have not made the news):

The Hadley case is the one that I was referring to where he plead guilty. In the Whorley case, he was in fact found to have "14 digital photographs depicting minors engaging in sexually explicit conduct" (http://caselaw.findlaw.com/us-4th-circuit/1431669.html)

As for there being other cases that haven't made the news, I doubt it. This is something that free speech advocates are paying close attention to, after all.

In any case, I agree with the rest of your point.



The latter link apparently involved pictures of the man kissing his son's genitals. As for the former link, can you find any citation on the actual outcome of that case? Because I can't.


>for example if you take a photo of a guy raping a minor girl in a park and hand to the police, you can still be prosecuted for taking the photo

well, that is just wrong. what if it is an unmonitored security camera?


In the US recording child pornography usually carries a larger penalty than raping a child. Imagine walking through the park at night with Google Glasses on, recording what you see. And there is a rape going on - congratulations, if you go and report it to the police, you "might" be put in jail for longer than the rapist. Unlikely? Maybe - but it's completely within the law.


Not only is that unlikely, but it's also false because the recording is inadvertent (and thus, the intent element of the criminal statute cannot be satisfied).

However, the intent element would be satisfied if you keep the recording without informing the police and giving them the recording ASAP. Furthermore, you would not be subject to a longer sentence than the original perpetrator, since the original perpetrator will almost certainly be subject to civil commitment statutes for sexual offenders that keep imprisoned indefinitely beyond his original sentence (Pedophilia is considered a mental disorder, and ephebophilia is also considered a mental disorder to a lesser extent, by the DSM 4.)

Source: I am a former criminal defense lawyer.


>(and thus, the intent element of the criminal statute cannot be satisfied). >Source: I am a former criminal defense lawyer.

You should know that statutory rape and child pornography criminal charges are unique in criminal law, in that they are strict liability crimes, and they do not require criminal intent.

In other words it is not enough that for a Defendant to claim lack of intent and prove the minor produced a ID showing they were 18 before having sex and/or before being photographed/filmed.

http://en.wikipedia.org/wiki/Strict_liability_%28criminal%29


Before you cite Wikipedia as a source,you should be aware that SR is one of very few unique exceptions to the intent requirement for criminal statutes. Also, the Wikipedia cite does not support your argument.

CP is not uniquely excepted -- you must have the intent to possess the content that is CP for it to be a crime. If some other person acquired CP and left it on your computer (for example, in a real case but not one of mine, a grandmother's computer was filled with CP left by her nephew was not guilty of possession of CP), you are not guilty of possession of CP. I won a case in Cali on these very grounds.

BUT...what I think you are referring to is that you do not need to intend for the content to be CP. That is, if you make a video which is, unbeknownst to you CP, the intent to possess that video is sufficient. In that regard, it CP possession is similar to SR in that it is "strict liability" with regard to one of the elements. However, it would not apply to the original situation--the witness does not intend to possess the video beyond the length of time necessary to get it to the police...and indeed, destruction of the video could be deemed destruction of evidence!


>Before you cite Wikipedia as a source

Are you serious? Look at your OP, your site was yourself:

>Source: I am a former criminal defense lawyer.

Additionally, your reply is regarding CP - to my post which was about SR. In another post I replied to a question about CP, in which I stated CP is not strict liability (unlike SR), that possession is a much more complex analysis than people think, and even noted the "blind eye doctrine".

>However, it would not apply to the original situation--the witness does not intend to possess the video beyond the length of time necessary to get it to the police

Speaking of citations...

In 2007 I wrote a draft Romeo and Juliet Law for the Florida Legislature (did not get passed), but it was presented at various CLEs. It was tailored to protect minors from ending up on the Sexual Offender List for life (among other post conviction punishments of minors). To that end minors are charged and convicted in Florida regularly for receiving unsolicited mass texts messages of other naked students in their school and the charges generally start with the student who whistleblows and sometimes ends with the victim charged. The facts are similar to your Park hypo where the possession was unintentional and the material is generally immediately turned over to authorities.

You better believe anyone turning in any video that includes a minor having sex, no matter how brief or unintentional, will immediately be read their Miranda rights and if a prosecutor with ice in their veins wants to charge you, they have the discretion and they will happily present evidence of a video that includes a minor having sex and evidence it was in your possession.


That is not the same thing as inadvertently recording a crime in a public place, which is what the grandparent was describing.


It is not the same thing but it demonstrates the same point that under these charges Criminal Intent does not need to be proved, unlike most any other criminal charge.

I suppose I did not need to use a different hypothetical, but I thought it would demonstrate the point about intent, bc in my hypothetical the Defendant could not have had intent when a minor produces an ID that says 18, ie. how can you intend to have sex with a minor if you believe the individual is 18? You can not intend it, at least legally and I specifically used a hypothetical that creates some culpability on the minor, producing a fake ID, but even that is not a defense because that only goes to intent, the actual crime still occurred.

Back to the original hypothetical, keep in mind we are not talking about recording a crime in a public place, it is much more specific we are talking about recording statutory rape in a public place - there is no defense regarding intent bc it is a strict liability crime. Moreover, it does not matter it was inadvertent, a mistake or anything else if the video exists and you recorded your intent, or lack thereof, is not a valid defense to a strict liability crimes.


Let me compare it to something else - let's say you have a charity collecting clothes. If somebody dropped a bag full of cocaine into one of your collection depos, and you called the police to say that this has happened, it is purely because of some little remains of common sense that you would not be charged with drugs possession. But under the letter of law, you could be.

If your camera records a rape of a child, then under the letter of law you are guilty of recording and possession of children pornography, no matter whatever you wanted to record it or not. Sure, most of the time judges will exhibit common sense about this, but it's a problem that if they wanted to, they could make you do jail time and it would be entirely within the law. Laws that are ambiguous and that can stretch depending how the police/judges see you,are the worst, it should be changed.


You know how things work in the "real world" of law, but for those of us that are not lawyers, these things are extremely scary.

Also, while the perpetrator might stay in jail longer in this hypothetical scenario, the fact that the other person might have a longer sentence is screwed up.

I don't live in the U.S., but I tried to be involved in politics in my country and have even sent a bill to our parliament :) (which is mothballed somewhere :P ).

I believe both the U.S. and my country would be better served by less laws and clearer ones (for cases such as this). In the U.S. Judges and juries seem to have more leeway, at least (as your example implies).


I read somewhere that possession of CP is like possession of cocaine - both are crimes purely because you have them, regardless of intent:

"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."

But then, you are a lawyer,not me.


The first time I accidentally push down vote instead of up...Sorry.

>I read somewhere that possession of CP is like possession of cocaine - both are crimes purely because you have them, regardless of intent:

Possession of drug charges are not strict liability - in fact possession is actually a much greater legal analysis than one might think - for example, the are different types of possession legally (constructive or actual). Additionally, do not think you can beat the legal system by having someone else hide drugs in a vehicle and then you drive it not knowing you have possession, because there is a doctrine that prohibits someone from denying criminal intent under a willful blind eye (Willful Blind Eye Doctrine).


As noted above, you guys are both right (and wrong) regarding intent.

Intent applies to every material factor of the crime, for most crimes. Thus, for cocaine possession, you must (a) intend to possess the substance at issue, and (b) you must know the substance at issue is cocaine. If intent is not met for both of those factors (aka sub-elements), then intent has not been proven.

For SR, it's different. You must have intended to commit the sexual acts at issue. However, intent is not required as your knowledge of the age of the other party. In that sense, SR is strict liability. But note--many legal scholars and judges are of the opinion that SR as a strict liability crime is unconstitutional. For CP, the issue, as discussed in another comment, is similar--the intent to possess is a required element, but not knowledge that the possessed content is CP (though some states require intent as to both).


Please stop calling it child pornography. These are images of child sexual abuse.

Actually, I'd prefer it if people stopped spreading hateful lies about how acceptable images of child sexual abuse are, and how this abuse causes no harm, and how it should be fine for people to make and possess and distribute these images of abuse; and if they stopped spreading FUD about how taking a photo of a man raping a child to give to the police would mean you'd be arrested, but I realise that apologists for paedophilia[1] are very vocal on the Internet.

> In the US recording child pornography usually carries a larger penalty than raping a child.

Do you have any citations for this? Specifically, a crime where a person has been given a longer sentence for recording images of child sexual abuse when that did not also involve carrying out the child sexual abuse?

[1] don't fucking dare try to start with the ephebophila nonsense.


>Please stop calling it child pornography. These are images of child sexual abuse.

Under the law, what is defined as "child pornography" extends far, far beyond actual images of child sexual abuse. A teenage girl taking a nude picture of herself in a suggestive pose, for example, is not a child being sexually abused. But the law still considers that child pornography.

>and how this abuse causes no harm, and how it should be fine for people to make and possess and distribute these images of abuse

Can you show me one example of someone on HN (with an un-hellbanned account) claiming that child sexual abuse is harmless, or that producing non-simulated images depicting sexual abuse is fine?


Afraid I'm not following you.

What's the issue with using "child pornography" to denote "images of child sexual abuse"? It's not like child pornography has undergone some fluffy rebranding that makes people go "oh yeah that's cool!"

If anything, "child pornography" will probably set off a quicker, harsher reaction than "images of child sexual abuse." The latter is almost clinical in its approach: people will spend a couple seconds parsing it to try to figure out what it means, while child pornography evokes a very visceral, gut reaction. Using your preferred phrasing seems weird enough that, if not for your context, I might assume the user was trying to create a subcategory of child pornography that's real "child sexual abuse," implicitly also creating a complementary subcategory of some kind of legitimate child pornography that's somehow not abusive.

Obviously not what you're doing, so what's the motivation, here?


>don't fucking dare try to start with the ephebophila nonsense.

You sound like someone who spends a lot of time in the SRS bubble on reddit (I see this argument from them all the time). In that same vein I would just like to point out that its rather ironic that people who spend their time analyzing social issues to death in attempt to tease out nuance and increase understanding of complex issues (e.g. I've only ever heard the term cisgendered on reddit) would balk at an increased understanding of human sexual deviances. The fact is ephebophilia is clinically and socially distinct from pedophilia. Anyone who refuses to recognize the distinction is doing so for purely political reasons. Someone who would chastise one for using the term ephebophilia, while in the next sentence shove the term cisgendered down another's throat, seems absurdly self-serving.


If you want to complain about Reddit, could you please do it on Reddit?


I don't really see it as a complaint about reddit. I'm complaining about a sentiment that he seems to be supporting, which I've only ever seen on reddit. My response was informed by the assumed connection to reddit.


From primary school on, you must be aware that if you bring a problem to authorities like teachers or law enforcement, and you can be implicated in any way, that you are likely to personally pay for that even with the best intentions on your part


There you go, I am not making shit up as I go, but read articles in other places on the Internet too: http://falkvinge.net/2012/09/07/three-reasons-child-porn-mus...

The abuse carries harm. The images however,do not. If they did, how would it be legal(as it is) for me to download a video of two guys killing another one, stabbing him in the eyes and the throat with a screwdriver? This is also a video of a crime, yet one is legal and the other is not. I tend to agree with the article I linked here - it's because we(as a society) would rather make the very existence of information illegal, because it does not go well with our morals, and not because it's a logical thing to do. Ban on cp is actively(as in - right now) stopping predators and criminals from being caught.


Child porn is illegal because the desire for possession creates a market demand, and that demand gives reason for people to commit the abuse crime in the future. If nobody consumed child porn, there would be no reason to produce it – at least that is the theory. I'm not sure how we got to the point that possession is demonized more than the act though, as you are right, mere possession cannot really hurt anyone, though there is probably an argument to be made about the embarrassment one feels from being watched by strangers.


"Child porn is illegal because the desire for possession creates a market demand, and that demand gives reason for people to commit the abuse crime in the future"

That was the dubious argument made decades ago, when the only way to obtain pornography of any kind was to purchase it. In today's world, it is far more common for people to download child pornography without ever having paid for it. People are arrested for downloading such videos from peer to peer file sharing networks all the time, almost always without any evidence that they paid for it, knew who made it, or were in any way encouraging its production. Just having child pornography in your browser cache is sufficient to be charged in New York.

It is clear at this point that the purpose of child pornography law is not to protect children, but to punish adults regardless of whether children are involved. It is illegal to possess cartoon depictions of child pornography, even if you possess no other imagery:

http://io9.com/5272107/manga-collection-ruled-child-pornogra...

http://www.comicsalliance.com/2011/06/27/u-s-citizen-arreste...

Like most laws that increase police power, this has gotten completely out of control and put the public in danger.


I'm not sure how money plays into this. People create things for free all the time just because the are happy to know others are taking something from that work. See: Open source software, YouTube videos, comments on HN, to name a few.


You cannot talk about a market without talking about trade; in the original context of the law, money was traded for child pornography, and that was the entire justification. Open source, Youtube, and HN comments are not a market.

It is important to remember that child pornography is evidence of a crime. People do not send that evidence to others without receiving compensation of some sort; the knowledge that others are looking at the images is knowledge that they have evidence of the crime. The people who commit crimes against children are very secretive, and those who produce child pornography often go to great lengths to remain undetected. It is clear from what is known about online child pornography exchanges that trade of some kind is occurring, often serving a dual-role of compensation and of filtering out law enforcement officers.

That is the real issue: these people know that once their photos and videos spread around, the police will become aware of them. Rather than knowing that people enjoy their work, what the producers of child pornography know is that their work can lead to their arrest. They are exchanging it because they are receiving enough in return to justify such risks.

The original legal justification for the censorship of child pornography was to remove that compensation, since the police were having so much trouble locating child pornography producers. My point is that that justification is now badly in need of review, because the majority of people guilty of child pornography possession did not compensate the producers in any way. I have no problem with raids on forums where child pornography is exchanged quid pro quo; my problem is with raids on people suspected of downloading child pornography from peer to peer networks or third/fourth/fifth/etc. hand websites that are many levels removed from the producers. At the very least, prosecutors should be required to show that the imagery was paid for in some way, whether by barter or with money.


This is one of the best examples of how stupid these laws are that I have seen so far.


If that were the case, the why are simulated images also illegal?


As with most laws, the intent is usually lost along the way, leading to rulings that have nothing to do with the original reason for writing the law in the first place.

I have vague recollections of the case that decided that simulated images were legally equivalent to the real thing. It was a pretty hot topic at the time with a lot of debate going on. Had the people involved come with a different interpretation of the law at the time, I don't think it would be considered illegal today.


Possession of child porn is illegal in part because it gives the police a tool to compell possessors to help them find the creators--which is who they really want to catch.


Sorry, but this is an incredibly dumb argument(no personal offence meant). If you(or anybody else here) went on 4chan at the moment when somebody happened to post child porn, your very first reaction would be to wipe your history, so you could not be charged with possession, even though you did not want or meant to see these images. If just merely seeing them(so technically - downloading to your computer) were not a crime, more people would actually go out and report them to the police, which increases the chances of actually catching the producers of these materials.

And as it has been mentioned before - possession of CP was made a criminal offence back when the only way to get it was to pay for it. Nowadays, you can easily find it online, for free - without knowing who created it. So making it illegal is by no means helping anyone catch producers of child porn. It's not like making cp legal would suddenly make it ok to rape children.


You might think it is dumb, but it has repeatedly proven itself to be an effective tool for piercing criminal networks.

Police don't need people to report CP on 4chan--they can easily monitor 4chan themselves. (or any other public site)

It's useful when they find thousands of photos and videos that are recent and not publicly available, on a person's HD. Since possession is a crime, they can plea that person into turning over their supplier, then roll him too--hopefully traversing the network to find the person who is actually making the photos and videos.


Maybe,but it has also proven effective in putting people who are not child molesters in prison for child porn. They should be helped,not criminalized - it's people who actually harm children who should be put in jail for the rest of their lives. And years ago you could only buy it from others - and that's why this technique of making possession illegal is so effective against drug dealers. If possession of drugs is a crime,then you can always demand to know who is the dealer, from the person doing cocaine or whatever. The problem is,that this doesn't really work against cp - sure, maybe 20 years ago when to get it you had to buy physical pictures from some guys in a back alley it made sense. But what are you going to get nowadays? Hidden wiki's address? If you go on TOR there's tons of this stuff, and police cannot monitor it effectively,and cannot do anything about it, so it's unlikely that persecuting a person viewing this material is going to get them nearer the producer.


It also works against anonymous criminal networks, because the "turned" defendant can take actions that will result in the disclosure of the identity of the other anonymous participants. See: Sabu.


Point two isn't an issue in Commonwealth countries: http://en.wikipedia.org/wiki/Colour_of_right

It would fall under the definition of "means an honest belief that an act is justifiable". If the photo of the girl getting raped in a park was meant to help catch the rapist, then any laws that would have gotten you in trouble for taking the photo would likely be tossed aside.


But "meant" is interpreted by the court, not clear by evidence.


I want to meet your parents and grandparents. They sound lovely.

In defense of the laws, however, they were formulated only to regulate sex outside of marriage. With love and marriage, sex was viewed as something else.

For proof of this, look to the prosecutions. If we had a vast history of people being prosecuted for marrying young, that would be one thing. Instead we've got a lot of busts in parks or having other public trysts.


That's because minor marriage is illegal and simply can't happen, so they become trysts instead.



The word "soon" does not appear anywhere in the article. The original title is "Are You A Teenager Who Reads News Online? According to the Justice Department, You May Be a Criminal".


I may have misunderstood the article, but hasn't it been determined in courts that the current version of the CFAA doesn't criminalize ToS breaches? I thought the article title was referring to a proposed change to the act.

Edit: when I posted the article, I added the word [Soon] to the title.


Yes, to my knowledge so far courts have held that breaching the ToS is not a violation of the CFAA.

The proposed bill, as written, would change that. I think the interjection into the title is accurate, and makes the title less hyperbolic.


The original title is misleading.


It is not - only few of the circuits has rejected the arguments. Until there is SCOTUS decision this reading of CFAA is the law of some parts of the land.


The idea of having a site's TOS be law is terrible for almost infinite reasons. None of the rigor of law is applied to it.

Thus, I implore you, all webmasters: insert the phrase "And you promise to have sex with a goat" into your TOS as soon as possible. That should make Congress think twice...


Seems a bit grasping at straws for arguments against the new laws.

Are news papers tos justicable ie are they enforceable - you can put any kind of crap you want in a tos/contract for example you can sign a contact giving up your righst to a public holiday but its not a valid contract and is unenforceable.

The test woudl be are teenagers restricted from buying the print edition no they are not.

For an organization supposedly all about understanding and lobbying for sane laws I would expect better than this pathetic effort.


The underlying problem is the huge liability which websites face when children use those sites and may interact with adults, or view content their parents do not want them to see. This is what drives ToS to include provisions that say children shouldn't view the site. edit: effectively throwing the responsibility back onto the parents to prevent their children from using the site if it matters, which is where the responsibility belongs


I am still waiting for a day when Americans are finally going to realize that it's long past the point when they should be completely fed up with this shit and don't accept it anymore. Breaching ToS a criminal offence? Is this land of the free, or the land of the corporations again?


I think you're a bit too fixated on corporations. There is nothing magical about being incorporated that suddenly grants you wide control over your elected official. In fact, any legal entity (individual, corporation, or otherwise) that holds sway over a large swath of votes will possess considerable influence over their representatives. This is the way of democracy.


Corporate personhood is accumulating more and more of the rights previously reserved to real persons, but none of the same moral, ethical, or legal inhibitors are effective against them. You can't imprison a corporation when they break the law, and fines simply become a cost of doing business. If they get big enough they gain de facto immunity from prosecution even for serious felonies[1].

[1]: http://www.hsgac.senate.gov/subcommittees/investigations/med...


Treating corporations as people for legal purposes doesn't concern me -- in fact it's a vital simplification that preserves our rights as individuals. The "de facto" immunity concerns me greatly. You can't imprison a corporation, true, but you can do a lot of other things to enforce laws: you can pierce the corporate veil, you can revoke licenses, and you can imprison executives. Choosing not to take those steps, or creating a system where taking those steps is possible, seems to be the real failure here.


Well, corporations have a lot more money than you or I do.


Except that EU countries would never pass a law that prioritizes corporations over citizens. Why is US considering a law that would make breaching ToS a criminal offence? Because people want it? I don't think so. And I have no problem with corporations per se. I know this word is thrown a lot nowadays, and sometimes not rightfully. But in this specific case, it's corporations(and other large institutions) which want to have a free hand in establishing their own laws, which were not voted for, which were not discussed with the public,and which cannot be fought. And it's fine as it is right now - you breach the ToS, they are free to stop doing business with you. But making it a criminal offence? Seriously?


I suspect that the poor bastards who have bank acounts in cyprus aren't feeling top happy abotu the 40% haircut they are getting courtesy of the EU


The "poor bastards" in Cyprus are(sorry to say this) victims of their own rotten system. For years they were taking all benefits of being in the EU, while giving back very little. For the last decade they were asked repeatedly to impose fair taxes like the rest of the EU. They continuously declined, making Cyprus one of the tax-heavens of the world. Many companies moved to Cyprus purely to avoid taxes in their home countries - which was made possible thanks to EU trade agreements.

And when Cyprus economy could not survive this stupid approach any longer, they want help from the EU. So EU is like, you know Cyprus, you did not collect proper taxes in more than a decade, but now you want us to help you with our tax money? Sure,but this cannot happen again, so either you join everyone in the fair game, or get lost.


True but not everyone is as culpable as some and don't forget the central core made bank flogging high value goods to the periphery that realisticaly they could not afford.

I agree with the Guardians finance editor when he described the euro as a bad idea whose time has come.

And the problem is if this goes ahead it sets a precedent as various Eu finance types have said that this will be used elsewhere

For Americans whats proposed for Cyprus its a bit like the Presidential Executive Order 6102 which confiscated private holdings of gold back in the 30's.


It's a bit different though. In America the government was taking something you physically owned and you had to give it away under a threat of punishment.

What Cyprus did makes sense if you realize something - and it has completely blown my mind because I was not aware of it too - that once you give money to the bank, it's not yours, you do not own it anymore. If you pay 100 pounds into your account, you are giving the bank a loan for a 100 quid, which the bank obliges to repay on demand - as stated in your contract. So when you go to to the bank to withdraw your 100 pounds, it's the bank repaying its debt to you. Therefore Cyprus uses the bank's money to repay its debts - not yours. Sure, they do owe money to the account holders now, but it's identical to a company going bankrupt - they might owe you something,but they physically do not have any money to give back.

I am not saying this is a good thing, and I am not supporting it. I am saying that once you realize that money paid into the bank is not yours anymore, it all makes sense.


I don't disagree with what you said (in fact I upvoted it because it's spot on), but this sort of makes FDIC insurance a sham, right? They're basically claiming they will insure your money in a bank until they need it -- then it's fair game. Even if they never do renege on their promise, we are (through taxation) subsidizing people to give their money away to banks.


Well yes, that is basically what happens. It was actually the UK Ministry of Treasury that said in a statement, that after you give money to a banker "that money is for all intentions and purposes owned by the banker. The banker is now in your debt and should repay his debt upon your request. He is, however, free to invest that money however he wishes, as long as he is able to repay all the debts".

But as we all know, sometimes investments(high-risk loans especially) sometimes don't pan out and the banker literally cannot pay you back.

There is a EU law that says that a bank needs to always have enough money to repay the first 100 thousand euros to each of its customers - but there is no such guarantee for any amount above this, so if a bank goes bankrupt you won't get anything above 100k, until the bank regains financial stability or its possessions are sold and debtors payed off.


Except that EU countries have no problem passing laws that limit free speech that compared to the US seem Orwellian. Get off your high horse. This sort of silly law is not an indictment of American freedom. Your argument or, rather conspiracy theorist claim, if delusional. How many children have been shackled in chains because they visited the New York Times website?

A more apt claim would be that the legal system has not really caught up to the way the Internet works. That makes more sense than "blah blah blah I can't wait for American to realize they aren't in the land of the free." What a bunch of jibber jabber.

If you want to claim the U.S. has laws and enforcement issues that impact negatively on freedom, fine, but to make this silly claim and then prop up the EU, of all things, as the bastion of freedom is a joke.


I'm waiting for the day when people take the time to do some independent research on crazy-sounding stuff before flying off the handle. Sometimes the crazy stuff is true, and it is worth flying off the handle. In this case, though (as the article admits), U.S. federal courts have so far ruled that violating ToS is not by itself a criminal act under the CFAA.


Too bad computer and internet literacy tests are not required to be eligible to run for Congress. Our systems is so messed up because members of Congress are living in the Dark Ages in terms of their knowledge about technology and the internet, and the only ones feeding them any info are "rights holders" (read lobbyists).

Jack Abramoff was on "To the Best of Our Knowledge" on Sunday night, and all I can say is, we're f*&^ed. I think I will start donating more money to EFF.


Computer literacy? I don't even care about computer literacy or people learning how to program ... I'd like congress people to be literate and not only that but be in the slightest bit rational. We have people in Congress that think CO2 is not a problem because it is in Coke cans and ones that think banning assault rifles leads us on toward a slippery slope of bestiality and oddly enough most of these come from one particular party.


If this is truly as described, then it seems like it's ripe for use by privacy advocates. Kind of a robots.txt for data miners and snoops.

New ToS: "You may not view any material on this site if you are in any way affiliated with [irritating corporation or agency]"


I'm not a fan of hyperbole or stretching the truth, even when it is in service of a noble goal.

In this case the eye-catching headline is directly undercut by the actual state of legal precedent, which is that individuals are explicitly not a criminal just because you violate terms of use.

There are a lot of good arguments to fix the CFAA...why rely on a bad one?


When I posted the article, I added the word [Soon] to the title. I guess a mod removed it, even though it's more hyperbolic now...


yes making wildly stupid statements like this is no way to act for a supposedly professional organization - all this will do is get the EFF treated as "nut jobs" by law makers and politicians.


Notice how many of the comments in this topic verge on the hysterical, paranoid, reactionary and ill-informed.

It brings them out. The sheer emotional appeal of the original headline brings out the worst in people.


That protection act is one thing, these terms of service is another. Why would sites like Popular Mechanics impose an age limit?


I make games for children, so I have to track COPPA.

Among the children product makers, it is known that US government go crazy with COPPA, throwing huge lawsuits even against mom'n'pop shops if they think you are somehow not meeting COPPA fully.

Even my business, that has NOTHING to do with the USA (our dev lab is in Brazil, our headquarters is in Switzerland, and we sell to Russia, Brazil, France, Germany and Korea) we comply with COPPA because we fear USA might find a way to screw us.

When dealing with USA (that I don't know why its citizens still believe is land of the free) it is ALWAYS better to go safe than sorry.


Frankly, I found this surprisingly misguided for something from the EFF. CFFA isn't the law that causes such absurd Terms of Service -- COPPA is.

Children have been misrepresenting their ages since well before COPPA was introduced, but I distinctly remember COPPA making the problem much worse amongst my peers.

I remember, a few weeks before one of my birthdays, having to pick between abandoning my Neopets account so that I could create a new one where I pretended to be over thirteen, or asking my parents to sign a printed permission slip for me and each of my sisters and let me fax it to Neopets.

I ended up doing the latter, but only because I knew we had a fax machine in the house, and my parents already knew (and were okay with) me being on Neopets all day long. A bunch of my peers just created new accounts, and eventually devolved into sock-puppeting once they realized that there wasn't necessarily a one-to-one correspondance between people and accounts.

I'm not sure what the right answer is, though. The moment that a child turns 16, 18, or 21 (depending on jurisdiction) they're inundated with peers who want to go on Facebook, offers for loyalty programs and credit cards from every store they visit IRL, and tracking cookies from Ad networks online. If a kid has $20, and wants to buy something from the local Wal-Mart, no one will stop him/her from doing so. But if a kid wants to spend that $20 on Amazon.com, COPPA prevents them from even creating an account in the first place.

As a kid, I felt like COPPA simply prevented me from participating in the world in a way that nobody would have ever experienced before dial-up became mainstream, and I seriously think that harmed my ability and that of my peers to handle the privacy concerns that plague barely-legal adults today.


What's sad is that the only entity throwing any lobbying weight against COPPA is Facebook, and that plays in the media pretty much universally as a big evil corporation trying to get permission to prey on children. Not that that would stop it from happening in Congress, but the public support isn't there.


As time shows, even if you have never been in the US, never done any business in the US, and done something that is not a crime in your country, you can still be extradited and put on trial there based on accusations made by large corporations and media companies. Imagine if Saudi Arabia tried to get you extradited because you broke one of their laws even if you've never been there - they would be told to go and fuck themselves. Yet when US makes such a request, most EU countries will jump like a schoolgirl and happily comply.


I guess they figure it's better to be safe than sorry? With the patchiness of laws viz., the internet, can't blame them.


Seriously, America - What's with the complete 3rd world acting?


Did you understand the article? The issue is all our "think of the children" wailing has forced websites to bar minors from viewing in order to avoid very serious liability.


I feel that your comment actually validates my point.

Your "think of the children" wailing makes me, and I fear, a lot of other people / countries step away from you.


Ever since the SOPA 2.0 stuff from the EFF, I can't take them seriously anymore.


Which court case decided that browsing a website is a form of contractual agreement with whatever happens to be posted?


I love the EFF but they've got to stop this misleading, sensationalized crap if they want any money or support from me. They didn't nail Aaron because he violated the terms of service, they nailed him for STEALING FROM JSTOR. Just because the charges were related to a violation of TOS doesn't mean anything aside from the fact that a TOS violation may be a criminal offense. So say that!


"They didn't nail Aaron because he violated the terms of service, they nailed him for STEALING FROM JSTOR"

Nothing was stolen, he destroyed or returned all copies of the scientific articles he downloaded, and JSTOR decline to press charges. He was then charged with computer crime for violating MIT's terms of service, which is a dubious legal standard that was already shot down by the courts years ago.

Aaron Swartz was the victim of an overzealous prosecutor with a history of civil rights abuses and who had previously driven another alleged hacker to suicide. The CFAA is shockingly broad and puts the public in legal danger by its very existence. There is no defense of the government's actions in the Aaron Swartz case.


Sorry, I should have made this clear: the reason he was focused on by the attorneys general is because of the theft, not the TOS violation. I am perfectly aware Aaron resolved the case with JSTOR amicably. And I agree with everything you said.


The article doesn't say that he did. It's a discussion of one of the worst aspects of the CFAA, which is currently being considered for reform.


Fair enough, but I feel that Aaron's prosecution is the reason why this is a major issue.




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