I guess Walter Block already wrote about this one, but I haven't bought his book.
On the Internet, there dwells an unholy demon. Its legal status is held as a given--completely and absolutely unquestionable. It is the pivoting point for the government to breach online civil rights and liberties. Simply uttering its name can provoke embarrassing and life-destroying accusations from across the political spectrum. Even those ostensibly staunch defenders of freedom actively avoid discussing this topic or taking a contrarian stance on it due to the cloud of Puritanist disgust surrounding it. One cannot even search anything related to it on certain search engines. It is the ultimate "politically incorrect" subject.
Child pornography.
I'd like to clarify that I am, in fact, opposed to the rape of children. In this mini-essay I am specifically attacking the illegality of access, possession, and distribution of CP--not the illegality of producing CP itself, insofar as it involves rape and coercion via physical violence. I do not enjoy looking at pictures of kiddy diddling--I simply do not sanction the use of physical force against people who merely possess or look at CP.
Anyways. The act of possessing CP can land you a 20-year jail sentence in the United States.
Most people dismiss this facet of law as largely just and mostly inconsequential. After all, most people aren't pedophiles. Furthermore, the clearnet is relatively free of CP, so if you don't want to accidentally "possess" CP, just don't go to the darknet. (How convenient for those who have a vested interest in keeping you and your data on the clearnet.)
But we know this line well. If you don't want to get beat up by ANTIFA, why not just stop having a political stance right of Mao? If you don't like getting taxed out your ass, why not just start your own country? If you don't want to get arrested, why not stop smoking weed? And if you don't want to get raped, why not stop wearing short skirts?
That a law does not apply to many people or that penalties imposed by someone can be avoided by restricting your own behavior makes no justification for a law's existence. We do not (hopefully) establish laws because it is possible to comply with them. And I'd like to add that things are not necessarily bad because they are illegal.
Of course, making this argument will usually prompt people, quickly realizing that they might (dear God) have to actually address a touchy subject, to unholster their other weapons of political discourse, blind assertions and ad hominem. You wouldn't be so concerned about CP laws unless you're a pedophile. Pedophiles have a tendency to be deceptive, so you could be a pedophile. You must rape children.
This, of course, is not an argument, and it wouldn't even be an argument if I were a pedophile. It's just an emotional excuse to avoid an argument. (Sometimes I feel most grown adults are about as good at logic and argumentation as they were in kindergarten, and the only thing they've learned to do in 20+ years is couch their arguments in pomp and jargon. And as you will see later, government is hardly immune).
So let's get these shitty objections out of the way and focus on something with a bit more meat to it. And by a "bit" I mean like the "bits" left on two-week old roadkill. We shall address the thornier "think of the children" arguments.
The first, and shakier, of these arguments holds that abusing children and looking at pictures of them being abused are "exactly the same". When pressed further, proponents will state that these acts are, well, not exactly equivalent, but "morally equivalent". Their justification is that children are "psychologically damaged" by the mere knowledge that photos of them being raped are being distributed online, and that the simple act of viewing child pornography thus constitutes some bizarre form of violence that can be committed remotely, even in the complete absence of any contact, past or present, between the CP viewer and child in question. As a result, we must make possessing and distributing CP illegal.
Don't take my word for it, though. Here's what the Department of Justice has to say about it:
"When these images are placed on the Internet and disseminated online, the victimization of the children continues in perpetuity. Experts and victims agree that victims depicted in child pornography often suffer a lifetime of re-victimization by knowing the images of their sexual abuse are on the Internet forever. The children exploited in these images must live with the permanency, longevity, and circulation of such a record of their sexual victimization. This often creates lasting psychological damage to the child, including disruptions in sexual development, self-image, and developing trusting relationships with others in the future."
Even given that this is the case, it fails to support such laws as the prohibition of computer-generated child pornography "virtually indistinguishable from that of a minor engaging in sexually explicit conduct" established by the PROTECT Act of 2003 (remember, the more innocuous the name, the more insidious the law).
You may notice that the argument used here is very similar to the arguments used against libel/blackmail which involve some nebulous conception of privacy requiring that people possess property rights over others' thoughts. Let us perform a simple thought experiment to demonstrate the absurdity of this justification:
Suppose that law enforcement has gained access to the Infinity Gauntlet, making child pornography laws 300% effective (hint: they're not). All people who ever have or will view, distribute, or possess CP have turned to dust. Have we succeeded in minimizing the child's psychological damage resulting from this "knowledge"? At first it seems so, since there are no more people to view the CP. Add, however, the simple condition that the child doesn't definitively know that all people who could potentially view the CP and all instances of it are gone forever, or whether the CP was distributed in the first place. In any of these cases, could the child not still experience "psychological damage" due to the belief that people are viewing the CP, even if nobody is actually doing so?
At the very least, this demonstrates that such laws can never realistically be effective at achieving the stated goals, even given very liberal assumptions about their execution. And anyone who is familiar with the darknet will tell you that if you go looking for child porn, in spite of law enforcement's "best" efforts, you will find it.
But there's a much bigger problem here. An act of violence, or aggression, or exploitation, or whatever you want to call it, by most definitions, involves at least two parties: one aggressor and one aggressee. If the child can experience "psychological damage" by the knowledge that some creep may potentially be whacking off to pictures of him/her being raped, even if no one is actually doing it, then who is committing the "violence" in question? Who is actively and presently inflicting this "psychological damage"? The imaginary pedophile?
Is that justification enough to make it illegal to possess child pornography? What if I tell you that imaginary Jews are attacking me in my head and giving me psychological damage? Should we make it illegal to practice Judaism because of the psychological damage I am facing at the hands of imaginary Jews?
So if the child can suffer from the psychological damage proposed here, can a causal relationship be established with the imaginary pedophile's activity of possessing or distributing child pornography? No.
This justification fails to explain why the act of possessing, viewing, and distributing child pornography should constitute an act of violence. It does not hold up in a libertarian paradigm.
From a strictly propertarian view, this issue is pretty cut-and-dry. Regardless of pragmatic arguments about their efficacy of preventing sexual exploitation or psychological damage of children, child pornography laws tell you that you're simply not allowed to have the bits on your SSD and/or RAM sitting in a certain configuration because it could potentially be interpreted as child pornography. This is a blatant property rights violation.
A fascist could make the (very un-American) argument that masturbating to little Timmy is disgusting and morally repugnant and therefore we should make it illegal. This argument largely stems from a very common inability to distinguish between what ought to be "legal" and what ought to be "moral". As a libertarian, I hope we don't make laws restricting what people can do with and on their own property just because we find their activities "disgusting" and "morally repugnant". If we do, then why should we not make it illegal to pick and eat your boogers because it's disgusting (not to mention, unsanitary)? Why should we not make it illegal to draw pictures of Mohammed because Muslims find it morally repugnant? Suppose that a person is found to be disgusting, offensive, and morally repugnant for holding a certain opinion. Wouldn't banning or imprisoning this person be a categorical violation of the First Amendment, in both word and spirit?
The U.S. Supreme Court's stance on obscenity falls along these lines, using something called the "Miller test" to determine whether a certain work is obscene:
And who gets to determine whether something has "serious literary, artistic, political, or scientific value"? If I, for instance, make a shitty child porn drawing, and it is determined to not possess "serious artistic value" by a cabal of court-appointed art critics, should I be imprisoned solely based upon their opinion?
And the definition of "patently offensive":
There are many things wrong with these standards. I shall name a few. Firstly, it apparently makes the case that the law's job is to enforce that every activity performed by an American have "redeeming social value", which must have a definition of "society" which excludes certain people (of course, if we can just marginalize certain groups and say that they thus possess no "social value", that is a dangerous precedent) and be distinct from regular, economic value--for if no one found an activity valuable, no one would perform that activity unless violently coerced into it. Secondly, it appears to place the burden of proof on the producer of the material to "redeem" its "social value", as though something about the production of the material is inherently wrong. This may be the case in the production of regular CP, but is it so for drawn depictions of minors engaged in sexual activities?
So if we cannot justify CP laws using libertarian principles, the only argument left is the utilitarian argument--the idea that the possession and distribution of CP encourages the production of CP, or something along those lines, and so we should ban it. The suggestion that we can simply legislate the demand for child pornography out of existence (it certainly doesn't help that they also made "virtual child pornography" illegal, which, if anything, increases the demand for real child pornography) is un-libertarian.
From an economic standpoint, the creation of a black market in CP has consequences far beyond "shifting the supply curve". Unfortunately, because people really don't like talking about child pornography at all or investigating it (after all, due to the information-based nature of child pornography and the fact that merely possessing it is a crime, investigating it would kind of make you a "criminal"), the economic details of this black market are not well-documented.
Thankfully for the utilitarians, a close analog to the CP market is also available to us. Think about activities prohibited by the government not because they are inherently aggressive, but because they are associated with and believed to contribute to aggressive behavior... oh, drugs.
Well, from a utilitarian standpoint, the War on Drugs, which, depending on how you slice it, has been going on between a few decades and nearly a century, is working very well. It has:
And all without:
Well, pack up everyone. Show's over. We lost the argument.
Are you shitting me? You're a "utilitarian" and you want to take the "War on Drugs" side? Make no mistake. From what we can observe empirically, this isn't just an analogy. We shouldn't have to keep going through this "prohibition" shtick.
"Oh, they just haven't really cracked down on it. If we just broke out the military and started shooting people left and right, the problem would go away."
Is that why they're still having so many drug problems in the Philippines?
Child pornography continues to circulate prolifically on the darknet to this day, though some people have in fact been imprisoned for (ostensibly) the act of "possessing" child pornography (though likely not to the degree where it imposes major burdens on the courts and prisons compared to drugs). Supposed "sex offenders" (including adult prostitutes, people who urinate in public, and minors who engaged in consensual, but premarital sex, otherwise known as "statutory rape") are registered into a special database which destroys employment prospects and ruins people's lives.
As there are drug stings, there are CP stings too--FBI agents regularly pose as child traffickers online and engage in the actual distribution of real child pornography to catch supposed pedophiles in stings (which, by the government's own admission, somehow "revictimizes" children--which means that the FBI committed a crime that normally receives a maximum sentence of 20 years). In "Operation Pacifier", the FBI managed "The Playpen", a child pornography website, distributing child pornography to over 100,000 visitors (making the FBI one of the largest distributors of child pornography on the Internet) and prosecuting 186 people, in a display of both the principles of government agencies as well as their astounding competency. Federal workplaces are notorious for being dens of child pornography. This is your tax dollars at work. If you believe in the "social contract" and you really believe that by the non-action of not leaving the country, you consent to everything its government does, you ought to hoist yourself by your own petard for the distribution of child pornography to over 100,000 people.
Not to mention the massive potential for abuse of people who aren't even consumers of CP. It's a common joke on the darknet that much as corrupt cops regularly plant drugs on suspects and proceed to arrest them for possession, FBI agents regularly place child pornography on the computer systems of political "undesirables" and proceed to arrest them for possession. Got nothing to hide? We don't care. If you run your own email server, the non-action of having child pornography mailed to you makes you a criminal--in other words, you have become a criminal by failing to prevent other people from mailing child pornography to you. Actually, you don't even need to host your own email server. Google will happily turn you over to the authorities for having child porn images in your email.
We should also recognize the implications of this kind of law on privacy. The "Protecting Children from Internet Pornographers Act of 2011"--again with the innocuous "think of the children" names--which was introduced to Congress but thankfully never passed, would have required internet service providers to make a one-year record of users' activities and make that record, containing IP addresses, names, phone numbers, and potentially credit card/bank account data, available to authorities upon any request--not just child pornography. This would be a bit like requiring home owners to be able to produce a one-year security camera recording of everything happening inside their house upon law enforcement request, effectively making it mandatory to purchase and install security cameras for use inside your home. But actually, we shouldn't be thankful at all, because the Electronic Communications Transactional Records Act imposes similar requirements upon internet service providers, but for 90 days instead of one year. Aside from being a wholesale violation of user privacy this also would impose significant barriers of entry for associated industries. Furthermore, they are actually required to report circumstances involving:
When it comes to protecting privacy, courts often seem to throw out the concept altogether on the grounds of the "reprehensibility" of the act of possessing and distributing child pornography, which is another way of saying "you don't have rights and fuck you, we can imprison you whenever we want because muh feelings". Much as drug laws preclude the treatment of drug addiction, apparently the concept of doctor-patient privacy goes into the garbage bin when it comes to psychotherapy in California.
Furthermore, CP laws are completely out of touch with the Internet as it exists today. Another oft-mentioned issue with the aforementioned Miller test of obscenity is that it assumes some sort of localized distribution of materials. It is not clear what "community standards" apply if a material is accessible from everywhere. Some in the legal community say that the "standards" should then be at the federal level--that is, a sample of people within the entire country of the United States should on average find something offensive about a work in order for it to be considered obscene.
The Internet as it functions today offers plenty of opportunity for users who aren't even aware of it to accidentally wind up possessing CP. Suppose that you accidentally access a website with some CP on it, or you access a website with a malicious script that inserts CP into your local storage, or you use a program with file downloading capabilities to access a malicious server or are subject to a MITM attack that redirects your requests to a malicious server. In each of these cases, you can end up with CP at the very least in your RAM, likely in your browser cache (which could be stored in memory or on disk), and even your HDD in the latter case, all without even having the intention to store it.
Additionally, these restrictive CP laws are a barrier against the rise of decentralization in Internet infrastructure (particularly decentralized communications and data storage networks like IPFS, Mastodon, Filecoin, ZeroNet). All the proof you need of this is that whenever someone talks about decentralized Internet technologies, every sweaty hacker in a ten-mile radius immediately asks "ok, how does it deal with child porn laws"? With a decentralized network, where individual users volunteer their computing power and resources to preserve and distribute data, it is entirely possible that someone could inadvertently facilitate the receiving, storing, and distributing of child pornography in the larger task of providing data distribution services, without having the express intention to view or even distribute child pornography, bringing us back to the "don't wear a short skirt if you don't want to get raped" argument. Should we avoid the use and development of decentralized network technology on this basis alone? (Obviously, a boon for centralized systems--making Google and Amazon very happy!) Should we implement resource-intensive artifical intelligence algorithms to detect and suppress distribution of child pornography, shaping the technology around the law?
Some say that it would be obvious to the courts that accidentally receiving data containing images of child abuse does not constitute an active attempt to "exploit children" (which we have already established is not exploitation)--but we shouldn't be relying on the goodwill of the courts to not infringe on our rights (particularly when they've proven perfectly ready to throw out our rights on the basis of disgust). Certainly not that the FBI cares at all about your intent in "possessing" child pornography--they'll arrest you anyways (but it shouldn't be surprising that people who regularly violate others' property rights would have no problem enforcing their own extralegal moral standards on other people with violence). If anything, since exposure to the endless fountain of federal funds yielded by the War on Drugs, the entire legal/judicial apparatus--from lawyers to policemen to so-called "private" (state-funded) prisons now realize that they stand to profit from imprisoning people for a so-called "crime" that can apparently occur in the absence of an actual criminal altogether.
Don't get confused by figures about the revenue/profitability of the child trafficking trade either. Unlike the drug trade, the production of child pornography inherently requires the kind of mindset and motivation that makes one think it is acceptable to sexually abuse children, an illegal and aggressive act--the profit margin alone, however large it may or may not be, typically does not motivate ordinary or even poverty-stricken people to break out their cameras and start raping their children. And can we really argue that people who are willing to rape children would act the "moral" way we wanted them to if it just weren't profitable? The degree to which children are abused may have very little to deal with the profitability, or indeed, the amount of laws passed regarding the matter altogether. The only thing that can then likely decrease the risk of abuse is increasing the efficacy of both law enforcement and private society in enforcing existing laws and norms, without infringing on the rights of men.
We can lastly attack CP laws in terms of scope. If sharing or possessing videos of a kid getting raped should be illegal, why should it not, for instance, be illegal to share or possess a video of an adult getting raped? How would the "lasting psychological damage" justification not apply to a person over 18 just as it would someone under? Is an adult's psychological condition inherently less important than a child's?