Subject: Kiddie Porn Witchhunt (long)

From: [email-masked]
Date: Wed, 10 Jul 1996 14:19:02 -0500

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> From: [email-masked] (Stuart Lynne)
> > Subject: Re: LAWYER AS LAWMAKER COP JUDGE & JURY
> Date: 10 Jul 1996 08:52:33 GMT
> Message-ID: <[email-masked]>
> References: <[email-masked]>
              <[email-masked]>
              <[email-masked]>
              <[email-masked]>

[snip]

In article <[email-masked]> [email-masked] (Stuart
Lynne), said:

> Unfortunately it's not litigation we worry about but having to defend
> against a criminal prosecution either at the corporate or personal
> level.

> ISP's every where would welcome guidlines from our legistlators.

Don't hold your breath, eh?

> Simply because if we know what the law says we will follow it and lobby
> to have it changed if it is too draconian. Unfortunately we are in the
> position of having a vague suspicion that we might be breaking the law
> with no guidelines to follow.

The police and prosecutors LOVE the ambiguity in the law.  The idea is
to produce the exact kind of reaction we've seen from iSTAR--"when in
doubt, cut it out."  The same type of strategy has been observed in a
variety of jurisdictions--i.e. keep the law vague and amorphous; keep
'em off balance.  I think the basic idea is to instill such fear into
people, that they'll self-censor, which in many cases will be far more
encompassing than what the law provides for.

I've seen letters written by sysops in B.C. to the B.C.
Attorney-General, trying in vain to get some guidelines about what is
acceptable and what is not.  The reply they got back was, essentially,
"See your lawyer."

As far as 'lobbying to have the law changed if it is too draconian'
goes, where have you been for the last 3 years, regarding the so-called
"kiddie porn" section of the Criminal Code, Section 163.1?  This Section
of the Criminal Code is so overbroad, and so all-encompassing, that it
criminalizes even the written word, if it "... advocates or counsels
sexual activity with a person under the age of eighteen years..."  (See
the full text of this Section at the end of this posting.)

Frankly, there is relatively little point in lobbying to have this
odious legislation changed--all that will happen is that you will be
labelled as a `supporter of child pornography.'  The rationale for this
legislation--the protection of children--is nothing less than a farce!

How does banning the writing (or even *possession*) of fictional stories
protect childen?  No children are abused during this process.  The same
thing goes for so-called artificial child pornography--children are not
abused if one uses paint software or even charcoal and a sketchpad to
draw images from the imagination--but yet, in Canada, these are criminal
offences.

Look at the ordeal of artist Eli Langer--he was prosecuted under Section
163.1 of the Criminal Code, and he is no abuser of children!
(Fortunately, he was acquitted.)

Joseph Pecciarich of Mississauga was not so lucky.  He wrote fictional
stories and created pornographic images using children's pictures from
catalogs and some editing software.  He was *convicted* -- in fact, he
was the first person convicted -- under Section 163.1 of the Criminal
Code.  (The Judge who sentenced him gave him a suspended sentence and
placed him on probation, largely due to the fact the he has absolutely
no history whatsoever of abusing children.)

Then there is the case of the 2 Fergus, Ontario BBS sysops.

From:

  The Guelph Mercury
  Tuesday, October 24, 1995
  page 1

  Kid porn man cries in court

  by Scott Tracey

  A Fergus man charged this summer with distributing child pornography
  on a computer bulletin board wept in court Monday after pleading
  guilty.[1]

  The 21-year-old man -- who cannot be named to protect the identity of
  his 17-year-old brother charged under the Young Offenders Act --
  admitted the sexually explicit stories were in his personal bulletin
  board when they were discovered by a Guelph resident.[2]

[What was most interesting was that an official O.P.P. press-release
named _both_ brothers, and gave their home address.  Funny that the
Young Offenders Act didn't cover this, eh?]

  The material came to the attention of authorities after a Guelph man
  inadvertently downloaded them July 20 and phoned the police.[3] The
  bulletin board was traced via a phone number to a home in Fergus which
  the brothers share with their two parents.

  "The vast majority of the material involved a person who was under 18
  years of age involved in explicit sexual activity", Crown attorney
  Judith MacDonald told the court, adding only written material was
                                   ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
  seized.
  ^^^^^^
  The stories depicted youths involved in intercourse and fellatio.
      ^^^^^^^
[snip]

  Judge Marietta Roberts said the man's legal difficulties are a result
  of allowing a computer bulletin board to accept information for him
  while he is not present."[4]

  "It's certainly an indication that we don't have control of our own
  lives when we allow certain machines to take over for us", she told
  the man, who began weeping when told to stand for sentencing.[5]

  Roberts agreed to a joint submission by Forster and MacDonald that a
  conditional discharge be granted.  She placed the man on probation for
  12 months, during which time he is prohibited from operating or having
  access to a personal computer bulletin board.  Charges against his
  younger brother were withdrawn by the crown.

                                  -30-

N.B.: Notes above in square brackets [ ] added by Baal.

  Notes: (opinions added by djones, not part of original article)

  [1]  All charges against the older Fergus man were dropped, except
       the sole charge of "possession", to which he pleaded guilty.
       He did *not* plead guilty to distribution.

  [2]  The accused acknowledged that the text files were present on
       his computer when the police seized it.  It is an important
       distinction to note that he did *not* admit that he had any
       knowledge of the content of these text files.  This relates
       to the legal concept of "mens rea", or "guilty mind".

  [3]  There is speculation that the man who "discovered" the files
       on the BBS did not actually stumble across them inadvertently,
       but was systematically visiting all local BBS's, hunting for
       "bad stuff".  The question also arises of exactly *who* uploaded
       the text files in question.  These questions may forever remain
       unanswered.

  [4]  Judge Roberts almost consents that the accused never even had
       knowledge of the contents of the text file, which would be
       necessary for a criminal conviction.  Clearly, if an automatic
       machine "accepts" a text file, the computer's owner does not
       automatically become aware of the contents.  One wonders what
       Judge Roberts would say if a dirty magazine was found inside the
       front door of someone's house.  "This person is guilty of having
       a mail slot", perhaps. The mind boggles.

  [5]  It is important to note that, although there was an agreement for
       the accused to go on probation, there was *no* conviction. Given
       the significant possibility of "reasonable doubt" as to whether
       the accused man had "guilty knowledge" of the contents of these
       text files, it is not at all clear the prosecution could have
       gotten a conviction if they let the case proceed to trial.

       This Fergus man, faced with a lengthy and expensive criminal
       trial, with an uncertain outcome, made a pragmatic decision.

       [*warning* very opinionated editorialized follows, ...] In my own
       opinion, this man was persuaded by circumstances to plead guilty
       to a crime that (a) he did not commit, and (b) a bizarre crime
       (possession of text files) under s.163.1, which, in my (arrogant
       for a non-lawyer) opinion, is unconstitutional and will not
       survive a Charter challenge.

> Kind of like driving down a road with no posted limit. Just signs that
> say "caution speed limit enforced by radar" with the local constabulary
> able to pull you over for going over whatever they decide is the correct
> speed at *that* point in time. Their claim that you are speeding might
> never hold up in court, but you still waste time and money defending
> yourself against the prosecution.

This is an excellent analogy.  

<[email-masked]>   <alt.anonymous.messages>   <[email-masked]>
1024/A21829FD 1995/07/10            PGP public key on keyservers
Fingerprint:    5A 64 DB DB 2C FE C0 FE  63 A7 A3 59 58 DA A6 EA

=======================================================================

- From the Criminal Code of Canada:

     163.1 DEFINITION OF "CHILD PORNOGRAPHY"

     DEFINITION OF "CHILD PORNOGRAPHY"

     ... /
     Making child pornography /
     distribution or sale of child pornography /
     Possession of child pornography /
     Defence /
     Defences /
     Other provisions apply.

     163.1 (1) In this section, "child pornography" means

          (a)  a photographic, film, video or other visual
               representation, whether or not it was made by electronic
               or mechanical means,

               (i)  that shows a person who is or is depicted as being
                    under the age of eighteen years and is engaged in or
                    is depicted as engaged in explicit sexual activity,
                    or

              (ii)  the dominant characteristic of which is the
                    depiction, for a sexual purpose, of a sexual organ
                    or the anal region of a person under the age of
                    eighteen years; or

          (b)  any written material or visual representation that
               advocates or counsels sexual activity with a person under
               the age of eighteen years that would be an offence under
               this Act.

      (2) Every person who makes, prints, publishes or possesses for the
          purpose of publication any child pornography is guilty of

          (a)  an indictable offence and liable to imprisonment for a
               term not exceeding ten years; or

          (b)  an offence punishable on summary conviction.

      (3)  Every person who imports, distributes, sells or possesses for
           the purpose of distribution or sale any child pornography is
           guilty of

          (a)  an indictable offence and liable to imprisonment for a
               term not exceeding ten years; or

          (b)  an offence punishable on summary conviction.

      (4)  Every person who possesses any child pornography is guilty of

          (a)  an indictable offence and liable to imprisonment for a
               term not exceeding five years; or

          (b)  an offence punishable on summary conviction.

      (5)  It is not a defence to a charge under subsection (2) in
           respect of a visual representation that the accused believed
           that a person shown in the representation that is alleged to
           constitute child pornography was or was depicted as being
           eighteen years of age or more unless the accused took all
           reasonable steps to ascertain the age of that person and took
           all reasonable steps to ensure that, where the person was
           eighteen years of age or more, the representation did not
           depict that person as being under the age of eighteen years.

      (6)  Where the accused is charged with an offence under subsection
           (2), (3), or (4), the court shall find the accused not guilty
           if the representation or written material that is alleged to
           constitute child pornography has artistic merit or an
           educational, scientific or medical purpose.

      (7)  Subsections 163(3) to (5) apply, with such modifications as
           the circumstances require, with respect to an offence under
           subsection (2), (3) or (4).

     [1993, c.46, s.2.]