Tuesday, January 24, 2006

What am I missing?

It seems Google is drawing a line in the sand with respect to the US Government wanting to see anonymous searches that might lead to progress in attacking child pornography on the basis of some presumed right of privacy. OK, well if thats a matter of principle, then could some square the circle for me? why ever would they self-censor certain terms, at the request of the PRC government? Did I miss something here?


RogerA said...

OK--my link shows up OK on preview but not on the main page--here it is: certain terms

RogerA said...

AARGH--here it is: http://today.reuters.com/news/newsarticle.aspx?type=internetNews&storyid=2006-01-25T003716Z_01_N24218238_RTRUKOC_0_US-GOOGLE-CHINA.xml&rpc=22

flenser said...

Links fixed while u wait.

Luther said...

Excellent dichotomy you have pointed out there. In a sense I could say hoisted by our own petard. Capitalism that is. But no, it is all political. It is all required by BDS.

flenser said...
This comment has been removed by a blog administrator.
John said...

I would still think the Chinese people would benefit from a censored Google than not having any access to Google at all. So isn't there some good in that?

Also Google does indicate on its results if something has been censored out, (and its not like the Chinese people don't know about censorship).

Changes in places like China have to come in increments, who knows even a censored Google can provide enough information for the Chinese people to break their shackles.

chuck said...

About net censorship in China, there is a mystery. Anyone have an explanation.

David Thomson said...

Actual censorship in China is not a serious problem. That nation’s leaders are benevolent and egalitarian. The real threat to world peace is Bush/Hitler. He must be opposed every step of the way.

Specter said...

From what I understand (and I could have read things wrong), the request for the google data is not specifically to track down child-pornography, but more to see if children are accessing pornography through searching Google. The big question is - even if they get the data, are they going to try to track back to every IP to see if it was a child doing the searching? Again, this sounds more like a parentl thing than a governmental thing.

Eric said...

Follow the money trail.

So much for "Do no evil".

Knucklehead said...

I don't claim to have done any research on this issue to have developed an informed opinion. But the scanning I've done suggests that the executive branch attempted to make a legal case that porn sites were not doing "enough" to try and keep the kiddies from accessing their content.

The court response was along the lines of, "well, maybe, but you haven't provided, Mr. Executive, sufficient data about internet traffic to establish this. Go back and try again."

The subpoena of Google's data is that "try again". The attempt, in so far as I understand it, is not to make a specific case but to look at the generalities of the traffic involved to demonstrate that "too little" is being done.

It seems to me that Google is on pretty thin ice in this. The government clearly has a right to subpoena corporate data. This is well established. There have been numerous cases of subpoena's issued for huge chunks of corporate data. And I'm pretty sure it is well established (although I may be on thin ice here) that this sort of "gimme your records" subpoena can be intended to look for trends or generalities rather than very specific things.

What doesn't seem quite so clear to me is that the government has a right to subpoena data to do things like characterize traffic.

Consider the following analogy... Suppose some government - local, state, fed, whatever and whoever has jurisdiction is such a case - wants to run a widespread crackdown on the sale of tobacco and alcohol to minors that would require some special funding or other resource. Further assume some sensible person within this government says, "Hey, we're not in the witch hunting business. Show us that there is a significant problem here with vendors selling tobacco and alcohol to minors and we'll be happy to fund this but otherwise you'll have to keep on keeping on with prosecutions on an ad-hoc basis as individual crimes are detected.

To gather the necessary data the government can easily send out a few duly authorized people to spend some time doing surveillance of traffic in and out of "statistical sampling" of tobacco and alcohol vendors. They could then present their statistical findings which might be something like, "We spent 200 hours observing 40 vendors selected at random. Eight percent (some number like, say, 328) of the people who entered the establishments we had under surveillance were, in the judgment of the observer, likely minors. Of those 328, 64% exited the establishments with observed or likely tabacco or alchohol. This is indicative of an insufficient level of denial of access of tabacco and alcohol to minors, please fund the program."

In the case of internet traffic the government cannot perform the surveillance necessary to gather this data. But Google has more than enough data to make a statistical determination about whether or not there is a problem.

Anyway, that's what this case looks like to me. As I mentioned initially I haven't dug into it and I could be way off base. If this is, more or less the case, then I believe it is an interesting variation and a good example of how technology can render methods of law enforcement, or legitimate government data gathering, obsolete for some circumstances.

We expect the government to monitor (do surveillance on) all sorts of things for the sake of public safety and convenience. This is true of our roads, our airspace, portions of the electromagnetic spectrum, and surely other cases that aren't popping to mind.

When the best source of data which the government has no legitimate access to, but which may be meaningful to the general public's safety and convenience, is a corporation can the government legitimately demand access to that data? I believe an examination of case law leading to this point would suggest that the government has the stronger case.

Syl said...


You explained that to me before but I STILL don't understand. Because no matter what searches are made and what shows up, HOW will anyone know WHO saw the stuff?

I say again, quantity does not equal accessibility.

RogerA said...

My understanding is that individuals are not at risk of being outed by the government request.

Knucklehead said...


Let me try another way to go about this. Consider just for a moment the kerfuffle over the NSA's terrorist surveillance issue. One of the bloggers (I think it is JustOneMinute but it doesn't matter) had done extensive digging into this and has (IMO successfully) distilled it into what it really is. It is not really a "civil liberties" catfight but, rather, a "separation of powers" catfight.

The Google subpoena cum kiddie access to porn sites issue is, IMO from what little bit of scanning I've done on the matter, not a "civil liberties" issue but, rather, and issue of the government's "right" to take action to severely restrict the access minors have to something society considers potentially harmful to minors - something society believes it is better for only adults to have less restricted access to.

It is perfectly clear that we have good examples of such things. We take steps, but government decree, to try and restrict the access minors have to any number of things. My example above was tobacco and alcohol. Driver's licenses, marriage, jobs are other examples that jumps to mind.

"Pornography" falls into this category. Whether any among us agree or disagree it seems pretty clear that, as a whole, "we" or "society" or whatever we want to call the collective us, believes that access to pornography by minors should be restricted.

We seem to have decided that portion of the issue - minors should not be allowed unrestricted access to porn.

The question then becomes how to go about restricting the access minors have to porn. It is perfectly clear that in some cases we place the burden for this restriction upon the retailers of the "product". We expect (demand) that those who sell, for example, tobacco or alcohol check ID to ensure that the purchaser isn't a minor. I don't know, but I suspect, this is also true of the forms of porn that are available through brick and mortar vendors. Girlie magazines are have brown wrappers and, presumably, kiddies can't just grab the nastiest stuff off the shelf and purchase it at the register.

In the case of brick and mortar vendors and those using the mail the government can do the surveillance necessary to determine whether there is reasonable level of compliance.

In the case of porn available on the internet, however, there is no easy way for the government to either show that there is a problem in the first place or to show that vendors are not doing what is necessary to restrict the access of minors to the product they are selling. Nobody can sit outside of stores and see who comes and goes and what they purchase.

Figuring this out requires analyzing network traffic data. Google is almost certainly the best centralized source for traffic data. The government could go to a bunch of ISPs and subpoena data and then merge it, but why not go to the repository where the data is already merged.

I think (but do not know) that you are looking this as a civil liberties issue - the government is trying to deny people access to "pornography". The civil liberties issue is largely resolved. It is pretty much settled, as far as I am aware, that the government can't shut down the "porn industry". We as a society have pretty much decided porn - short of some criminality issues - should be available to adults. We seem to have also decided that we want the access kiddies have to porn restricted.

This is an issue of the government trying to do what we seem to want them to do.

You don't understand why the government wants to look at Google's data. I think it a perfectly sensible request. I suspect that our difference is a matter of looking at the same issue from two different angles. You from a "civil liberties" perspective and me from a "law enforcement" perspective. You believe the government is foolishly trying to deny a civil liberty and I think it is merely trying to find a way to enforce laws we expect to be enforced.

Charlie Martin said...

I'm generally well-inclined to Google, but I've got to say I can't think of a single feasible argument except "they have lots of money in China!"

Morgan said...

Path to growth in China, satisfy government.

Path to growth in US, satisfy customers.

I'm sure that John's rationale:

I would still think the Chinese people would benefit from a censored Google than not having any access to Google at all. So isn't there some good in that?

entered into the calculations.

Knucklehead said...


There are a number of careless typos and grammar above. Hopefully you'll be able to read through those.

I've been pondering back to some of the stuff you've said on this topic in the past.

One of the problems you have with this, IIRC, is that there are art and other perfectly legitimate sites on the web that are under some form of pressure due to the lack of clarity regarding what is "pornography" and, apparently, how they control access to their content.

Could you elaborate on this aspect of the "porn" issue? I don't mean the "what is porn" part but, rather, the sorts of pressure being put on these sites and what, if you know, the general discussion about how to deal with these pressures is.

Is this a case of law enforcement actually reaching out and taking action, or threatening action? Or is it a case of the prevaling legal advice within the industry being along the lines of, "don't even play around anywhere near the edges here. If it shows naked anatomy and you have no access restrictions, dump the naked anatomy content."

The reason I ask this is because I've paid some minor bit of attention to how local liqour stores deal with the "access by minors" issue. Clearly this costs them some money but it also provides them legal protection.

First they put up the ubiquitous signs telling you they are going to ask for ID unless you are a senior citizen and, BTW, we give senior discounts so don't hesitate to show us your ID! Then, at least according to one ligour store manager I am aware of, every employee is required to go through "training" (typically a couple hour trade industry produced video) about how to spot phony ID. One local store went as far as having just such a video on permanent loop on a small TV near the ceckout.

What they are protecting themselves against is getting closed down should some minors slip fake ID past them. If such a case comes to court they can show that they've taken reasonable action to try and prevent that but they can't be expected to be phony ID experts. They err on the side of caution.

How this sort of thing can be replicated by an internet vendor Idunno. Nor do I know if anyone is trying to figure that out. I'd be interested to hear about it from someone who moves around in the business.

Charlie Martin said...

Hmmm. On the other hand, there's this, from the Danwei blog:

Google has started offering its search services to Chinese Internet users on a server in China, at the address Google.cn. As part of the server move, Google was forced to agree to filter search results.

When using the Chinese Google to search for "sensitive words" like Falungong and Tiananmen, the following message is displayed at the bottom of the search result page: 据当地法律法规和政策,部分搜索结果未予显示. It means "To comply with local laws, regulations and policies, some search results are not displayed".

That message is a clear indication to anyone with curiosity that there are more juicy offerings about that subject in the big bad world of the international Internet. Google's American-hosted servers are still accessible from China at Google.com, so an uncensored search is only slightly more hassle than a local one.

Google's 'caving in' to Chinese censorship has caused outbursts of self-righteous anger that Google is cooperating with the government in censoring the Internet.

The self-righteous anger is absurd. People who say Google should pull out of China rather than offer a censored service do not use the Internet in China.

And compared to the stony silence that other Internet companies use to explain their China content policies, Google's message is a stand against censorship in a small way: the message is a little flashing light that will alert Chinese Internet users to what Nanny does not want them to read.

Knucklehead said...

Re: the China thing...

I'm not trying to put up an defense for the PRC here but I sometimes get the impression that they are like an old time railroad brakeman struggling not to try and stop the train but to keep it from going too fast.

Syl said...


You are completely misrepresenting my position which is---tada--I don't have one.

I'm not thinking in terms of a civil liberties issue or anything else, including whether the govt has the right to seek out info. I just don't understand how they will get what they want out of the data.

Because, as I've said numerous times, they have no way of knowing whether minors are getting the data or not.

Knucklehead said...

Sorry, didn't mean to misrepresent your position. Please take my word for it that that was an artifact of misunderstanding rather than intent. I've been making a good-faith effort to figure out what people find so troubling about this case with you being of particular interest. At least in your case I've apparently gone right past the answer and kept on searching.

I just don't understand how they will get what they want out of the data.

Because, as I've said numerous times, they have no way of knowing whether minors are getting the data or not.

Data is just data. Data placed in context is information. Portions of context can often be constructed from pieces or attributes of the data. Information subject to reasonable quality analysis and experience becomes knowledge.

As I mentioned in a previous post Time of Day and domains such as "*.k12.edu" can easily provide context that can be used to promote data from it's lowly life as data to something more valuable such as knowledge.

If the goal is first and foremost to take reasonable levels of action to restrict the access kiddies have to porn via the internet, then it is absolutely certain that we need to analyze net traffic. Analysis of traffic from k12 sites can help encourage the use of filters or to make filters better. It could yield a regulation requiring k12 sites to use filters and some guidelines for how best to implement them. If filters are being regularly defeated by a bunch of junior high kids it can suggest ways to improve filters.

If giant wads of traffic to porn sites happen between 3PM and 5PM it might be a good indicator that the nation's legions of latchkey kids are fond of porn. Now you can analyze that wad of traffic and see which access attempts fail and which succeed. Then you can figure out why some fail. Then you can write a regulation that says, "if you are making pornographic content available over the internet you need to do this list of reasonable things to try and make attempts to access your content by kiddies fail. Doing this list of reasonable things limits or eliminates your legal liability if and when kiddies access your porn content. If you fail to do these things we're gonna fine the heck out of you if ever we find a kiddie getting into your site."

There is absolutely no doubt that the data Google has can be turned into information and knowledge about kiddies getting porn over the web. No dpubt whatsoever. Nobody is going to stop minors from getting their voracious little eyeballs on porn anymore than we can stop them from getting tobacco or alcohol. And there will long remain the question of whether or not it is a good idea to even try. Doing reasonable things will, however, provide some of the restriction we seem to have concluded is necessary.

flenser said...

Regarding porn and Google;

1) If somebody does a search for "naked children" then it does not matter whether the searcher is a minor or not. Kiddie porn is illegal whatever the age of the consumer.

As for knowing who saw the stuff - I believe we had a post a month or so ago on that very topic, that there is no real privacy on the internet and that it is not really that hard to identify who goes to what site or searches for a particular term. A murderer was convicted in part because they were found to have run internet searches on something like "how to poison smeone".

2) If it comes down to it, all porn is at least potentially illegal. The SC has held that the state has the right to regulate porn. Of course they followed this up by saying that they themselves could not define what porn is (true) and that the other branches of government could not define it either (false).

As for why Google is behaving the way they are, I suggest it's because they can. They cannot appeal the actions of the Chinese government, so they don't. They can fight whatever the US government says, and doing so allows them to pose as defenders of individual's privacy. It's a PR play.

Syl said...


As to the other, about the sites I frequent, they are vendors. But they also have galleries and forums. And one can post WIPs in forums.

They have nudity and violence flags which you must set if the image you post in either the galleries or the forums contains nudity or, um, violence, or both.

You also must be a member of the site to partake and your preferences when you sign up default to not showing an image or a thread if it is flagged.

(There is also a method to link directly to an individual artist's gallery so that one doesn't have to be a member to view the pictures. It is up to the individual doing the linking to indicate whether there is nudity or not. So an artist, for example, doesn't have to have a potential publisher sign up in order to see a body of work.)

Oh, and no porn allowed--no explicity sexual situations at all. But nudity was okay.

This worked quite well for several years. (Well, besides hammering artists for showing nudity in the thumbnails one clicks on to see the whole picture. But a few people kicked out for not following the rules took care of that.)

Then a kind of chill factor set in. And it seemed to occur in stages. I didn't follow all that closely because (a)I wasn't very involved in the site anymore and (b)I don't normally do nude pictures anyway. New rules were insisted on by Paypal (first) then the CC companies.

First the site made a new rule that nobody who could be mistaken for someone under 18 could be shown nude. Even a baby! The artists went berserk and many left. The pictures aren't real humans (not photos) and are only of 3D models so no child was harmed in creating them. Secondly the images were quite innocent consisting of elves and fairies for the most part.

There was even some question regarding flagging nudity in fantasy figures. I mean the DAZ gremlin has no genitals and huge ears and a weird face, nobody knows how the hell old he is, and he doesn't wear clothes. In fact he doesn't have any. (Well someone modeled a shirt and pants for him and gave it away for free...this is how ridiculous it got.)

Then they took all the nudity out of the store--pictures of products. So you couldn't see what you were buying. One of the big sellers at any of these places is the texture (skin) for the 3D Model.

So they worked it out by allowing nudity, if necessary, in additional images the buyer could click on with a warning that they might contain nudity.

But when a vendor sold his 3D-modeled replacement genitals for one of the male figures, that wasn't allowed to be displayed at all. I guess that was kinda fun for the buyers. I don't know how that worked out.

Then the definition of a bikini (if the figure wore a bikini that satisfied the no-nudity) changed and I won't go into details. I rarely go there anymore except to check out what's new in the store every once-in-a-while. The best artists left so I don't even view the galleries any more.

Another store, DAZ itself, went further. No nudity at all in the galleries or store. Forums okay only if flagged and no links from a forum message to any site with nudity or thread elsewhere with nudity. They're very strict but advertise as a family friendly site. So your account doesn't have a choice of whether you want to see nudity, it simply doesn't exist there.

And though they have a few, they offer fewer textures than other vendor sites. Probably because of all the complaints from customers who can't see what they're getting. They concentrate more on figure models (they have the best) and animals, clothes, and scenes and sets.

But they kept most of the good artists who post in their galleries because getting an image posted there is good for your career--DAZ is a big name.

Other sites in this community have similar rules and methods. These sites I frequent don't do and never have done porn (they do exist, at least one, but I've never been there.)

They're just artists making pictures from 3d models and making and selling 3D clothes and textures and other stuff. The majority of whom are parents themselves and care about children, but aren't shocked by nudity and most don't mind their children seeing such--in fact many of their kids play with Poser too.

Charlie Martin said...

This is another one of those topics that's dissolving in a sea of misstatement and allusion. Is it "child porn" they're looking at, or "children seeing porn"? Or is it "innocuous searches that accidently turn up porn"?

Now, I'll say, I'm pretty much an First Amendment absolutist --- I don't think *any* publication should be forbidden as a pubication. ("Child porn" strikes me as prima facie evidence of child abuse, and working to make it available as being an accessory before or after the fact. But for pete's sake, people --- there are "child porn" prosecutions for naked poictures of toddlers on the beach, or the canonical baby-on-the-bear-rug picture.) So I'm not clear, with a war on and plenty of other things happening, that I think the DoJ should be putting omney and effort into this at all.

Syl said...


there are "child porn" prosecutions for naked poictures of toddlers on the beach, or the canonical baby-on-the-bear-rug picture.


And what the Poser artists do does not even involve a real baby, just a bunch of polygons--mathematical definitions turned into pixels on the screen. No 3d babies clad only in a diaper allowed. It's insane.

And, I just have to say this, I'd say maybe 75% of these artists would be against Bush normally--they tend to be liberals. But this chill factor has taken that percentage up to 95%. Their art is their life and Bush's Culture of Interfering in your Life has totally turned them off.

flenser said...


I believe this is in fact a kidde porn issue. The question turns I think on whether or not computer generated kiddies can be considered porn.

More generally the same applies to all porn. Is it porn if the "performers" are not flesh and blood but computer generated images? I believe that the current legal view is "Yes, it is."

Syl said...

Okay, let's all go cover up all the statues now.

Syl said...

Hey, Flenser, my robot is nekkid. Sue me.

Syl said...


Is it porn if a 3D baby in diapers with no t-shirt is playing in the sand on the beach?

Specter said...


I think your analysis of why the government is trying to get the data is probably accurate, or at least close to the truth.

You are also right that there might be observable trends in the google data. The problem is that they still will not be able to identify who is on the searching end of the stick. Your first example of sitting and watching tobacco and alcohol vendors tells the story:

We spent 200 hours observing 40 vendors selected at random. Eight percent (some number like, say, 328) of the people who entered the establishments we had under surveillance were, in the judgment of the observer, likely minors.

That's well and good - but likely minors does not cut it. My spouse has always looked much younger than her real age. When she was legal to purchase stuff like that, anybody observing her would think she was not old enough.

It is even more difficult in the internet world. Remember, that what google tracks is going to be the IP address of the person doing the search. That is going to end, in most cases, at the servers of the ISP. To get further there would have to be more subpoena's to the ISP's with the specific times and dates and IP address. That will identify the computer, but not the individual using the computer. If you want to get to the bottom, you have to keep issuing subpoenas until you get to the individual users with access to an individual computer. And the problem gets even more crazy when multiple people have access to the same computer.

You did point out that k12.edu could be an IP. I agree. But it still is not conclusive of who used the computer. There are quite a few adults running around in the schools. Boards of Ed many times use the school system's servers. etc.

flenser, the same thing goes here. If someone is suspected, and then tapped, authorities can trace where they go on the internet. In most cases, like the one you noted where supporting evidence was brought to bear against a murderer, it wasn't because they were tracing the person - it was because they siezed the computer and did a forensics analysis on it. Computers keep incredible amounts of data.

Although I am not an expert (but have been programming and using computers for over 35 years) I know quite a bit about this. Given an IP address, a person can trace back a few servers, and even I have done that on occasion. I know there are people more talented than me at this. But the bottom line is if the IP is not a part of a private network (i.e. some companies own their own servers - and can be identified by the server registration), it ends at a regular ISP and without specific cracking skills you need a court order to go further.

So the issue here is not whether the data could be analyzed for "trends". It is how could they possible tell who the end user is.

Specter said...

I sure wouldn't want them to see the pics we took of our kids in the bath when they were 2.

But I get a kick out this. I was watching America's Funniest Videos recently and they had a clip of a little girl running around in a diaper - and a dog pulling at it andit would come down a little. They "unfocused" when it went to far. But the fact is that if I had the video on my computer I could be arrested. But not ABC. There is a huge double standard here - but truly, I think that is a different subject.

offworld said...

Couldn't the government just BUY the information from someone like Alexa? Why bully Google about? Either the people involved are ignorant of the internet business (very likely) or this is a political cutting down of Google. Never attribute to malice........

I do have trouble understanding why Google chose to make a principle resistance to the US government demands while caving in to the Chinese. Perhaps they feel their business here is secure enough to survive any tussle with the governement.

david thomson: troll or moonbat?

Knucklehead said...


Your first part up to the "chill" sounds pretty much like what one might expect from artists who want to make sure that their sites are not overrun with porn. Set some standards that are as minimalist as possible, allow for personal freedome of taste and choice, and then hang on and muddle through as the inevitable cases of people who refuse to be bound by rules show up from time to time.

In the case of the developing chill, can you peg the general timeframe? I'm curious about this. The first rule regarding the "no naked figures that can be mistaken for under 18" seems pretty nutty for an arts site, animation or otherwise. No babies, no cherubs, no fairies or elves (although what the heck is up wit nekkid elves anyway - elves and trolls really oughta have some freakin' clothes on, doncha think?)...

Just a guess but perhaps Paypal and the CC companies put some generalized stipulation on things and the site couldn't figure out how to distinguish and/or monitor and just tried an outright blanket ban.

Just a WAG but I'm guessing that first site/store should have hired professional legal advice, published a position paper or the ubiquitous "accept these Ts & Cs" button. I just can't see how this was a case of competent people getting good advice. There's a whacko in the woodpile somewhere on that one.

In the DAZ case a best guess on my part is that its a Disney-like, rigorously guard the reputation and brand play.

It all seems very odd to me. Has there ever been any indication that the chill wind originated from government sources?

Knucklehead said...

OK, hang on a second...

I'm pretty sure the subpoena of Google data case is one of, ultimately, figuring out how to go after vendors of porn who fail to take action to try and stop minors from accessing their content. I read some of the court decision and that's sure what it sounded like to me. This is the porn version of don't sell alcohol to minors and if you do, it better be because there was no legitimate way to prevent it.


Are there really cases of federal government prosecution of people under anti-child-pornography laws for things like naked baby on bear rug or naked small child cavorting on a beach? Really? I just find the idea of it nuts. If somebody tells me that there are some very rare and very localized cases of some nutbars trying to use a court to force some photog shops to take nekkid baby pictures out of their shop window I could believe that. People are wierd. I might also believe that there's some secret sicko signal for "we got child porn inside" that somebody found out about or somesuch and is trying to fight.

But cute little baby crawling nekkid on the floor? What parent doesn't cherish such a picture and keep a few copies around for torture purposes when the kid reaches adolescence ("oh, look how sweet and cute you used to be!" can induce vomitting in a teenager).

Knucklehead said...

That's well and good - but likely minors does not cut it.

If this it were a criminal prosecution of somebody or some group, "likely minors" absolutely doesn't cut it.

My example, however, was one of using surveillance to determine if some course of action is called for. My example was to show how in some cases the government can easily gather "data", not evidence. Think about the local police chief telling the town council he needs to add three officers 'cause there's a growing prostitution problem down on 14th Ave. So he has an officer sit out there undercover in some non-descript parked car for a a few hours over several nights just getting video which he presents to the town council to demonstrate that, in fact, there is a real prostitition problem on 14th Ave. His purpose wasn't to run down and bust a hooker every couple days but, rather, to gather the data that shows there's a problem and get the funding for the three additional officers required to shut down the problem without leaving everything else unpatrolled.

Of course, in the time I've spent speculating about this I could have read the rest of the court decision the government is responding to. What I did read of it, though, suggested it was a case of the court telling the DoJ to go gather more data 'cause while the court doesn't deny there is an issue the DoJ's first crack at showing there is an issue didn't cut the mustard.

Syl said...


So the issue here is not whether the data could be analyzed for "trends". It is how could they possible tell who the end user is.

My point exactly. Thanks for making the case.


Believe me, those sites all have their own lawyers.

As for the timing, I can't remember exactly, but it all started during Ashcroft's tenure. At first there were noises and stricter enforcement and some minor rule changes. Then came PayPal, then later the CC companies.

Oh, um, it's not wise to tell an artist what an elf should or should not wear. You were kidding, right?

Charlie Martin said...

Knuck, it's going to require a little research to document it and I'm preparing a presentation for the day job right now, but yes.

Knucklehead said...

Oh, um, it's not wise to tell an artist what an elf should or should not wear. You were kidding, right?

I most certainly was not kidding. While I realize elves are not trolls, I just so happen to be within sight of a large group of trolls. Not a single naked body among them (although I do admit that the older men and the younger girls are frequently bottomless - not sure what's up with that).

But back to elves... why on earth would anyone leave an elf nekkid? Like trolls they come from normally cold climes and, asthetics aside, need clothing. I know of not a single instance of a nekkid elf outside the privacy of his or her own (well heated) home.

Nekkid elves! Who ever heard of such nonsense.

Fairies can, of course, be nekkid but truth be told they've been mostly faking it with body suits (like the ice-skaters do). It ain't really nekkid it just looks that way from a distance. And it ain't like fairies are prone to getting up close and personal with folks outside the inner circle who, for whatever reasons, are willing to keep up the fake nekkid charade.

Nekkid elves... there's just nothing sacred anymore. That's the problem with art.

flenser said...


If you don't like the law, then you should take it up with your congressperson or senator, not with me.

Likewise, if you think that the DOJ is making up the law, you have recourse in the courts and in Congress. Telling me your likes and dislikes may make you feel better but is unlikely to alter the DOJ policy. I just don't have that kind of clout.

I'm sure you are aware that it is possible to create computer generated images which are practically indistinguishable from the real thing. No, not your robots. This brings up the legal question of whether or not porn is illegal if the "actors" in question are not in fact real people. Or children.

While this is a new area and the law is still pretty vague, the conesnsus that has developed is that it makes no difference whether or not the "actor" is real.

I bring this up in response to seneca's comment to the effect that it is not a crime unless an actual person was involved and harmed. While I realise that this point of view is out there, it's not one which has much currency in law at present.


Your ISP knows who you are of course, and as you say all the governemnt has to do is combine their records with that of the search engine to determine who searched for what. This will require a warrant, which is only available on probable cause. I assume that they need access to the Google data to develop probable cause.

All of which sounds very similar to the discussion of NSA data mining, yes?

Charlie Martin said...

I bring this up in response to seneca's comment to the effect that it is not a crime unless an actual person was involved and harmed. While I realise that this point of view is out there, it's not one which has much currency in law at present.

So much the worse for the law, then.

flenser said...


That's a topic for a different thread. We'll have to have that discussion one of these days, maybe after I finish Randy Barnett.

Knucklehead said...

OK, here's one thing I found regarding the matter of "virtual" child pornography from the National District Attorneys Association (it also carries an American Prosecutors Research Institute tag):

Tuesday, April 17th, the Supreme Court handed down a decision striking down the elements of the Child Pornography Protection Act2 (CPPA) that criminalized the possession, distribution or creation of “virtual” child pornography. The Court based its ruling on three basic points: 1) The law was too broad and criminalized harmless images that bore no relation to pornography, such as the movie “American Beauty.”4 2) The law was too broad and not only placed too high a burden on the defendant to prove, but also was irrelevant because virtual child pornography was a legal and logical alternative to actual child pornography. 3) The Court refused to recognize a direct link between the consumption of virtual child pornography and the sexual exploitation of children. Because the Court reached these three conclusions, a law that adequately addressed present crimes and anticipated future ones was improperly struck down.

Despite the fact that the ruling does little to aid law enforcement, and does even less to protect children now and in the future, it cannot be avoided or ignored during prosecution.

Here's an old post at Crooked Timber about the nekkid baby in the bathtub issue. It is somewhat non-committal in that if it ain't child porn you probably won't be convicted but you might be prosecuted. In the post he quotes and links to a 3/31/04 Volokh post on this topic.

Crooked Timber says it pretty well:

The vast majority of people are not pedophiles, and if they want to take pictures of their naked children frolicking in the sprinkler they should not have to worry that some busy-body at Rite-Aid is going to narc them out to child welfare.

And the legal requirement that Rite-Aid report all instances of nekkid children is probably the source of trouble here.

Charlie Martin said...

Patrick Tyson dropped me a note with a convenient citation: Ashcroft v Free Speech Coalition. This held that, in fact, proscriptions of content for merely appearing to include underage participants was "overbroad and unconstitutional".

Charlie Martin said...

Uh, yeah, that would be Knuck's case. Too quiick for me, guys.

Re Volokh, I especially like the one where a 15 year old girl was being prosecuted for taking sexually suggestive pictures of herself underer child porn statutes. It would seem to pose one of those interestingly self-referential problems: if she's a child, can they prosecute her? She's presumed not to have known what she was doing. On the other hand, if they can prosecute her as an adult, how can it be "child" porn?

Knucklehead said...

If the level of assault on free-speech that Ashcroft's jackboots rose to is overzealous prosectution of "child porn", well, preposterous as it may be it ain't exactly Sophie's Choice kinda stuff.

I have yet to see any evidence that they actually won any of the overzealous prosecutions. Volokh goes into some of the complexities involved in the case of that 15-year old but it sure does seem pretty silly to make a federal case of this sort of thing. Anyone know the ultimate disposition of that case?

flenser said...

Is Patrick too bashful to post here? We're not scary, are we?

His information is not quite up to date. After Ashcrof vs Free Speech Coalition, Congress went back and wrote another law saying much the same thing. It's called The Child Obscenity and Pornography Prevention Act of 2003.

You can go here to get the detailed information on what the current law is in this area.

As for "Ashcrofts jackboots" - perhaps that was meant in jest. If it was not, I'd just point out that we really should expect the DoJ to apply the laws. The law Ashcroft was applying was the CPPA, passed by Congress in 1996 and signed into law by that religious fundamentalist, Bill Clinton.

So give Ashcroft a break.

flenser said...

The real outrage here should be that the US Supreme Court felt that American Beauty has "artistic merit".

Grounds for impeachment, I say.

Knucklehead said...


The "Ashcroft's Jackboots" comment was entirely sarcastic. To listen to Dems and Leftoid Moonbats (but that's redundant) one would think Ashcroft was the second coming of Goebbel, only meaner and more dangerous.

As you pointed out, DoJ's job (the Attorney General's job) is to enforce the law. Laws such as CPPA go into areas that are often legally unsettled and where there is no shortage of inconsistency. Just as one example, a private citizen running around taking and distributing some of what advertising agencies plaster on billboards and sides of busses might be delving into "child porn".

AG's and, therefore, the DoJ play this different ways. Some will lay back well away from the edges and some will push the envelope to discover where the boundaries are. The latter of those will have some of the DoJ's actions overturned.

As I mentioned, if the worst the "Jackbooted Ashcroft Gestapo" ever did to the nation was get a bit overzealous in the pursuit and prosecution of child porn than they really weren't much of a jackbooted gestapo were they? I don't think that famous quote is ever modified to start with, "First they came for the child porn sickos and I did nothing because I wasn't a child porn sicko."