Researching online subjects: a few conflicts – by “Chuen-Yee C”

As the use of web 2.0 tech continues to grow, researchers and developers who decide to study the effect of MMOGs, forums, and social networking spaces must face a new strain of ethical dilemma. These new environments are ripe for research on human interactions, social structures, and the nature of fandoms and group generativity; but do the usual rules of research ethics apply to non-traditional spaces?

Rules of ethics are around to protect human subjects from harm. People online are just as human, but the ways in which research is conducted and informed consent required still remains a somewhat undefined area. Informed consent is required for research, as well as the assurance that the researcher will not let the subject come to harm or cause harm. In an online setting, if a researcher is going to be interacting with or studying people, these people have the right to be told, given the chance to opt-out, and be assured that they will not meet with any harm. But how do you make sure you don’t hurt someone when you’ll probably never know if it happens? Interacting online means that you may not know how something really affects them. People get depressed and can commit suicide because of things that happen to them online or in virtual spaces; real psychological harm can be inflicted.

The experimental model for research doesn’t exactly work when studying existing spaces; researchers are more likely to take a field research approach. But what happens when someone in the “field” doesn’t want to participate? If the “field” is perceived to belong to the users before the researcher came along? This obviously causes problems for the researcher’s desire to study the space, and there’s no clear answer as to what form of reconciliation should take place.

The anonymity that comes with being a research subject should not be conflated with the default anonymity that most people assume online. In real life, one glance at a subject or at least some related background information (untied to the subject’s name) can reveal if they are part of a “vulnerable population”—children, the disabled, mentally unstable, and so on. However, online it is hard to determine who falls into one of these categories and who doesn’t. To borrow a concept from Rawls, in dealing with the online populace we have to assume a stance behind a “veil of ignorance” and afford everyone the protection given the “vulnerable populations.” In assuming that everybody is vulnerable, we can avoid ethical liability.

Confidentiality is another issue; nobody knows anything about anybody besides what they choose to reveal most of the time, but as demonstrated in the Scalia situation, publically available information can be readily compiled and trends inferred. When dealing with social media, there might be a great deal of personal information within the researcher’s grasp. Screennames are just as a part of people’s identities as anything else, and can leave a (somewhat incriminating) paper trail, if researched thoroughly enough. Gamer tags and forum screenames may go back for years; personally speaking, I’ve carried the same screenname for over ten years.

And what about the researchers themselves? There are a myriad of perceptions about the Internet, social networking sites, forums, online games, and the people who use or play them. If a researcher can’t approach the subjects or subject matter with an unbiased position we expect in lab studies, they probably shouldn’t be studying it. Conflicts of interest may also emerge, say if a researcher’s relative is a marketer at a firm that uses social networking apps to market their products.

Online spaces are used more and more for social, political, recreational, and economic purposes and have great potential to reveal a lot about ourselves as individuals and the larger social picture. However, the research on online spaces must be carefully gathered or else we may just end up perpetuating previous attitudes or gathering inaccurate data. The common definition of experiment doesn’t work well in online spaces; because the space is different, new ethical guidelines need to be laid out.

Internet Passport? – by “Shirley B”

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In an interview last month with a reporter from ZDNet Asia, a website about technology offering such services as product reviews, news, and opinion, Eugene Kaspersky, the CEO of Kaspersky Lab, a top computer security company, told a reporter that he thought that the greatest problem facing not only the internet but computers in general was anonymity on the web. His frustration with anonymity on the Internet stems from what he sees as a basic design flaw in the Internet. His point is that the Internet was designed for a small, select, easily identifiable group i.e. the Department of Defense, and that when it was released to the general public its intended audience changed but it’s design did not. He does not propose that we limit the use of the Internet to a select few scientists once again, but that instead we now take the chance to redesign the Internet. His main ideas are a sort of Internet police force – an online Interpol. His second is this idea of driver’s licenses for the World Wide Web. Kapersky said that he felt that access to the Internet should be limited in the same that we limit and control access to airplanes, or driving – we should require something similar drivers licenses or passports to access the Internet. ISPs, he says, are not enough. He likens them to license plates; the plates are but one part of identification; to positively identify someone in the car they need to have their license. Besides the obvious practical problems with this proposal, there are a few philosophical problems I have with both his arguments and with his idea of ending anonymity for the Internet.
Simply because anonymity was not an original aspect of the design on the Internet does not mean that somehow it is bad for the Internet; this is simply a flawed argument. Why is anonymity a negative aspect of the Internet simply because it’s being used in a way it was not originally designed for? Take Ikea furniture, for example. There is quite the following for a site called Ikea Hacker, a blog that posts peoples’ various re-uses of their Ikea furniture, and instructions on how you can do the same. (This is, of course, not the strongest analogy in the world – I mostly just think that this is a great site, but you get my point – his point simply doesn’t follow from what he says about the original state of the Internet).
Of course his greater point is that anonymity and the popular voice somehow hurt the Internet. However, in my opinion, the benefits of anonymity far outweigh the negatives. Even if, in the United States, we don’t legally curb free speech, socially we certainly do, and some people even self-censor and would be far more hesitant to speak if anonymity were not an option. As we read last week in “The coming-out stories of anonymous bloggers:”

“There are things that you know, or that you feel sort of in your heart of hearts, that you might not want to put out there in a public way” with your name attached, she said. “If people always spoke without filters, we’d learn a lot more.”

Her point is not that it makes people happy to be able to anonymously post mean things about others online, or that it’s useful for criminals to be anonymous. It’s that it is socially and politically useful to have anonymity. We need the kind of fearless honesty that is possible in most cases only with anonymity. The amount of information, both facts and opinions, available to us would drop dramatically if people could no longer be guaranteed a safeguard from general public opinion.
The idea of having “driver’s lisences” while on the Internet is also a wholly invasive and paranoid notion. The implication behind this suggestion is that not only could you not have pseudonyms, so to speak, but also you would also have to plainly identify yourself while on the Internet, or be forbid from using it. The ease with which Kaspersky’s new Interpol could identify you presents not only a problem for anonymity but is also an invasion of privacy. While the argument can be made that increased surveillance helps catch criminals, I would also argue that it also catches innocent people and makes them feel like criminals for simply doing something controversial or perhaps personally embarrassing; there is legal law, and then there are social mores. Many argue that if you’re acting completely within the law you should have no problem letting the police check you out. But, while I think that some preemptive measures against crime are justified, I would argue that if I’m acting within my legal limits, as it should be assumed that I am, why should the police need to check me out, even at a cursory level.
Further, perhaps it isn’t even so bad that criminals have this anonymity. After all, it seems to me that Mr. Kaspersky might be out of a job without all of these anonymous criminals emailing viruses around.

We Are Anonymous, We Are Legion – by “Scott S”

“We are Anonymous.  We are Legion.  We do not forgive.  We do not forget.  Expect us.”

No longer just an adjective in the English language, “Anonymous” is now also used to refer the countless members of Internet subculture who choose to protect their identities from the world.   Just about everyone has felt the effect of Anonymous’ presence online and off.  From the net’s ubiquitous lolcats that can has cheezburger or Rick Astley at the Macy’s Thanksgiving Day Parade, the mass of nameless, faceless computer users known collectively as Anonymous are responsible for these social phenomenon.  More interestingly, Anonymous has also been responsible for raids, invasions, activism, protests, and public defamation, via both legal and illegal means, with both good and malevolent intentions.

The idea of remaining anonymous on the Internet has been a topic of debate for nearly two decades, but in recent years, imageboards like 4chan and Futaba 2chan alongside wikis and forums like Encyclopedia Dramatica have proven themselves breeding grounds for users with a dangerous sense of unity and ability to willingness to make a difference in the world around them.  Often, Anonymous’ goal is to cause as much mischief as is possible without causing real harm.  Cases include mass [vulgar] posting on sites such as the anti-profanity “No Cussing Club” and inciting fear on Oprah’s talk show.  For the most part, these practical jokes are not much different than your 8th grade friends prank calling the teacher, just on a much larger scale.

But there is great power in numbers. Under the blanket of modern technology, it seems that members of Anonymous consider themselves masked anti-heros.  There are countless examples of how Anonymous has pulled together to cause real harm.  For one, Anonymous was credited with an attack on Vice-Presidential candidate Sarah Palin’s Yahoo email account last year.  After discovering the password, a user posted it along with screenshots of personal photos and emails to 4chan.  Since, they have been posted and re-posted to the point that they are publicly available online and can be found with a simple Google image search.  The culprit, David Kernell a.k.a. Rubico, was easily discovered because of several mistakes he made when bragging to posters on 4chan.

Luckily, Anonymous has shown that power in numbers does not necessarily mean a digital Ku Klux Klan.  In addition to terrorizing Sarah Palin, Anonymous has done some good in bringing awareness to the common man regarding topic the media might otherwise glance over.  Project Chanology, led by members of Anonymous, is a group set out to bring about knowledge of the dangers of The Church of Scientology, a religion formed in the US in 1954.  After an interview with Tom Cruise, an avid Scientologist, leaked onto YouTube in 2008, the Church attempted to remove it claiming it was unfairly edited to misprepresent the religion and was intended only for current members of the Church.  Once 4chan discovered the video, it was immediately reposted and remains available to this day.  Subsequently, Anonymous began to band together in public protest of Scientology and was called to arms via a series of videos.  Perhaps most interesting about these videos is that they alert the public that Anonymous is not an elite group of hackers, but rather your everyday man and woman who choose to take action through the force of a faceless army.

Unfortunately, some members of Anonymous decided to take it upon them to take criminal action in the form of denial of service attacks on Scientology owned sites.  After the case was investigated and some identities were uncovered in October of 2008, Dmitriy Guzner, 18, of Verona, New Jersey pled guilty to computer hacking for his role in the attacks which took place during January of the same year.  According to the information filed in United States District Court in Los Angeles, Guzner participated because he “considered himself a member of an underground group called ‘Anonymous.’”

I personally feel that Anonymous was coming one way or another.  Although the intentions of your average 4chan user might be less than ideal, change comes about when groups of people get passionate about something.  If lolcats are what thousands and thousands of users are passionate about, I can’t complain.  If protests and public awareness are what these people are all about, even better.  Even if it is a waste to see such mass amounts of people passionate about pranking the rest of the world, it is good to know that there are ways for people out there to make a difference because others agree with their ideals.  Although not necessarily attributable to 4chan and Anonymous, the recent Iran election protest was a largely Anon type of digital protest.  When I heard of friends doing their part to wreck Ahmadinejad’s web infrastructure, I was interested to say the least.  If something vile like a rigged election occurs in the United States, it’s basically guaranteed that Anon will be on top of it and that they (we?) have the power to do something about it.  That kind of power and freedom is empowering.

Since joining this course, I have done a fair bit of lurking around Anonymous safe havens.  Most of what I see is creepily dark humor mixed with a lot of pornography, profanity, and an occasional glint of useful, interesting, or heartwarming info.  While doing a little bit of research for this post, I found a rather amazing forum thread regarding Anon.  For some people, Anonymous is not just an adjective or even a mass noun, but a rather a way of life.  With anonymity becoming easier and easier, it’s no wonder that people all around the world are taking part in this underground revolution.  Expect us.

Kyllo: Do guilty people have too many rights? – by “Sabrina A”

In class we talk a lot about safeguarding rights and protecting individuals from the government, but sometimes, these rights go too far. As (generally) liberal college students, it’s easy to talk about principles, but at some point, the pragmatic applications of these principles have to kick in, and if some rights just protect the guilty instead of the innocent, perhaps they shouldn’t be rights at all. Specifically in the case of search and seizure, we want to make sure that the government cannot unnecessarily invade people’s lives. Well, honestly, in reality, it’s probably okay if the government is invading your life, if in the major case, it’s protecting the community’s right to safety. I know it’s very PATRIOT Act, but I don’t think this issue has to polarize down party lines.

Also, we act like we want to make sure that no innocent individual is screwed over in the quest to catch the guilty. I’m not sure that our justice system really works that way, though. We do value efficiency and practicality, even if accuracy in outcomes decreases. For example, we have plea bargains, and we all know that some innocent people do plead guilty. I think we’re OK with this because in most cases, the outcome is correct, and plea bargains serve justice by freeing up the system to prosecute the most important cases. If we didn’t have plea bargains, there would simply be too many cases, and pragmatically, the system would not function.

Basically, I think practicality and efficiency matter more than people give them credit for, and for those reasons, I think the decision in Kyllo v. US was incorrect. In Kyllo, the Supreme Court ruled that the use of a thermal imaging device placed at a public vantage point, used to catch a man who was growing a lot of marijuana in his home, was unconstitutional. There are several reasons why this seems like a bad decision.

First, the search method is narrowly tailored. The thermal imaging device didn’t pick up lots of scandalous details about the man’s life or anything that an innocent person would want to hide. It simply detected enormous amounts of heat. There really aren’t many uses of large amounts of heat that aren’t suspicious. It sounds like the type of device used was advanced enough that it wouldn’t catch cases like the man taking a hot bath – it was specific to uses of so much heat that a policeman should rightfully be suspicious. And the Court ruled that the use of the device itself wasn’t OK, so the Court didn’t just have a problem with the lack of warrant, it seems. It was the use of the device to identify the pot farm, the initial step – even if the police should have gotten a warrant before intervening, the device should have still been permissible.

And more importantly, we can envision a circumstance where technology advances so much that a device could practically be a litmus test of guilt or innocence with minimal physical intrusions: i.e., a device that could detect only whether large amounts of marijuana was being grown in a house. The Court has seemed to uphold that even in these types of cases, people deserve protections; however, if we had a magical machine that would only catch the guilty, we’d probably be OK with it, since it doesn’t take any secrets from the innocent.

Using this device doesn’t hurt innocent people – it doesn’t take secrets from them and doesn’t impose on them. It also doesn’t create a culture of fear and suspicion, which was what the 4th amendment was supposed to avoid. This is an unobtrusive device with a specific use. And we force people to go through metal detectors (we force kids to go to school and juror/witness/defendants to go to court, and we often put metal detectors in those places) without thinking twice. Metal detectors are external technology that catches the guilty without harming innocents. No warrant needed.

Also, the heat was leaked outside of the home. Cases that are analogous in my mind: 1. A cop happens to be walking by a house and smells opium. He should be allowed to intervene. 2. A cop is walking by a home and hears a gunshot, or the sound of someone being assaulted. He should be allowed to intervene. In this case, the cops used technology to enhance their sensory capacities. But why should cops have to hinder themselves? Should we not use technology because the Constitution leaves scientific evolution as a gray area in terms of rights protections? Ultimately, the Constitution is only a broad set of principles, and our understanding of it should evolve with technological progress. Also, Kyllo should have had a reasonable expectation of that type of technology: it doesn’t take much to detect that much heat. I know it’s hard to draw a line ascertaining what type of technology people should “expect,” but I think someone growing a pot farm in his house could expect the heat to be detectable in some way.

I guess one could say that we have to be careful because the police might use this technology against an innocent person. Well…so what? I don’t care if the police measure the heat radiating from my home. We can say that innocent people deserve protections, but this manifestation of the 4th amendment does not help innocents. And the police have no incentive to misuse or overuse the technology – they’re rewarded for catching guilty people, so they have the incentive to go after the people who have actually done something wrong.

Ultimately, it’s cases like Kyllo that make it seem like the guilty have too many protections in our society. Our system is about fairness, but it’s also about catching guilty people, and we have to look at pragmatic outcomes, not just principles, to maintain a balance of rights that best advances our conception of fairness.

Search, Seizure, and Email – by “Benjamin S”

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Just last week, District Judge Mosman in Oregon ruled that, according to the language of the SCA, the government has no requirement to notify an email subscriber when their email is searched with warrant.  The story was broken by the Volokh Conspiracy blog, though after some review, it was realized that Judge Mosman’s ruling is not nearly as threatening as at first presumed.  Judge Mosman’s interpretation of the SCA does not obviate the need for a warrant entirely; it simply clarifies that the warrant must be served to the email provider, rather than the subscriber whose material is being searched.  Judge Mosman’s opinion is here.  At the bottom of page 13, Judge Mosman makes a compelling analogy to explain his ruling:

If a suspect leaves private documents at his mother’s house and the police obtain a warrant to search his mother’s house, they need only provide a copy of the warrant and a receipt to the mother, even though she is not the “owner” of the documents.

Now, Judge Mosman is not acting in a particularly high court, nor does he have an inordinate amount of sway in the legal world; one could convincingly argue that the scholars of the Volokh Conspiracy are more influential than he is, and Orin Kerr, writing the blog post, disagrees with him.  But his ruling is troubling.

I also disagree with Judge Mosman.  I think the essential question (as in many cases covered in the reading) over where one can maintain a reasonable expectation of privacy.  When you’ve left important documents at your mother’s house, you have, intentionally or not, left private documents in a location owned and controlled by another person.  A commenter on the blog named Gabriel McCall makes a counter-analogy: “In that case, the bank safe-deposit box analogy comes fully into play. Would anyone argue that warrants and notice for the bank but not the customer would be sufficient to search a box?”  A safe-deposit box is a space in the bank’s keeping, but you maintain control over it; were the bank to access it, they would need to obtain your key or a copy thereof, just as an ISP would need to obtain your password or bypass its protection.

When I think of my email inbox, I think of it as a space belonging to me; it may be stored on someone else’s server, but the distinction is incidental.  The safe-deposit box analogy is an apt one.  Rather than your email being a space on someone else’s system, wholly within their jurisdiction, one can think of it as being more akin to a rented apartment.  You exercise control over the space; in the normal course of living, you and you alone undertake operations in it.  And it is an intensely private portion of your life, where you store, possibly permanently, private correspondence that you would never have released to others (have you ever written a nasty email about someone?).  I maintain that any modern individual would in fact maintain a reasonable expectation of privacy in their email inbox, and as such, the government has an obligation to provide notice to a subscriber upon a warranted search.

To quote Justice Scalia in the Kyllo opinion, “With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.”  The principle of skepticism towards warrantless searches is necessary and fundamental to our view of liberty.  The notice doctrine is a small portion of the legal language surrounding unreasonable search and seizure, but a crucial one; at the very least, any citizen is surely entitled to know when government agents have violated their privacy.  And so I think I have to disagree with Judge Mosman on this one; I hope he gets overturned on appeal.

Need Break Up Advice? – by “Heather R”

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Last year I was writing an email to one of my girlfriends at home. We hadn’t seen each other in a long time, so it was one of those three page long life-update type of e-mails. During the e-mail, I of course updated her on all the obligatory college-kid social life boy drama that had been going on the past few months. When she responded, it was in one of those handy dandy conversation threads that Gmail is kind of enough to provide right next to their insightful advertisements. I had previously been very impressed by their ads. Instead of “male enhancement” offers and incessant reminders about the latest World of Warcraft release, I was greeted by ads that seemed reasonably applicable to my life. It was kind of fun to imagine the key words that Gmail had picked up on to select merchandise especially for me. It seemed reasonable for them to parse my emails and pick up generic information about my consumer tendencies. Amazon and Ebay have been doing it for ages. (Users like me also bought what?!?!) This email, however, had nothing to do with me as a consumer. That afternoon I glanced over at the Gmail ads and was greeted by some particularly insightful advertisements: “Need Break Up Advice?”, “Your Ex will Beg you back!”, “Marriage Crisis Warning”, and “How to Stop a Break Up”. Of course, there were also “Popular Engagement Rings”, “Unique Style Wedding Ring”, and “Cheap Engagement Ring”. So apparently Gmail was rooting for this relationship. I will admit that I initially found this mostly just hilarious. It’s good to know that someone is on your side in a break up, even if it’s Gmail. Looking back on it this week, though, I realized just how much information about me Gmail can access.

When I was reading articles about Fourth Amendment issues relating to email, they kept on talking about the government petitioning for information from ISPs. It was a reminder that the information we are trying to protect from subpoena is already available to . . . a lot of people. Warshak v U.S ruled that a reasonable expectation of privacy extends to emails that would otherwise fall under the SCA’s lower level of protection. The government pointed to the fact that the terms of service of many ISPs permit those ISPs to monitor user activities to prevent fraud, enforce the TOS, or protect the ISP or others, or to comply with legal process. They claimed that if you use an ISP and the ISP may monitor what you do, then you have waived any and all constitutional privacy rights in any communications or other use of the ISP. Luckily, they weren’t successful. So, moment of exhale that the government can’t seize our email, but reading the decision just reminded me how much privacy I do give up when I use the internet.

I will admit I have never read a “terms of service”. Maybe that makes me grossly irresponsible, but I don’t think I’m alone in the practice. Yes, mostly I’m just lazy, but I also just see privacy invasion as inevitable. I use the internet . . . a lot. I make an effort to have reasonably secure passwords, I don’t give my credit card information to anything offered in blinking red font on the side of a website, and I don’t trust advertisements that pop up when I’m watching MegaVideo. Mostly, I try not to be an idiot and that’s about it. I try to keep someone from stealing my credit card, but I’ve thrown in the towel when it comes to Google reading my email. It’s all on their servers, and of course they have to have protection built in so that they can see information on those servers. I don’t read the small font that says they can, because I assume that every email provider will claim the same privileges.

We may have a right to privacy, but do we have any hope of attaining it? Do you we have to give up all privacy to use the internet? I feel like I do. I feel like the privacy invasion is baked into the internet, so I’ve stopped worrying about it. The onion’s alternative does not seem like too much fun. I’m interested in keeping my constitutional rights, lord knows that when I get nailed for insider trading, I’m going to want to keep those “They’ll never see it coming, let’s steal money and then take liquid ecstasy” emails to myself. Until then though, I’m just going to keep using the internet, assume that Gmail is reading my email, and hope that they offer sound advice about my love life.

Why Mens Rea Should Be Applied to Child Pornography Laws – by “Anna L”

When I was a sophomore in high school, I turned on my computer one day and realized I couldn’t access the Internet. An error message appeared that said the FCC had shut down Internet access for our household. When we called the number listed on the error message, we learned that one of the computers in our house had been sending out thousands of pornographic images, and some of them included child pornography. After an FCC official examined all the computers in our house, we learned that the source of these images was my 11-year-old sister’s desktop computer. She never used the desktop computer because it was slow and her laptop was faster. Some Russian hacked her computer and used it to distribute large amounts of pornography. So, my sister was technically in possession of child pornography.

In Flores-Figueroa v. United States, the United States Supreme Court examined a pivotal case involving mens rea. The petitioner, Ignacio Flores-Figueroa, was an illegal immigrant who worked in the United States. When his employer asked for his social security number, he made one up. It turned out that the social security number he wrote belonged to someone else, and he was charged with identity theft (he was also charged with illegal entry into the United States and misuse of immigration documents, to which he pleaded guilty). In 2006, a federal grand jury found him guilty of identity theft. Ignacio Flores-Figueroa’s lawyers argued in appeal that he was unaware that the social security number was someone else’s. The Eighth Circuit upheld his original sentence, arguing that knowledge of whether the number belonged to someone else or not was irrelevant. The Supreme Court overturned the Eighth Circuit’s decision. It held that the government has an obligation to prove that Mr. Flores-Figuerona intended to commit identity theft. Justice Bryer’s majority opinion emphasized that in criminal law, courts apply mens rea to every statute. Bryer wrote, “to the extent that Congress may have been concerned about criminalizing the conduct of a broader class of individuals, the concerns about practical enforceability are insufficient to outweigh the clarity of the text.” The Court’s findings in this pivotal case are inconsistent with current laws about child pornography.

In Osborne v. Ohio, the United States Supreme Court explained that laws making possession of pornography a crime, regardless of the circumstances, were constitutional. It is terrifying to think that you might commit a crime without the intent to do so or even knowing that you committed a crime. Laws regarding child pornography have no clause about intent to receive or intent to distribute it. This has troubling consequences. People who didn’t intentionally acquire porn could be punished for having it. A teenager who receives a picture from his girlfriend without requesting it could be prosecuted. Someone who receives an email with child pornography in it would be in violation of the law. Someone who is trying to download a video on Limewire that has a fake label and turns out to be child porn could be prosecuted.

My sister wasn’t charged with possession of child porn, because prosecutors use discretion when deciding who to prosecute. But due process rights should not be contingent upon the discretion of a prosecutor. The Supreme Court decided long ago that the right of every citizen to due process overrides the risk that the guilty should go free.

Of course, it is sometimes difficult to prove intent to possess the pornography. The result of changing the law to require intent to possess child porn (or perhaps even applying a lower level of mens rea to child pornography, like negligent possession) puts the burden on prosecutors to prove beyond a reasonable doubt that people in possession of pornography intended to be in possession of it. The result is that some people who intentionally acquired child porn will walk free. Still, this is a price we must pay. We should not let prosecutors be the arbiters of who is committing egregious crimes and who is not worth prosecuting. Even though it may be difficult to prove mens rea, it should still be the essential element of any criminal act.

In the Spirit of Protecting the Victim – by “Jonathan G”

Swiffer LoveIn New York v Ferber, the Supreme Court unanimously held that the First Amendment right to free speech does not prevent states from restricting the distribution of child pornography. Indeed, in this uncontroversial decision the Supreme Court held that the “psychological, emotional, and mental health of the child” is of such paramount importance that child pornography need not even be deemed obscene per the test established in Miller v California for regulation to be justified. Public sentiment favoring child pornography laws as applied to adult predators remains strong. Indeed, public sentiment on the issue is so strong that a “my cat did it” defense can seem more likely to succeed than challenging that the behavior is wrong. More controversial however has been the recent application of child pornography laws to protect children from themselves.

Public awareness of “sexting” can perhaps be traced back to the infamous “Swiffer Girl” incident, which involved an eighth grade girl at the Horace Mann School in New York City. The girl filmed herself in three videos engaged in a variety of sexual acts with a Swiffer mop and sent them to a male classmate on whom she had a crush to show him what he was missing. Her classmate, more amused than stimulated by the videos, proceeded to forward the videos to his friends and soon the videos had spread like wildfire, first among the private school elite of New York City and then eventually nationally. The drama that ensued was so severe that the girl was forced to drop out of Horace Mann and move to Florida.

While “Swiffergate” as it became known should have been sufficient evidence of the dangers of “sexting” it seemingly had no such effect. Indeed, according to a survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy, one in five teenagers indicated that they have sent or posted naked pictures of themselves. While various educational campaigns such as “Think Before You Click” have been created, police in Greensburg, PA and other localities have taken matters into their own hands and charged teenagers with crimes under the very same child pornography laws meant to protect them. Indeed, while Rick Salomon did not violate any pornography laws by releasing 1 Night in Paris (he did perhaps violate other laws as evidenced by Paris Hilton’s successful civil suit), a child who distributes videos or photographs of sexual acts involving other children can technically be charged as having violated child pornography laws. Interestingly however, the public reaction has been decidedly against this application of child pornography laws.

Despite public opposition, certain applications of child pornography laws to charge children are consistent with both the letter and the spirit of the laws. The “spirit” of child pornography laws that punish dissemination and possession is to protect the child depicted in the pornography (the “victim”) by punishing the distributor or possessor (the “offender”). The application of child pornography laws in the Greensburg, PA case was inconsistent with the “spirit” of the law insofar as it punished, rather than protected, the “victim” creating a sort of “double-victimization” akin to charging runaway children forced into the sex industry with prostitution. Similarly, charging the boyfriends with possession did nothing to protect the “victim” insofar as there was no evidence that they were active instigators, rather than passive recipients. While it is difficult to establish a brightline standard, charging children who have sent a couple of photos of themselves to a couple of people with disseminating child pornography does not make sense.

The application of child pornography laws against children can however be consistent with both the letter and spirit of the law as in the case of Philip Albert of Orlando, Florida. In this case, Albert, after breaking up with his girlfriend, decided to get back at her by maliciously mass e-mailing photos she had “sexted” him. Punishing Albert (the “offender”) is clearly consistent with the objective of protecting his ex-girlfriend (the “victim”). While his ex-girlfriend undoubtedly put herself in a compromising position by “sexting” in the first place, this does not excuse Albert’s behavior any more than a mugger’s behavior would be excused by the fact that his victim opted to take a stroll in a dangerous part of town late at night. Similarly, the fact that Albert is himself a child does not excuse the behavior insofar as we punish children all the time for violating the law (though it might warrant some leniency).

While we should undoubtedly continue campaigns to educate children, so they don’t put themselves in compromising situations in the first place, punishing children who maliciously disseminate child pornography is justifiable as well. Indeed, in the spirit of protecting the victim, charging children who maliciously disseminate child pornography is necessary. If the law were applied as such, “Swiffer Girl’s” crush may have thought more carefully before maliciously forwarding the videos and “Swiffergate” may have been a private learning opportunity, rather than a national life destroying event.

Sexting Offenders? – by “Paulo C”

Sexting

The U.S. law prohibits the possession, dissemination, and possession of child pornography (18 U.S.C. §2252). If a politician makes a speech upholding this law, most citizens would applaud him. Children must be protected to the fullest extent of the judicial system, right? But what if the socially and criminally condemned predator were a 14-year-old girl who decided to move to the next step in the relationship with her boyfriend and started to trade nude pictures via text message? An arrest of a teenager has already been made in Michigan, and similar cases are taking place in different parts of the USA. Apparently, the new “cool thing” for teenagers is not holding hands in the movies or exchanging hidden kisses at school, but rather engaging in what is called “sexting”, a practice that may seem inoffensive at first (after all, it’s the hormones that are talking) but that could have tragic consequences.

In a survey by the National Campaign to Support Teen and Unplanned Pregnancy together with CosmoGirl.com, more than 1,200 teenagers were asked if they have already sent/posted nude or semi-nude pictures or videos of themselves. The result confirms the concerns of moms, dads, and educators around the country: 1 out of 5 has already engaged in some kind of sexting, being the rate higher for teen girls (22%) than young boys (18%). It’s obvious why a father does not want his daughter to take nude pictures of herself and send them to her boyfriend. Nevertheless, what’s the real problem with sexting? One could argue that sexting provides a safe way for teenagers to discover their sexuality without risking STDs or unwanted pregnancy. It’s pretty harmless, isn’t it?

Jessica Logan’s case tells us the contrary.

Last year, Jessica, an eighteen-year-old girl from Ohio, committed suicide some months after her ex-boyfriend had sent her nude pictures to other girls in their high school. No longer able to stand the vicious comments she would constantly hear of herself, she decided to hang herself in her bedroom. In a NBC News report, Cynthia Logan, Jessica’s mom, declared that her daughter “was being attacked and tortured.” In grief, she says, “I just had a scan of the room, her closet doors were open. I walked over into her room and saw her hanging. The cell phone was in the middle of the floor.”

The horrific outcome of this case tells us that the problem of sexting is not the action itself, but what might happen after that. It seems that as soon as girls and boys have nude pictures of each other, a lovely, healthy relationship may turn into one based upon dominance, subordination, and manipulation. Tragic cases usually occur right after teenagers break up: a sense of vengeance seem to take over resentful girls and boys who make the atrocious decision to spread their partner’s pictures on the Internet or mass mailing them to other people.

The law prohibiting child pornography is being invoked. Teenagers are being charged with manufacturing, disseminating or possessing child pornography – and many people are freaking out because the label of sex offender seems too harsh. Florida cyber crimes defense attorney David S. Seltzer, for example, does not believe that our child pornography laws were designed for regulating sexting. Commenting on the severity of the sentences, he writes: “A conviction for possession of child pornography in Florida draws up to five years in prison for each picture or video, plus a lifelong requirement to register as a sex offender.” How will these teenagers go to college with “sex offender” written in their record? How will they explain in a job interview why they had been charged with a federal felony? These teenagers are paying with their lives for a silly mistake they made in following a fad.

We don’t want teenagers to live with this stigma. Instead of locking them up, we should remove the “sex offender” label from their criminal record and have them spend some hours of community service. In addition, parents and teachers should alert their children about the risks of sexting. ConnectSafely.org, for instance, has some tips to prevent sexting, such as open dialogue with parents or trusted adults. The rigorousness of child pornography law should be invoked in cases that involve viciousness and criminal intent (e.g. Jessica Logan’s case), not when teenagers impulsively send nude pictures to their boyfriend or girlfriend.

Sexting can be harmful or harmless. The law must be able to differentiate one from the other.

The Power of Propaganda – by “Brian S”

Questions still remain about how aggressive the Chinese government is going to get in their crusade to censor all information available to their citizens (although, in an ironic twist of hypocrisy, they have recently accused Google of censorship).  The word “brainwash” comes to mind when one thinks of the behavior of the Chinese government towards its citizens; clearly the government’s goal is to keep their citizens from harboring any negative beliefs about their country, or knowing anything about their country’s dark past.  In America, where Glenn Beck calls the President a racist on national television and refuses to apologize, and where some 40% of the country agrees with him, this seems absurd at first blush.  But upon further reflection, one thing stands out: people believe what they are told.  People believe all sorts of political propaganda, for example, regardless of origin.  If the only images presented to the Chinese population are ones of a benevolent government, how will they know they are being lied to?  1984 comes to mind, naturally.

That said, will China bother to maintain their censors? For now, it seems they will.

Ways of bypassing the internet censorship include Tor and UltraSurf.  These programs re-route traffic through external IPs to avoid censors.  It is within the Chinese government’s power to block these IPs, but until recently they had not done so.  Tor was blocked in the days leading up to China’s National Day of October 1st, but UltraSurf remains unblocked, although it is apparently fairly easy to do so. Why?  One imagines China is aware of the tool, but perhaps the threat is sufficiently small.  A few thousand people among China’s billion-plus are hardly worth bothering about.  With UltraSurf available, users may not have incentive to find more devious ways to get around the censorship, which is exactly the sort of behavior the government wants to discourage.

As long as the truly objectionable sites are blocked to the public, and relatively few users are bypassing the censors in the first place, China need not worry. For example, China recently blocked a page called the Berlin Twitter Wall, a site which intended its users to share their thoughts and memories of the fall of the Berlin wall, but turned into mass criticism of the so-called Great Firewall of China.  But a small percentage of internet users use UltraSurf.  A very small percentage would read or post on a site like this.  The overlap must be essentially nil, and as long as it’s sufficiently small, it can cause only limited harm.

In fact, fostering a minority opinion is not even so bad for China.  One would not go so far as to deem it a goal of theirs, but having a minority opinion appear weak can bolster support for the majority opinion.  To this end, the Chinese government does need to ensure that the majority opinion lies in their favor, or at least seems to. China is effectively paying people to post opinions backing the government to make it appear as if most people support the government. Then, of course, more may be swayed and recruited to the bogus cause: the strategy is “fake it ’til you make it.”  And if enough lies are spread to enough people, it may be difficult for the people of China to know what to believe, regardless of how aware they may become of the other (true) side of the story (i.e. real history).  And if that happens, censorship is no longer necessary – much like the way propaganda works in the U.S. today.  Is Obama a hero or a villain?  It’s not clear.  Perhaps the Chinese government will find similar murky ground as a stepping stone on its quest towards a golden public image.