Michael Portillo, P2P, and Kiddie Porn?

No, Michael Portillo wasn't arrested for downloading kiddie porn. I think John Major made the comment that the Conservatives didn't invent sex in regard to scandals, which I just wanted to say even though it isn't really relevant to this post. Michael Portillo is an upstanding chap: maybe a touch boring, but upstanding.

This refers to my being a bit of an anoraky train enthusiast (not to the extent of train spotting) and wanting a copy of the complete Great British Railway Journeys presented by Michael Portillo. I had downloaded the series from iPlayer, but found out two episodes were unwatchable after it had expired. One, Todmorden to York, had been available in a signed version, but I find signing distracting. Anyway, 14 of the 20 were downloaded in hi-def and it's so interesting to know that the ticket he buys in the opening sequence is from Exeter St. David's to Exeter Central. Also, you get to see all the grafitti on the viaduct in the same opening sequence when you see it in hi-def!

Seriously, I felt that I wanted the whole series complete and in hi-def and it was no longer available through the "official channels", iplayer and just plain off buying it (Likewise The Truth About Christmas Carols is also history meaning that I have to suffer with a low def version--unless the Beeb rebroadcasts it next year). What does one do in such a circumstance?

One goes to the internet and hopes to find a download, which is possible for some popular programmes (e.g., Torchwood, Doctor Who, Being Human, Hotter than my Daughter, and so on). Less so for the arcane (e.g., The Truth About Christmas Carols and Great British Railway Journeys). Actually, Great British Railway Journeys was available on a torrent site, which is where my story takes me.

It seems that P2P technology is an up and coming area in the Child Pornography world. Pornography (and child pornography) has always been available on the internet. Clever distributors have used P2P as a method for sharing this stuff. Quite possibly, very clever ones could hide their wares under titles such as Michael Portillo's Great British Railway Journeys or some other innocuous title.

US v. Borowy details how the kiddie porn images are red flagged. It also mentions how Borowy used LimeWire (a P2P sharing programme) to download this stuff. Furthermore, the fact that one is using P2P to open up your computer to share files means that you are giving up a privacy right. Not that you aren't waving a red flag to law enforcement by downloading this stuff anyway. I'd like to think that one could claim innocence if you truly thought you were downloading Michael Portillo's Great British Railway Journeys and found yourself watching something revolting instead.

Common wisdom is that you immediately delete the files with some sort of secure wiping software the moment you realise that you are not watching Michael Portillo and the shock wears off. I am not sure how long a period of grace exists for the shock to wear off, but hope that it doesn't linger more than a couple of hours, or the time it takes for the heat to secure a search warrant. I do like to say that common wisdom isn't always good legal advice, but it won't hurt if you are a truly innocent train enthusiast with a love of Bradshaw's Railway Time Tables and their applicability to modern Britain..

My point is that most of my clients use P2P file sharing in a more menacing way than just downloading songs in the mistaken belief that they won't get nabbed. The reality is that these images are red flags to law enforcement. Law enforcement's software is such that nabbing kiddie porn enthusiasts is akin to catching fish in a well stocked barrel. They have their hands full with people downloading vast quantitites of images. You aren't really anonymous when you do P2P. For example, bit torrent has the possiblity of obtaining the IP addresses of all current, and possibly previous, participants in a swarm from the torrent's tracker.

Unlike music file sharing, law enforcement is down on the kiddie porn crowd like flies on shit. So, BEWARE!

Show Me!

And while we're at it: is the book Show Me! child pornography? I mean the book was published as a sex education guide. On the other hand, it does depict children engaged in sexual activity.

So, does the educational value outweigh the fear of it being child pornography?

In 1982, the U.S. Supreme Court issued a decision, New York v. Ferber,458 U.S. 747 (1982), which allowed the government to constitutionally ban the knowing distribution of even non-obscene "child pornography". Citing a chilling effect, St. Martin's Press then pulled the book, stating that though they believed Show Me! was not pornographic, they could no longer afford the legal expenses to defend it, and they did not want to risk criminal prosecutions of their own personnel and/or vendors who sold the book. The Court overruled a decision of the New York Court of Appeals, The People v. Paul Ira Ferber, which held that the First Amendment protected the dissemination of non-obscene sexual depictions. Show Me! was not the direct subject of the Ferber case, but the book was prominently featured by both sides in the litigation, and it played a significant role in the oral argument before the U.S. Supreme Court.

Hello Little Girl!

This was a song by the Fourmost, a Mersey Beat Group. The song "Hello Little Girl" is a song written by John Lennon and Paul McCartney in 1957 and was used as one of the songs at The Beatles unsuccessful Decca audition in 1962. It is the first song ever written by John Lennon. Of course, Bryan Epstein passed around the fame and talent amongst the Mersey Beat Groups.

But that's not what I want to talk about. I want to talk about contesting a Search Warrant for Child Pornography.

It seems our client was caught by a computer technician who was doing a scan of his hard drive. The scan turned up pictures of scantily dressed children in sexually suggestive poses. We are contesting the search warrant as being without basis. The question is what is the magic wording for child pornography in the Statute. My senior, who never cracks a law book, was upset that I even made the suggestion. But the wording in question is:

any visual depiction, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct or the simulation of such conduct.

Depictions of even a clothed child can violate law (E.g.,18 U.S.C. §§ 2252(a)(2), (4) and 2256(2)(E)) if they constitute "lascivious" exhibitions of the genitalia or pubic area. The 10th Circuit Court of Appeals has defined "lascivious" as "tending to excite lust; lewd; indecent; obscene; sexual impurity; tending to deprave the morals in respect to sexual relations."

So, my question is are the depictions such that they are "tending to excite lust". Although, that is a pretty vague concept. Is a picture of child in a long flannel granny nightgown sitting with her legs spread child pornography even if you can't see anything? What exactly excites lust. Could this picture excite lust? I mean her pose seems a bit coquettish to me.

Also a pedophile is likely to have feelings of lust for children even if they are modestly dressed whatever their demeanour. On the other hand, most people are repulsed by child pornography. And, having seen enough of it as evidence in the cases I've worked on, it is pretty revolting. So are we using a reasonable person test here? Or if it looks disgusting, it must be disgusting. Where is John Mortimer when we need him most!

Besides writing the Rumpole stories, John Mortimer is best known for defending cases relating to claims of obscenity which according to Mortimer were "alleged to be testing the frontiers of tolerance". The thing is that we aren't testing the limits of tolerance, but how far can the law go?

Anyway, we are lucky in that our law isn't as vague as US federal law. The point I am making here is that one needs to be aware of the wording of the Statute when interpreting law. Although, it is a hard concept for most people to grasp since my Senior and some Judges have problems with this. It doesn't suprise me that most laymen has this problem as well.

Anyway, the prosecution must make a case that the basis of the Search Warrant was that there was a suspicion of illegal activity, which merely scantily clad children in provocative poses, but not engaged in or simulating sex acts, does not qualify.

Footnote to this: It seems that there have been proposals in the US legislature and some state legislatures to ban child modeling sites for precisely this reason: the poses can be interpreted as child pornography.