The Catch 22 at the heart of the proposals
Manniq, 03 Sep 2005 16:57:19
A thought, last night, which goes to the heart of the unreasonability of these proposals - and which are a carry-over from the Child Protection Act.
Were the proposals to become law, I suspect that there would be terminology along the lines of 'making pictures' (for which, read 'downloading'): and for possession to happen, it would probably be sufficient for the images to reside on your hard drive for a period of time (even in cache).
Otherwise, you could easily get around it by viewing whatever images you wished and cleaning your drive straight after.
The problem. The government defines what sort of pic is a criminal offence to 'possess'. But you can't work out whether the picture breaks the law unless you look at it and thereby, however temporarily, download it.
So the only way to find out if you are breaking the law is to look at pictures and - ooops! - discover you have just broken the law.
There is a point to this ramble. It might be that any legislation drawn up with such a principle at its heart could be overturned in court as simply unreasonable.
Thoughts?
Regards,
M
SnowdropExplodes, 03 Sep 2005 17:28:12
Since the paper states quite explicitly that there is no intention to penalise those who have accidentally or unwillingly received/downloaded such images, it is clear that simply having them in your cache should not be sufficient evidence.
It may be the case that when (if) the legislation is drafted, terms for making pictures or downloading will be included, however, that is not a part of the proposals at this stage: what is at issue *at the moment* is "simple possession", which is clearly intended to include possession in digital form, so that would include stored on the hard drive.
As the proposals stand, it seems as though it would be necessary in order to secure a conviction to prove beyond reasonable doubt that the images were deliberately viewed online and downloaded to the hard drive, and were not acquired accidentally or unwillingly. I imagine that the main line a prosecution would take would be to look at the volume of material found on a suspect's computer, and use any email or written evidence found to suggest that it was deliberately obtained.
We must not be drawn into arguing against a position that has not yet been stated or argued by the government. It will be too easy for them to deny that any such thing is happening, and kill off that argument, before introducing the measures later in the process. We must necessarily wait to respond to what they say, rather than trying to pre-empt their actions and arguments (although we can use the time to position the case we make in anticipation of further developments).
Ta,
SnowdropExplodes
manniq@hotmail.com wrote:
A thought, last night, which goes to the heart of the unreasonability of these proposals - and which are a carry-over from the Child Protection Act.
Were the proposals to become law, I suspect that there would be terminology along the lines of 'making pictures' (for which, read 'downloading'): and for possession to happen, it would probably be sufficient for the images to reside on your hard drive for a period of time (even in cache).
Otherwise, you could easily get around it by viewing whatever images you wished and cleaning your drive straight after.
The problem. The government defines what sort of pic is a criminal offence to 'possess'. But you can't work out whether the picture breaks the law unless you look at it and thereby, however temporarily, download it.
So the only way to find out if you are breaking the law is to look at pictures and - ooops! - discover you have just broken the law.
There is a point to this ramble. It might be that any legislation drawn up with such a principle at its heart could be overturned in court as simply unreasonable.
Thoughts?
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Manniq, 03 Sep 2005 18:32:55
Author wrote:
> Since the paper states quite explicitly that there is no intention to penalise those who have accidentally or unwillingly received/downloaded such images, it is clear that simply having them in your cache should not be sufficient evidence.
> It may be the case that when (if) the legislation is drafted, terms for making pictures or downloading will be included, however, that is not a part of the proposals at this stage: what is at issue *at the moment* is "simple possession", which is clearly intended to include possession in digital form, so that would include stored on the hard drive.
> As the proposals stand, it seems as though it would be necessary in order to secure a conviction to prove beyond reasonable doubt that the images were deliberately viewed online and downloaded to the hard drive, and were not acquired accidentally or unwillingly. I imagine that the main line a prosecution would take would be to look at the volume of material found on a suspect's computer, and use any email or written evidence found to suggest that it was deliberately obtained.
> We must not be drawn into arguing against a position that has not yet been stated or argued by the government. It will be too easy for them to deny that any such thing is happening, and kill off that argument, before introducing the measures later in the process. We must necessarily wait to respond to what they say, rather than trying to pre-empt their actions and arguments (although we can use the time to position the case we make in anticipation of further developments).
> Ta,
Ah, well. We disagree. I base my input on the history of what happened with the Child Protection Act, where the definition of 'making of images' got stretched further and further in the actual practice of the Act.
Anyway, I disagree on two grounds. First: yes, I understand the government position that this will not catch people who stumble across such images by accident...I don't think that applies to the bdsm community as a whole. If you look at the viewing log of someone who is into bdsm and surfing, you will find quite a few sites visited.
Therefore, there will be fairly decent evidence of intent to find bdsm material. Their criminality would then turn on whether the jury bought their line that they were looking for bdsm porn but NOT illegal bdsm porn.
I suspect and suggest that the government line is aimed more at those who look up 'ponies', say, and find themselve sin the middle of some bestiality site.
Second, I disagree fundamentally about your approach. The whole point of a consultative period is to push boats out and to test the water. On both sides. We need to find what will run as an argument (with public and government) and what will not. And we need to nail the bastards down on detail.
Over and over and over...whenever they say something vague, or soft, we need to pin them to a specific assertion or denial about where they are going. If they won't be specific, assume the worst.
Note also, I put forward this Catch 22 argument as one that could well play on our side.
Regards,
M
Manniq, 03 Sep 2005 18:38:45
Author wrote:
> Since the paper states quite explicitly that there is no intention to penalise those who have accidentally or unwillingly received/downloaded such images, it is clear that simply having them in your cache should not be sufficient evidence.
> It may be the case that when (if) the legislation is drafted, terms for making pictures or downloading will be included, however, that is not a part of the proposals at this stage: what is at issue *at the moment* is "simple possession", which is clearly intended to include possession in digital form, so that would include stored on the hard drive.
> As the proposals stand, it seems as though it would be necessary in order to secure a conviction to prove beyond reasonable doubt that the images were deliberately viewed online and downloaded to the hard drive, and were not acquired accidentally or unwillingly. I imagine that the main line a prosecution would take would be to look at the volume of material found on a suspect's computer, and use any email or written evidence found to suggest that it was deliberately obtained.
> We must not be drawn into arguing against a position that has not yet been stated or argued by the government. It will be too easy for them to deny that any such thing is happening, and kill off that argument, before introducing the measures later in the process. We must necessarily wait to respond to what they say, rather than trying to pre-empt their actions and arguments (although we can use the time to position the case we make in anticipation of further developments).
In fact, let me clarify. The direction of argument under the CPA has tended to be that if you are deemed to be a pervert and you have images that could be viewed in a perverted way, then those images are perverted, whilst those same images, if in the cache of teh Archbishopp of Canterbury would merely be choirboys smiling angelically to heaven.
This has appeared elsewhere in government proposals - and is why they are truly talking about thought crime... because the way their law has been enacted, the criminality lies mainly in the image, but also in the mind set of the peson watching it.
If you are into bdsm, I think the defence of unintentional downloading would not hold (and ergo stuff in cache would be a risk).
If you are clearly not into bdsm, you would be ok.
Regards,
M
Lothario, 03 Sep 2005 19:38:55
Paragraph 49 sets out specific defences to the proposed offence, one
of which is accidental downloading or viewing.
Note that the proposals, while aimed generally at downloading from the
internet, are not limited to receiving such pictures through that
medium. It is here (perhaps unintentionally, though I doubt it) that
the range of material to be prohibited extends the provisions of the
Obscene Publication Act to criminalise people producing material for
their own use.
Under the OPA, you have to publish the material (ie. distribute it in
some way, even just pass it gratis to a friend). By making the simple
act of possession illegal, a situation where someone made pictures of
consensual SM that exceeded the GBH standard and retained it for their
own use would be committing an offence. In this sense, it would be
similar to the Child Protection Act, which covers "making" pictures,
including simulated pictures and doesn't require any publication or
transmission for an offence. And none of this has necessarily anything
to do with computers; you could take photos of your own activities on
a film camera, develop them at home, never show them to anyone else,
and still be committing an offence.
The very weak argument that such material might potentially harm
individuals clearly falls apart in the case of people producing banned
material solely for their own consumption and who would simply be
subjecting themselves to the products of their own imagination.
Likewise, creating realistic simulated images for your own use would
also be an offence, even if they never went further than your own
computer and depicted events which had never happened. I would
challenge anyone to explain credibly who the victim of such a "crime"
might be imagined to be.
Manniq, 03 Sep 2005 20:51:35
Author wrote:
> Paragraph 49 sets out specific defences to the proposed offence, one
> of which is accidental downloading or viewing.
> Note that the proposals, while aimed generally at downloading from the
> internet, are not limited to receiving such pictures through that
> medium. It is here (perhaps unintentionally, though I doubt it) that
> the range of material to be prohibited extends the provisions of the
> Obscene Publication Act to criminalise people producing material for
> their own use.
> Under the OPA, you have to publish the material (ie. distribute it in
> some way, even just pass it gratis to a friend). By making the simple
> act of possession illegal, a situation where someone made pictures of
> consensual SM that exceeded the GBH standard and retained it for their
> own use would be committing an offence. In this sense, it would be
> similar to the Child Protection Act, which covers "making" pictures,
> including simulated pictures and doesn't require any publication or
> transmission for an offence. And none of this has necessarily anything
> to do with computers; you could take photos of your own activities on
> a film camera, develop them at home, never show them to anyone else,
> and still be committing an offence.
> The very weak argument that such material might potentially harm
> individuals clearly falls apart in the case of people producing banned
> material solely for their own consumption and who would simply be
> subjecting themselves to the products of their own imagination.
> Likewise, creating realistic simulated images for your own use would
> also be an offence, even if they never went further than your own
> computer and depicted events which had never happened. I would
> challenge anyone to explain credibly who the victim of such a "crime"
> might be imagined to be.
Indeed. My partner (redcat) is not a bad illustrator - maybe useful if the campaign needs some designing done - and has been known, on occasion, to commit the workings of her fevered imagination to paper.
I suppose, since I have seen some of these scribblings, that she has corrupted me, or some such nonsense.
Actually, though - and I may well be imagining this - does the document not specifically exempt cartoons?
That could create a most intriguing loophole if it does, given how a photo can be taken and then 'turned back' to a line drawing, of sorts, by people with a good deal more graphical skill than I possess.
So. If I (or rather, a competent artist) draw a cartoon of a specific bdsm image, I would be OK. If I took a photo of that same image, using actors, I might be a criminal.
However, if I took such a photo whilst on my hols in France and then converted it to a line drawing of sorts?
Nah. The mind begins to boggle. A whole new market beckons for pseudo-photos. Not to mention photo-realistic paintings!
Its ridiculous...and wherever ridicule exists, there lies a chink in the armour of our would-be moral guardians.
Regards,
M
Manniq, 03 Sep 2005 20:54:36
Author wrote:
> Paragraph 49 sets out specific defences to the proposed offence, one
> of which is accidental downloading or viewing.
> Note that the proposals, while aimed generally at downloading from the
> internet, are not limited to receiving such pictures through that
> medium. It is here (perhaps unintentionally, though I doubt it) that
> the range of material to be prohibited extends the provisions of the
> Obscene Publication Act to criminalise people producing material for
> their own use.
> Under the OPA, you have to publish the material (ie. distribute it in
> some way, even just pass it gratis to a friend). By making the simple
> act of possession illegal, a situation where someone made pictures of
> consensual SM that exceeded the GBH standard and retained it for their
> own use would be committing an offence. In this sense, it would be
> similar to the Child Protection Act, which covers "making" pictures,
> including simulated pictures and doesn't require any publication or
> transmission for an offence. And none of this has necessarily anything
> to do with computers; you could take photos of your own activities on
> a film camera, develop them at home, never show them to anyone else,
> and still be committing an offence.
> The very weak argument that such material might potentially harm
> individuals clearly falls apart in the case of people producing banned
> material solely for their own consumption and who would simply be
> subjecting themselves to the products of their own imagination.
> Likewise, creating realistic simulated images for your own use would
> also be an offence, even if they never went further than your own
> computer and depicted events which had never happened. I would
> challenge anyone to explain credibly who the victim of such a "crime"
> might be imagined to be.
In fact, take a good look at
http://keptar.demasz.hu/arthp/art/m/mantegna/stsebast.jpg
If I keep a copy of this on my wall as art, I am a connoisseur.
If I wank over it, I am a criminal.
What if I am a connoisseur who enjoys the occasional wank?
Regards,
M
dan brusca, 04 Sep 2005 16:56:32
> There is a point to this ramble. It might be that any legislation
> drawn up with such a principle at its heart could be overturned in
> court as simply unreasonable.
It's possible, but far into the future. Best to stop it getting to
legislation in the first place ;)
--
dan brusca
http://pandemos.net - Domina directory, fetish resource
http://pandemos2.net - femdom and fetish photo site
Kramel, 04 Sep 2005 16:59:22
I'm sorry, but I don't want to have to spend a week in court with the
associated media interest to defend my Human Rights. The legislation must not make
it to the statute books
> There is a point to this ramble. It might be that any legislation
> drawn up with such a principle at its heart could be overturned in
> court as simply unreasonable.
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Graham Marsden, 04 Sep 2005 20:53:46
dan brusca wrote:
>> There is a point to this ramble. It might be that any legislation
>> drawn up with such a principle at its heart could be overturned in
>> court as simply unreasonable.
>
> It's possible, but far into the future. Best to stop it getting to
> legislation in the first place ;)
Damn right!
Far better to put roadblocks in the way of its path *before* it gets on
the statute books than try to remove it from them afterwards (and
possibly after a lot of consenting people have got into trouble)!