"Possession is Nine-Tenths of the Law"

An interesting case here in Oregon sheds light on the concept as to how the internet is completely disrupting the ways in which pornography is defined by law. Earlier this month, the Oregon Supreme Court ruled that it is not illegal to look at child pornography online, as long as those images are not downloaded, printed, or paid for. In other words, if you do not actually take some sort of action to “own” the images, you are not in possession of the material, and therefore cannot be punished for simply looking at it. Quoting the article in the Oregonian:

“Looking for something on the Internet is like walking into a museum to look at pictures — the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them.” — Justice Michael Gillette.

Clearly, this protects people who stumble across images they did not intend to view (though for child pornography, how likely is this, really?). However, child pornography laws were first created in the 1970s for the distinct purpose of protecting the actual children (defined as anyone under 18 in 1984 through that year’s Child Protection Act) involved in making the materials. It wasn’t until 1990, in the case Osborne v. Ohio, that the high courts ruled a state could punish someone for “possessing” the images. The justification of this law was that making it illegal to possess images would decrease the market for them, and thus protect children.

However, as the internet became more established, it was clear that the laws related to child pornography were by no means designed to deal with images distributed electronically. Additionally, there have been several legal battles to define what child pornography actually is. Since earlier laws were written to protect children, what if a person created an image that only looked like a child engaging in sexual acts (using computerized image construction), but in reality no child was actually used in creating the image? With all the programs out there, this is a pretty easy thing to accomplish.

Currently, the courts go back and forth as to whether creating images of child pornography without actually using children is legal. To my knowledge, the legality of childless child pornography is “winning” in most cases, thanks to a Supreme Court ruling in 2002.

Other problems arise in the enforcement of child pornography laws. With the international accessibility of the internet, the United States needs to acknowledge that not all countries have child pornography laws, and even those that do have varying ages of consent and definitions of a “minor.” In fact, according to this study, most countries have NO child pornography laws. How can the US uphold its rules about making and possessing child pornography now if it (A) can be made legally in many other countries — or virtually through computer-generated images, and (B) be accessed online without penalty, as long as the images are not saved or purchased? It’s a surprising dilemma.

What hurts the case for restricting child pornography is that there is essentially no research on the effects of its viewers. Such taboo topics need to be examined — no matter how difficult it is to do so — if laws restricting access to and viewing of images are to be upheld. Because right now, child pornographers are finding legitimate legal loopholes which allow them to view images. Just so long as they don’t store them anywhere.

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One thought on “"Possession is Nine-Tenths of the Law"

  1. In a museum, everything is out in the open. It would seem that one would have to dig, and dig deeply for such materials, considering the laws. Do you think someone in the courts might take notice of that fact? What's the difference between that and planning any other crime? The intent to aquire the information is there.

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