November 17, 2003

Open Censorware vs. Child Pornography Sites

As part of the discussion touching on "better censorware", I've updated with the info below, my page regarding Open Censorware issues

Many people believe there is a kind of legal paradox for censorware companies to compile blacklists of child pornography sites. The argument runs that to compile a list, they must have viewed the child pornography sites, so they have confessed to a crime (and if they didn't view the sites, then they admit they are making a claim with no evidence)

I'm not a lawyer, but my legal research is below. It turns out that there is no legal paradox. Note the following section of the US code:

d) Affirmative Defense. -

It shall be an affirmative defense to a charge of violating subsection (a)(5) that the defendant -

(1) possessed less than three images of child pornography; and

(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof -

(A) took reasonable steps to destroy each such image; or

(B) reported the matter to a law enforcement agency and afforded that agency access to each such image

In effect, this allows for law enforcement to approve any censorware blacklist creators. If they like the blacklister, they'll say they are convinced that the affirmative defense above applies, and no violation of the law is in process. If they want to go after any Open Censorware effort, they can say they have suspicions about the participants, who are then welcome to plead the affirmative defense in court. Good luck facing charges as a possessor of child pornography.

I'm convinced this is the killer of any effective Open Censorware project (unless that project has powerful sponsors).

By Seth Finkelstein | posted in censorware , legal | on November 17, 2003 11:59 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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