Thursday, September 04, 2014

Could people who viewed hacked iCloud "lewd" photos of under-18 celebrities be charged with possessing child pornography? A legal labyrinth may exist (the "mens rea" concept)

Vox offers an important analysis of whether someone who looked at hacked photos (in the Cloud hack incident, that seems to focus on the Apple iCloud) that were of someone under 18 and that were “lewd” in a legal sense, could be charged with possessing child pornography, link here. The article specifically raises the question with respect to McKayla Maroney. 

It’s also possible to ask whether Maroney could be charged with producing child pornography with the selfie.  This sounds very unlikely in practice, and she would have had to intend it to be posted or distributed. 
Vox mentions a Catholic University (Washington DC) paper on the legal aspects of the sexting problem, here

Vox mentions that normally someone has to know or reasonably suspect that an image is child pornography, although the wording of various state laws can be critical.  Vox mentions an affirmative defense doctrine called “mens rea”, Latin for mental state.  Vox warns that police could review search engine arguments from a person’s computer to try to determine if the person suspected or knew that the person was under 18.  It’s also a good question, what level of suspicion is reasonable? 
One question that comes to mind is an image(s) from a foreign country.  A few countries (Russia) have weak laws against child pornography, even if they pretend to be moralistic (as with Russia’s anti-gay propaganda law).   Non-western countries might have bad “reputations” which arguably should make consumers suspicious, especially countries with cultures antagonistic to the West.  Possibly hackers in such countries could try to leverage child pornography as a security threat.
Another and closely related problem could occur with sexually explicit foreign films, or images from the films, even from more “mainstream” countries, if the age of consent in those countries is less than 18.   In the US, film producers must, according to federal law, maintain records to show that actors who appear in explicit scenes are at least 18 when the images are created.  Most other western countries (Canada, Britain, etc) seem to have similar requirements.  Hopefully, reputable film companies would adhere to this practice wherever shots are done.  IMDB does not always tell visitors the age or birthdates of actors (more recently it has been leaving this information out on some lesser known actors).   Films often have plot lines where older but physiologically mature minors (maybe 17) have sex (let’s start with Shakespeare’s “Romeo and Juliet”, which English teachers have to disclaim for ninth graders).  This has always been viewed as legal as long as the actual actors are 18 at the time of shooting (in the US and most western countries).  The lack of public verification of age in some countries could raise new legal questions, though, even for consumers.
All of this raises the question as to whether the government would want to scan cloud backups, at least for digitally hashmarked images known to the NCMEC.
In any case, someone like Maroney is not a victim in the practical or moral sense envisioned by NCMEC.  These are mostly much younger people who get the attention of true “pedophiles” (pedophilia and ephebophilia – the Oscar Wilde syndrome – aren’t the same thing) or sex traffickers.  As Ashton Kutcher’s campaign says, “Real men don’t buy girls.”  (This problem really does seem to be overwhelmingly heterosexual.)   And there is no visible change in someone’s physiological maturity at 17 years, 364 days, and 18 years.  It’s a place where a legal line is drawn.

Update:  Sept.. 12 

The government can look at emails without a warrant if they are more than 180 days old (source).  There are calls in Congress to tighten the requirement for a warrant.  But, right now, theoretically, the police could scan cloud backups for c.p. images (by hashmark) that had been stored for more than 180 days, without a warrant.  I haven't heard of this actually being done.
Update: Oct. 4
Deleting an image from a computer often results in the Cloud Service deleting it from a backup.  But police could still try to look for older deleted images in a cloud, just as they can on a hard drive. But I haven't heard that this has actually happened.