Gizmodo’s Outrage Over Child Porn: A Critique

One consistent theme I’ve found of investigating outrage is how often those who are outraged demand that legality align itself to their morality.

Consider for example New York State’s non-criminal status of child pornography. In The Atlantic Wire’s mildly outraged article, Adam Martin writes:

Logic takes us strange [to] places sometimes, like when a judge found herself writing this little gem: “The purposeful viewing of child pornography on the internet is now legal in New York.” That’s a sentence you’d want to wash your hands after committing to paper (heck, or wash your eyes after reading), but it comes at the end of a line of reasoning in an appeals court decision that makes sense even if it appears to provide a loophole for kiddie porn lovers.

Under New York’s penal code, article 263, “it’s illegal to create, possess, distribute, promote, or facilitate child pornography, but it’s not illegal simply to view it.”

To give some context, this came as a ruling in the case of college professor, James Kent, whose computer was found with child porn in his browser’s cache. Alex Johnson from MSNBC writes about the case:

The technical details revolve around copies of deleted files that remained in the cache of Kent’s Web browser, which were the basis of the two counts that were dismissed. They were discovered, along with other materials, during a virus scan that Kent had requested because his computer was running slowly.

To demonstrate possession of the images in the cache, “the defendant’s conduct must exceed mere viewing,” [Senior Judge Carmen] Ciparick wrote, adding that “the mere existence of an image automatically stored in a cache” isn’t enough.

Unless the defendant performed “some affirmative act (printing, saving, downloading)”, it “would extend the reach of (state law) to conduct – [namely] viewing – that our Legislature has not deemed criminal.” It was not clear that Professor Kent “exercised dominion and control over the images [that] were on his screen”. That child porn was stored in his browser’s cache is not indication that he knowingly and purposively acquired it, in other words. He was completely ignorant about cached history. “A defendant cannot knowingly acquire or possess that which he or she does not know exists.”

All concerned, including Professor Kent, rightly consider child pornography an abomination and horrifically abhorrent.

This is all fine so far. These two media outlets have handled the story fairly well – except that The Atlantic Wire ends its story with “gross!” – but the same cannot be said for the hysterical nonsense from Gizmodo.

Sam Biddle writes: “The mere contact of kiddie porn to eyeballs over the internet—hundreds of times over—was the same as looking at a picture of a lolcat. This seems impossibly horrible and wrong, but, technically, the ruling is sound.” So Biddle claims it is “technically” sound but can’t bring himself to adjust his views which sees it as an absurdity and wrong , without saying why.

Biddle, apparently missing the entire point and purpose of what the judges claimed was the extent of legal power, says: “Thanks … appeals court. You’re doing a great job upholding the spirit of the laws that prevent horrendous child abuse.”

Biddle here confuses people who actually, physically abuse children and those who come across and look at the results of it. Do we claim every person who looks at pictures of murdered bodies, crime scenes and people getting shot to be the same as those who created those situations? No. Many of us have seen these things, some enjoy them (consider the success of the Saw movie franchise, for example), without being violent ourselves. When then must we assume that merely possessing or, even less, looking at child porn constitutes “horrendous child abuse”?

In New York State at least, caching doesn’t count as a download, and as long as you throw up your hands and say “What? Internet? A cache download? What? What is child abuse?” when the police arrive to arrest you for being a child pornography enjoying horror. Simply, you’re not responsible for what you look at anymore.

You aren’t. When were we ever responsible for what occurs in front of us, unless, as the court is pointing out, you took deliberate action? If Biddle is expressing the absurdity of saying we’re not responsible for consciously choosing what we look at, then of course that would be nonsense. But that’s a truism. The point is, unless one can prove that someone sought and deliberately acquired child porn, why should we assume the individual did? This would mean assuming someone is guilty before being proven innocent. Way to overturn legal engagement, Gizmodo.

Recognising this to a slight extent, Biddle writes: “This makes sense for the few times when innocent people might accidentally stumble upon kiddie porn while browsing for other stuff, but for the vast majority of people who are viewing kiddie porn because they enjoy deliberately, repeatedly viewing kiddie porn, New York just built a giant, disgusting lubricated loophole.” Biddle provides no evidence which shows the majority of people are always deliberately seeking child porn, but we’ll assume it’s true. This still doesn’t tell us what’s wrong with simply looking at child porn. As I’ve indicated previously, this doesn’t undermine all other attempts to stop child porn: arrests, investigations and so on. We should be more concerned about those making child porn than those consuming.

Biddle correctly states: “It’s a tricky balance to hit between criminals and and [sic] the rest of us who see something we didn’t want to, and it deserves a graceful legal hand.” Indeed, but arguing for guilt before innocence, even if the majority of people perhaps are conscious consumers, is not graceful at all.

I’m not convinced that looking at child porn is actually wrong, since I’ve seen little justification aside from outrage and disgust that justifies this (the best is that consumption drives creation and markets). This doesn’t mean I think we should encourage and be glad or think it moral to view child porn. Indeed, we should do everything we can to discourage it, if it will actually lower violence against children. However, we do know that, for example, there might be some evidence that says legalising possession of child pornography might lower crime. If we start acting hysterically, as Sam Biddle does, we start to target the wrong enemies in a legitimate fight for the safety and security of children.

If you want, be outraged. Be angry. Dislike and don’t engage with people who look at child porn. But before you claim that the law must act on your behalf, think about what the effects will actually be and whether individual liberty should be undermined, for the sake of trying to discourage what is only the end result of a series of horrific acts and in fact not obviously harmful.

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