By punter99 - 19 Nov 20 11:48 AM
I have been reading about a really interesting case from America, where a man was arrested and charged with possessing illegal porn, because he had been writing down his fantasies about kids, in a private paper diary. In this instance, the jury found him not guilty, because they agreed that a private diary is, in effect, an extension of somebody's private thoughts.
The idea of a person's private space extending beyond their own head, is of course a fascinating one for the internet age. It's very unlikely that this individual would have escaped punishment, if he had recorded his thoughts electronically. The internet has broken down the distinction between private and public spaces. When you go online, you are inviting the world into your private life and you will be judged accordingly.
This has given governments, the police and the security services the ability, as they see it, to spy on and to investigate our private thoughts. In other words, to read our private diaries and punish us, if they find any thoughts in there which they find unacceptable.
We see it in areas like far right politics or radical islam, where merely looking at a website or downloading a document is now an offence. We see it with illegal images where looking is also a crime. The logic in punishing people for looking, is to stop them before they act, but why do we assume that looking will automatically lead to acting?
Arguably, this shift towards punishing people for looking and thinking, rather than acting, came out of the events in 9/11. This was the moment where governments realised that if they waited for people to act, it was too late. They decided that they had to adopt a policy of pre-emptive strikes, targetting the people who were having illegal thoughts and locking them up, often without trial, for many years. The Tom Cruise film, Minority Report, which came out at a similar time, expressed the idea of having a thought police, who could read someone's mind and then arrest them, before they could commit a crime.
At the same time, coincidentally, the internet allowed ordinary people to share their private thoughts with others, in a way we have never seen before. It was the act of sharing our thoughts online, or letting others read our private diaries, which brought those 'diaries' to the attention of the authorities. Suddenly, they had a way to read our minds, to get inside our private spaces and police our thoughts.
There are currently laws being discussed, which would make hate speech inside your own home a crime. This is the logical extension of the thought crime legislation, that exists for the internet. At the moment, police can force their way into your private home, if your are expressing illegal thoughts on your computer. In future, they may be able to break in and arrest you for expressing your private thoughts verbally as well. The argument that unhealthy thoughts inevitably lead to unhealthy actions is basically the same one which all authoritarian regimes use to suppress dissent. It's the reason why books are burned or banned. It's the reason why social media companies are starting to censor opinions and content they regard as unacceptable. A lot of the current debate about links between 5G and covid19 is being suppressed, on the basis that these are 'dangerous' thoughts, which people should not be allowed to express.
Private diaries are a rarity nowadays, but the belief that you can see inside someones mind, by looking at their computer instead, has been extended to other devices like mobile phones. It's not just offenders who are judged on the content of their devices though. Rape victims have their mobiles seized and their words analysed by police too. Assumptions are then made about their thoughts, based on the content of their devices. She said this, so she wanted to do that, is not a million miles from the wild accusations that police make about viewers of illegal images, based purely on what they have seen on a device; he was looking at this, so it means he wants to do that, and so on.
Curiously though, we don't see the same conclusions drawn about people's TV viewing habits. He was watching a TV program about serial killers, so he wants to kill people, is not an argument you hear very often, in court. This may have something to do with the fact that people's TV viewing habits are not logged, in the way that their internet browsing habits are. This is how the recording of a private thought, in a diary for example, becomes the 'proof' of intent or the 'evidence' of a crime.
At the heart of the debate is the idea that a thought cannot be just a private invention of the imagination. It is believed that all thoughts must be translated into actions, at some point. Was the man who wrote down his fantasies in a diary not punished, because it was accepted that these thoughts were not going to lead to actions, or because it was believed that the police don't have the right to punish us just for thinking something?
I think it was something else entirely. The jury understood the idea that thoughts can sometimes lead to actions, which is why they punish terrorists for downloading bomb making manuals and they understand the idea that some thoughts are beyond the pale, which is why they punish people for looking at pictures of kids, but it is the ability to share your thoughts with others that makes the internet a public space, not a private one. The act of communicating with another and potentially influencing that other is what scares people. The jury did not see any risk of a private paper diary being shared, which is why they accepted it as a legitimate means of expression.
Carissa Byrne Hessick, in her article on reforming illegal image laws, talks about the existing defamation laws. Defamation is only a crime if you say something disparaging about someone, outside your home and you are overheard by another. Inside the privacy of your house, when you are alone, you can harm no one with angry and abusive words, because you are not communicating your thoughts to anybody else.
Simliarly, harm is only caused by viewing an image, if knowledge of that viewing comes to the victims, or the producers, attention. If they remain ignorant of the viewing, no harm is done, as it is like shouting insults in an empty room, or writing in a private diary.
The current law on possession of images is a smokescreen to obscure the fact that of the 62k on the register in the UK and the 1 million on the register in USA, only a tiny few will commit contact offences. The law creators thought/believed that the crossover rate was nearer 100%, but when they first brought in the thought crime laws, in a pre internet age, it probably was higher due to arrestees being more immersed and commited to acquiring images, while in reality today, it is far lower because accessing these images is so much easier.
The law enforcement net has swept up thousands of casual viewers, alongside the more committed ones. They are all assumed to pose an equal risk and to be harbouring equally dangerous thoughts, but nobody really knows which ones are a threat to kids and which ones aren't, so they all get punished to the same extent. That's why the holy grail in sex offender research is finding a reliable tool to identify the crossovers from the tens of thousands who are not going to crossover. In other words knowing who will confine their thoughts to a private diary and who will take those thoughts into the real world and act on them.
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By punter99 - 29 Nov 20 2:22 PM
Sally Mann and David Hamilton photos are marketed as artistic and arguably don't come under the definition of Cat C because they contain nudity, but not erotic posing. Although I'd say that the David Hamilton images come closer to being erotic, than the Sally Mann ones. Again, this is an example of where the public interest defence comes into play. If the police did follow the judges advice and prosecute the distributors and producers of these books, they would have to go after Waterstones, Amazon and other large corporations, who can afford good lawyers. Then they would need to track down and invade the homes of all the thousands who had bought a copy, to see if they were still in possession of it. The sheer scale of such an operation explains why they decided not to proceed.
It's notable in this case that the judge did not express a view as to whether the images were indecent or not. Really his argument was that because they are for sale in a bookshop then society has given it's approval for them and therefore they are acceptable. He also said that police should target the producers and distributors, not the possessors.
But apply this logic to images downloaded from the internet. I would say exactly what the judge said, which is that the police should go after the producers and distributors of this material, not the possessors. But they don't do that in the main, because it's too difficult, instead they target the lowest hanging fruit.
Similar story with films that are widely distributed on Netflix or Freeview. The issues with broadcasting something indecent on Freeview are that there is no way of knowing who viewed it, as peoples TV viewing habits are not logged and unless the TV was capable of storing the images on a hard drive, there is no way for the viewer to possess the images that they saw on screen. For those reasons, getting a conviction would be difficult. For something broadcast on Netflix though, there would be a log somewhere identifying the viewers, either on the device or held by Netflix on their servers. But the resources required to track down and punish all the people who streamed Cuties for example, mean that mass prosecutions are unlikely.
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