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Wed, Aug. 8th, 2007, 04:00 pm
scarah2: I just want to make sure everyone has seen this buried subthread

We report child pornography to the NCMEC, as required by law.

Scroll down to markf's reply in particular. It's heavily implied that ponderosa121 and elaboration were reported to the National Center for Missing and Exploited Harry Potters Children.

I'm going to check innocence_jihad and if this isn't already there, I'm gonna crosspost it. Sorry if you see it twice, but I'm finding that a lot of people haven't lurked quite as aggressively as I have and haven't seen it.

Thu, Aug. 9th, 2007 01:52 am (UTC)

i think the distinction is the "and is obscene" - for it to be obscene, it has to go through the miller test, and then we're right back at the "literary or artistic merit" question. the mere presence of a minor in a "sexual situation" wouldn't be enough.

i saw someone link to a formal definition of child pornography - as opposed to obscene material - earlier today and now, of course, i can't find it, but i believe in that instance it had to be an image that was indistinguishable from a photograph of an actual minor engaged in sexual acts, which is to say, not a drawing.

Thu, Aug. 9th, 2007 02:10 am (UTC)

Yes, the usual child porn law (that doesn't require obscenity) covers only actual children, or indistinguishable cases.

But the definition posted on their site *is* the "fictional images count if obscene" definition. Since LJ stated that (a) they banned the fictional images because they believed them to obscene, and (b) they would report them if they matched the definition on that site, it surely follows that they have reported it.

Thu, Aug. 9th, 2007 02:15 am (UTC)

i guess that makes sense. i don't even want to touch the fact that the law as posted on NCMEC's site doesn't have the distinctions correct (which is to say, i'm fairly certain that if they tried to act on a report of a cartoon drawing, they wouldn't get very far).

Thu, Aug. 9th, 2007 03:07 am (UTC)

That website still refers back to the original statute which deals only with real children. The NCMEC paraphrased the statute that was linked in the LJ_biz response. Under the statute, the generated image must be either indistinguishable from a real child (anyone looking at it could mistake it for a real child) or of an identifiable person (something, like a birthmark, etc, shows that the picture is of an actual person). Court cases have made it clear that pictures of fictional characters CANNOT be child porn. I sincerely doubt the artists were reported.

Thu, Aug. 9th, 2007 10:20 am (UTC)

I am so confused.

Thu, Aug. 9th, 2007 11:17 am (UTC)

No, the lj_biz post linked to a completely different law (one for actual or indistinguishable, as you say).

The original fictional child porn was struck down by the Supreme Court in 2002. Since then, the Government has brought in a law (PROTECT Act 2003) which criminalises fictional child porn, but only if the images are also considered obscene.

See http://en.wikipedia.org/wiki/Lolicon#Legal_status_in_the_United_States . Apparentely only one person has been convicted under the law - and that was a case involving depictions of prepubescent children, and the guy also possessed actual child porn.

That's the law the NCMEC quoted.

Anyhow, whether the law says these images are illegal is beside the point. The point is that LJ said these images are illegal according to definition X, and they said that they report it to NCMEC if it fits their definition of child porn - which is also definition X. Whether definition X includes fictional material or not doesn't matter, the implication is, since LJ think it does include it, that LJ have reported it.

Thu, Aug. 9th, 2007 02:33 pm (UTC)

Most of the original law was reinstated in 2003 by Bush's Protect Act.

The only thing not reinstated (I've been told) was that the law no longer applies to older people pretending to *be* minors in film (ie. Lolita), which IIUC was the basis of the 2002 decision.

Sun, Aug. 12th, 2007 10:55 pm (UTC)

In the case of Livejournal deleting the material, the Miller Test does not apply because they've stated their refusal to host the content despite legality. I didn't understand why so many people in the Lj_Biz community got up in arms over WHO exactly would decide artistic merit in the latest post when Lj clearly stated that the work did not have to meet the criteria for obscene any longer; any content of that nature would be deleted regardless.

Mon, Aug. 13th, 2007 12:00 am (UTC)

the problem is that they started out saying that it was legality that was determining what content they would host, and they have continued to insist that following the law is the fundamental issue here, rather just what they are "willing" or "not willing" to host (even while hopelessly conflating child pornography laws and obscenity laws). so i think people were asking about the "artistic merit" question because before the most recent "clarification" lj did say they were operating based on the miller test, and, in fact, in providing an explanation for one of the bannings they referred to a decision having been reached about the artistic merit of the work in question.

(they did then, of course, say that they weren't operating based on obscenity laws, but that was after the bannings.)