Re: NY AG--defender of children?

On Wed, 30 Jul 2008 15:51:38 -0400, Phil Hobbs
<pcdhSpamMeSenseless@xxxxxxxxxxxxxxxxxx> wrote:

Jonathan Kirwan wrote:
On Wed, 30 Jul 2008 13:36:42 -0400, Phil Hobbs
<pcdhSpamMeSenseless@xxxxxxxxxxxx> wrote:
I think digital child p__n should be illegal--very illegal. The state
has a sufficient interest in preventing the corruption of its citizens
to override freedom of expression in that instance. It's ridiculous to
contend that during the 200 or so years in which pornography was
illegal, the political freedom of Americans was harmed. It's the
equivalent of Rudy Giuliani cleaning up Times Square--everyone heaved a
sigh of relief.

I agree with much of what you've written on this as well as this part,
but you've introduced a strawman of sorts here. I'd imagine the
argument isn't strictly limited to one about "political freedom."

Sure, that is probably the most protected form in the US -- in terms
of speech, for example, that is certainly true in that political free
speech is more protected than any other form of speech in the US.

There are some who may argue there is more to protect than just
political expression. It might also be about what we are allowed to
think about in private, for example, and whether or not society has a
right to intrude at that level. I haven't given this detailed
thought. Although you appear in the above to restrict the argument to
that, I can readily imagine a debate that involves more than deciding
things purely upon some one dimensional scale of political expression.

I don't mean that only political speech is protected--it's just that the
concept of 'freedom' has become debased in the last 20 years or
so--there used to be a commonly-agreed distinction between freedom and
license, and there isn't anymore. What I meant to say was that a law
that prevented people from producing and consuming that ugly stuff
didn't abridge free speech as understood for the first 200 years of the
Republic. So for "freedom, political", read "freedom" (historical sense).

Thanks for the response. This is really a nice, crafted presentation
and I am glad you made it.

In your response, though (and I don't mean to be picking nits, instead
just trying to form a solid shared foundation to work from which can
look like it, at times), you mention "producing and comsuming" in an
all-to-glib conflation of the two, to me.

Let me provide an example case, different from this one, to make my
question clearer. I don't conflate the idea of marijuana production
with marijuana consumption. They are two separate things, to me. I
might very well (and do) want to place controls on the mass production
and mass distribution of it (note: I'm avoiding end-use, for now.) But
I might have very different arguments about one growing a plant for
their own, personal use. I'll avoid making those arguments for now,
but just point at the possibility for you to consider granting (or
not.)

Laws against marijuana, in the us, are based upon possession, not
consumption. There is a tacit assumption here and I want to call your
attention to it. Many years ago, controlling the use of marijuana
through some theory based upon consumption were found to be untenable
and the laws were instead founded upon possession as the principle.
Since people had to possess it to consume it, the effect was about the
same, in practice. So that become the workable theory in law. But in
Oregon, for example, where medical use of marijuana has been permitted
for a few years now, there are three licenses involved -- one for end
use, one for growing, and one for carrying. The idea here is that a
grower will not necessarily be a care-giver who will not necessarily
be the end-user. If the care-giver who carries the marijuana isn't
the end-user of it, the state is in effect issuing a permit for
possession.

The existence of these new legal distinctions creates a new problem
for convicting people who aren't supposed to be consuming marijuana,
even under the intent of justifying medical use. If someone is
permitted to carry the marijuana for someone else, but then smokes or
uses it themselves despite the fact that the license doesn't
specifically permit them to do so, what can you convict them for? The
laws are based upon possession, not consumption. So you cannot
convict them for consuming it. But since they also have a license to
carry it, you cannot convict for possession -- which was the theory
under which all these laws were written. All this leaves a nice hole
that is still being wrestled with. And it is already known that
banning under the concept of consumption won't hold its legal water,
by itself.

During earlier parts of my life, the question about consuming p__n (as
you carefully write it) was moot because controlling production was
sufficient to control consumption, controlled implicitly by the lack
of a general ability to produce not by some lack of desire for it.
Movie cameras were expensive and hard to come by, film development was
done by others you were afraid of having know about it, etc. As a
possible corruptible child, myself, had there been readily available
materials at the time I might very well have used some and who knows
how that might have affected me over the long haul. I've no idea,
frankly. Could be anywhere from 'very little' to 'significantly.' I
never got a chance to find out, though. Like many others, I was
constrained by the difficulties manifest in the idea of gaining access
or of producing it, myself. Since only a smaller percentage had ready
access to the resources required for excessive abuse, the impacts to
society were of similarly limited scope.

Many of those barriers are gone, today. And you are pointing out the
removal of yet another barrier -- that pictures and movies may no
longer themselves need to exist to be controlled, but that software
may soon exist to not just aid in the manufacture of pictures that
might then come under control but that software may soon exist to
create the images only on demand at the instant of demand and
according to control by the end-user, so that laws directed at the
products will lose their effect. This is taking the point to the
extreme end and it exposes some deep questions about what each of us
chooses as our ultimate guides here (and not all of us will ever agree
about what those should be -- make no mistake about that) and under
what legal theory a society might be able to inject itself and in what
exact manner. Whatever the concept is, it must be able to respond
quickly (positive feedback) and be self-correcting (negative
feedback.) Your posit is interesting to me because of how it exposes
this question in such naked form, for us to examine our own underlying
assumptions and guiding principles better.

Whatever our positions on this, I don't think we can turn back the
clock. The genie is out of the bottle, as technology makes all this
increasingly easier to produce. Traditionally, the focus has been on
applying a theory of "motive and opportunity." Law enforcement
focused on those with the clearer "opportunity" part of the equation,
which earlier on was a smaller group to watch and where controlling
them didn't infringe on the general rights of individuals, with the
real effect of also controlling consumption (end-use.) Society didn't
need to worry so much about "motive," which quite frankly may remain
quite similar today (per capita) to what it was decades ago. Now,
though, the problem is that "opportunity" has broadened out to most
everyone in the world with a piece of technological gear and, of
course, our human motives still remain. So any attempts to control
production will likely fail now -- as you so neatly crafted for us to
think about. And worse, perhaps, is that legal attempts that are
sufficiently comprehensive as to have meaningful control over
production now that technology is so easily had would be have to be
terribly intrusive on a broad scale, by definition. And this may very
well be a case where a quantitative change in scale becomes an
effective qualitative change, as well, and thereby breaks new legal
ground. And I'm not sure we are prepared.

Let's assume that the software is out there, let's even say
sufficiently dismantled in form that it doesn't work right out of the
box but instead in discrete, separately useful for different purposes
pieces that can, however, be assembled by any idiot for this purpose.
(I'm thinking of game-making software, for example, where it has now
been refined sufficiently that most any idiot can pull together a
simple 1st person shooter with music on their own.) What can society
do to control this that doesn't create legal theoretical machinery
that may be worse than the disease it proposes to cure?

I'm still running all this through my mind.

Jon
.

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