I think regardless of personal feelings about pornography and its availability, all rational human beings can agree on at least one thing: child porn is wrong and needs to be fought. This morning I read this disturbing article about two individuals in Oregon convicted for child pornography whose cases were overturned on the basis that there needs to be intent to download. Basically they were viewing child porn but did not actually have any of the data on their machines—all the porn was being hosted elsewhere—so they got off the hook.
The frightening aspect of this story is that there is nothing to stop people from viewing and supporting child porn. Obviously if the server were somewhere in the U.S., the government could hunt them down and then come knocking at the door. Unfortunately we are more organized, technically advanced, and responsible (?) than certain other countries. How will we be able to combat child porn if we let people view it at their leisure simply on the basis that they aren't downloading it? We can't depend on other governments to protect children.
On one hand, it could be argued that "intention to download" protects those who innocently stumble upon child pornography. I can't claim to be especially knowledgeable in the area of child pornography, but I use the internet a lot and I have this sneaking suspicion that it's rather difficult to just happen across child porn; I would wager that even those who frequent hard core porn sites would be hard pressed to run into it. Either way, I think it's safe to assume you wouldn't encounter it often, in which case perhaps frequency should be taken into account. How would this be measured? I don't know, but I'm sure we can figure something out—I think we can intuit pretty well when it's accidental and when it's purposefully sought after.
Of course the truth of the matter is that in reality by viewing child porn they have downloaded it. The file may not be found in its entirety at any one moment on their machine—but the data was there, whether in RAM or secondary storage—else they couldn't have viewed it. Assuming it were intentionally viewed, it could reasonably be construed that it was indeed intentionally downloaded. Such an argument would likely lead to a battle of semantics, with the defense attempting to define intentional downloading as explicitly telling your software to save the media in permanent storage. This introduces another issue: how does law enforcement tell the difference? Internet traffic may not be able to tell you. Law enforcement will need to physically go through the hard drives with forensic software.
One of my personal theories is that lawyers and hackers really are the same—just one manipulates the laws of government and the other the laws of computers. The defense lawyers hacked this one hard; the phrase "intention to download" is the defense's dream come true—the ultimate fudge factor. They will be running in circles around this phrase for years to come, and if we let them child pornographers and pedophiles will have won a major victory. Fortunately, the article appears to indicate that an amendment to the law is on its way. Let's hope so; this type of allowance of child pornography is effectualy supporting child sexual abuse, and although even a reformed version of this law won't by itself stop child pornography, at least it won't be a leap backwards.
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