The Checkmate within CSAM forums “Law Colloquiums”​

Author: Carolina Christofoletti

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When talking about what is usually to be found in Child Sexual Abuse Materials (CSAM) forums early this week, pointing out to you (in a text that you can read here) the fact that criminals share with each other data about Law Enforcement Agency (LEA) operations, as if to warn who is to be warned, I was presented at some additional, equally interesting data.

Not only LEA news come to these forums, but those places turn to be, sometimes, things very similar to “legal colloquiums”, where you can become aware of new court ruling rules, new legislation, new interpretations and so on.

Such a finding might seem, at first sight, trivial, a matter without further relevance posted in the “curiosities” section. But it is not. As criminal’s silence are not trivial (as the old legal dictates says: Who keeps quiet agrees), the topic they are discussing is also of legal relevance, and I will show you how, if you accept my invitation to take the data here seriously.

Let us go back in time, back to what do Law people talk about in their first Criminal Law Lectures: Why do we want criminal law. After going through some very different theories, each one with its own interpretation, law students end up in the common point of General Prevention (GP) – what comes to be the most accepted theory today.

“Criminal Law has a general preventive effect, that means, criminal law exists for people to fear it and not commit crimes”- GP theory says. Divergent opinions, in which I am also included, say: Perfect syllogism, until you find a case where not only Criminal Law does not have a preventive effect, but criminals accept the sanction (and not, as one would wish, play against it).

Pick up this legal baggage and come back with me to the CSAM forums case. What we have there is a criminal tea-room with people stamping all the time criminal code warnings on everyone’s face: The general prevention dream! Back to Aristotle. Wasn’t him the Greek who said that the fact of acting badly is a matter of now knowing what a virtuous action mean?

The legal colloquium is established in those places.

Even so:

1.    Criminal posts keep growing

2.    Criminal atmosphere meets radicalization

3.     And all that, meanwhile the legal colloquium keep up with more and more specialized teams.

General prevention theory failed, and in a place that we did not expect it at all to fail: CSAM forums.

But forget all that. What is criminal there is the CSAM files (a-practical-guide-to-LEA-day-to-day-life) and, who cares (or should care) about news, criminal code, legislation, anything open-sourced and that is no-CSAM data?

Prosecution office, and if I was leading one, I would ask for this data. If I was leading the Police, I would put it as investigation standard and if I was LEA Cooperation Section in Industry, I would add those situational data the reports … because I know what the defendant argument is: “How could I know she was not 18?”, “How could I know that indecent photos (category C) are prohibited?” and for sure the “How could I know this was a CSAM forum? Things are mixed”.

Sharp eyes everyone, keep with me still: Because you had the criminal code, its updates and other databases stamped in your forehead.

And oh, this is a strong argument! How so. But if this data is not collected at the proper time, it is gone – and most of the time also the guilty sentence.

This is a Prosecution Argument and a negative defence – where courts magnet compass are, in an exception from the exception, inverted. And the turning point is not on the rule (who proves what), but on the reality (who proves what in front of that facts here).

Briefly, the prosecution argument is: You (defendant) had all the elements to know or to suspect illegality, and it is now up to you to counterprove it. Watch out but that the inversion is based on the fact that we had this non-CSAM data in the Court’s table.

If you had the criminal code right in front of you all the time, something unusual to everyday life (after all, how many of you know this paragraph or any criminal paragraph whatsoever – the law student and if you are lucky), you knew or could have known that your verb comes with an illegal predicate (objective elements of criminal offence, where intention is also needed).

It seems like… the legal colloquium is now a backfire.

A backfire that, curiously, also crumple arguments in the house-of-cards called “knowingly access to CSAM”.

Think about it!