Calibrating the underworld’s periscope: On the criminalization of Manuals on CSA and CSAM

Author: Carolina Christofoletti

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Prior to discussing the “collision of interests” between Privacy and technologies for Child Sexual Abuse Material detection, Legal Scholars used to discuss Freedom of Speech and Pictorial descriptions of Criminal Acts. That is where, among others, the discussing behind Cartoon Child Sexual Abuse Materials come from.

Pages and pages of legal theory were written about that. The discussion behind it is older to Child Sexual Abuse Material criminalization itself. If you have some interest in this legal discussion, the fundaments of CSAM criminalization are also a very nice piece of legal argumentation. But to get there, you will need to get familiar with the historical argument of prohibition of obscenity.

While explaining why Child Sexual Abuse Materials (CSAM) created against real children was an easier task for philosophers of any kind, text materials and cartoon Child Sexual Abuse Materials (CSAM) threw everyone back on the secular metaphysics where this discussion was born. Abstract the children. Where is the fundament? If you are interested on the discussion about cartoons, my suggestion to you is reading the Legal Scholars opinions in countries where those are criminalized. August 2018, that is why I was in Germany for. And it is, exactly, about Germany that this text is going to talk about.

The derivation of that philosophical questionary is that, while Criminal Codes agree that any verb related to CSAM produced against real children constitutes a criminal offence, they disagree, among others, about the criminalization of textual things. Do not enter the philosophical stage yet. Keep the reality in sight, meanwhile: CSAM forums are full of CSA textual things and online platforms moderators are crazy trying to deal with that against the Criminal Law neutrality against those materials.

Help, Criminal Codes, business with its freedom of speech discourse: Criminalize it! When you do that, is not censorship, but a matter of criminal law. Corporations cannot share criminal material. Helps? And how much.

Talking about corporations and reputation, what we are about to talk relates to, maybe, what was Amazon’s greatest reputational scandal: That November 2010 when the so-called Pedophilic Handbook was featuring on its website, waiting to be downloaded for whoever wanted to pay the $4.79 dollars the publisher was asking for. .

Amazon said but that they “supported the right of everyone making its purchasing decision” and that “it is censorship not to sell certain titles because we believe their message is objectionable”.

Before Amazon pulled the book, it apparently shot to #96 on Amazon’s Top 100 list. The controversial book contained and contain, among others, instructions on how to groom children, how to conceal digital and physical evidence (including DNA) after abuse.

The issue if Legal Scholars is that, sometimes, they never go to see what the real world case is. As a researcher and legal scholar, I am presenting you with the dual view. Argue it philosophically and rhetorically, but let me add you some “not so trivial commentaries”. Because parliaments are still blind to the so called “harm principle” (where the actual reading of that must represent a direct causalistic nexus with the violation of a legal good), things are still legally very weird.

Clean the argument: The harm is not in what is done with the guides and how corruptible its potential is. It is in the fact that those are routes to a criminal tea-room named CSAM forums.

A comparative legal study done by INHOPE – who manages, internationally, the CSAM hotlines- and released in their 2020’s Annual Reports shows that things as Manuals on Child Sexual Abuse are considered to be illegal in 14 countries, illegal dependent on context on 8, not illegal dependent on context on 2 and not illegal on 10. Distributing or possessing this content is not illegal in Bosnia, Bulgaria, Colombia, Finland, Greece, Japan, the Netherlands, Romania, Sweden and the United States.

The reason why this information matters for a hotline is quite obvious: removal ones. Removal procedures work by criminal legal classifications, but corporations are not governments – so why they pretend to be it? Freedom of expression is a fundamental right that affects the relation between governments and citizens. If U.S government does not think that those guides are harmful, Amazon is not tied by that. It is tied to what they consider criminal, but not to what they consider inoffensive.

“Censorship” is heard as a weak argument here, especially when we talk about Corporate Code of Ethics. Come on everyone, we are not discussing public law when we are discussing Amazon’s Terms of Service. Keep the United States in sight, because my argumentation is one done through the lens of English-speaking authors.

Criminal lawyers of any kind have a hard time when they try to argue things based on moral laws. Legal philosophers dispute, until today, what the meaning of morals is. The fact is but that, when we are talking about things as Amazon’s Policies, we do not need to find the metaphysical truth of the world. We need to meet a decision that is consistent to our goals.

And my goal, in discussing the criminalization of Manuals on Child Sexual Abuse materials, is to grasp legally the broader scenario where they appear.

And the problem of legal arguments is that, most commonly, they work with generalizations of non-generalizable things. They presuppose the premise as a universal truth in order to follow with the syllogism. Sharp eyes everyone: One of the claims against criminalization of Manuals on Child Sexual Abuse is that there is there but no Child Sexual Abuse Materials, in the pictorial sense of criminal laws.

Does the Hitman Guide lose its apology to crime innerhent features if we add flowers to its graphical sections, instead of bleeding heads? No. By the way, you are leaving the discussion stage by the tangent: That was not the question. We are not examining images, we are examining texts. What is wrong with texts?

I will enter the philosophic argument here. But do not stop reading: I will come back to reality in sequence. In order to follow with things, I need to give you the philosophical background of the discussion, and must present you some authors also.

Lord Devlin’s claim was that a country that has lost the right to enforce its morals has lost the right to enforce its laws. The point here is a deep one but, if I could summarize it to you, it says that two contradictory premises do not live simultaneously in a syllogism where you claim both of them to be truth. If you criminalize Child Sexual Abuse, you must criminalize Child Sexual Abuse Materials, because what you criminalize here is at the end of the day an idea, which is valid and present in both cases. H.L.A Hart is the author that answers Lord Devlin’s and, at some point – maybe in Feinberg- someone will ask if we should also criminalize horror movies based on the same logic (a criminalization that Canada has lived and that we can discuss in another opportunity).

Keep the above-mentioned argument for a while and let us take a look, where criminalization of Child Sexual Abuse Guides are already drafted, what is the model they follow. The philosophical discussion behind it exists but, at the end of the day, legal scholars work with a fragment of authorship theory that was set as an autonomous criminal offense for things were too abstract: Apology offenses.

I will work with a legal scenario where things are already drafted: The criminalization of Manuals on Child Sexual Abuse drafted in Germany. Let the philosophers waiting for a while and let us enter the legal scholars room: What do they talk about when they talk about criminalization of written criminal guides. There is a deep discussion behind what a criminal guide is and in which point it become a guide. I will but not enter in this point here.

If we look at the German proposal, we will recognize, very quickly, that the model followed is the criminal apology one. The problem with apology is that, when you call it Anleitung (instructions), you mean that somehow, the “Instructions” here must be determinant to the act. The instructions must have an effect that would not be existent otherwise. And, indeed, if you keep reading the German proposed paragraph, you will find further references to this claim. The criminal offence must not happen for the Instructions to be criminalized, but the instructions must be sufficient to make a criminal “ready” (bereit) to commit a criminal act.

Philosophically and criminally perfect, but unfeasible.

Do you recognize it somewhere? It is the same argument that moves the criminalization of pornography. Watch but out: Isn’t the criminalization here aimed at the possession? So, take a look what we are saying: We are criminalizing you because you possessed a guide that led you to be ready to commit an act you have never committed. But what if one had commited it? Is that the case, as a matter of criminal law absorption, the criminal offence you committed absorbs the instructions you got. Legal scholars argue cases based on uniform and generalizable rules, not conclusions.

Reason why, the way things are written (where the syllogism start) matters.

The way to win the possession criminalization case, if inciting a crime is the fundament, arguing it in a case with “intention to distribute”. Is that the case, we are talking about a preparatory act that belongs not to the possession offence, but to the sharing one. Freedom of speech theorist will argue that one has the constitutional right of corrupting oneself, as long as there is no criminal offence to be commited. The criminal offense, argued in the apology hypothesis, is but not against children anymore, not against morality but against public peace. And the consequences are huge there also.

The second question with a possession here is, in fact, what happens with the one who reads it neutrally. And the castle of cards breaks exactly here. To argue a condemnation, you must argue that the fundament of criminalization is also present, as the parliament wished it to be. It is not sufficient to have it written in a legal paragraph: the criminal offences must meet the exactly hypothesis, reason why the ‘fundament of criminalization’ section is maybe the most important one for lawyers of any kind. Do you recognize the argument: “I am but no contact offender, I am only looking at it”. Child Sexual Abuse Materials collectors.

Alright, we keep the considerations for possession and criminalize, so, whoever shares it with the argument of incitation to crime. Do you recognize this argument? It is the obscene books criminalization argument, which is the same ones used for sex toys criminalization in Alabama, 1998. The problem with obscenity or “prurient interest”, if you prefer to call it so, is that, first, we have the weird situation of a collegiate of judges looking at an image to say if it is prurient of not.

Isn’t it, exactly, as a New York Law School professor pointed in the “The perverse law of child pornography”, having to look it through the pedophilic eyes? Otherwise, how can you say if those instructions are sufficient or not to instruct a criminal act? Do you agree with me that the moral tribunal here would have to have the same parameters a criminal do?

But legal philosophers sometime digress too much. Comparing comic books to Manuals on Child Abuse makes sense from the logical (argument as a logical structure, saying nothing about the truth of it) point of view. In real world but, those are two very different scenarios, impossible to compare until the day we find Comic Books being shared on Hitman forums.

Back to earth everyone.

Forget the instructions or what is written for a while. Where are those guides usually found? Child Sexual Abuse Material forums, isn’t it? Follow the argument: Imagine you were a criminal, and you were looking for criminal material, that is, Child Sexual Abuse Material. There are two ways something like a Manual on Child Sexual Abuse is to be considered as route here:

If they are not criminalized, those guides are the first Open-Web meeting points for criminals who share a common ideology. And we are pretty much familiarized with CSAM networks socialization procedures to say that the problem is sometimes not the guide itself, but the “tea-room” in which it is to be found. Those guides are routes to CSAM forums.

If they are criminalized, criminals might get to access them while asking for “invitations” to join those networks. Sometimes, in order to join CSAM forums, criminals have to give forums administrators new material, new things that less forum connected criminals will have to produce themselves if they have nowhere to get it.

In both cases, they are routes. Magical, isn’t it? Contradiction was solved.

What do we want with CSA and CSAM instruction guides criminalization: To ban routes to CSAM forums coming from Amazon and others (the announcements are, forget not, advertisements to drop publishers a message in private) and to guarantee that, whoever possessed it, is somehow in front of the Gates of Hell.

As I argued in 2020 (Thesis to obtain the title of Bachelor of Laws: Way to Never-Never Land, approved with honorable mentions), CSAM forum routes are the last resort of CSAM cartoons, but also of CSA guides criminalization.

Think about it.