The Non-CSAM data​: Where does it stay in the legal, ‘global supply chain’​ of CSAM crimes

Author: Carolina Christofoletti

Link in original: Click here

 

What does it change for Criminal Law if, at first, the server of a 1234 website dedicated to the distribution Child Sexual Abuse Material (CSAM) is located in country A, its visitors access it from country B through a VPN whose exit node is in country C, and the content it hosts was produced in country D?

The question, which appears to be complex at first sight, has a fairly simple answer if we take as a basis, 1. The fact that the criminal norm is intended, in principle, to inform its citizens a non-doing which is expected of them.2. The Law (case law also included) that the citizens are expected to be aware of is, only, national law. The answer is then: It changes nothing.

By that we could say that, for example, the fact that a French citizen can be convicted in the Germany for a child pornography crime (so named by law) by reference to Child Sexual Abuse Material produced in Brazil that he accessed in the United States on a Czech page via a Japanese exit node in the TOR brings absolutely nothing new in terms of criminal law.

Things are like that as long as the applicable law (in the case, probably United States law) defines a) the Child Sexual Abuse Material in question as an element of a criminal offence and b) the act of accessing this material is defined as a criminal offence by the applicable law.

Things are like that because, in the very moment one clicks the mouse, all virtual complexity is transported, by an exercise of abstraction, to the place where (in this case) the click is.

Although the statement may seem trivial at first, such a territorial system of qualifications has blatant consequences: For the first time, foreign legal goods can be protected by a national legislation. And of course, I refer here, once again, to the very particular case of crimes of dissemination, possession and access to Child Sexual Abuse Materials. Let’s see:

Let us suppose that certain Child Sexual Abuse Material is produced in country A, which has decided not to criminalize that category of content, and is subsequently accessed in country B, where the same material would be considered illicit.

Even if country A is reluctant to criminalize such material, the fact that its possession, distribution or access takes place in country B, where the material in question is, in fact, considered to be illegal, makes it criminally ‘protected’ with respect to any and all criminal conduct whose applicable law is that of country B. And this conclusion is completely independent of how country A legally assesses this very same material, which was, at first, ‘created’ under its jurisdiction.

Therefore, we can conclude that, if a certain type of child sexual abuse material is produced in large quantities in country A and broadly accessed in country B, the isolated criminalization of this material in country A does not solve, alone, the problem with the national CSAM material.

Because the verbs of the criminal offence (dissemination, possession, or access) take frequently place, in much greater volume, usually in country B (that in the real world represents a wide range of countries), the specific criminalization of these same materials in country B national laws is a must. And that is highly relevant if what we want with criminal law is, in the first place, a deterrence effect.

This being so, maybe one essential step that the worldwide group of countries (so-called country B) can take on the fight against Child Sexual Abuse Materials produced in country A is precisely making its production, possession, distribution or access a criminal offence under national law. And the best lobby of country A is, by derivation, precisely with country B.

For this non-CSAM data according to national law is often discarded, who country A is and what kind of material we are talking about, so as who country B is and what its legislation says remain, once again, out of the spotlight. In terms of legislation, this is but a more than relevant point.