A note about our child pornography opinion piece.
By Salon editors
Salon, USA: 25 August 2006
Salon published an opinion piece headlined "Why I Need to See Child
Porn" by Debbie Nathan on Aug. 25. The story argued that under child
pornography laws, Nathan and other journalists and researchers had no
protection from prosecution if they viewed visual depictions of child
pornography, even inadvertently, in the course of their work. In fact,
federal law does offer some legal protection for journalists and other
researchers. An "affirmative defense" may exist that would protect
such work under certain circumstances, and the opinion asserted by
Nathan that her work, and the work of other journalists, would
constitute a violation of the law was inaccurate.
Salon regrets the error and has removed the article from the site.
The original article:
WHY I NEED TO SEE CHILD PORN
It's outrageous that academics and reporters like me can be thrown in
prison for doing front-line research into pornography.
By Debbie Nathan
Salon, USA: 25 August 2006
New York Times reporter Kurt Eichenwald looked at a lot of kiddie-porn
Web sites recently while researching the front-page article he
published last weekend about "child model" erotica. The kind of
looking he did can get a journalist arrested, but Eichenwald isn't
very worried. He told me as much in a series of e-mails. His lack of
concern irks me, because when I stumbled on similar material earlier
this year during my own research, I was terrified I'd be busted simply
for doing my job as a member of the media. For a couple of days after
my accidental viewing experience I was sleepless with fear. After that
I still didn't rest well for a while.
But my second stage of insomnia came from anger. It infuriates me that
the government prohibits reporters and other legitimate investigators
from doing front-line research into child pornography. I'm not talking
about obsessive coverage of John Mark Karr and JonBenet Ramsey, which
was the spur for Eichenwald's piece. The reporting I'm talking about
involves testing government claims about how prevalent child porn
really is, and what makes an image pornographic in the first place. To
get answers, investigators must look at illegal material - lots of it.
Those investigators must also be independent of the government.
Otherwise the government can use our fear and loathing of kiddie porn
to make false political claims. And to terrorize people like me.
Here's my story:
Last fall I started working on a book for young adults about
pornography as a social issue. The publisher, a children's press in
Toronto, asked for a short section on Internet child porn. I thought
that was a good idea. Over the past two decades, I have done a lot of
critical writing about baseless sex abuse scares in day cares and
schools. Back in the Reagan era, law enforcement helped fuel the
panic. One way was by claiming that hundreds of thousands of U.S. kids
were involved in kiddie porn, and that the business earned billions of
dollars annually. It took a while for the press to figure out that
commercial child porn was virtually nonexistent by the 1980s. In fact,
as researchers eventually discovered, the main manufacturer was the
U.S. government, which produced and sold child-porn magazines for
sting operations. The media was also slow to realize that many
individuals, including mothers and fathers, were prosecuted for taking
photos of their kids that were nothing more than innocent "baby on a
bear rug" shots. I covered a couple of cases like that in the 1980s
and 1990s. In both, prosecutors screamed "Porn!" on the nightly news,
and only in trial or appellate courts did reporters finally have a
right to examine the images. By then, people's lives had been ruined.
Because of these facts, there's been some doubt about the feds' more
recent claims that child smut is epidemic on the Web. With my book
assignment, I set out to do some research. I was especially interested
in the fact that it's not illegal in the U.S. to make and post
"morphed" images of children having sex. Morphing is something like
cartooning: There's no real child being abused, so according to the
law there's no crime. But how much child porn these days really is
morphed? I was curious.
The best information I found was published five years ago. It came
from Adult Video News, the online porn industry magazine consulted by
all mainstream media who report on the trade. AVN said morphing wasn't
happening much, and that the vast majority of kiddie-porn images on
the Web were probably real kids. Chilling, but informative, so I poked
through more AVN articles. I found one about a 16-year-old girl named
Molly, whose mother created a Web site where subscribers could pay for
photos of Molly dressed in swimwear and shorts. It sounded creepy but
clearly not illegal. And it was from 2001, meaning Molly would now be
21. Too old to be a child model for people with strange desires, but
did she still have a Web site? I typed in her URL.
There I found a new Molly, a 10-year-old, still wearing ordinary
swimwear and street clothes, and posed much like JonBenet during her
beauty-queen days. Again, creepy but not illegal. The new Molly linked
to other "child model" sites. Assuming they'd be similar, I clicked
And that's when I hit dozens of grossly illicit pictures. Most showed
little girls around 9 or 10 years old, in bikinis or lifted skirts
with skimpy panties, their legs draped and spread so the camera
focused on the crotch. U.S. law calls this "lascivious exhibition of
the genitals." Since the early 1990s it's been classified as child
porn, even if the genitals are clothed.
I almost fainted, but not from disgust at the depravity of making and
displaying these pictures. After all, reporters see depravity all the
time. Rather, I was consumed with fear of the U.S. government.
Technically, according to federal statutes, just visiting a
kiddie-porn site makes you a lawbreaker, because regardless of why you
went there, the images end up in your hard drive. You "possess" child
porn, which is a serious crime. You can notify the authorities. You
can clean up your cookies and your cache. Still, you broke the law.
The feds might excuse you, or they could arrest you. It's entirely up
And it doesn't matter if you're a psychologist, a criminologist, a
sociologist - or a journalist. No one but cops can legally look at
Internet child pornography. Would-be researchers have asked for
permission to no avail. Nancy Hass, a longtime freelancer for national
publications including the New York Times, used to teach journalism at
New York University. A decade ago, she considered having her students
study morphed child-porn images on the Internet. University lawyers
told her the students would surely be arrested for such research, and
Hass scrapped the project. A few years later, Lawrence Matthews, an
award-winning freelance journalist who contributed work to a National
Public Radio station in Washington, D.C., and articles to the
Washington Post, was prosecuted for having downloaded child porn. He
claimed he was doing research for a piece on the subject, and noted
that his previous journalism about child porn had been aired on
Washington radio and was highly regarded. No matter - Matthews was
tried, convicted and incarcerated. A judge in his case ruled that the
press has no First Amendment right to view illegal images on the Net.
That leaves law-enforcement officials and politicians free to say
whatever they want about the prevalence and content of images deemed
child pornography, with virtually no way for the public to test their
Here is one such claim: that child porn is a $20 billion annual online
business. That figure implies that child images dominate porn on the
Web, since a reliable annual estimated figure for all of it - in all
media worldwide, adult material included - comes to only $32 billion.
The child-porn calculation comes from the federal government's
National Center for Missing and Exploited Children. It was trumpeted
earlier this year in congressional hearings and repeated uncritically
by the New York Times. But when Wall Street Journal reporter Carl
Bialik tried to find a source for the $20 billion figure, he couldn't.
The number seems to have been plucked out of nowhere. Or at least
nowhere that non-governmental researchers can access without fear of
landing in jail.
A few years ago, a non-governmental researcher figured out how to do
serious work on Internet child porn without risking his own skin.
Pennsylvania State University historian Philip Jenkins disabled the
system in his computer that shows images, and stuck strictly to text.
In the late '90s, he spent two years trolling pedophile-oriented sites
and examining written descriptions of the visuals they purported to
offer. Reading words on the Web is legal, even when the words are
about molesting children. Still, Jenkins says, trusting words to
describe pictures accurately was a lousy way to do social science.
Given government constraints, however, it was the best he could do.
What Jenkins found was depressing, but much of it diverged from what
the government was claiming. As he reports in his definitive book on
Internet child porn, "Beyond Tolerance," the relatively small number
of men worldwide whom he believed to be using such sites - perhaps
50,000 to 100,000 individuals - generally knew far more about
computers and the Internet than the cops did. Pedophiles dealing in
the hardest of hardcore exploitation images, meaning photos and videos
showing frank intercourse and other sex acts, were practically immune
to law-enforcement interdiction. They knew how to get on and off the
Net quickly and anonymously. Their message boards were based in Japan,
Russia and other eastern European countries. The person posting a
picture, the server, the picture site where other users could locate
the image, and the site with the access password - each could be in a
different nation. Enforcement was extremely difficult. The men whom
cops did catch were mainly naifs like reporter Lawrence Matthews.
Which brings us to another journalist, the Times' Eichenwald. In his
Aug. 20 piece, "With Child Sex Sites on the Run, Nearly Nude Photos
Hit the Web," he writes that he examined "more than 200 sites" that
sound exactly like the one illegal URL I found. Two hundred! That's
real research, and I commend him for it. But did Eichenwald have the
legal right to do the work? No. The Times notes in a box accompanying
his article that "United States law makes it a crime to purchase,
download or view child pornography, unless the images are promptly
reported to authorities and no images are copied or retained. The
Times complied with the law."
Trouble is, there is no law for the Times to comply with. Contrary to
the box, nothing says that if you report and you don't copy or retain,
you're safe. Eichenwald admitted as much in an e-mail he sent me when
I pointed out that the box is wrong. Its language, he wrote, "was
terrible," and was added by editors after he signed off on the
Eichenwald agreed that a reporter can never download or buy a
child-porn image. But he claimed that "viewing is slightly different.
I cannot knowingly hunt for an image - or images in general - that I
know to be illegal. But, in the course of my reporting, I came across
the model sites that struck me as clearly illegal." That, he wrote,
probably would make things OK because he told the authorities he had
Really? He didn't know? Wasn't hunting? Please! Eichenwald notes in
his article that he found the illegal modeling sites "through on-line
advertising aimed at pedophiles" and through a link posted at
pedophile conversation sites to "forum postings and images." These
images were hyped with titillating phraseology. "Call 911 before
viewing!" said the come-on at one site, for a 9-year-old named
Sparkle. Eichenwald saw these dirty cues before he clicked his mouse.
Well, fine. Good for him and for the Times. But I want to go hunting
too, and I want my colleagues in the press to join me. I'm worried
that the government has declared an entire field of law enforcement
and public policy off-limits from empirical critique by academia and
the fourth estate. I want a process that allows non-governmental
investigators and journos to be vetted and qualified as child-porn
researchers. I'm not sure who would do the vetting or what the
criteria would be. Neither is Penn State's Jenkins. Still, says
Jenkins, if front-line research and reporting remains prohibited, "if
there's no garbage filter, no independent means for checking,
verifying or criticizing the government, that's very worrisome. As an
analogy, just imagine if every word we knew about terrorism came from
the FBI or the White House."
The comparison is hardly far-fetched. Post-9/11, the Patriot Act gives
police and prosecutors unprecedented rights: to search people's homes
without letting them know, to rifle through personal financial and
computer records, check on purchases from bookstores, and even monitor
which materials an individual has checked out of a library. Many
Americans are so troubled by the Patriot Act that hundreds of
communities have passed resolutions condemning it. But the government
says porn is one reason the act is needed.
In 2004, U.S. Attorney General John Ashcroft testified before Congress
that the Patriot Act had helped catch two Internet child
pornographers. It had enabled investigators to ask an Internet service
provider for the names of the criminals, then get a warrant to search
their houses. Later, some news sources found out that investigators
knew who the pornographers were and where they lived before they used
the Patriot Act. They had learned the old-fashioned, constitutional
way: by talking to a child victim and to an adult who had witnessed
wrongdoing. The Patriot Act had little or nothing to do with solving
the crime. But the government's claims at first got great, fluffy
press. Fluff, after all, is an easy response from reporters who are
frightened of looking on their own into the details and reality of
In my e-mail to the Times' Eichenwald, I said I believe the government
should let journalists research the content of child porn sites, and
asked him for his thoughts. "I think perhaps the worst area to focus
on," he answered, "is news articles that closely examine the images
for the purpose of opining on their legality. There are so many other
valid stories in this area, it seems unnecessary to spend time on one
that will be defined by the courts, not by journalistic opinion."
I disagree. The government, including the courts, has often been as
irrational as the rest of society when it comes to children and sex -
and far more opportunistic. Child porn desperately needs not just
journalistic opinion, but journalistic fact as well. We need First
Amendment access to these images. They may be terrible to look at. But
not being able to look is even worse.