[LAF] Forward: Extreme porn law goes live next week - are you ready?

[Volodya]

I don't like many things in this article, but it is one of the few which offers 
specific suggestions, which makes it better than anything i've seen that has to 
do with Police up to this point.


Extreme porn law goes live next week - are you ready?

Is it or isn't it? A survival guide to your hard disk

By John Ozimek

Posted in Law, 24th January 2009 08:02 GMT

Unless you happen to have been living on Mars for the last year or so, you 
probably know that next week (January 26 
(http://www.theregister.co.uk/2008/11/26/pr0n_ban_date/) to be precise) it will 
become a criminal offence (in England and Wales) to possess pictures that the 
government deems to be "extreme porn". You might also be aware of two 
diametrically opposed views on this legislation.

On the one hand, soothing words 
(http://www.theregister.co.uk/2008/11/28/extreme_images/) from Government and 
the Ministry of Justice suggest that the offence will catch only a very small 
number of people who possess the most abhorrent imagery. Cynics - including many 
lawyers who know a thing or two about obscenity - point out that the law as 
written is very broad, could catch a lot of quite ordinary stuff, and remind us 
of how laws, originally "intended" to focus on the most serious offences, end up 
being used far more widely. A good example is the Regulation of Investigatory 
Powers Act 2000 (http://www.opsi.gov.uk/acts/acts2000/ukpga_20000023_en_1), 
supposedly aimed at terrorists, and now used by local Councils to pursue 
individuals guilty of anti-social doggy poo.

Some of the advice in this article is therefore specific to the new extreme porn 
law: some is more general. It is not legal advice: if you want that, talk to a 
lawyer. It does set out some of the things you need to know, as well as some 
things you need to do now in order to make sure your story is not on the front 
pages of The Register in months to come.

First off, just what is the law? Various guides - including an official release 
(http://www.justice.gov.uk/news/announcement261108a.htm) from the Ministry of 
Justice - make it clear that pictures will fall foul of the new law if four 
components are present. The pic must be pornographic, or produced for sexual 
purposes. It must be realistic. It must contain certain specific imagery, 
including necrophilia, bestiality, activity depicting serious harm to breast, 
anus or genitals or life-threatening activity. Finally, it must be grossly 
offensive, as determined either by a jury or magistrate.

All those components must be there. Poster your walls with the most grotesque, 
the most blood-spattered out-takes from "Saw" or "Hostel" and unless someone can 
prove you actually get off on them, no prosecution could follow. That, of 
course, highlights one of the first of many question marks hovering over this 
legislation: is "produced for sexual purposes" defined relative to the motives 
of the originator of an image, or the motives of the person who downloads it to 
their hard-drive? Lawyers suspect the latter: so in fact, the out-takes in 
question might or might not fall foul of the law depending on your personal 
sexual tastes.

There are two defences to a charge under this act: that you were participating 
with a consenting partner in the scenes depicted (and no law was broken in the 
creation of those scenes), or that the scenes exist wholly within a BBFC rated 
film (DVD, video, etc.). Both these defences have their flaws. The first does 
not apply to the person taking the photo - unless they were also participating 
in the act. Since the law will apply on an image by image basis that probably 
means that you must include some (identifiable) part of your anatomy in every shot.

The BBFC exemption only applies to whole films: watch "Clockwork Orange", replay 
the rape scene over and over in the privacy of your living room, you commit no 
offence. Clip that one scene for viewing on your PC, and chances are that you might.

When it comes to computer crime (any crime, for that matter), the first rule is 
don't commit the offence. Or if you think you may have inadvertently broken the 
law, don't get caught. Easier said than done.

A very high proportion of crime is not so much detected as denounced by people's 
nearest and dearest. Hence all those Crimewatch appeals asking viewers if their 
partner was acting suspiciously on a particular night. Many companies that come 
to the attention of the Information Commissioner for Data Protection breaches do 
so as a result of falling out of love with former employees. IT Staff know where 
the bodies are buried - and there is none so furious as a SysAdmin scorned.

Limbering up for a divorce by looking at internet porn sites may provide a 
degree of self-gratification: but if the end result is going to be a bitter 
battle over money, maintenance and kids, be very careful. Courts are supposed to 
work for reconciliation, but there are still lawyers - and exes - out there who 
might consider an allegation of looking at illegal porn a useful move as part of 
the separation end-game.

At present, it seems unlikely that there will be an extreme porn equivalent of 
"Operation Ore" (http://www.journalonline.co.uk/News/1002301.aspx). Readers may 
remember that in that case, British police went after a list of 7,000 
individuals named as subscribers to a US-based site acting as an alleged gateway 
to child porn. While the reverberations of Operation Ore are still being felt 
within the UK Appeals Courts, the key point is that distribution and possession 
of paedophile material is seriously illegal not only in the UK and US, but also 
in most jurisdictions throughout the world.

Subscribe to a child porn site anywhere in the world and do not be surprised, 
when that site gets busted, if you are shortly after invited to assist the 
British Police with their inquiries.

That is not quite the case with the law on extreme porn, which has been passed 
precisely because most of the material it covers is hosted quite legally in 
other countries. In early debate on the measure, it was estimated that some 80 
per cent of extreme porn emanated from sites operating perfectly legally in the 
US. The British Police might request the names of subscribers to such sites: but 
it is unlikely that names would be forthcoming.

Beware complacency, however. The British police do have powers under RIPA to 
demand that ISPs cough up information about what any individual has been 
downloading in order to "help the prevention of crime". Given the way in which 
RIPA has been extended, it is not beyond the bounds of possibility that the 
police might use that law to monitor individual surfing habits.

That would not, by itself, be proof that you possessed an extreme pornographic 
image. However, a stream of downloads from "Hanging Bitches" would probably 
constitute sufficient grounds for taking a look at your PC.

While no-one in the Ministry of Justice has said as much, it is also possible 
that the police and Crown Prosecution Service will, in time, invent an 
additional and complementary offence to go with the extreme porn law. The 
majority of individuals convicted under Operation Ore were convicted (or 
accepted cautions) for the crime of possessing indecent images of children, but 
a small but significant minority were found to possess no images at all.

They argued that this was because they had never downloaded any, and the police 
evidence was flawed: the prosecution argued that they had simply deleted them 
successfully. Since they appeared to have subscribed to sites promoting such 
imagery, the CPS then proceeded to bring charges of incitement to distribute 
indecent imagery. It is not unthinkable that similar charges could be brought 
against individuals who had no extreme porn on their hard drives, but who were 
active subscribers to websites featuring such stuff.

But what if you have been looking at material that you fear might fall foul of 
the law? The simple answer is that you need to wipe your hard-drive. Some useful 
tips on how to do so are provided here 
(http://www.backlash-uk.org.uk/clean.html), together with a certain amount of 
common sense guidance.

Basically, it recommends Eraser (http://www.backlash-uk.org.uk/fr_eraser.html) 
for ordinary images, and Cccleaner 
(http://www.backlash-uk.org.uk/fr_ccleaner.html) if you have been dabbling with 
P2P or newsgroups. Despite recent Which-inspired hysteria 
(http://www.theregister.co.uk/2009/01/08/hard_drive_hammer_destruction/), it is 
not recommended that you go around hitting your hard drive with a sledgehammer. 
Yes, MI5 teams hell-bent on securing the safety of the nation can probably 
recover most things (we watch "Spooks" too). But your average police forensics 
department has neither the time nor the capability to do magnetic force 
microscope imaging (http://www.slate.com/id/2121745/).

Once upon a time, it appeared to be the case that individuals who had possessed, 
say, indecent imagery on their PCs could still be prosecuted even if they 
subsequently deleted them. Legal precedent has evolved, to the point that you 
need only put the imagery beyond your capability to recover it. That may or may 
not seem unfair. What it boils down to is that if you are the sort of computer 
geek who is clearly capable of restoring files from varying degrees of deletion, 
and you have the wherewithal to do so, you are considered to be in a different 
category from the average computer user who thinks that hitting the big "x" 
thingy at the top of the screen is an end to it.

Some individuals have come up with a cunning plan: they will encrypt their 
naughty piccies and then claim to have lost their encryption keys. The Register 
can only remind readers that this is an offence under RIPA, for which the 
penalty could be as bad or worse than any penalty under the extreme porn law.

Whether the even more cunning plan of hiding an encrypted file within an 
encrypted file is possible, we leave to those techies we feel sure are going to 
comment on this article (Yes it is (http://www.truecrypt.org/) - Ed).

But what if the worst happens? Plod has burst through your front door at two in 
the morning. All your PC equipment is now in a van on its way to the local 
police forensics unit, and you are sat sweating the wrong side of the 
interrogation room, trying to decide whether the copper offering you a cigarette 
is the good one or the bad one?

First of all, remember that everything that happens from here on in is actually 
a process (http://www.backlash-uk.org.uk/rights.html). When the police arrived, 
they should have had a warrant, which they showed you, and which detailed 
exactly what they were allowed to take. Without that document - if you have not 
previously been arrested for an offence - you are well within your rights to 
send them on their way. You may be arrested, whereupon your fingerprints and DNA 
become the property of the Police. But an arrest is no indicator of guilt or 
innocence. It is simply a useful procedure.

At the police station, you may ask for a lawyer - either your own or the duty 
solicitor - and you absolutely should not respond to any questions until you 
have spoken to this person. At the end of the interview, the police might offer 
you a caution. Be very careful at this point: a caution is tantamount to a 
criminal conviction. Police like cautions because they save time and paperwork, 
and they instantly add one to their clear-up rate. By contrast, lawyers we have 
spoken to recommend that you should never accept a caution, because if one is 
offered, it means the police may not have a good enough case to prosecute.

Organisations such as CAAN (http://www.caan.org.uk/) and Backlash 
(http://www.backlash-uk.org.uk/index.html) are equally adamant in advising 
individuals to refuse cautions. In part this is for the reasons above: in part 
it is the beginning of a fight back against the law. They believe the police 
made widespread use of cautions when it came to child porn because it made life 
easier and the majority of people just couldn't face a full court case. As one 
spokesperson put it: "the police wanted this law. We should not make it easy for 
them".

If the matter ever does get to court, then the prosecution has to prove that any 
images found on your PC were put there by yourself and not by accident, and that 
they meet all the criteria set out in the law. At this point no-one knows - we 
repeat, no-one knows - whether the law will eventually cast its net wide or 
narrow. That will depend on what the courts do with the first few cases that 
come before them.

It is possible that some form of Human Rights defence 
(http://www.backlash-uk.org.uk/qcopinion.html) will be available. It is also 
possible that the Government has shot itself in the foot on this law. Throughout 
its passage, and in guidance since, the Ministry of Justice has claimed 
absolutely that this law would not pick up any material not already covered by 
the Obscene Publications Act. Such advice does not exactly have the weight of 
law: but it could well prove a strong ground for mitigation.

As a judge argued (http://www.geocities.com/pca_1978/reference/ocarrol2003.html) 
in another case (R v. O'Carroll 2003), individuals cannot wait for a jury to 
determine whether an image is indecent or not: they must have some idea of what 
the common understanding of that term is. So, too, with obscenity. Individuals 
wishing to take the argument one stage further might follow the advice of CAAN - 
which is planning to issue an "approved by the IWF" stamp for erotic pictures - 
and forward images they are not sure about to the IWF (http://www.iwf.org.uk/).

Since part of the IWF's remit is to deal with material deemed to be criminally 
obscene and hosted in the UK, the conclusion must be that if an image is deemed 
not to be obscene by the IWF, then according to the Ministry of Justice, it 
cannot fall foul of the extreme porn law. There is a pleasing sense of karma to 
this syllogism, since if it is denied, then either the Ministry of Justice will 
have to admit to giving duff advice, or the IWF would have to own up to not 
being experts on the law.

Some final words of caution. This guide is about self-preservation and survival. 
So do remember to take precautions to protect your own PC against external 
attack. Various viruses, trojans and assorted malware can and do deposit nasty 
images. No doubt you would hope to be able to prove this in time. However, if 
you already collect slightly extreme porn, an argument that the rest "just sort 
of appeared" would be considerably weaker.

Besides, if anyone believes that the authorities understand how malware 
functions, they have only to look at the case of Julie Amero 
(http://www.theregister.co.uk/2008/11/24/pop_up_spyware_case_resolved/) in the US.

Finally, being found guilty of looking at extreme porn is not necessarily the 
end of the world. Unless it is seriously extreme, the chances are it will not 
attract a prison sentence, and is very unlikely to land you on the Sex Offenders 
Register. On the other hand, the lead up to any court case can be seriously 
draining emotionally, especially if it is preceded by the police seizing every 
piece of computer kit in your house.

As reported previously 
(http://www.theregister.co.uk/2008/12/04/mps_demand_police_investigation/), 
different forces have different guidelines for what happens next: yet another 
reason for going high profile and kicking up a fuss in the press is that some 
forces will move forensic examination forward if the case is out in the public 
arena. However, do take a moment to consider what would happen if you are 
self-employed and vital work-related files were to be impounded for a matter of 
months. Could your business survive?

Best advice, always, is for small businesses to keep vital data backed up at an 
entirely separate location. That works if your premises catch fire. It also 
works - or should work - if your home office is raided and your PC removed. It 
might be that you have to borrow or buy new PCs until your case gets to court. 
But so long as you have continuing access to key data, you should survive.

D-day approaches. You now have no more than a couple of weeks to set your house 
in order. Read the law. Delete what you feel you need to delete (and that 
includes hard copy images as well). Apply your disk-scrubbers. Make back-ups. 
Install firewalls. Then cross your fingers, and pray.

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