Q4 2014 & Q1 2015 Quick Links Part 2 (Dating, Sex, Pornography)

Dating and Sex

* The Atlantic: The Adultery Arms Race

* NY Times: Extramarital Dating Site Unsettles the Land of Discreet Affairs

* San Francisco Magazine: The cold mathematics of sugar daddy dating.

* FTC: Online Dating Service Agrees to Stop Deceptive Use of Fake Profiles

* Avalos v. IAC/Interactivecorp., 2014 WL 5493242 (SDNY Oct. 30, 2014). Lawsuit against Match.com for displaying model’s photo in fake profiles falls apart.

* Slate: Consensual Sex: There’s an App for That. This is a contracts law professor’s dream! The only thing that would make it better is if the toggle options included “OK to record” and “OK to publicly distribute recording.”

* San Jose Mercury News: MyRedbBook.com operator pleads guilty to facilitating prostitution. Wired: The Rise and Fall of Redbook, The Site That Sex Workers Couldn’t Live Without

* WSTP: How law enforcement turns law-abiding men into sexual predators. Chilling must-read expose of overreaching online sex stings in Florida. Related blog post.

Pornography

* The Atlantic: Why Kids Sext.  We have to prepare for a future (or even a present) where many/most people produce their own homemade pornography; and overcriminalization probably isn’t the right solution. More from Techdirt.

* Florida tried to regulate teen sexting, but sloppy drafting meant that no court had jurisdiction over any enforcement efforts. Whoops.

* NY Times: Parenting in the Age of Online Pornography. Reciting some evidence suggesting that youthful access to online porn isn’t destroying society, in contrast to the 1990s regulate-the-Internet rallying cries.

* Mercury News: Dublin CHP officer accused of forwarding nude photos of suspect. And similar behavior in Palo Alto.

* Crabtree v. Commonwealth, 2014 WL 7240063 (Ky. Sup. Ct. Dec. 18, 2014). A partial reversal for conviction of possessing child pornography.

The filenames, which Crabtree would had to have clicked to start the downloads, were obviously indicative of child pornography. Even if the files had been returned in an innocent search, their filenames were a clear giveaway of their contents. Nevertheless, Crabtree began those downloads anyway. As soon as any of the data arrived on his computer, Crabtree could be found to have completed the offense of possessing matter portraying a sexual performance by a minor, even though the rest of the data had yet to be received.

But with respect to the photos:

There was no proof that Crabtree knew the thumbcache images existed. His convictions, therefore, cannot be for knowingly possessing those images….

There are numerous reasons why those images could have been on Crabtree’s computer. For example, they could have been the product of an innocent search on Limewire that happened to return results containing child pornography. The expert for the Commonwealth testified that, for example, a search for picture files using the term “beagle puppy” could return a file that nonetheless contained child pornography. While an innocent search will not turn up the buzz words for child pornography, sometimes an innocent search term such as “puppy” could be included on child pornography files or in its metadata. There was also testimony that files on Limewire and similar services are frequently misnamed and that the content of the files did not always match the descriptions. Thus, child pornography files could appear in the results of searches using innocent terms, and child pornography files could have innocent names. A person downloading such a file would have no idea that it contains child pornography until opening and viewing it.

Given the evidence in this case that files on Limewire were frequently mislabeled, it is possible that Crabtree downloaded a file that appeared, based on its filename, to contain legal images but turned out to contain child-pornography images.

The problem is that the Commonwealth had no evidence related to the source of the original files, what their names were, or anything. In fact, that the original images are no longer on the computer is equally consistent with Crabtree’s innocence, i.e., that he unknowingly downloaded the images and deleted them as soon as he knew what they were.

No innocent possession instruction:

he suggests that he admitted to searching for shocking material and “that he may have just cast his net too wide while looking for legal shock videos.” But the proof did not establish, for instance, that the child pornography videos on his computer were innocently named and that he had encountered them while searching for other material. And even if he had encountered the videos while searching for other content, their filenames, which he had to have clicked and confirmed to begin the download, were clearly indicative of their content. A person cannot claim innocent possession when he sees files with terms unquestionably indicating child pornography and then chooses to download those files, even if he had originally been looking for legal content.

That he deleted, or at least attempted to delete, the material upon viewing and confirming the content of one of the files does not bring him within the ambit of the defense where he intentionally sought the material by initiating the downloads. That the possession may have been motivated by curiosity (Does this file being offered really contain child pornography?) or a misguided attempt to investigate on behalf of the police does not change the criminal nature of the possession.17 The defense is for temporary, incidental possession, not curiosity-driven possession. Such curiosity is better left to law-enforcement personnel, who have a duty to seek out and collect contraband as evidence for criminal prosecutions. And while curiosity may be an inherent human trait, the exercise of curiosity can be and is confined by law.

It was suggested by defense counsel at trial that the material on Crabtree’s computer may have been put there by a virus, Trojan, or other malware on his computer. There are some media accounts suggesting that Trojans have been used to place and store child pornography on innocent people’s computers.18 And courts have noted that “[t]he presence of Trojan viruses and the location of child pornography in inaccessible internet and orphan files can raise serious issues of inadvertent or unknowing possession.” United States v. Kain, 589 F.3d 945, 949 (8th Cir.2009). Similar concerns exist for the dreaded pop-up advertising that is so ubiquitous now. See Ty E. Howard, Don’t Cache Out Your Case: Prosecuting Child Porno graphy Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech. L.J. 1227, 1268 (2004).

If there was proof that malware had caused the child pornography to be on Crabtree’s computer, he would have been entitled to an innocent-possession instruction, or possibly even a directed verdict on the basis of unknowing possession. But the evidence did not show that the pornography on Crabtree’s computer was placed there by malware. The evidence, including Crabtree’s own admissions, demonstrated that the videos had been downloaded through Limewire, not by malware. The closest Crabtree came to alleging the files were the result of malware was his counsel’s questions to the Commonwealth’s forensics expert about it. She answered that she had not seen examples of that actually happening in the literature she had reviewed, and that although malware had been found on Crabtree’s computer, it had not put the videos on his computer.

Prior blog post.

Revenge Porn

* Kash Hill: Twitter bans nonconsensual intimate photos, a.k.a. ‘revenge porn’. Follow up: “The porn industry I work in most certainly requires consent.” Wired’s coverage: “Ultimately, eradicating this type of abuse might be impossible without fundamentally altering Twitter itself.” Reddit also banned revenge porn. NY Times coverage.

Sorry to state the obvious, but…I STILL hear people claim that Section 230’s immunity means that websites won’t take any action to screen out bad content. This has always been wrong, and the Twitter/Reddit moves on revenge porn are just the latest example of private regulation of content covered by Section 230. We should be skeptical of the credibility of anyone who continues to advance the facially wrong overclaim about how websites respond to Section 230’s immunity.

* People v. Piznarski, 2014 N.Y. Slip Op. 24391 (N.Y. County Ct. Dec. 15, 2014). Michael Piznarski, convicted for revenge porn-related crimes, was classified as a Level 1 Sex Offender. Prior blog post.

* NY Times: Law Firm Founds Project to Fight ‘Revenge Porn’

* Techdirt: Revenge Porn Site Owner Kevin Bollaert Sentenced To 18 Years In Prison