stupid question time

[kaigou]

I figure someone on my elist is gonna know the answer to this one. Maybe?

Context: I'm aware that different countries have different laws about what is, and is not, legal. Like the fact that the US considers the demarcation of child pornography to be 18, not 16, as it is in some other countries. Or, perhaps purchases of drug paraphernalia. And whatever else: but essentially, things you cannot just walk into a local store and buy, because of your country's laws. (Cuban cigars, anyone?)

But over the internet, wouldn't that be a different matter? Let's say we're talking about... oh, hmm, like, ebooks. Righto. There's a good example. I order one by going to the publisher's or distributor's site, I put in my c'card -- or I use Paypal -- and within a few minutes, I download the book and read it. If I'm ordering from an international publisher (and yes, I do, actually), then my bank or credit card converts the foreign currency into my local rates based on the most recent exchange and I'm good to go. No extra effort on my part.

And, more importantly, no customs officials to rip open my email or download and inspect it thoroughly. It's true that any computer can track my IP, and that some countries do have domain-wide blocks, but there are oodles of ebook publishers and distributors and they're growing with every month and week. I have real trouble believing that any govt has the capacity to track down all those domains and block them for all in-country IPs -- yes, it can be done, but outside one really notable example, I've not heard of any other country having such major domain-blocks on its citizens' access to the internet.

Without those blocks, I can't see anywhere else -- technologically -- that I could be prevented from purchasing something over the internet that arrives in my email box, or that I then download from a site. If I can see the site, I can interact with it. At least, that's my understanding.

Am I wrong? Does anyone on my flist live somewhere that even online-purchase-and-download is limited or restricted (such as ebooks, or software, or any other kind of completely-electronic money-for-goods exchange)?

I'm not advocating breaking the law, if law it be. But it does seem to me that it's one thing to shy away from purchases that will be shipped internationally and inspected by customs... versus a purchase made in the privacy of your own home, that gets lost in the morass of internet traffic and about which no one would ever freaking know.

Or a better way to put it: if one is so worried about breaking the law by purchasing certain types of electronic materials, wouldn't possession of those materials also constitute breaking the law? Would it really amount to much of a defense if you told the judge that, well, the child pornography was a gift, so it's not like you actually spent money on it. Based on what I've seen of the way the world works, I don't think it makes any difference at all -- so if the laws are such that ordering a book, or a software, or whatever, would be bad, then it would follow that just owning such would also be bad... right?

Anyone?

Comments

[rurounitriv.livejournal.com]

Excerpt from the Miller test for obscenity:
"(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

If you notice, there is nothing in there that says that the art in question has to be of a real child. And in fact, there is this from the PROTECT Act of 2003 (which is the law he has been convicted of violating):

(b) Additional Offenses.— Any person who, in a circumstance described in subsection (d), knowingly possesses a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—
(1)
(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(2)
(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A (b)(2), including the penalties provided for cases involving a prior conviction.
(c) Nonrequired Element of Offense.— It is not a required element of any offense under this section that the minor depicted actually exist.

So, according to the PROTECT Act, unless Handley could convince a jury full of ordinary Iowans that his manga were "serious works of art", he was up shit creek. This would probably be the main reason why his lawyer convinced him to plead guilty - there's way too many people out there who don't think anything that could be described as "comic books" could be considered real art.

[kaigou.livejournal.com]

I'm versed in the Miller test -- but the issue here isn't US laws, like I said, or of things that are obviously illegal per US law. But the simplest reply is probably just: so basically possession is an issue regardless of means of access. Given that US laws aren't at issue at all, here, anyway, which renders the Miller Test utterly moot.