Seeing is believing; and sometimes it is a crime

At Mr. Gillette's request, I am separately posting my response (originally posted as a comment) to his very interesting post about the recent sentencing of a government attorney in Maine on child pornography charages. 

Mr. Gillette focuses not on the case itself, but on commentary about the case by Peter C. Lomtevas, an attorney in New York.  I'd like to defend Mr. Lomtevas a little bit.

Mr. Gillette is correct that Lomtevas's points are somewhat disconnected to the actual case at hand. Namely, this was not a case of planted porn, and the AG's conduct went beyond the "mere possession" of child pornography -- the government's trial brief details quite a bit more than that, including transferring the materials across state lines.

But I think Lomtevas's aim was broader -- he's indicting the laws that criminalize the mere possession of child pornography because they lead to invasions of privacy and are too easy to use offensively. As he says, "The real problem in these situations is that the man did not produce these images, he only shuttled them around." I agree that this a problem. Of all the child-pornography prosecutions I have become aware of, not one involves the actual production of this heinous material.

Why not? Well, Lomtevas has a theory: "the United States has a fundamental inability to control anything that is on the internet just like it cannot control its own borders or the foreign production of drugs." In fact, my guess is that the vast majority of this material is produced overseas. The result, as Lomtevas points out, is that "one producer [of child porn] can cause the incarceration of potentially millions of people. The U.S. has no control over the producer but can attack its own citizens."

And what exactly are these citizens being attacked for? It seems beyond dispute that the production of child pornography is far, far more destructive and culpable behavior than downloading, uploading, or carrying it across state lines in a computer. But our entire enforcement regime against child porn seems focused on this lesser conduct -- going after the perverts for whom the Internet has opened up a terrible opportunity to indulge their deviant fantasies, but who would likely (in my opinion) never harm an actual child. In my opinion, this lesser conduct should not be illegal, given the invasions of privacy and thought policing it invites. But if it is going to be illegal, the punishments should be far, far lower than they are. Viewing pictures of the molesting of a child is not laudable behavior; but it is utterly distinct from actually molesting a child. Our law bizarrely treats them as virtually identical acts.