CyberLaw Blog

Archive for May 7th, 2008

I have been trying to highlight the complications with regards to the possession of extreme pornography provisions of the Criminal Justice and Immigration Bill (dubbed as the Dangerous Pictures Act) during the last few weeks.

This is another short note to highlight the fact that further complications will arise in terms of sentencing of the offenders with regards to the possession provisions of the Criminal Justice and Immigration Bill. When considering the imposition of penalties a comparison can be made with possession prosecutions involving child pornography. In R v Oliver and others, [2002] EWCA Crim 2766, the Court of Appeal established that possession, including downloading, of artificially created pseudo-photographs and the making of pseudo-photographs, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of “real children”. Although the Court of Appeal has noted that there may be exceptional cases in which the possession of a pseudo-photograph could be as serious as the possession of a photograph of a real child. This could include

“for example, where the pseudo-photograph provides a particularly grotesque image generally beyond the scope of a photograph. It is also to be borne in mind that, although pseudo-photographs lack the historical element of likely corruption of real children depicted in photographs, pseudo-photographs may be as likely as real photographs to fall into the hands of, or to be shown to, the vulnerable, and there to have equally corrupting effect.”

One may assume that the same considerations will be applied in relation to offenders possessing extreme pornographic images even though the Criminal Justice and Immigration Bill provisions do not draw this distinction. There has been no discussion of potential problems that could arise with regards to sentencing at the Parliament. Those convicted of possessing “appears to be real” imagery or images produced as a result of “consensual sexual activity” may therefore receive non-custodial sentences. The Court of Appeal in Oliver recommended that the appropriate penalty in the scenario of an offender who was “merely in possession of material solely for his own use, including cases where material was downloaded from the Internet but was not further distributed, and either the material consisted entirely of pseudo-photographs, the making of which had involved no abuse or exploitation of children or exploitation of children”, or there was no more than a small quantity of material at Level 1 on the Oliver Image Scale (images depicting erotic posing with no sexual activity)” is a fine, and far below the custody threshold for a possession offence under section 160 of the Criminal Justice Act 1988.

The Court of Appeal established that in cases of possession, the custody threshold would be passed when defendants possess real images, for example, large amount of material at Level 2 on the Oliver Image Scale (sexual activity between children, or solo masturbation by a child), or a small amount at Level 3 on the Oliver Image Scale or above (non-penetrative sexual activity between adults and children), and the length of the custodial sentence would depend upon the quantity and the nature of the images.

A custodial sentence of between six and twelve months is recommended usually for cases involving possession of a small number of images at Levels 4 on the Oliver Image Scale (penetrative sexual activity between children and adults) or 5 on the Oliver Image Scale (sadism or bestiality). A custodial sentence between twelve months and three years is appropriate for possessing a large quantity of material at Levels 4 or 5 on the Oliver Image Scale.

Similar detailed sentencing guidelines as set out by the Court of Appeal in Oliver will be necessary in relation to the possession of extreme pornography provisions assuming that the Criminal Justice and Immigration Bill will be enacted.

See further on the same topic: Extreme Porn Provisions: Unanswered Questions and Extreme Pornography Offence includes disproportionate penalties

AVN: Bahamas Concerned About Increase in Pornography: Police: Cell phones, Internet boosting porn presence ‘by leaps and bounds.
Posted: 05/06/2008

NASSAU, Bahamas – The increasing number of Bahamians with paid memberships to adult websites is of concern to police, who claim child pornography is becoming more of a problem.”

MPAA Defeats TorrentSpy: “A Los Angeles Federal court has rendered a $110 million judgment against Valence Media, the company which operates the now defunct TorrentSpy. This judgment represents the culmination of a lengthy decline for TorrentSpy, which was slowly strangled to death by the movie industry.”

(Via Slyck.com File-Sharing News And Information.)

See also the TorrentFreak article TorrentSpy Slapped with $110 Million Judgement and the Wired News article TorrentSpy Dinged $111 Million in MPAA Lawsuit.

FBI Targets Internet Archive With Secret ‘National Security Letter,’ Loses: “Without a warrant or subpoena, the FBI seeks records from the Internet Archive about one of its patrons, citing national security. But when the EFF and the ACLU intervene, a federal court sends the G-men packing.

”

(Via Wired News.)

See also the New York Times story Internet Archive Challenges F.B.I.’s Secret Records Demand

EurActiv.com – Call for joint effort to combat online child pornography | EU – European Information on InfoSociety: “Call for joint effort to combat online child pornography
Published: Wednesday 7 May 2008

The fight against child abuse over the Internet is often hampered by data protection rules, but a joint effort between privacy authorities, financial institutions and Internet services providers can ensure significant results in line with national laws, according to a new report.”

Banks, payment card companies, payment system operators and Internet service providers are invited to increase their collaboration in order to establish a true ‘coalition’ to combat child pornography, suggests the study carried out by the international law firm Allen & Overy on behalf of Missing Children Europe, the European federation of NGOs active against the disappearance and sexual exploitation of children.

(more…)

This is an article from: TorrentFreak

Test: Does Your ISP Slow Down BitTorrent Traffic?: “

A while back TorrentFreak posted about the plugin Azureus had developed, which allowed people to check whether their ISP is interfering with their traffic. The results showed that indeed quite a few ISPs were, but the plugin didn’t provide the user with direct feedback.

The new tool developed by the ‘max planck institute for software systems’ can be used without having to run your BitTorrent client, and compares BitTorrent traffic to regular traffic. On top of that, it will give you more information than the Azureus plugin does.

‘The goal of our Glasnost project is to make access networks, such as residential cable, DSL, and cellular broadband networks, more transparent to their customers,’ the Glasnost team writes. We couldn’t agree more of course, as we have said many times before.

The way it works is pretty straightforward. The Java applet developed by the Glasnost project uploads and downloads data via BitTorrent for a few seconds, and compares that to your regular download speed. It detects if your ISP is limiting all BitTorrent traffic, or just traffic on well known BitTorrent ports. All in all this tool should be able to tell you whether your ISP is messing with BitTorrent traffic or not.

Please keep in mind that the degree of traffic shaping varies a lot between different ISPs. Some ISPs only limit BitTorrent traffic during certain times of the day or do not throttle until the customer has exceeded a certain data threshold, others only slow down traffic in specific regions. More advanced tools have to be developed to detect these methods.

Thus far, over 5,300 users have performed the test, and the preliminary results show that at least 10 ISPs in the United States are slowing down BitTorrent. We asked the researcher for some more details (names) but we haven’t heard back from them. However, on their website, they promise to provide more detailed results later, once the code is peer-reviewed.

We encourage you to do the test, if the test results show that your ISP is limiting BitTorrent traffic, please let us know. We will add a lits of offenders at the bottom of this article.

Adult Company That Used Affiliates Is Ordered to Halt Spam Operation: “A federal judge has ordered the halt of a spam operation run by an operator of numerous online adult and social-networking websites. ATM also has been ordered to establish an affiliate monitoring program.”

(Via XBIZ.com | News & Articles.)

Stormy and ASACP go to Washington: “The Association of Sites Advocating Child Protection (ASACP) will kick off National Internet Safety Month with a press conference in Washington aimed at highlighting recent efforts by the adult entertainment industry to protect children from age-inappropriate Internet content.”

(Via XBIZ.com | News & Articles.)