Re: what to do it illegal activity found during pen-test

["Eliah Kagan" <degeneracypressure () gmail com>]

On 7/11/06, Ebeling, Jr., Herman Frederick wrote:
> Sadly, at the moment I cannot recall where or when it was that I'd
> heard it, but I am sure that it was on a news program.  However I did
> a quick Google search
> (http://www.google.com/search?hl=en&q=child+pornography+laws+in+the+un
> ited+states) and came up with the following:
>
> http://www.adultweblaw.com/laws/childporn.htm
>
>         I think that the following applies:
>
> 3. Federal Statutes:
>
> Title 18 of the United States Code governs child pornography. See
> Chapter 110, Sexual Exploitation and Other Abuse of Children. 18
> U.S.C. § 2256 defines "Child pornography" as:
>
> "any visual depiction, including any photograph, film, video,
> picture, or computer or computer-generated image or picture, whether
> made or produced by electronic, mechanical, or other means, of
> sexually explicit conduct, where -
> (A) the production of such visual depiction involves the use of a
> minor engaging in sexually explicit conduct;
> (B) such visual depiction is, or appears to be, of a minor engaging
> in sexually explicit conduct;
> (C) such visual depiction has been created, adapted, or modified to
> appear that an identifiable minor is engaging in sexually explicit
> conduct; or
> (D) such visual depiction is advertised, promoted, presented,
> described, or distributed in such a manner that conveys the
> impression that the material is or contains a visual depiction of a
> minor engaging in sexually explicit conduct . . ."
>
>         Of which I think that the subsections would cover adults who are
> dressed or made up to appear as children/minors.

The question is, does this cover adults engaging in sexually explicit
activity and made to look like minors, or does it merely (and rightly)
criminalize having actual children who are not engaging in sexually
explicit activity being made to *look* as though they are?

I seem to recall a supreme court case that touched on this, but I
could be wrong and I don't quite remember the ruling--if I manage to
be less busy in the next couple days, I'll look for it.

> But in general I agree with you that it could have a chilling effect
> on what is otherwise nomilly legal and protected porn.

And also potentially the effect of diluting in people's minds how bad
real child porn is. It might seem that the social stigma associated
with child pornography and with sexual abuse of children in general is
great enough that this would not be a huge issue. But consider the
hypothetical case of a pen-tester *not* reporting material that is
child pornography under the law, thinking that it involves only adults
and is consequently not morally reprehensible, but being wrong in
thinking that it involves only adults...

Ideally, a Good Samaritan sort of law would protect people who report
material that looks illegal and cannot, after a demonstrated
good-faith attempt to determine whether or not it is illegal, be shown
not to be, while at the same time not expanding contraband beyond the
realm of material that should be criminalized (i.e. material that
requires grievous violation of the law to make and distribute).

-Eliah

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