Original URL: http://www.theregister.co.uk/2009/01/24/extreme_pron_law_live/

Extreme porn law goes live - are you ready?

Is it or isn't it? A survival guide to your hard disk

By Jane Fae Ozimek

Posted in Law, 24th January 2009 08:02 GMT

Unless you happen to have been living on Mars for the last year or so, you probably know that this week (January 26 to be precise) it will become a criminal offence (in England and Wales) to possess pictures that the government deems to be "extreme porn". You might also be aware of two diametrically opposed views on this legislation.

On the one hand, soothing words from Government and the Ministry of Justice suggest that the offence will catch only a very small number of people who possess the most abhorrent imagery. Cynics - including many lawyers who know a thing or two about obscenity - point out that the law as written is very broad, could catch a lot of quite ordinary stuff, and remind us of how laws, originally "intended" to focus on the most serious offences, end up being used far more widely. A good example is the Regulation of Investigatory Powers Act 2000, supposedly aimed at terrorists, and now used by local Councils to pursue individuals guilty of anti-social doggy poo.

Some of the advice in this article is therefore specific to the new extreme porn law: some is more general. It is not legal advice: if you want that, talk to a lawyer. It does set out some of the things you need to know, as well as some things you need to do now in order to make sure your story is not on the front pages of The Register in months to come.

First off, just what is the law? Various guides - including an official release from the Ministry of Justice - make it clear that pictures will fall foul of the new law if four components are present. The pic must be pornographic, or produced for sexual purposes. It must be realistic. It must contain certain specific imagery, including necrophilia, bestiality, activity depicting serious harm to breast, anus or genitals or life-threatening activity. Finally, it must be grossly offensive, as determined either by a jury or magistrate.

All those components must be there. Poster your walls with the most grotesque, the most blood-spattered out-takes from Saw or Hostel and unless someone can prove you actually get off on them, no prosecution could follow. That, of course, highlights one of the first of many question marks hovering over this legislation: is "produced for sexual purposes" defined relative to the motives of the originator of an image, or the motives of the person who downloads it to their hard-drive? Lawyers suspect the latter: so in fact, the out-takes in question might or might not fall foul of the law depending on your personal sexual tastes.

There are two defences to a charge under this act: that you were participating with a consenting partner in the scenes depicted (and no law was broken in the creation of those scenes), or that the scenes exist wholly within a BBFC rated film (DVD, video, etc). Both these defences have their flaws. The first does not apply to the person taking the photo - unless they were also participating in the act. Since the law will apply on an image by image basis that probably means that you must include some (identifiable) part of your anatomy in every shot.

The BBFC exemption only applies to whole films: watch A Clockwork Orange, replay the rape scene over and over in the privacy of your living room, you commit no offence. Clip that one scene for viewing on your PC, and chances are that you might.

When it comes to computer crime (any crime, for that matter), the first rule is don't commit the offence. Or if you think you may have inadvertently broken the law, don't get caught. Easier said than done.

A very high proportion of crime is not so much detected as denounced by people's nearest and dearest. Hence all those Crimewatch appeals asking viewers if their partner was acting suspiciously on a particular night. Many companies that come to the attention of the Information Commissioner for Data Protection breaches do so as a result of falling out of love with former employees. IT staff know where the bodies are buried - and there is none so furious as a sysadmin scorned.

Limbering up for a divorce by looking at internet porn sites may provide a degree of self-gratification: but if the end result is going to be a bitter battle over money, maintenance and kids, be very careful. Courts are supposed to work for reconciliation, but there are still lawyers - and exes - out there who might consider an allegation of looking at illegal porn a useful move as part of the separation end-game.

At present, it seems unlikely that there will be an extreme porn equivalent of "Operation Ore". Readers may remember that in that case, British police went after a list of 7,000 individuals named as subscribers to a US-based site acting as an alleged gateway to child porn. While the reverberations of Operation Ore are still being felt within the UK Appeals Courts, the key point is that distribution and possession of paedophile material is seriously illegal not only in the UK and US, but also in most jurisdictions throughout the world.

Subscribe to a child porn site anywhere in the world and do not be surprised, when that site gets busted, if you are shortly after invited to assist the British Police with their inquiries.

That is not quite the case with the law on extreme porn, which has been passed precisely because most of the material it covers is hosted quite legally in other countries. In early debate on the measure, it was estimated that some 80 per cent of extreme porn emanated from sites operating perfectly legally in the US. The British Police might request the names of subscribers to such sites: but it is unlikely that names would be forthcoming.

Beware complacency, however. The British police do have powers under RIPA to demand that ISPs cough up information about what any individual has been downloading in order to "help the prevention of crime". Given the way in which RIPA has been extended, it is not beyond the bounds of possibility that the police might use that law to monitor individual surfing habits.

That would not, by itself, be proof that you possessed an extreme pornographic image. However, a stream of downloads from "Hanging Bitches" would probably constitute sufficient grounds for taking a look at your PC.

While no one in the Ministry of Justice has said as much, it is also possible that the police and Crown Prosecution Service will, in time, invent an additional and complementary offence to go with the extreme porn law. The majority of individuals convicted under Operation Ore were convicted (or accepted cautions) for the crime of possessing indecent images of children, but a small but significant minority were found to possess no images at all.

They argued that this was because they had never downloaded any, and the police evidence was flawed: the prosecution argued that they had simply deleted them successfully. Since they appeared to have subscribed to sites promoting such imagery, the CPS then proceeded to bring charges of incitement to distribute indecent imagery. It is not unthinkable that similar charges could be brought against individuals who had no extreme porn on their hard drives, but who were active subscribers to websites featuring such stuff.

But what if you have been looking at material that you fear might fall foul of the law? The simple answer is that you need to wipe your hard-drive. Some useful tips on how to do so are provided here, together with a certain amount of common sense guidance.

Basically, it recommends Eraser for ordinary images, and Cccleaner if you have been dabbling with P2P or newsgroups. Despite recent Which-inspired hysteria, it is not recommended that you go around hitting your hard drive with a sledgehammer. Yes, MI5 teams hellbent on securing the safety of the nation can probably recover most things (we watch Spooks too). But your average police forensics department has neither the time nor the capability to do magnetic force microscope imaging.

Once upon a time, it appeared to be the case that individuals who had possessed, say, indecent imagery on their PCs could still be prosecuted even if they subsequently deleted them. Legal precedent has evolved, to the point that you need only put the imagery beyond your capability to recover it. That may or may not seem unfair. What it boils down to is that if you are the sort of computer geek who is clearly capable of restoring files from varying degrees of deletion, and you have the wherewithal to do so, you are considered to be in a different category from the average computer user who thinks that hitting the big "x" thingy at the top of the screen is an end to it.

Some individuals have come up with a cunning plan: they will encrypt their naughty piccies and then claim to have lost their encryption keys. The Register can only remind readers that this is an offence under RIPA, for which the penalty could be as bad or worse than any penalty under the extreme porn law.

Whether the even more cunning plan of hiding an encrypted file within an encrypted file is possible, we leave to those techies we feel sure are going to comment on this article (Yes it is - Ed).

But what if the worst happens? Plod has burst through your front door at two in the morning. All your PC equipment is now in a van on its way to the local police forensics unit, and you are sat sweating the wrong side of the interrogation room, trying to decide whether the copper offering you a cigarette is the good one or the bad one?

First of all, remember that everything that happens from here on in is actually a process. When the police arrived, they should have had a warrant, which they showed you, and which detailed exactly what they were allowed to take. Without that document - if you have not previously been arrested for an offence - you are well within your rights to send them on their way. You may be arrested, whereupon your fingerprints and DNA become the property of the Police. But an arrest is no indicator of guilt or innocence. It is simply a useful procedure.

At the police station, you may ask for a lawyer - either your own or the duty solicitor - and you absolutely should not respond to any questions until you have spoken to this person. At the end of the interview, the police might offer you a caution. Be very careful at this point: a caution is tantamount to a criminal conviction. Police like cautions because they save time and paperwork, and they instantly add one to their clear-up rate. By contrast, lawyers we have spoken to recommend that you should never accept a caution, because if one is offered, it means the police may not have a good enough case to prosecute.

Organisations such as CAAN and Backlash are equally adamant in advising individuals to refuse cautions. In part this is for the reasons above: in part it is the beginning of a fight back against the law. They believe the police made widespread use of cautions when it came to child porn because it made life easier and the majority of people just couldn't face a full court case. As one spokesperson put it: "the police wanted this law. We should not make it easy for them".

If the matter ever does get to court, then the prosecution has to prove that any images found on your PC were put there by yourself and not by accident, and that they meet all the criteria set out in the law. At this point no-one knows - we repeat, no one knows - whether the law will eventually cast its net wide or narrow. That will depend on what the courts do with the first few cases that come before them.

It is possible that some form of Human Rights defence will be available. It is also possible that the Government has shot itself in the foot on this law. Throughout its passage, and in guidance since, the Ministry of Justice has claimed absolutely that this law would not pick up any material not already covered by the Obscene Publications Act. Such advice does not exactly have the weight of law: but it could well prove a strong ground for mitigation.

As a judge argued in another case (R v. O'Carroll 2003), individuals cannot wait for a jury to determine whether an image is indecent or not: they must have some idea of what the common understanding of that term is. So, too, with obscenity. Individuals wishing to take the argument one stage further might follow the advice of CAAN - which is planning to issue an "approved by the IWF" stamp for erotic pictures - and forward images they are not sure about to the IWF.

Since part of the IWF's remit is to deal with material deemed to be criminally obscene and hosted in the UK, the conclusion must be that if an image is deemed not to be obscene by the IWF, then according to the Ministry of Justice, it cannot fall foul of the extreme porn law. There is a pleasing sense of karma to this syllogism, since if it is denied, then either the Ministry of Justice will have to admit to giving duff advice, or the IWF would have to own up to not being experts on the law.

Some final words of caution. This guide is about self-preservation and survival. So do remember to take precautions to protect your own PC against external attack. Various viruses, trojans and assorted malware can and do deposit nasty images. No doubt you would hope to be able to prove this in time. However, if you already collect slightly extreme porn, an argument that the rest "just sort of appeared" would be considerably weaker.

Besides, if anyone believes that the authorities understand how malware functions, they have only to look at the case of Julie Amero in the US.

Finally, being found guilty of looking at extreme porn is not necessarily the end of the world. Unless it is seriously extreme, the chances are it will not attract a prison sentence, and is very unlikely to land you on the Sex Offenders Register. On the other hand, the lead up to any court case can be seriously draining emotionally, especially if it is preceded by the police seizing every piece of computer kit in your house.

As reported previously, different forces have different guidelines for what happens next: yet another reason for going high profile and kicking up a fuss in the press is that some forces will move forensic examination forward if the case is out in the public arena. However, do take a moment to consider what would happen if you are self-employed and vital work-related files were to be impounded for a matter of months. Could your business survive?

Best advice, always, is for small businesses to keep vital data backed up at an entirely separate location. That works if your premises catch fire. It also works - or should work - if your home office is raided and your PC removed. It might be that you have to borrow or buy new PCs until your case gets to court. But so long as you have continuing access to key data, you should survive.

D-day approaches. You now have no more than a couple of weeks to set your house in order. Read the law. Delete what you feel you need to delete (and that includes hard copy images as well). Apply your disk-scrubbers. Make back-ups. Install firewalls. Then cross your fingers, and pray. ®