http://www.salon.com/opinion/feature/2006/08/25/eichenwald/print.html
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By Debbie Nathan
Aug. 25, 2006 | New York Times reporter Kurt Eichenwald looked at a lot of kiddie-porn Web sites recently while researching the front-page article he published last weekend about "child model" erotica. The kind of looking he did can get a journalist arrested, but Eichenwald isn't very worried. He told me as much in a series of e-mails. His lack of concern irks me, because when I stumbled on similar material earlier this year during my own research, I was terrified I'd be busted simply for doing my job as a member of the media. For a couple of days after my accidental viewing experience I was sleepless with fear. After that I still didn't rest well for a while.
But my second stage of insomnia came from anger. It infuriates me that the government prohibits reporters and other legitimate investigators from doing front-line research into child pornography. I'm not talking about obsessive coverage of John Mark Karr and JonBenet Ramsey, which was the spur for Eichenwald's piece. The reporting I'm talking about involves testing government claims about how prevalent child porn really is, and what makes an image pornographic in the first place. To get answers, investigators must look at illegal material –- lots of it. Those investigators must also be independent of the government. Otherwise the government can use our fear and loathing of kiddie porn to make false political claims. And to terrorize people like me.
Here's my story:
Last fall I started working on a book for young adults about pornography as a social issue. The publisher, a children's press in Toronto, asked for a short section on Internet child porn. I thought that was a good idea. Over the past two decades, I have done a lot of critical writing about baseless sex abuse scares in day cares and schools. Back in the Reagan era, law enforcement helped fuel the panic. One way was by claiming that hundreds of thousands of U.S. kids were involved in kiddie porn, and that the business earned billions of dollars annually. It took a while for the press to figure out that commercial child porn was virtually nonexistent by the 1980s. In fact, as researchers eventually discovered, the main manufacturer was the U.S. government, which produced and sold child-porn magazines for sting operations. The media was also slow to realize that many individuals, including mothers and fathers, were prosecuted for taking photos of their kids that were nothing more than innocent "baby on a bear rug" shots. I covered a couple of cases like that in the 1980s and 1990s. In both, prosecutors screamed "Porn!" on the nightly news, and only in trial or appellate courts did reporters finally have a right to examine the images. By then, people's lives had been ruined.
Because of these facts, there's been some doubt about the feds' more recent claims that child smut is epidemic on the Web. With my book assignment, I set out to do some research. I was especially interested in the fact that it's not illegal in the U.S. to make and post "morphed" images of children having sex. Morphing is something like cartooning: There's no real child being abused, so according to the law there's no crime. But how much child porn these days really is morphed? I was curious.
The best information I found was published five years ago. It came from Adult Video News, the online porn industry magazine consulted by all mainstream media who report on the trade. AVN said morphing wasn't happening much, and that the vast majority of kiddie-porn images on the Web were probably real kids. Chilling, but informative, so I poked through more AVN articles. I found one about a 16-year-old girl named Molly, whose mother created a Web site where subscribers could pay for photos of Molly dressed in swimwear and shorts. It sounded creepy but clearly not illegal. And it was from 2001, meaning Molly would now be 21. Too old to be a child model for people with strange desires, but did she still have a Web site? I typed in her URL.
There I found a new Molly, a 10-year-old, still wearing ordinary swimwear and street clothes, and posed much like JonBenet during her beauty-queen days. Again, creepy but not illegal. The new Molly linked to other "child model" sites. Assuming they'd be similar, I clicked again.
And that's when I hit dozens of grossly illicit pictures. Most showed little girls around 9 or 10 years old, in bikinis or lifted skirts with skimpy panties, their legs draped and spread so the camera focused on the crotch. U.S. law calls this "lascivious exhibition of the genitals." Since the early 1990s it's been classified as child porn, even if the genitals are clothed.
I almost fainted, but not from disgust at the depravity of making and displaying these pictures. After all, reporters see depravity all the time. Rather, I was consumed with fear of the U.S. government. Technically, according to federal statutes, just visiting a kiddie-porn site makes you a lawbreaker, because regardless of why you went there, the images end up in your hard drive. You "possess" child porn, which is a serious crime. You can notify the authorities. You can clean up your cookies and your cache. Still, you broke the law. The feds might excuse you, or they could arrest you. It's entirely up to them.
And it doesn't matter if you're a psychologist, a criminologist, a sociologist –- or a journalist. No one but cops can legally look at Internet child pornography. Would-be researchers have asked for permission to no avail. Nancy Hass, a longtime freelancer for national publications including the New York Times, used to teach journalism at New York University. A decade ago, she considered having her students study morphed child-porn images on the Internet. University lawyers told her the students would surely be arrested for such research, and Hass scrapped the project. A few years later, Lawrence Matthews, an award-winning freelance journalist who contributed work to a National Public Radio station in Washington, D.C., and articles to the Washington Post, was prosecuted for having downloaded child porn. He claimed he was doing research for a piece on the subject, and noted that his previous journalism about child porn had been aired on Washington radio and was highly regarded. No matter –- Matthews was tried, convicted and incarcerated. A judge in his case ruled that the press has no First Amendment right to view illegal images on the Net.
That leaves law-enforcement officials and politicians free to say whatever they want about the prevalence and content of images deemed child pornography, with virtually no way for the public to test their claims.
Here is one such claim: that child porn is a $20 billion annual online business. That figure implies that child images dominate porn on the Web, since a reliable annual estimated figure for all of it –- in all media worldwide, adult material included -- comes to only $32 billion. The child-porn calculation comes from the federal government's National Center for Missing and Exploited Children. It was trumpeted earlier this year in congressional hearings and repeated uncritically by the New York Times. But when Wall Street Journal reporter Carl Bialik tried to find a source for the $20 billion figure, he couldn't. The number seems to have been plucked out of nowhere. Or at least nowhere that non-governmental researchers can access without fear of landing in jail.
A few years ago, a non-governmental researcher figured out how to do serious work on Internet child porn without risking his own skin. Pennsylvania State University historian Philip Jenkins disabled the system in his computer that shows images, and stuck strictly to text. In the late '90s, he spent two years trolling pedophile-oriented sites and examining written descriptions of the visuals they purported to offer. Reading words on the Web is legal, even when the words are about molesting children. Still, Jenkins says, trusting words to describe pictures accurately was a lousy way to do social science. Given government constraints, however, it was the best he could do.
What Jenkins found was depressing, but much of it diverged from what the government was claiming. As he reports in his definitive book on Internet child porn, "Beyond Tolerance," the relatively small number of men worldwide whom he believed to be using such sites –- perhaps 50,000 to 100,000 individuals -- generally knew far more about computers and the Internet than the cops did. Pedophiles dealing in the hardest of hardcore exploitation images, meaning photos and videos showing frank intercourse and other sex acts, were practically immune to law-enforcement interdiction. They knew how to get on and off the Net quickly and anonymously. Their message boards were based in Japan, Russia and other eastern European countries. The person posting a picture, the server, the picture site where other users could locate the image, and the site with the access password -– each could be in a different nation. Enforcement was extremely difficult. The men whom cops did catch were mainly naifs like reporter Lawrence Matthews.
Which brings us to another journalist, the Times' Eichenwald. In his Aug. 20 piece, "With Child Sex Sites on the Run, Nearly Nude Photos Hit the Web," he writes that he examined "more than 200 sites" that sound exactly like the one illegal URL I found. Two hundred! That's real research, and I commend him for it. But did Eichenwald have the legal right to do the work? No. The Times notes in a box accompanying his article that "United States law makes it a crime to purchase, download or view child pornography, unless the images are promptly reported to authorities and no images are copied or retained. The Times complied with the law."
Trouble is, there is no law for the Times to comply with. Contrary to the box, nothing says that if you report and you don't copy or retain, you're safe. Eichenwald admitted as much in an e-mail he sent me when I pointed out that the box is wrong. Its language, he wrote, "was terrible," and was added by editors after he signed off on the article.
Eichenwald agreed that a reporter can never download or buy a child-porn image. But he claimed that "viewing is slightly different. I cannot knowingly hunt for an image -- or images in general -- that I know to be illegal. But, in the course of my reporting, I came across the model sites that struck me as clearly illegal." That, he wrote, probably would make things OK because he told the authorities he had an accident.
Really? He didn't know? Wasn't hunting? Please! Eichenwald notes in his article that he found the illegal modeling sites "through on-line advertising aimed at pedophiles" and through a link posted at pedophile conversation sites to "forum postings and images." These images were hyped with titillating phraseology. "Call 911 before viewing!" said the come-on at one site, for a 9-year-old named Sparkle. Eichenwald saw these dirty cues before he clicked his mouse.
Well, fine. Good for him and for the Times. But I want to go hunting too, and I want my colleagues in the press to join me. I'm worried that the government has declared an entire field of law enforcement and public policy off-limits from empirical critique by academia and the fourth estate. I want a process that allows non-governmental investigators and journos to be vetted and qualified as child-porn researchers. I'm not sure who would do the vetting or what the criteria would be. Neither is Penn State's Jenkins. Still, says Jenkins, if front-line research and reporting remains prohibited, "if there's no garbage filter, no independent means for checking, verifying or criticizing the government, that's very worrisome. As an analogy, just imagine if every word we knew about terrorism came from the FBI or the White House."
The comparison is hardly far-fetched. Post-9/11, the Patriot Act gives police and prosecutors unprecedented rights: to search people's homes without letting them know, to rifle through personal financial and computer records, check on purchases from bookstores, and even monitor which materials an individual has checked out of a library. Many Americans are so troubled by the Patriot Act that hundreds of communities have passed resolutions condemning it. But the government says porn is one reason the act is needed.
In 2004, U.S. Attorney General John Ashcroft testified before Congress that the Patriot Act had helped catch two Internet child pornographers. It had enabled investigators to ask an Internet service provider for the names of the criminals, then get a warrant to search their houses. Later, some news sources found out that investigators knew who the pornographers were and where they lived before they used the Patriot Act. They had learned the old-fashioned, constitutional way: by talking to a child victim and to an adult who had witnessed wrongdoing. The Patriot Act had little or nothing to do with solving the crime. But the government's claims at first got great, fluffy press. Fluff, after all, is an easy response from reporters who are frightened of looking on their own into the details and reality of child porn.
In my e-mail to the Times' Eichenwald, I said I believe the government should let journalists research the content of child porn sites, and asked him for his thoughts. "I think perhaps the worst area to focus on," he answered, "is news articles that closely examine the images for the purpose of opining on their legality. There are so many other valid stories in this area, it seems unnecessary to spend time on one that will be defined by the courts, not by journalistic opinion."
I disagree. The government, including the courts, has often been as irrational as the rest of society when it comes to children and sex –- and far more opportunistic. Child porn desperately needs not just journalistic opinion, but journalistic fact as well. We need First Amendment access to these images. They may be terrible to look at. But not being able to look is even worse.
-- By Debbie Nathan
