High Court In India Rules That Viewing, Downloading Child Porn Is Not A Crime - The Publica
High Court In India Rules That Viewing, Downloading Child Porn Is Not A Crime - The Publica
The Supreme Court of India is hearing arguments from child protection organizations after the Madras High Court ruled that downloading and watching child pornography is not a criminal offense. In January, the High Court dismissed charges against 28-year-old S. Harish, who was caught in possession of...
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The defendant claimed that the CSAM had auto-downloaded after he received it through the popular messaging app WhatsApp, which his attorneys maintained is not a criminal offense under the Protection of Children from Sexual Offenses (POCSO) Act and the Information Technology (IT) Act.
...Which, okay, makes sense that you wouldn't be guilty. It would be like when people were airdropping shit a few years ago (is that still a thing?) and people were unwittingly getting pictures of someone else's penis. The didn't ask for or go looking for pictures of someone's penis, it was served to them without their intent or desire. The defendant's argument is that he didn't download these, they were sent to him and his phone automatically downloaded them. Is that true? IDK. But i it is true, then he didn't have criminal intent.
But moving along...
Rampant porn consumption has long been considered a major social problem in India, with multiple incidents occurring over the past few years involving sexual violence against women and girls motivated by pornography.
"Sexual violence [...] motivated by pornography". That is... Not a thing. Porn doesn't make people commit violent crimes. If anything, porn availability and consumption appears to decrease sexual assaults.
In one of the most shocking cases from 2021, a 6-year-old was beaten to death after refusing to replicate sex acts with a group of boys who were addicted to porn.
Porn addiction is also not a thing. Outside of religious and moral crusaders, you won't hear the phrase. Psychologists that specialize in human sexuality do not refer to porn addiction. When you look at the background of the people talking about porn "addiction" in the US, it always goes back to religion and morality, not clinical research.
Porn addiction is also not a thing. Outside of religious and moral crusaders, you won't hear the phrase. Psychologists that specialize in human sexuality do not refer to porn addiction. When you look at the background of the people talking about porn "addiction" in the US, it always goes back to religion and morality, not clinical research.
I was interested if this holds up and unfortunately it is a thing in the medical world, albeit not a big one. I found this study, which gives a good overview over the topic.
I'll quote the whole Introduction, because I find it quite interesting and it gives a good overview.
spoiler
With the inclusion of “Gambling Disorder” in the “Substance Use and Addictive Disorders” chapter of the DSM-5 [1], the APA publicly acknowledged the phenomenon of behavioral addiction. Furthermore, “Internet Gaming Disorder” was placed in Section 3—conditions for further study.
This represents the ongoing paradigm shift in the field of addictions that relates to addictive behavior, and paves the way for new research in the light of cultural changes caused by the new technologies.
There is apparently an existing common neurobiological [2] and environmental [3] ground between the varying addictive disorders, including both substance abuse and addictive behavior; this can manifest as an overlapping of both entities [4].
Phenomenologically, behaviorally addicted individuals frequently exhibit a problematic consumption model: impaired control (e.g., craving, unsuccessful attempts to reduce the behavior), impairment (e.g., narrowing of interests, neglect of other areas of life), and risky use (persisting intake despite awareness of damaging psychological effects). Whether these behaviors also meet physiological criteria relating to addiction (tolerance, withdrawal) is more debatable [4,5,6].
Hypersexual disorder is sometimes considered one of those behavioral addictions. It is used as an umbrella construct that encompasses various problematic behaviors (excessive masturbation, cybersex, pornography use, telephone sex, sexual behavior with consenting adults, strip club visitations, etc.) [7]. Its prevalence rates range from 3% to 6%, though it is difficult to determine since there is not a formal definition of the disorder [8,9].
The lack of robust scientific data makes its research, conceptualization, and assessment difficult, leading to a variety of proposals to explain it, but is usually associated with significant distress, feelings of shame and psychosocial dysfunction [8], as well as other addictive behaviors [10] and it warrants direct examination.
Concurrently, the rise of the new technologies has also opened up a pool of problematic addictive behavior, mainly Internet Addiction. This addiction may focus on a specific application on the internet (gaming, shopping, betting, cybersex…) [11] with potential for risk-addictive behavior; in this case, it would act as a channel for concrete manifestations of said behavior [4,12]. This means inevitable escalation, providing new outlets for established addicts as well as tempting people (due to increased privacy, or opportunity) who would not have previously engaged in these behaviors.
Online pornography use, also known as Internet pornography use or cybersex, may be one of those Internet-specific behaviors with a risk for addiction. It corresponds to the use of Internet to engage in various gratifying sexual activities [13], among which stands the use of pornography [13,14] which is the most popular activity [15,16,17] with an infinite number of sexual scenarios accessible [13,18,19,20]. Continued use in this fashion sometimes derives in financial, legal, occupational, and relationship trouble [6,21] or personal problems, with diverse negative consequences. Feelings of loss of control and persistent use despite these adverse results constitute “online sexual compulsivity” [22] or Problematic Online Pornography Use (POPU). This problematic consumption model benefits from the “Triple A” factors [23].
Due to this model, pornography-related masturbation may be more frequent nowadays, but this is not necessarily a sign of pathology [21]. We know that a considerable proportion of young male population access Internet for pornography consumption [24,25]; in fact, it is one of their key sources for sexual health [26]. Some have expressed concern about this, addressing the time gap between when porn material is consumed for the first time ever, and an actual first sexual experience; specifically, how the former can have an impact on sexual development [27] like abnormally low sexual desire when consuming online pornography [28] and erectile dysfunction, which has spiked dramatically among young men in the past few years when compared to a couple decades ago [29,30,31,32,33].
We systematically reviewed the existing literature on the subject of POPU to try and summarize the various recent advances made in terms of epidemiology, clinical manifestations, neurobiological evidence that supports this model of problematic use, its diagnostic conceptualization in relation to hypersexual disorder, its proposed assessment instruments and treatment strategies.
I kind of feel that the term 'addiction' is being used a bit freely these days. If you're addicted to heroin, for example, and you're unable to access the drug you are sick as fuck for a week. That's not just a psychological phenomenon, it's physical too. If a porn addict is unable to access porn I find it hard to believe that they suffer similarly. That said, people manage to mess up their lives pretty profoundly with gambling so perhaps it's better to define addiction based on the harm done to someone life rather than the consequences of withdrawal.
Addicted to porn could develop panic symptoms
Yeah fair point. I'm just thinking I'd call it a mental health issue more than an actual addiction. Extreme phobias are psychological and this stuff sounds kinda like the opposite of a porn phobia.
The existing literature has people saying asbestos is safe and that RoundUp is harmless.
And why do you know they are not?
(stops snorting asbestos and places his chalice of round up on the table) sir, do you think me a fool?
I'm not a moron and understand basic physics, biology, and the scientific methods. I'm agreeing with you by the way.
Just pointing out that you can find anything in the literature.
Partisan hacks and morons can submit work for scholarly review too. Most journals don't publish that shit, but some just don't know any better.
The defendant’s argument is that he didn’t download these, they were sent to him and his phone automatically downloaded them. Is that true? IDK. But i it is true, then he didn’t have criminal intent.
it would be dependent on what "download" means. If they were downloaded into his filesystem, outside of whatsapp (not cache for example) that's bizarre. I've never seen an application do that. "Downloaded" in cache, yeah, that would make sense. But still brings up the question of why he was sent them in the first place.
edit: minor change to add "not" before the parenthesis bit about caching.
I've seen Skype do that. It was a weird folder name, but gallery found it and displayed the images.
Which is how I noticed it in the first place
the gallery only found it due to shitty android skill issues.
Regardless, there's still a dependence on the semantics here. You having a cache file of something showing up does not mean it was downloaded, it merely means that your phone considers it to be important enough to put it into the gallery, which is entirely arbitrary. And caching directories will, well, cache images, because sending them over the internet is expensive.
The semantics is that downloading is copying something from one computer system to another. Nothing about intent or permanence or whether it's a temp/cache file or not. If you did not download the file, you cannot have seen it.
Whether you meant to do something or not does not change the action. The colloquial use of the word downloading to mean something different from streaming or browsing does not change the fundamental action.
In the case of WhatsApp, which is specifically in question here, it doesn't "cache" images in a temporary folder. It saves the images to your devices media folders in their own library. So even by your definition, they're being downloaded. Now, this is a setting which is on by default so maybe an individual doesn't realise. It doesn't mean they're not downloading the content.
The semantics is that downloading is copying something from one computer system to another. Nothing about intent or permanence or whether it’s a temp/cache file or not. If you did not download the file, you cannot have seen it.
i mean yeah, but we're also talking about a legal case here, where the semantics of how it got there also matter. It'd be insane for someone else to sabotage you by committing illegal acts in your home for instance, and then getting you arrested because you were merely around them. Part of the semantics here are governmental.
If you did not download the file, you cannot have seen it.
this was exactly my point. The original comment here was completely ignoring that possibility, could have been for good reason, i have no idea, but unless people clarify, i assume the worst.
Whether you meant to do something or not does not change the action. The colloquial use of the word downloading to mean something different from streaming or browsing does not change the fundamental action.
I mean i suppose if you accidentally downloaded something, that would mean that you did technically download it, just not intentionally, but if someone else downloads something, then you quite literally did not download it. That's my point here.
In the case of WhatsApp, which is specifically in question here, it doesn’t “cache” images in a temporary folder. It saves the images to your devices media folders in their own library. So even by your definition, they’re being downloaded. Now, this is a setting which is on by default so maybe an individual doesn’t realise. It doesn’t mean they’re not downloading the content.
So, if i'm understanding you correctly here, and correct me if im wrong, because i don't use whatsapp (i use better apps) whatsapp has no concept of a download cache, and instead of using a cache, EVERY image that you have EVER been sent, from ANYBODY who contacts you, is being stored and put into a single folder somewhere on your device without the intention of it ever being removed automatically?
Even in this case, they are not downloading it. It is in fact, being automatically downloaded however, since that would technically not qualify as a cache. Ignoring the fact that this is a pretty stupid decision for the developers to make, considering how easy it would be to "zip bomb" someone using this. This also does not guarantee that something downloaded to your device, is something that you would even know about. And also, like i said, is also something the user themselves is not downloading.
I would still argue pretty explicitly, that this doesn't mean that they explicitly downloaded the content, unless they knew that it was downloaded at some point, or in this case, regularly accessed it i suppose. But the semantics here is based on the fact that something was downloaded to your device, doesn't mean that you did it, or that you know about it.
But still brings up the question of why he was sent them in the first place.
There was an extortion ring running a while back that would try to send people illegal videos then blackmail them. I'm not sure how effective it was, but it did exist.
sounds like the internet i know. Doubt it would be very effective. I'm sure the government here in the US would be all over it, but i can't imagine it would be hard to disprove.
I don't think you can unknowingly download something. Sounds like a lie to cover up. I'm not a software engineer. But I do not think it works that way unless you are downloading immense files or zips. If that's the case it should be clearly shown with what they did download.
You just unknowingly downloaded this picture of Zoboomafoo. It is now on your storage drive in the form of a cached image file. It's temporary, and will be removed the next time your cache is cleared if you ever do that. Otherwise, it will sit there for some time, lurking in your system. Good thing it's only Zoboomafoo!
Enjoy!
It's on my phone?! Where?
In a temporary cache directory. If you're on Android, you can clear it by going to your app settings, viewing storage usage on whichever app you used to view this, and clearing the cache. For example, the app I use for lemmy currently has 100MB in it's cache. My Firefox app on my phone currently has 555MB is cached files. This can includes things such as web pages, JavaScript files, and the images I've encountered while visiting the web who knows when, I rarely clear that shit.
I always assumed that was cleared automatically after time.
It is, probably.
But it won't be written over with zeros, so it's all still there until something else actually writes over it. A mobile device is flash memory, so the controller wear leveling might not get back to that spot for a bit. It might decide that spot is a bad sector and never write over it.
Regardless. He can't be seeing this or downloading it unknowingly was my point. It can't be happening in the background. If he is viewing it, it's known.
The person in the article who apparently viewed it multiple times over a long period of time absolutely did so deliberately.
I think the point in sending you the image was to show that, in general, it is possible for images to be present on your computer without you actively attempting to access them. Not to say that the argument was valid in this particular case.
Well that's my point. Is they aren't there just on accident. But it's being taken as he didn't do it. He absolutely did it. The mechanism of how that exists is clearer now, but my point still stands. He didn't not view them causing them to be in temporary memory on accident. That doesn't happen.
Please tell me you work in tech. I want my daily lmfaoizzle.
Nope! I'm a logistics manager.
Sorry, but that's just incorrect. You unknowingly downloaded a whole bunch of things just in the process of making this comment.
This is one of the issues that has confounded people since the invention of the world wide web; from a computer's perspective, there is no such thing as "viewing" a file. Everything is a download. The only difference is what your computer does with the file after the fact.
If you load up a thread on a forum and someone posts a CSAM image to that thread, your compouter will download it. You don't have to make any active choice, other than loading the thread itself, for that to happen. Same on Discord, WhatsApp, or anything else. All forms of access are downloads.
Edit to add: None of this is relevant to this particular case since the defendant allegedly viewed the video multiple times across a period of two years, which, y'know, is in absolutely no way accidental. But it's still important to understand the distinction because there are a lot of situations where it absolutely does matter.
Edit to add: None of this is relevant to this particular case since the defendant allegedly viewed the video multiple times across a period of two years,
That... Is a relevant detail that is not in the article. That does seem to change things.
Oh really? I thought we just viewed it in a cloud based system and we only put it on our system if we choose to. Interesting.
Even if that were true, how would your device display anything without downloading it first? In your example, your device is the end point for the cloud based system, which means it downloads from the cloud.
I don't know enough about cloud based systems. I thought you were just viewing it. Such as all the work was done sever side and very little client side. I am not a software engineer. I just play games and have an idea of what's going on.
This person in question viewed it many times and that is not "accident". Which is exactly my point.
In reference to cloud gaming, that’s more akin to watching a live video stream. Your device may not be doing the processing to generate the video, but it is still streaming (live downloading) the video. Whether it decides to store that video is up to the device’s settings. But it is 100% downloading the video in order to display it.
I hear ya. I misunderstood the mechanism. I thought it was more of a pass through.
If you load up a thread on a forum and someone posts a CSAM image to that thread, your compouter will download it. You don’t have to make any active choice, other than loading the thread itself, for that to happen. Same on Discord, WhatsApp, or anything else. All forms of access are downloads.
you might be shitposting here, and i can't tell. It's served to you over the internet. Even if hypothetically, someone were to send you an encrypted file of something highly illegal (lets say classified government documents) and asked you to hold on to it. But never gave you the key, and you never bothered figuring out what it was. Even if you downloaded it knowingly, you don't know what it is, and therefore have no reason to assume anything negative about it.
The semantic technicality here, is that download is 99.99% of the time used to refer to an action where the user explicitly grabs a copy of something, you computer doesn't automatically "download" something, in the form that the user downloads the something. This is called caching for a reason. Hell even download caching, is just caching used for an active download.
Download itself is also a network terminology, referring to incoming data, moving to you, also known as RX and TX in shorter form. But even that is only a referential term, and merely refers to where and how the data is flowing, rather than what it actually means for it to be downloaded. Because someone else, could upload illicit materials to your network, and under your description, that would also count as "you downloading it" regardless of whether it gets put anywhere in your network, or if it just gets bounced back or whatever.
you also use the term loading, which is incongruent with downloading, so i'm curious whether you think loading and downloading are the same, or different, if you are, again just shitposting.
Download itself is also a network terminology, referring to incoming data, moving to you, also known as RX and TX in shorter form.
This is just about the only correct statement in this rambling mess of a comment. Yes, downloading means that data is moving to your system.
So, given that fact, how do you imagine that your web browser displays an image without downloading it? How does the data comprising the content of the image end up on your system in order for the web browser to render it without traveling to it from the server; ie, being "downloaded"?
So, given that fact, how do you imagine that your web browser displays an image without downloading it? How does the data comprising the content of the image end up on your system in order for the web browser to set it without traveling to it from the server; ie, being “downloaded”?
like i said it's all semantic. In this case, download is almost certainly being used to describe a scenario where the original image was sent in whatsapp, and then downloaded to the phone locally, and found on the phones filesystem. Otherwise we would not be using the term download here. That could be a language barrier thing i suppose. But in the contexts of what it's implying, i doubt it.
likewise, i could just as easily argue that everything you "post" on the internet is actually an upload, and as a result, you upload every interaction you have on the internet, however it's only contextually used to describe something like "uploading a youtube video" where there a very clear contextual meaning presented. Same thing with download, people download games, but listen to the music or "stream" it from spotify, it's technically downloading, but it's actually not.
Going by the contextual, and colloquially referred to definition of "download" (hell the article linked literally says "he watched it for two years" so try to semantic that one out) download in isolation, is the flow of traffic to you, from somewhere else, downloading, downloaded, or a download, that verb usage of it, as opposed to an adjective usage of it, is completely different. The article does not say "download" it says "downloaded, downloading" and any potentially related forms of that word refer to the act of download, of which is being locally and explicitly stored on your device. The only instance where this wouldn't apply is if he didn't download it (notice the verb form usage) and it was actually cached by whatsapp, and that somehow lead to him being arrested.
Which is a possibility, but is also a completely different scenario.
likewise, i could just as easily argue that everything you "post" on the internet is actually an upload, and as a result, you upload every interaction you have on the internet
Yes. Again, that's literally what is actually happening.
You keep throwing out these statements like "Oh, well if that's true then we might as well also say this is true" and then "this" turns out to be just the most banal shit.
I genuinely don't think you even know what it is you're trying to argue here. You're either so down in the weeds of some bizarre semantic sophistry that you've lost track of daylight, or you're arguing points that no one else was disagreeing on while acting like you've just dropped the Pentagon Papers.
Either way, I really can't be bothered anymore. I've tried my best, but it's like trying to teach a pigeon to read.
You keep throwing out these statements like “Oh, well if that’s true then we might as well also say this is true” and then “this” turns out to be just the most banal shit.
I genuinely don’t think you even know what it is you’re trying to argue here. You’re either so down in the weeds of some bizarre semantic sophistry that you’ve lost track of daylight, or you’re arguing points that no one else was disagreeing on while acting like you’ve just dropped the Pentagon Papers.
i literally started this entire thread off based on semantic technicalities, why are we acting like this ISN'T what im talking about? Nobody should be shocked by this. I didn't come to argue the legality of holding CP because if i did, it would be very short, it's illegal, plain and simple, that's how the law in the US works.
Noooope, whatsapp by default downloads images and videos sent to you. I know cuz I have to disable it on my device and clean the downloaded shit from my grandpa's device. Grandpa does want it to keep downloading.
Edit: Fixed spelling. Misclicked almost evert N with B, lol
More to the point, anything which displays an image from a remote source has to download the image in order to do so. Whether or not you choose to store that image somewhere permanently, it was still downloaded either way.
Does it? I have never used that app. Ok seems more likely then.