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I was inspired to make this based off of a previous post. In the United States, visual depictions (such as drawings) of child abuse images is illegal provided they are ruled as obscene. This would make things like lolicon/shotacon (a type of cartoon child pornography) illegal in the United States (provided they are considered obscene), yet there are plenty of websites hosted in the United States that permit it to be posted in their website explicitly in their rules (4chan comes to mind), or just simply forbid real child pornography and say nothing about obscene cartoons. Yet, the FBI has never seized the servers of these sites, nor collected and disseminated to other countries IP addresses of those accessing such content, to arrest them like in Operation Avalanche. Why is that? The Dept of Homeland Security has even worked alongside 4chan before and described having a "working relationship" with them.

There will surely be a lot of content that could be ruled as obscene in a court of law -- couldn't search warrants for the servers be granted and prosecutions made to those who downloaded/viewed the obscene content? There's surely a legal recourse to actually do this. I understand Section 230 is a thing, but surely the websites have to comply with US law, so if they permit material that could be ruled obscene that wouldn't be the case, surely?

Not only that, but some countries outright consider, obscene or not, cartoon child pornography illegal. What's stopping them from asking the US's assistance in raiding the servers like the US literally did in the case of shutting down Megaupload?

Is it a matter of "this is possible but will not be considered worth the effort and taxpayer money"? Do you think that will ever change?

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    I’m voting to close this question because it belongs on politics.stackexchange.com – BlueDogRanch May 10 at 13:38
  • @BlueDogRanch I have no problem posting it there instead if this is considered more appropriate there. – hashcdfrw May 10 at 13:39
  • In general, questions of "why doesn't law enforcement enforce a particular law in a particular situation" are off-topic for Law. A question of "Would the FBI be legally allowed to take actions A and B under law X" would be on topic, but not a question to which the answer is plausibly LEO priorities and political choices. – David Siegel May 10 at 14:42
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    The OP has taken up @BlueDogRanch's suggestion and posted on PoliticsSE politics.stackexchange.com/questions/63866/… – Rock Ape May 10 at 16:37
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    I'm inclined to think this question has a Law.SE-appropriate reading and answer, as demonstrated by the current answer here and a broadly similar answer on the Politics.SE version. Basically the OP seems to think that there are laws that definitely cover this, and they're not being used for some reason. But these answers suggest this is erroneous: the issue is that as a matter of constitutional law such laws basically can't exist and be enforceable. Law enforcement thus has to look to other laws. As such I'm voting to re-open this question. – zibadawa timmy May 11 at 1:27
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The ruling that allows the ban on child pornography is based on two SCOTUS decisions: Miller v. Califorina, which legally defined "obscene" and declared obscenities to be beyond the protection of the First Amendment (just an fyi, the definition includes that the material is lacking in "serious scientific, literary, artistic, or political value" which the courts usually don't hold a high threshold of quality above. Obscenity laws are also, per Miller, to be in the power of the most local levels of governance among a body of people (so while the U.S. cannot ban content on a web forum, the forum's own rules may).

The other case is law is New York v. Furber which held that there is a compeling government interest in protecting the physical and mental health and well being of a child and that the manufacture and sale of child porn leads to the abuse of children and tramautic memories of the experience that last for much of their lifetime that overrides any protection offered by the First Amendment, thus the material need not be legally obscene to make illegal.

It's that compelling government interest that forms the basis of the answer. Because that is the justification for the illegalization of child porn and as such it would not always fall to obscenity laws without the interest, there is a bit of a loop hole. To be illegal, the pictures in question must have a real child featured in the porn in question. Thus pictures depicting fictional characters in their entirety (such as cartoon depictions of children) and erotica (literature featuring sexual content) are not illegal under Ferber and must fall to Miller to determine if it is illegal.

Because Miller leaves the rules to the lowest level of community law possible, these pictures can be against the rules of many websites, 4chan is (in)famous for having next to no standards, this kind of material is perfectly legal on this site as far as higher levels of government are concerned and it falls to the moderation team of 4chan (such as they are) to limit the offensive content.

It is because these materials do not depict actual real children that they are legal. This is due to the fact that these works can just barely qualify as having an artistic or literary value (the bar is very very low as to what qualifies as "merit" under Miller). It's also acceptable to make pictures of a real child portraying a fictional character who in the story is a victim of child pornography, regardless of the work's depiction so long as you aren't actually having the child actor strip on camera. This can be done by giving the child flesh colored clothing that covers the areas deemed obscene and using shoot angles that depict the child's skin that is legally allowed to be exposed (to hid the fact that for legal reasons the child is legally dressed on the set. Other production tricks are to hire actors who are older than 18 years old, but look younger than they are and can play a kid.). So long as you are not actually making child porn (showing the "no-no areas" on a real child), you can make fiction works that depict fictional characters involved in such activities in artistic ways to make any statement you want on the subject matter.

In your two examples, Operation Avalance targeted sites that had materials such as pictures and videos that depicted actual children in pornographic situations. In the case of the Megaupload, the U.S. was requesting extradition for money laundering and racketeering in connection with the legal seizure of Megaupload following investigations into the site concerning digital piracy. I'm unaware of actual instances of child porn involved, but not saying it's not impossible. Extradition only works if the country requested (Here New Zealand) chooses to honor the request (the U.S. and New Zealand have an extradition treaty and very similar laws so extradition is both required per treaty when requested AND the accused person would face similar charges if the crime was committed in the requested country.).

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  • So, this means that 4chan's moderation team is legally and solely entitled to decide which content is obscene (and therefore which visual depictions of cartoon pornography are legal) and which isn't, as they are the "lowest level of community law possible"? Can you provide a source for this/for the quote "Because Miller leaves the rules to the lowest level of community law possible"? You also say "This is due to the fact that these works can just barely qualify as having an artistic or literary value" -- how do you know they "can just barely qualify"? In US vs Handley they would not have. – tidehunter49 May 10 at 15:34
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    How is one safe to assume that the wording "lowest level of community law possible" can refer to site moderation teams? – tidehunter49 May 10 at 15:46
  • "Miller" defines Obsenity's low government by the first of three requirements for declaring a work obscene: whether the average person, applying contemporary "community standards", would find that the work, taken as a whole, appeals to the prurient interest. The U.S. Consttution has language that limits governments that when the constitution fails to mention a right, the right defaults to the state or the people, the later category meant to denote both individual and small community rights. Additionally the First Amendment prevents government from blocking individuals from associating+ – hszmv May 10 at 15:57
  • @tidehunter49: A web forum's community of users is an association of individuals and thus may self govern based on their own definition of obscene. US v. Handley was never tried and thus establishing a case law. Handley took a plea bargin before going to trial and has yet to appeal the case. Case law can only be binding with a judicial ruling. Even then, it is only binding to the courts in it's own jurisdiction and those it is superior too. It's not applicable to the vast majority of the United States. – hszmv May 10 at 16:07
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    I don't think it is at all clear that the "community standards" mentioned in Miller can be an online community. In every actual court case on this issue that I have read, a geographic community is the standard used. – David Siegel May 10 at 20:43

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