Child Pornography in the Face of the Technological Revolution
Author: Denisse María Soto
Translated into Spanish by the same author
There is increasing access to internet networks and technological devices that are initially designed to improve the quality of life and efficiency of daily activities, through the facilitation of information and communications, creating a global interaction network (González, 2017). According to Datareportal Global Digital Overview Report 2022, the number of internet users reached 4.95 billion at the beginning of this year, which means an increase of 192 million consumers and an internet penetration level of 62.5% of the global population (DATAREPORTAL, s.f.).
Likewise, it is increasingly common to read headlines such as “Brazilian police arrest 19 accused of child pornography via the Internet” (EFE News Service, 2016), “Detention requested for accused of child pornography in court” (López, 2022), “The pandemic of child pornography in social networks” (Navarro, 2021), “Child pornography and the Internet: the enormous challenge of tackling a clandestine and increasingly sophisticated criminal phenomenon” (Herrera, 2021).
These and many more journalistic headlines show us a reality that is difficult to digest, information and communication technologies (ICTs) are used as a tool for disseminating content, images and videos showing sexual abuse committed against minors with purposes of sexual exploitation (Proyecto 4NSEEK, 2021).
According to the United Nations Office on Drugs and Crime (UNODC), pornography has been a mainstay of internet content (UNODC, 2010). This we can confirm with the information provided by the European Commission in a recent communication on child pornography. In it, the Commission points out the dramatic increase in this activity globally, going from 1 million complaints in 2010 to almost 17 million in 2019, and the detection of approximately 70 million images and videos evidencing abuse (Comisión Europea, 2020).
These figures, while already alarming, have been exacerbated by the COVID-19 pandemic. This is established by the National Center for Missing and Exploited Children (NCMEC), when pointing out that the complaints received through the cybernetic information lines have increased by 35% between 2020 and 2021, adding a total of 85 million reported materials of abuse (NCMEC, s.f.). On this same line we can find reports such as those provided by Internet Watch Foundation (IWF), which for 2020 reported that of the 299,619 complaints of abuse investigated, 153,383 contained child abuse.
The IWF further notes that 25,050 of the cases investigated involved rape and sexual torture, with girls between the ages of 11-13 being the largest victim population (IWF, 2020). Other organizations such as the Canadian Center for Child Protection (C3P), which also operates a hotline (Cybertip.ca), have coincidentally pointed out in its report Child Sexual Abuse Images on the Internet: A Cybertip.ca Analysis , that of the 152,000 complaints and 43,762 images and videos examined, 78% of this material showed children under 12 years of age, 80% of which were girls (C3P, 2016).
Facing this background context, and considering that behind each child pornography material there is a victim of abuse and arguably human trafficking (UNODC, 2010), this article aims to analyze the use of ICTs as cybercrime tools, specifically child pornography, and what is the applicable international regulatory framework.
Technology as a cybercrime tool
The technological revolution, the increase in the use of the Internet and the lack of control of harmful behaviors have generated new ways of committing crimes, known as cybercrimes, which include various forms of child sexual exploitation, such as pornography.(Ruíz R. & González A., 2014) (González, 2017) (Aiken, 2011).
Cybercrimes are considered a collection of acts categorized according to the objective of the material offense and the mode of operations, which focus on using ICTs to commit criminal acts in a transnational scope (UNODC, 2013). They are those crimes committed through cyberspace by the improper use of computer media, from anywhere and against any user (Bolaños, Boldova, & Fuertes, 2014).
This exploitation of global connectivity as a way of taking advantage of new criminal opportunities is a transformative characteristic of organized crime (UNODC, 2013), which is evidenced by the estimation that up to 80% of cybercrimes are committed by some form of organized activity (González, 2017).
Within the categories of cybercrime established in the Draft Comprehensive Study on Cybercrime of the UNODC, are included acts that threaten the integrity, confidentiality and availability of computerized systems and data, computerized acts for personal or financial benefit or damage, and acts related to computerized content that involve the use of computer systems, such as the production, distribution and possession of child pornography, the object of our study (UNODC, 2013).
Although child pornography can be linked to extortion and sexual coercion of minors, online grooming, and self-generated sexual content, for our analysis we will focus on child pornography that depicts sexually abusive content on the internet stemming from in-person abuse (Proyecto 4NSEEK, 2021).
Child pornography in the technological age
The sexual exploitation of minors through ICTs represents a constantly evolving problem (Proyecto 4NSEEK, 2021). Although child pornography was marketed through magazines or movies, methods that generated a high risk of exposure, with a restricted, slow and costly dissemination, limited to the establishment of networks that were difficult to establish and unstable; with the arrival of the internet, the panorama is transformed towards one of generalized, fast, secure and cheap accessibility, which has led to a boom in the demand for this content.(Ruíz R. & González A., 2014) (Bolaños, Boldova, & Fuertes, 2014) (UNODC, 2010).
Among the main characteristics and facilities, provided by the use of the Internet for distribution and access to child pornography, is its anonymity; thus, for example, with the use of the deep internet in which encrypted environments can be used (Proyecto 4NSEEK, 2021). Other characteristic is the global geographic space of its work, with an unlimited scope that generates the creation of global criminal networks, attractive to transnational organized crime, which make it difficult to define victims and actors of the crime (González, 2017).
Due to these, the internet has a monopoly on the child pornography market, since being a global intercommunication system it breaks temporal, spatial and linguistic barriers, providing multiple ‘advantages’ to its users, such as the unknown identity of the perpetrator and the access to global victims (Bolaños, Boldova, & Fuertes, 2014) (UNODC, 2013).
Child pornography can affect minors of any age; however, the creation of sexual abuse content affects more minors who are in vulnerable situations (Proyecto 4NSEEK, 2021). Regarding the perpetrators of the crime, the people or groups of people who commit this crime can be categorized, according to the evasion of traces and the concern for security, in:
- Simple Viewers: Beginner and curious content consumers.
- Open Traders: Violators who share and distribute content.
- Closed Traders: Distributors of content with high levels of security, using restricted tools and communities.
- Experts: Experienced attackers with high security concerns (Aiken, 2011).
According to the report of the Special Rapporteur on the sale and sexual exploitation of children, Mama Fatima Singhateh, and the report of the Awareness Working Group from Project 4NSEEK, child pornography uses as distribution channels streaming services, disguised websites, file sharing programs, peer-to-peer platforms such as social media and instant messaging, anonymous online pay-per-view apps, and more recently direct video sessions or live streaming and on-demand (Informe Relatora, 2020) (Proyecto 4NSEEK, 2021) (Bolaños, Boldova, & Fuertes, 2014). While the storage of images and videos is done through the cloud, in order to easily distribute them or allow their access through the internet, thus, 6% of child abuse content is located on web pages. (Proyecto 4NSEEK, 2021).
Their execution mechanisms, coupled with the increase in child abuse material online as a result of the Covid-19 pandemic (EUROPOL, 2020), and the elimination of territorial borders (González, 2017), as a whole, hinder the ability of the authorities to monitor, investigate and punish the perpetrators. Besides, the International Criminal Police Organization (INTERPOL), considers that the term pornography is “misleading” when there is already a crime of sexual abuse or exploitation by the mere image of a minor, being the employment of the term a possible mechanism for the normalization or acceptance of the crime leaving aside the seriousness of the matter (Bolaños, Boldova, & Fuertes, 2014)
Following up and in order to assist the States Parties, the General Assembly of the United Nations, through Resolution 65/230 (2011), and the Commission for the Prevention of Crime and Criminal Justice, through Resolutions 22/7 and 22/ 8, created the Global Program on Cybercrime to respond to needs in developing countries, through the holistic prevention and combat of cybercrimes such as the sexual abuse and exploitation of minors (UNODC, s.f.).
International regulatory framework
Having analyzed general aspects of child pornography as a cybercrime that feeds on ICTs, it is necessary to highlight that the framework of international human rights law contemplates a series of rights and prohibitions that have been violated by this activity. Thus, the first instrument to review is the Convention on the Rights of the Child of 1989, and its Optional Protocol regarding the sale of children, child prostitution and the use of children in pornography of 2002.
Specifically regarding the crime that concerns us, the Convention stipulates in its Art. 32 the right of the child to be protected against economic exploitation and against the performance of any labor harmful to its development; imposing on the State the responsibility to adopt the necessary measures to guarantee this right, including the stipulation of penalties and sanctions. Also, the same instrument establishes in its Art. 34, that the States Parties undertake to protect the child against all forms of sexual exploitation and abuse, and therefore for such purposes must take all measures, national or international, to prevent the sexual and pornographic exploitation of minors (see also Art. 36) (Convención , 1989).
Parallelly, the Protocol recognizes the latent concern of the growing international trafficking of minors for pornography purposes and its availability on the Internet, especially against vulnerable groups such as girls, therefore, it introduces the term “child pornography”. Consequently, this instrument establishes the obligation of the States Parties to prohibit child pornography (production, distribution, dissemination, import, export, offer, sale or possession), understood as any representation, by any means, of a child dedicated to explicit sexual activities or of the genital parts of a child for primarily sexual purposes (see Arts. 1, 2, and 3) (Protocolo, 2002).
Other international instruments that refer to child pornography are the C-182 Convention on the worst forms of child labor, of the General Conference of the International Labor Organization of 1999, which establishes in its Art. 3 (b) that “among the worst forms of child labor is the use, procuring or offering of children for… the production of pornography or pornographic performances” (C-182, 1999).
There is also the Convention on Cybercrime in Europe or the Budapest Convention, which defines child pornography in its Art. 9, calling on the States Parties to criminalize the production, offer, provision, dissemination, transmission, acquisition and possession of child pornography through computer systems or computer data storage devices. Understanding child pornography as all pornographic material that contains a visual representation of a minor under 18 years of age, of a person who appears to be a minor, or realistic images that represent a minor, adopting sexually explicit behavior (Convenio de Budapest, 2001).
The Council of Europe also promulgated the Convention for the Protection of Children against Sexual Exploitation and Abuse (Lanzarote Convention), which defines in more detail what the crime of child pornography is, deepening in its Art. 20 aspects not included in the Budapest Convention, such as the criminalization of access to child pornography, with knowledge of the facts and through information and communication technologies, in addition to the clarification of explicit or simulated sexual conduct and the depiction of a child’s sexual organs for primarily sexual purposes (Convenio de Lanzarote, 2007).
Although there is no Convention on Cybercrime in the United Nations, the General Assembly, through its Resolution 74/247 (2019), began a process to prepare a treaty on the matter, for which it created the Ad-Hoc Committee with the purpose to elaborate a comprehensive international convention; in addition, through Resolution 75/282 (2021), the draft of said instrument would be presented at the 78th Session of the General Assembly to take place for one year from September 2023 to 2024 (UNODC, 2022).
We can determine that, although ICTs have created positive aspects for the development of our societies, with a special focus on the lives of children, they also, due to their characteristics of its secrecy, anonymity and opacity, offer a perfect scenario for carrying out illegal activities with total impunity (Informe Relatora, 2020).
Child pornography constitutes in itself an activity which performance through the net represents a purpose of the crime, and puts children in danger of “suffering serious damage to their physical integrity, sexual indemnity, their privacy, or their image” (Ruíz R. & González A., 2014). This is because the more the Internet grows, the greater the accessibility to child pornography material and therefore the greater the demand and the greater the profits from this illicit activity.(Bolaños, Boldova, & Fuertes, 2014) (UNODC, 2010).
The UNODC establishes as one of the great problems the equalization of the demand for child pornographic material with adult pornographic material, which within its consequences would have the intervention of criminal organizations and the promotion of a pedophile community that, in search of validation, develops other activities of child abuse and child pornography through ‘grooming’ (UNODC, 2010), therefore a 90% increase in pedophilia on the internet (Trujano R. P, 2010).
Along these same lines, the Special Rapporteur in her report pointed out the concern about an apparent normalization of the crime as a result of the increased accessibility and availability of images of abuse, and the subsequent proliferation of new forms of virtual representation of the sexualization of children (Informe Relatora, 2020).
It is transcendental that effective technological mechanisms are implemented for the identification of child pornographic material, the effective prosecution of the crime, and the dismantling of child sexual exploitation networks. In order to achieve this goal, a high organizational level is required with common guidelines from the international community, which could be achieved through the adoption of the Convention on Cybercrime.
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