Virtual crimes, conflicting laws

You may have seen the stories about “ageplay,” in Second Life – virtual sexual activity between two adults, one of whom assumes the role, and the physical appearance, of a child.

I’m gong to do another post, at some point, on whether ageplay and other virtual versions of real crimes are, or should, be against U.S. law. (That post will be a supplement to the Virtual rape post I added relatively recently).

Here, I want to talk about something quite different: a report that German authorities are investigating what seems to be ageplay – but may also encompass posting images of virtual children having sex with virtual adults – for the purposes of prosecuting someone. The prosecution would be for child pornography.

Section 184(3) of the German Criminal Code criminalizes child pornography, i.e., pornographic material that depicts “the sexual abuse of children”. Specifically, it makes it a crime to produce, disseminate, publicly display, post “or otherwise make” child pornography available. The German Criminal Code includes the use of computer technology to do any of these things. German Criminal Code section 11(3). The child pornography crimes are punishable by “imprisonment from three months to five years.” German Criminal Code section 184(3).

I don’t see any mention of virtual child pornography in the German statutes. The U.S. states which criminalized virtual child pornography prior to the Supreme Court’s holding that such provisions violate the First Amendment usually outlawed images that that were, or “appeared to be” those of a child engaged in sexual activity.

As I’ve noted before, the Supreme Court held that criminalizing images that “appear” to involve a child but actually do not violate the First Amendment, because the images constitute speech; the Court held over thirty years ago that “real” child pornography can be criminalized because its production involves the infliction of physical and emotional “harm” on real children. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). When no children are involved, the images essentially become fantasy, and, as I explained in a post last year, pure fantasy is a type of speech that cannot be outlawed.

So we have a conflict of law: Virtual child pornography is illegal in Germany and legal in the U.S. I will assume, for the purposes of this analysis, that the ageplay or other activity on Second Life gives rise to what constitutes the creation and dissemination of virtual child pornography under German law. So I’m assuming, again purely for the purpose of analysis, that some participants in Second Life are violating German criminal law.

I’m also going to assume, as seems likely, that our hypothesized violators of the German Criminal Code are not themselves in Germany . . . that they are, let us say, in the U.S. Where does that leave the German police?

Pretty much up a creek, as they say. Even if they are able to identify U.S. citizens who are creating and posting virtual child pornography that violates German law, the German authorities really can’t do much about it, at least not in traditional terms. They can ask U.S. authorities to turn those people over to the Germans to be prosecuted in Germany, but U.S. authorities will refuse to do so. It’s a basic principle of international law that Country A does not have to turn over one of its citizens to be prosecuted in Country B if what the citizen did was (a) done in Country A and (b) legal in Country A. It’s called the principle of dual criminality: If the U.S. has an extradition treaty with Poland, a U.S. citizen can be extradited to Poland to be tried for murder because murder is illegal in the U.S., and in every other country, for that matter. The person charged with murder can’t take refuse in the premise that “I didn’t know what I did was wrong” because it’s wrong in both countries.

It’s completely different, however, when what you did (create virtual child pornography) is perfectly legal in your own country. It would be blatantly, inherently unfair to drag you off to another country to be prosecuted there for what was legal when you did it and where you did it.

So, under the traditional approach to crimes, there isn’t anything the Germans can do about the virtual child pornography (if such there is) on Second Life . . . unless they find German citizens who are responsible for some of it or unless they identify U.S. citizens who are responsible for some of it and who are foolish enough to come to Germany. If the latter were to happen, the U.S. citizens would be out of luck. Another basic principle of jurisdictional law, especially criminal jurisdictional law, is that once you get hold of the person, you have jurisdiction to prosecute them regardless of whether what they did was a crime in their own country.

What about non-traditional approaches? Well, I suppose German authorities could hire hackers and have them delete/deface/do whatever seemed satisfactory to the virtual child pornography hypothetically being created and/or posted on Second Life. Or maybe they can create virtual German police officers and send them into Second Life to try to deter the creation and posting of such material . . . though I’m not precisely sure how they’d do that.

That latter option creates an interesting scenario . . . a virtual conflict of laws and law enforcement officers in online worlds such as Second Life. I assume Second Life’s terms of service would give the company the ability to banish foreign law enforcement officers from Second Life, but I really haven’t checked. As I noted in an earlier post on virtual gambling, Second Life has invited the FBI in to check out its virtual casinos, so it seems amenable to having at least some domestic law enforcement presence in Second Life.

Or, as seems most likely, the German authorities could simply give up on all this, as they have given up on trying to prosecute U.S. citizens who create and maintain pro-Nazi and Holocaust-denial websites, both of which are outlawed in Germany.