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Psychohistorian comments on Our House, My Rules - Less Wrong
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It is not the fault of the judiciary that the people consistently elect profoundly stupid legislators.
You know how bad the media is when it reports science? Well, it doesn't get much better for law, sadly.
The defendant's appeal claimed that her right of privacy was being violated by this prosecution. An essential part of that is whether she had a reasonable expectation of privacy. The conclusion was she did not: if teens take naked pictures of each other, there's a meaningful chance that those pictures will be shared with third parties. This same reasoning has been used to break the privacy defense for photographs of prisoner abuse. This doesn't help her:
The opinion is interesting, though I say that from a law-oriented background. The law being idiotic does not necessarily make the judge idiotic, and there's at least a very good argument that the majority applied the law correctly. No expectation of privacy, no right to privacy defense.
They may have erred when they ruled this prosecution counts as the "least intrusive method" to uphold state interests, but I just don't know the case law on that.
My lament referred explicitly to the "the appeal judge [who] wrote in his opinion that one reason he wanted to punish them was that if left alone they might in the future sell their photos to child pornographers to make money" and so it stands. You haven't said as much directly, but am I to take it that you do not believe this judge is factual? If so, I rejoice in his absence from reality.
The CNET report was sensationalized, as Psychohistorian pointed out to me in another comment. You can read the judge's (appellate majority) opinion here.
The appeal was about their right to privacy, and the judge's opinion that "if left alone they might..." was saying that because they might do this in the future, and because he expected them to do so, they gave up their right to privacy by creating those photos. Because digital photos are so easy to distribute, so they would surely do so someday even if by mistake. So if they use cellphones to take photos, they give up privacy.
...No, it doesn't sound much better put that way, does it? But it wasn't the justification for the original conviction; CNET doesn't link to that opinion.
Even this is a caricature of the actual legal question. In order for a right of privacy to attach (and that's her argument against the law), you have to have reasonable expectation of privacy. In this context, that means that you have to have a reasonable expectation that no third party will be exposed or involved. The majority concluded that a high school teenager cannot reasonably expect that no one will ever see the naked pictures she takes with her boyfriend and then sends to his hard drive. In fact, the defendant explicitly stated that she was worried her boyfriend might distribute those naked pictures. The decision also states that, in the context of a more mature or serious relationship, privacy would likely have attached, because some expectation would have been reasonable. There's still plenty of room to disagree with this, but it's a lot less absurd than people are trying to make it.
As far as the whole decision goes, if you keep in mind that the judges (and, more importantly, the law) see child pornography (even of basically adults) as an evil that is abhorrent to society, and that damages society by its mere existence, the whole decision is a lot more understandable. Whether you agree with that view or not is largely irrelevant; the voting public seems to have made it rather clear that that is their attitude.
No, it really doesn't. But I do understand the desire to justify the decision that he had made.
Actually come to think of it that description sounds even more scary. Guilty (in the future) when that the media in question is proven reproducible.
Future guilt had nothing to do with it. The question was about whether an expectation was reasonable; an expectation is necessarily about the future. The court concluded that one cannot expect a teenage boy to keep naked pictures of his girlfriend to himself indefinitely. It may be incorrect or unfair, but it isn't absurd or unreasonable. It certainly isn't convicting anyone on the basis of future guilt.
It is my understanding that if the court had not made this determination, it might have had to uphold the defense's claim to right of privacy, and the defendants would have have been acquitted on appeal.
It is worthwhile quoting the entire relevant part of the judge's opinion, for those who don't want to spend time reading the source:
So, he equates privacy with deliberate secrecy. That's not a presumption of privacy. Note that I'm commenting on common reason, not on whatever the relevant case law may be.
(My emphasis.) So, he says that because they are teenagers, their relationship cannot be "mature and committed", and so we must assume that one of them will in the future hurt the other for money (not even in revenge or somesuch).
(My emphasis.) IOW: each of them is capable of harming the other in the future. Because they are teenagers, we assume they will do so. We explicitly disregard their trust in one another; the relevant point is that we, the society, do not trust them. Therefore we will punish both of them proactively by withdrawing their right to privacy.