This Article traces the history of the child pornography laws and sentencing policy in Part I. Part II explains the technologies that have caused some of the current controversies, and then Part III describes how these technologies have blurred the offenses. Finally, Part IV makes suggestions as to how the law could better reflect technology and comport with a refined harm rationale. Courts, legal scholars, and medical experts have explained the harm includes the sexual abuse captured in the images and the psychological injury the victim endures knowing the images are being viewed. This Article further develops the harm rationale by explaining that the harm rests on a fundamental injury to the victim's human dignity and privacy. Drawing on comparisons to diverse laws such as the Geneva Convention's ban on photographs of prisoners of war, this Article states that all traders in child pornography violate the rights of the children depicted, and therefore, inflict harm, albeit at different levels. This Article suggests that a statutory scheme that divides pornographers into three groups-- producers, traders, and seekers--would best reflect how technology has changed the manner in which pornography is gathered and spread. Sentences could be calibrated accordingly to punish for the harm inflicted by the pornographers.
Audrey Rogers, From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws, 87 St. John's L. Rev. 1013 (2013), http://digitalcommons.pace.edu/lawfaculty/963/.