There is (as usual) a very long discussion in the comments at Unfogged over New York Times “Ethicist” columnist Randy Cohen’s advice to a tech support guy wondering what to do about pornographic images he’d found on his boss’ computer, some depicting “young children — clearly less than 18, possibly early teens.” I’m not accustomed to agreeing with Cohen, but in this case, I think he’s right to suggest that he shouldn’t be hasty in running to the cops. The Unfogged commenters who take the opposite view just seem to take the guy at his word that the people depicted are “clearly” under 18. Yet if they’re only “possibly” as young as 13 or 14, that seems to suggest he thinks he’s found a lot of photos of 16 year olds.

But, for better or worse, there is in fact a pretty huge market tailored precisely to the production of porn featuring 19 and 20 year olds who look, well, about 16. Here’s a research experiment for the reader: Wait until you get home from work and go look through this index of porn actors and actresses, with links to various samples of them plying their trade. I haven’t done a formal sample, since even I can’t justify looking at porn for five hours straight, but I’m guessing at least 10 percent look (and, indeed, have been made to look) like high-school age girls. This is, admittedly, creepy as shit, but it’s not criminal. For that very reason, then, I’d expect it to be much more probable that a porn pic I happened across in someone else’s directory was one of these made-to-look-young-adults than an actual minor. And, just statistically, I’d frankly expect to find a handful of too-young-looking performers in a sufficiently large porn cache, even if the collector in quesiton didn’t some have some special Lolita fetish. So in this fellow’s shoes, I’d have to be awfully sure I was looking at people who couldn’t possibly be of age before subjecting someone to a ruinous investigation.

That aside, though, this did get me thinking a bit more generally about the rationale for penalizing child porn possession in the age of the Internet. There’s always been a two-pronged argument: First, the stuff is often used by pedophiles to help lower the inhibitions of their victims, and second, the market for child porn is what supports the production of child porn, which necessarily involves the sexual exploitation of a minor. Now, the first is very serious, but apparently not enough on its own to support a ban, since the law cares about the actual age of the performer, while it’s the apparent age that’s relevant to the pedophile’s purposes. (And the Supreme Court has struck down bans that would have encompassed “virtual” or “apparent” child porn produced without real children.)

That brings us to the second prong. When the Supreme Court considered the question back in 1982, they were making some pretty reasonable assumptions about child porn possession. Someone who had it had either made it themselves, or had purchased it, providing economic support to the people who’d made it, and economic incentives for others to make more. And it was all but inconceivable that anyone could have any by accident, or without being aware of it.

Obviously, I’m not about to personally investigate how easily child porn can be located for free on the Internet. But presumably it’s got to be out there, and I’m assuming the people who do look for this stuff would rather do an anonymous download than give out their names or credit card numbers to dodgy third parties. Which means, at least in principle, someone could have a sizable cache of the stuff without having contributed in any detectable way to the actual harming of children. They’d still be repulsive, but we don’t generally sentence people to lengthy prison terms just for being repulsive. So I’m not sure: Does the case for a general ban on possession (as opposed to sale) hold up today?