Law in the Internet Society

Taboo, transgression, transformation

-- By LizzieOShea - 10 Dec 2015

The politics of acceptability

The concept of taboo crossed many boundaries to find its way into Western culture. Its lexical origins are Tongan; it was one of the few genuinely productive cultural exchanges initiated by Captain James Cook. Though the word itself originates from the far reaches of the globe, it feels instinctively close and familiar. But while the concept may be universal, its object is culturally specific. There is nothing innate or natural about what we conceive of as undoable. It is a political question about identity and negotiating the boundaries of whose identity is acceptable.

The internet undermines the power of taboos in a way that is unprecedented. Through providing a perception of secrecy, anonymity and autonomy, a networked society creates a commons in which people are able to engage in a range of fantasies - particularly sexual fantasies - that would otherwise be unspeakable, solitary or more rigidly clandestine.

Paradoxically, these engagements in fantasy, which are often considered private, simultaneously occur in plain sight. For the everyday user, no matter what they may think, sexual proclivities are unconcealable and indelible; the internet knows everything and never forgets. The associated transparency of the data of desire has created all kinds of moral panics. Much of this finger wagging tends to be fusty and insipid. But there is a significant and troubling exception to this that is worthy of further examination: child abuse.


The threat of child abuse and paedophilia presented by the internet is in many ways unique. We hold children in a particular esteem. We have created ‘a moral museum of innocence and purity – our Eden – and we have labeled it childhood.’ The desire to protect this moral museum from violation is literally unassailable: there is no 'acceptable ‘liberal’ position when it comes to the sexual victimization of children.’ The pedophile is therefore at once non-existent socially and politically, and paradoxically omnipresent lurking in the shadows of the internet. This creates and equal and opposite reaction; an inexhaustible well of social and political capital in defence of innocence and purity. Political careers, hefty executive government budgets and law enforcement agencies have all been built on the back the most 'monstrous of monsters', the paedophile.

The law has responded to this phenomenon with rapacious reach, seeking to dam this putative flood of perverse child pornography. This response is a relatively modern phenomenon: it began in the late seventies for Congress, and early eighties for the Supreme Court. Indeed, the temporal window suggests that the law’s response to child pornography is the dark reflection of the development of internet society.

But the response has also been objectively vigorous: legislation to address child pornography has reached into our personal lives in an unprecedented manner. For example, there is no requirement that the child be naked for an image to be sanctioned. Contextual defences that might traditionally render such conduct innocuous, such as being a professional artist or family member (or both) can be stripped away by the law. It resists defining something innate about the depiction that makes it unlawful. There is no judicial opposition to this legislative enthusiasm. ‘The response of the courts, to much of this has been acceptance,’ Adler points out. ‘There is a sense of boundlessness in child pornography law.’

The combination of zealous legislators and an existential threat to purity posed by the internet has created something of a perfect storm of law and order. This has led to the criminalisation not just of acts but of thoughts: ‘social conventions simultaneously insist on and convulse the existence of a certain type of mind, one that – quite independent of what it sees and does – can be branded as perverted.’ This is not merely a metaphor, for it is established in the common law. In Ferber, in justifying the exception to the First Amendment in respect of child pornography, the Supreme Court held that ‘[t]he distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children.’ Legal protection from child abuse, therefore, is not just designed to prevent actual harm or protect an actual victim; it is literally about policing a certain type of mind.


Ironically, the ubiquity of legal regulation aimed at child abuse is matched only by the omnipresence of transgression. Taboo may be about defining boundaries of what is acceptable, but the unacceptable is not necessarily rarefied. Taboo enforcement and taboo transgression actually belie the mundane and persistent presence of paedophilic imagery in modern society. Psychoanalysis offers one explanation for this; Freud observed that ‘desire is mentally increased by frustration of it.’ But this is also more than simply a response to repression, it is about creating an identity that is acceptable, in contrast to the shadowy monstrosity of the paedophile. ‘Society needs the pedophile, his existence allows everyone else to view sexy children innocently.’

A better way to conceive of this paradox is to understand that the contrapuntal forces of child pornography law and the eroticisation of children is a ‘dialectic of transgression and taboo.’ It is the Foucauldian idea of the perverse implantation; that is, defining sexuality outside the heterosexual family as perverted or different and regulating when transgression may take place. It is well established that the majority of child sexual abuse is perpetrated by a man known to the child and not by the proverbial ‘stranger’ paedophile. In other words, this dialectic reflects a 'cultural tendency to represent child abuse as a problem of cyberspace rather than, and as if there was an absence of, occurrences in familial settings.'

This reality demonstrates how misplaced the legal response has been to the problem of child sexual abuse, particularly in the context of the internet, but also reveals the objectives of this kind of regulation. The anxiety with the internet has taken the focus away from the family home, and exonerated the real context in which children are abused. In that sense, then, the digital sexual revolution is perhaps more a reshuffle; sexuality is not simply repressed, or liberated, but continues to be regulated in variety of different ways.


The failure of law to deal with this problem does not absolve us of the need to do so. There is no doubt that there is a real and inescapable problem of harm. The dialectic of taboo and transgression does create an opportunity for change, but not perhaps in the way many imagine.

Transgression begets honesty and critically the opportunity for genuine harm minimisation. Consider the story of Adam, a teenage paedophile who developed an internet support group for fellow teenagers who identified as paedophiles, but had not offended and were committed to not using child pornography. This kind of approach has been validated as a strategy for harm prevention. But it is only made possible if we let go of the dialectic of taboo and transgression, and specifically as it relates to the internet. Rather than facilitating this, the law acts as a barrier to self-activated community-based harm prevention. Mandatory reporting of child abuse, while the product of good intentions, reproduces taboo and in so doing, denies autonomy and agency.

The dissolution of taboos that is a function of internet society can be seen in two ways. First, as an absolution from normative values accompanied by a risk of harm to the vulnerable, whom we have a duty to protect. Or second, as liberation from oppressive social rules that give us the potential to see where the true potential for harm lies and how we might be able to address it.

I think this is extraordinarily well done. It's a sophisticated use of ideas I recognize to get to other ideas that I recognize as fresh and valuable, put bravely and with what I think of as "daring balance," that is, willing to reach far in every direction to find something new at the center. Here's where your inclination to dialectic gets lived out creatively. There are many good things you can do with this, but none, I think, that will make it distinctively better in 1,000 words.


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r2 - 09 Jan 2016 - 18:14:47 - EbenMoglen
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