Wikipedia:Wikipedia Signpost/2010-04-12/Sanger allegations

On 7 April, Larry Sanger announced that he had reported the Wikimedia Foundation to the FBI for "knowingly distributing child pornography" (later also forwarding the message "to my senators and representatives"). In the message to the FBI as reproduced by Sanger, he introduced himself as follows:
 * "... My name is Dr. Larry Sanger and I am widely known as co-founder of Wikipedia, the encyclopedia project. I have long since departed the organization, over disagreements about editorial and management policy.  I have also since founded a more responsible project, Citizendium.org [...]. Given my position of influence on matters related to Wikipedia, though I'm no longer associated with it, I feel I have a moral obligation to make the following report."

Images in question
Sanger stated that he had found material in the "Pedophilia" and "Lolicon" categories on Wikimedia Commons which he believed to be child pornography. At one point on 8 April, shortly after Sanger had posted his announcement, the "Pedophilia" category on Commons contained 27 images:
 * Five photos of anti-pedophile street graffiti or signs,
 * Two photos of child prostitutes (one anonymous from 1871, the other by the Berlin police), both scanned from the 1972 book "Victorian Children" by Graham Ovenden and Robert Melville,
 * Three logos consisting of abstracts graphics or typography,
 * A scan of a handwritten letter in German from 1908, which has since been removed from the category as not being related to child abuse or pedophilia,
 * Twelve illustrations by Martin van Maële (1863–1926), ten of them from "La Grande Danse macabre des vifs", a book published in limited edition around 1905,
 * A "depiction of a Russian boy, from a Chinese erotic album dated 1904" (in the uploader's description)
 * A low-resolution logo of a defunct Belgian pedophile activist group, containing an outline drawing of a nude boy,
 * A photo of Abastenia St. Leger Eberle's sculpture "The White Slave", which had caused a controversy in the U.S. in 1913,
 * A 1906 illustration by Hungarian painter Mihály Zichy.

Without specifying particular images, Sanger stated that the two categories contained material which in his "non-lawyer's opinion" violated Section 1466A of the U.S. Code, which was introduced in 2003 and concerns material that
 * "(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
 * "(B) lacks serious literary, artistic, political, or scientific value;"

Sanger acknowledged that "the Wikimedia Foundation may argue that the images have some artistic value. I guess that's for you [the FBI] and maybe the courts to decide."

Foundation legal counsel's response
Mike Godwin, the Wikimedia Foundation's legal counsel, whose work on Internet-related free speech issues, including pornography, goes back to the early 1990s (cf. Cyber Rights), replied:
 * "As is commonly the case when non-lawyers attempt to invoke a statute without adequately researching the relevant law and legal categories, Sanger has confused and conflated a number of legal doctrines."

listing five such points:
 * Confusing Section 1466A, "which is not a child-pornography statute but an obscenity statute" with the Section 2252A, the actual child pornography statute. (Sanger later expressed regret to have used the term "child pornography" instead of "depictions of child sexual abuse" – language closer to that of the invoked statute – acknowledging that many people would restrict the former term to photographs of real children.)
 * Ignoring the Miller test for obscenity, which involves applying "contemporary community standards"
 * Ignoring Section 230 of the Communications Decency Act which according to Godwin "expressly bars hosting providers for liability for such content" provided they, like the Wikimedia Foundation in this case, "did not originate or develop the content"
 * Returning to "community standards", Godwin stated: "There is no evidence in Sanger's message that the community has failed in its efforts to make sure that the content of Wikimedia Commons is legal, at least in the context of the law applicable to Wikimedia Foundation as a hosting provider".
 * Lastly, Godwin questioned the legality of Sanger's own posting regarding defamation. To convince the FBI of his assertion that the Foundation was "knowingly" distributing child pornography, Sanger had claimed that a Wikimedia staff member was "well known for his views in defense of pedophilia". Godwin wrote: "I think any jury might reasonably infer that Sanger's recklessness in posting his allegations, together with his clear intention to damage the reputation of an individual person, is the kind of thing that deserves compensation and ought to be deterred."

Discussion and coverage elsewhere
Sanger's original announcement of his FBI report had been made on EDTECH, a mailing list frequented by some administrators of blocking lists used by internet filtering software in many U.S. school districts. It arose out of a discussion where Sanger had argued that Wikipedia should be blocked in schools by such software, as opposed to Citizendium, which has a "Family-Friendly Policy". Ironically, Sanger had earlier voiced concern on the same list that legitimate content was getting blocked, citing his other project WatchKnow as a "poster child" for such issues (WatchKnow is a website which provides educational videos to minors, but hosts some of its content on YouTube, which is blocked in many U.S. school districts).

British IT news site The Register, long known for its strongly critical coverage of Wikipedia and related projects, covered the story on 9 April (later "updated to show that Larry Sanger now says that the images in question do not depict real people and to include additional legal clarification"). It cited the opinion of an attorney, Justin Fitzsimmons, that Section 2252A did apply to the Wikimedia Foundation.

The affair was also covered on Slashdot, where many commenters accused Sanger of advocating censorship and of trying to use the issue to promote Citizendium. In a "Reply to Slashdot about My Report to the FBI", Sanger defended himself against these and other criticisms, insisting that his motives were sincere:
 * "When it comes to doing what is right, I often say 'Damn the consequences.' This is why I am not very popular, and never have been [...]  I take my inspiration from Socrates."

and further refuted the allegations of a conflict of interest by describing what he expected to be the personal consequences he would have to bear as result of the affair:
 * "... with this move I have if anything completely burned the last of my bridges to working in the mainstream (deeply libertarian) world of Web 2.0. [...] After this, I am sure I have permanently ruined my chances of getting a job (if I had wanted one) or getting funding for a successful for-profit in Silicon Valley."

Sanger later suggested that Wikipedians should add mention of his report to the FBI to the Criticism of Wikipedia article.