Hypothetical AO3 CP ban spitballing

[mc776]

So there's the old controversy about AO3 floating around Tumblr and I don't feel like replying to any of those threads, so I'll put down my thoughts here.

The problem: OTW (the organization that runs AO3) is, for some good (or at least earnest, well-intentioned, good-in-principle) reasons that go to the very reasons for its founding, highly allergic to any moralistic censorship of any kind whatsoever.

Unfortunately, this means that people are posting rape fantasy about real-life child actors and musicians, and OTW is taking the position that it is not within their mandate to delete it.

I use AO3. I agree, in principle, with what OTW stands for.

But.

The specific example we're dealing with now, in Q1 2021 AD, is of no value to anyone, and it seems OTW's entire line of reasoning is grounded in a censorship slippery slope, or an objection that anything that could block CP+RPF is going to be too subjective to be workable.

These two objections are related.

Our precedents

AO3's existing TOS already has things that require administrative discretion. It is impossible not to.

The Content and Abuse Policy covers procedures, spam and commercial promotion, threatening the technical integrity of the site, copyright, plagiarism, personal information and fannish identities, harassment, illegal and non-fanwork content, and ratings and warnings.

Without even looking at the rest, I can confidently submit that "illegal" and "commercial" both have plenty of wiggle room and grey area, even without reference to anything sexual.

Here's how spam is identified:

B. Spam and commercial promotion

Promotion of commercial products or activities is not allowed. Repeated identical or nearly identical posts in multiple places, e.g., a large number of identical comments promoting a website, will also be considered spam regardless of commercial content.

Anything we determine is spam will be removed immediately. Users may be permanently suspended for spam the first time they post spam content.

In general, unsolicited commercial activity is not permitted on the Archive. The Policy & Abuse team has discretion to decide that a fan-related offer was mistakenly disseminated and issue a warning instead of a suspension.

So here we've already got the power to decide:
- what constitutes a large number of something
- what constitutes a commercial promotion
- whether someone had made a mistake in good faith
- and thus, whether someone was acting in good faith

And then, of course, there's the question of whether a work is transformative enough.

If OTW can clamp down on commercial activity, in ways that go far beyond what the law requires of them, they can clamp down on CP.

But anything that can get rid of the CP should still, to the furthest extent possible, call for no more discretion than this.

My first, shitty attempt

My first attempt at something that would cover all CP+RPF, and maybe a few other things for good measure:

Nothing sexually explicit about real people, unless as adults they have consented in writing to the particular fic in question, or were in existence more than 500 years ago.

Nothing sexually explicit about real people who are depicted as being under 18 years of age at the time of the sexually explicit event.

(The exact number is negotiable; the minimum should be the oldest reliably attested age of any mortal human, rounded up to the next fifty, times two. This should be sufficient to ensure that the person in question and anyone who personally knew them is dead.)

This would require the administrative discretion to decide:
- whether the person depicted is real (this may be very nebulous for certain historical figures)
- what "sexually explicit" means (this is fairly easy: genitals, anus, stimulation thereof and any typically resulting sexual bodily fluids)
- the reliability of any particular claim of existence at any particular time
- whether someone is being depicted as being under 18 years of age

That last one is the one that can pose problems. If we're dealing only with real/historical figures, it's mitigated somewhat since we eliminate all the "immortal being that just looks like a 12-year-old" scenarios - until someone writes that AU fic where some historical figure was in fact vampirized at age 12 but otherwise continued their careers normally (and maybe cast spells to fake aging and then faked their death at the time that history records them to have died).

Which starts creating a fuckton of grey area on whether the person depicted is real. At the most extreme, my original proposal could put me in violation of the rules as stated by simply copypasting Imp Encounter and replacing "Taylor" with "Miku Binder Thomas Jefferson". Obviously a rule targeting CP that would catch this is overbroad.

So, in valiant defence of the great cultural treasure of our age that is Miku Binder Impse Jefferson, let's try again - with a little more focus on narrowing the scope and better defining our terms.

My second, wheel-reinventing attempt

Let's just ignore the real-person thing for a while, and start with the other two things that need to be unpacked:

Nothing "sexually explicit" one of the parties to/victims of which is a person who "is under 18".

How to we define "sexually explicit"?

Should be limited to obvious shit: genitals, anuses, stimulation thereof, exposure thereof for sexual purposes (whether diegetically or for the titillation of the audience). I don't think anyone wants to waste their time going after gags about Beavis spanking the monkey in inappropriate situations.

The Beavis example might be harmful in terms of normalizing toxic approaches to sexuality, but it is definitely in the range of "best not to do that" bad not "we need to escalate to force" bad.

This would do nothing against creeper anime upskirt shit (or the literary equivalent thereof, "she breasted boobily"). There's no way to control that without requiring an inquisition into each author's subjective intent and desire every time anyone's tits or ass (or numerous other body parts) are mentioned. Keep in mind we are talking about the line where one ought to resort to force, even if the blade is just threatening to cut a rope instead of a neck.

How do we define "is under 18"?

The most obvious situation would be an actual statement in the story that a character is in fact under 18. That's easy.

Then we've got things that pile on circumstantial evidence pointing to a character being under that age. These have two categories: bodily and social.


Let's deal with social first, since that's easier. If she's said to be in eighth grade, this had better be a cartoonish "bimbo" thing where she was held back 5+ years, and the person she's fucking had better be either the teacher or another student in the same situation. On the contrary, absent a Doogie Howser situation, someone getting a doctorate is almost certainly over 18.

That said, usually if the social cues are ambiguous the reader will be given an explicit age, since the story itself would probably be about someone coming of age in their society or getting close to it.

Then again, consider: a 19th century Anglo-American a "young girl" of "marriageable age" who still lives with her parents could be anywhere between 16 and 26.

I believe the best approach is, where there are no social clues obviously and immediately suggestive of an age below 18, to presume that no sanctions are required.


Bodily presents the most obvious grey area. I have met people who were working on their masters degrees who I thought were teenagers. (They were not.)

Let's assume the following outcome is acceptable:
R34 Holden Caulfield - looks 28, is 17 - banned
R34 Max Caulfield - looks 14, is 18 - OK
keeing in mind there are plenty of 18-25-year-olds in real life who could pass for 14 - and vice versa.

But I do not believe the following should be acceptable:
*R34 Baby-Doll - looks 5, is early thirties - OK
*R34 Kara - looks 30, is 6 (is a robot, was built 6 years ago) - banned
keeping in mind that allowing the first will result in bad faith exploitation.

I'm trying to avoid, to the fullest extent I can, any appeal to "normal" or "reasonable" - that's just baking in the unexamined prejudices of whoever gets the reins.


The "appears underage but is adult" loophole can be addressed: ban descriptions that make the party to the sexual act appear to be underage, whether explicitly ("she looked thirteen") or by reference to prepubescent anatomy, except if it's characteristic of the canon work.


The "actual chronological age under 18 but treated as adult-equivalent" pitfall is pretty specific and might even be dealt with as such: if the character is an artificial intelligence/magical construct that from the start had been equipped with a mind that was designed function as though it were equivalent to an adult human being, then subject to any applicable law the chronological age need not matter.

In all other circumstances, "is underage but looks adult" should by all rights be banned.


At this point I feel like I need to write a reminder, perhaps less to the reader and more for myself, that we're talking about restrictions on pornographic fiction. Certainly non-pornographic fiction about children, or characters who don't look their age, is in itself a non-problem.


So, back to the question, a character should be considered "under 18" unless it has the following:

1. Must, diegetically, at the time of the event, have had at least 18 (modern Earth) years of lived experience, or iff the character is an artificial or supernatural sentient construct for which this sort of developmental timeline would be wholly inappropriate, have been created ab initio as developmentally and psychologically equivalent to a competent human being who has had such lived experience.
   
   
2. Must physically appear to be a human being who has completed at least one puberty, and shows no immediately clear indicia of being intended to be under 18 years old.
   
   
3. If the character is not human, then read the above with whatever equivalent hormonal transformation from non-sex-having to sex-having adult form applies in place of puberty.
   
   ("But what about my tentacle monster OC that looks like a ratking of giant squirming maggots?" "But what about my Caterpillar / Red Queen slash where the caterpillar's obviously, canonically coded as a grown man?" "But what about my xenomorph drone/Call/Bishop three-way?" Okay, fine, this one still needs a little work. Perhaps some overreach in terms of "coded as a grown man" may be needed to avoid allowing porn of Stewie Griffin, though.)

[2021-02-26]Let's try rephrasing that into a proper presumption of innocence: a character should be considered "under 18" if it has the following:

1. A factual matrix that explicitly or by unrebutted cultural assumptions (stage of schooling, etc.) will cause the reader to believe that the character diegetically, at the time of the event (or, in the case of any actual existing person or character that is intended to be identified with a specific actual existing person, at the time of publication, whichever is earlier), has had fewer than 18 (modern Earth) years of lived experience, unless iff, being an artificial or supernatural sentient construct for which this sort of developmental timeline would be wholly inappropriate, the character had been created ab initio as developmentally and psychologically equivalent to a competent human being who has had such lived experience.
   
   
2. Is described or depicted as having a body that has not completed at least one puberty, which for a non-human character may include whatever equivalent hormonal transformation from non-sex-having to sex-having adult form applies in place of puberty.
   
   
3. Otherwise shows any immediately clear indicia of being intended to be under 18 years old.

Anyway, yes I'm aware much better thinkers than me have spent a lot more time on this. But I'd still like to do this as a reminder to myself how AO3 (which I fully intend to continue using for the time being) got to this point in the first place.

Based on what I've written out, though, I think they can do better. And I think the times are changing in a way that eventually they will.