Viewing Child Porn on the Web 'Legal' in New York State, Appeals Court Finds

[redqueen]

Source: MSNBC

Viewing child pornography online isn't a crime, the New York Court of Appeals ruled Tuesday in the case of a college professor whose work computer was found to have stored more than a hundred illegal images in its Web cache.

The court dismissed one of the two counts of promoting a sexual performance of a child and one of the dozens of counts of possession of child pornography on which James D. Kent was convicted. The court upheld the other counts against Kent, an assistant professor of public administration at Marist College in Poughkeepsie, N.Y.

Kent —who said at his sentencing that he "abhorred" child pornography and argued that someone else at Marist must have placed the images on his computer —was sentenced to one to three years in state prison in August 2009.

The decision rests on whether accessing and viewing something on the Internet is the same as possessing it, and whether possessing it means you had to procure it. In essence, the court said no to the first question and yes to the second.

Read more: http://usnews.msnbc.msn.com/_news/2012/05/08/11602955-viewing-child-porn-on-the-web-legal-in-new-york-state-appeals-court-finds?lite

[Skinner]

1. This strikes me as a law-hasn't-caught-up-with-technology situation.

The judges did not rule that there is some sort of right to view child porn. Apparently the law disallows "possession" of child pornography, and they had to decide whether viewing child pornography on one's computer, and having those images saved in one's computer cache, constitutes possession.

My prediction is that the New York State Legislature plugs this loophole very quickly.

[arcane1]

2. That's the tricky and scary part, too:

to prove that someone knowingly downloaded and viewed such images. The way malicious websites can stick files on your computer without your knowledge, how can one be 100% sure?

[redqueen]

3. Yes, the last paragraph in the excerpt spells that out.

It's a poor headline, but I couldn't edit it for this forum.

There is some questionable stuff in here though:

All of the judges agreed that child pornography is an abomination, but they disagreed whether it was necessary to "criminalize all use of child pornography to the maximum extent possible," as Ciparick wrote in the majority opinion.



I should add, I do see how that could be interpreted to mean that just a few entries on a cache shoulnt get you locked up, but this guy had thousands, and a few messages for what would seem to me to be the very sort of plausible deniability-providing stuff one would expect from someone who *should* be locked up.

If only it was easy to determine how long the images were viewed, whether they were searched for, whether they were saved, etc.

[2ndAmForComputers]

15. Tech answers:

If only it was easy to determine how long the images were viewed,

As far as I know, impossible.

whether they were searched for,

Maybe possible; they'd have to subpoena Google. But Google isn't the only place one can look things up.

whether they were saved, etc.

They were not; just clicked on in a web browser. Which saved a copy as it does of most pages one visits.

[redqueen]

17. ...

Kent's convictions on the other counts rested on other evidence, including a folder on his machine that stored about 13,000 saved images of girls whom investigators estimated to be 8 or 9 years old and four messages to an unidentified third party discussing a research project into the regulation of child pornography.

Emphasis added.


I get that just having stuff in a cache can't be evidence (if it was I might be guilty for going to a facebook page which I linked to in GD, in order to get help reporting it). And again, this issue of it being a law-catching-up-with-technology issue is addressed more than once in the article.

The thing is, this exposes a loophole. It's a good thing it was exposed, because now it can be addressed.

[boppers]

28. So, guilty for the stored folder.... if it was not an automatic cache folder.

Cache images are "saved" images. The computer saves them automatically.

[redqueen]

29. So it's not just the title that was poorly written.

In the first paragraph it refers to hundreds of images stored in the cache. Later it refers to over ten thousand that were saved. I inferred this meant the hundreds referred to at first were different from the 13,000 plus that were simply referred to as saved.

[boppers]

31. Very much so.

Even if they were "saved", meaning the individual knew they were illicit images, and intentionally preserved said images, was it academic research, or a person feeding an addiction?

It's not all black and white, which the decision reflects.

My personal take is that the guy is hiding behind "research" to justify a social sickness, but the law is tricky on such matters.

[wilt the stilt]

4. He's from marist and O"Reillly is from marist

can we say connection.

[eggplant]

5. No. No, we can't.

Do you have any other basis for trashing Marist than this?

[bemildred]

6. Sounds to me like they said you are not responsible for what's in your cache.

Which, given that sites can stick all sorts of stuff in your cache without you even being aware of it, seems about right.

[Mosby]

7. that's my understanding as well

I often leave my (open) wireless network running at night, am I responsible if someone drives down my street and decides to log into my network and download child pornography? I tried to password protect or encript the network but I can't get it to work right.

[Behind the Aegis]

8. Which actually makes sense.

Of course there are other issues that could have cropped up, but I haven't seen that yet.

[regnaD kciN]

9. It does indeed...

...but watch how "public outrage" will quickly get the law changed to one where you are responsible for whatever anyone may stick in your cache. After all, we "have to do something" to stop child porn, right?

[Behind the Aegis]

10. Yup! The "Helen Lovejoys" of the world will be out in force.

When I worked in the public sector, I had a computer in my office. I allowed my staff to use it for a variety of things. One day, while clearing out some junk files, I came across an unknown Jpeg. It was a woman preforming a sexual act with a horse. Besides being disgusted, I was pretty pissed off because that could have resulted in my being fired. I called a staff meeting and blessed them out for it. I also locked down my computer, with very few exceptions being allowed. The other issue is when the model is underage but is portrayed as "legal." This happened with a gay porn star who was 16 at the time he started preforming. He lied about his age. It all came out about 2 years ago, I think. I will say there is still some conjecture and confusion about the whole thing, but the reality is, anyone who possess any of the 14 (I think) movies he was in is in possession of child pornography under the law. I don't think there has been a case about this yet, but it could well happen.

[Sarcasticus]

12. Something tells me there are things you think should NOT be allowed.

Just sayin'

[Behind the Aegis]

16. What?

[Sarcasticus]

18. What? No. How?

As in, "How far do you wish to extend the First Amendment"? I've a feeling you would impose limits in certain, specific areas.

[Behind the Aegis]

19. What the hell are you talking about?

Neither of your posts make any sense. Just say it! Whatever the hell "it" is you are trying to say.

[Electric Monk]

20. Near as I can tell, they are arguing, badly, for kiddie porn (all of it) to be totally legal.

1st am, and all that. Libertarian bullshit.

[Behind the Aegis]

21. How the fuck did you arrive at the erroneous conclusion?!

[Electric Monk]

22. From reading Sarcasticus's posts, #12 &#18. nt

[Behind the Aegis]

23. Like his posts, your's makes no goddamned sense.

Your accusing me of supporting child porn because of something someone else said?!

[Electric Monk]

24. Reading comprehension fail. I'm saying that's what Sarcasticus was arguing for, badly.

Sarcasticus seems to be in favor of no limits whatsoever on what content is or isn't ok.

I could be wrong, but that's what I get from what they wrote.

[Behind the Aegis]

25. OK...Gotcha!

I thought you were claiming I was for child porn and I re-read both my examples, and for the life of me, couldn't understand how anyone could reach that conclusion. What I was commenting on was the "cache" issue and the "websites claiming the models are of legal age but aren't" issue and how they could be real problems to unsuspecting people.

On edit: I misread "they" as "you" in your first reply to me. That's what I get for trying to read multiple posts. My apologies.

[Sarcasticus]

26. You ARE wrong!

Kiddie porn is revolting! I stand solidly with redqueen on this. I am merely trying to induce BTA to declare what kind of "expression" should be prohibited, and it has NOTHING to do with child pornography!

[Electric Monk]

30. Now how could I jump to the conclusion your posts had something to do with child porn, in a thread

about child porn?

Silly me.

re: "trying to induce BTA..." sounds to me like you're bringing some personal history between you two into this discussion, which is a little odd considering this is your first week here on DU.

[bemildred]

11. Thanks.

If you have the real deal, all you have to do is watch the logs for a while anyway.

[happyslug]

13. Here is the Actual Opinion

Last edited Wed May 9, 2012, 10:25 PM - Edit history (3)

http://www.nycourts.gov/ctapps/Decisions/2012/May12/70opn12.pdf

The issue for the court was simple, was the existence of these photos in the Computer Cache within the "Possession" of the defendant (and the court accepted the definition of "Possession" as being on the computer), when the Cache is NOT ready accessible to the user of the computer or is even known to the user.

Key phase:

This is necessarily so because a defendant cannot knowingly acquire or possess that which he or she does not know exists (see United States v Kuchinski, 469 F3d 853, 863 [2006] [to prosecute a defendant who lacks knowledge about the cache for possession of files stored therein "turns abysmal ignorance into knowledge and a less than valetudinarian
grasp into dominion and control").

The Court went on and said:

Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen. To hold otherwise, would extend the reach of article 263 to conduct -- viewing -- that our Legislature has not deemed criminal.

The federal statute regulating conduct related to child pornography, 18 USC § 2252A, provides a useful contrast. Section 2252A was amended in 2008 to provide that any person who either "knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography" is subject to a fine and imprisonment (see 18 USC 2252A § [1] [a] [5], as amended by Pub L 110-358, 122 US Stat 4002, 4003 [emphasis added]). Neither provision of the Penal Law at issue here contains comparable language targeted toward the "pull technology" by which one accesses and views Internet images. The words that are employed -- "procures" and "possesses" -- would not, in ordinary speech, encompass the act of viewing (see State v Barger, 439 Or 553, 563, 247 P3d 309, 314 [2011] ["Looking for something on the Internet is like walking into a museum to look at pictures -- the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them"]).

In simple terms, the NY State Legislature only has to add the words "knowingly accesses with intent to view" and this case is overturned.

[Swagman]

14. what about cops, FBI, lawyers, judges who 'view' child porn

during investigations or court cases?

There is really no other crime (eg : like a bank robbery) where those in law enforcement 'commit' the crime themselves. Example-they do not rob a bank while investigating a bank robbery.

I have no answers to this but I am wary of knee jerk laws that sometimes make no sense.

Example- they claim viewing a child porn pic is committing the crime of abuse all over again but what happens when a cop views it during his investigations ?. Is the crime of abuse temporarily suspended?

[boppers]

27. Having coke in an evidence locker is not possession.

Having coke on your person, without reporting and documenting it, is.

...unless it's having coke, on your person, because somebody put it into your pocket during an arrest scuffle.

It's all about intent, as most laws are. Understanding "Mens Rea" is your friend.

http://en.wikipedia.org/wiki/Mens_rea

Thus, if they feel guilty about having porn, because they know it's wrong, that's different from just having it, and not really caring about it.