Viewing child porn on the Web 'legal' in New York, state appeals court finds

Party Rooster

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WTF New York?

Viewing child porn on the Web 'legal' in New York, state appeals court finds

By M. Alex Johnson, msnbc.com

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.

"Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law," Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges.

"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," Ciparick wrote. "To hold otherwise, would extend the reach of (state law) to conduct — viewing — that our Legislature has not deemed criminal."

Read the full appeals court ruling (.pdf)

In other words, "the purposeful viewing of child pornography on the internet is now legal in New York," Judge Victoria A. Graffeo wrote in one of two concurring opinions that agreed with the result but not with the majority's reasoning.

Kent's attorney, Nathan Z. Dershowitz, told msnbc.com that he hadn't yet had a chance to talk to his client, so he couldn't discuss what they would do next. But he agreed with Graffeo that the ruling means that "in New York, there is no crime" in simply viewing child pornography.

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. The majority said that was up to the Legislature, not the courts, to decide.

Judge throws out child porn charge against Washington man

The technical details revolve around copies of deleted files that remained in the cache of Kent's Web browser, which were the basis of the two counts that were dismissed. They were discovered, along with other materials, during a virus scan that Kent had requested because his computer was running slowly.

To demonstrate possession of the images in the cache, "the defendant's conduct must exceed mere viewing," Ciparick wrote, adding that "the mere existence of an image automatically stored in a cache" isn't enough.

Furthermore, the prosecution failed to prove that Kent even knew his Web browser had a cache in the first place, writing, "A defendant cannot knowingly acquire or possess that which he or she does not know exists."

Dershowitz said the "real problem here is that legislation is not keeping up with technology," arguing that federal courts also haven't fully addressed the legal standing of images stored only in a browser cache.

The federal statute outlawing possession of child pornography — 18 USC 2252A — doesn't mention browser caches. The few cases that have examined the issue at the federal level — notably a 2002 federal appeals case involving a Utah man and a 2006 federal appeals case involving a visitor to Las Vegas — generally conclude that cached images alone can establish possession if the defendant knows about the browser's caching function.

Both courts noted that it was hypothetically possible for the defendants to be innocent if they were ignorant of the cache function.

"Those statutes are probably not quite as incomprehensible, but they are anything but clear," Dershowitz said.

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.

"I don't even think I can mail the disk to you, or anyone else, without committing a separate crime. So I'll probably just go ahead and wipe them," one of the messages said.

http://usnews.msnbc.msn.com/_news/2...al-in-new-york-state-appeals-court-finds?lite
 

BIV

I'm Biv Dick Black, the Over Poster.
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Makes sense actually. For example, what if you are on /b/. Some shithead posts child porn. You do an "Aw, what the fuck!?" and quickly click away. That pic is in your cache, should you be charged?
 

Ballbuster1

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Makes sense actually. For example, what if you are on /b/. Some shithead posts child porn. You do an "Aw, what the fuck!?" and quickly click away. That pic is in your cache, should you be charged?
I agree but the smart thing to do is dump
everything if that ever happens to you Uncle Biv.
 

BIV

I'm Biv Dick Black, the Over Poster.
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I agree but the smart thing to do is dump
everything if that ever happens to you Uncle Biv.
You and I know that, but how many people on the tubes are that smart?

There is also the side issue of just viewing the material. If I don't DL it, I don't buy it, I made no arrangements to make a copy...is it really illegal?

Then there are site like this. I was going to make a separate thread on this, but it's topical.

www.pure
nudism.com

I broke it up on purpose so there is no direct link from here. Copy and paste bitches.

It seems to be a completely legal site, but there are naked kids all over that shit. Sure, nothing sexual, just frolicking and such. But how is that okay?

Grey areas all over this bitch.
 

Josh_R

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Jan 29, 2005
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#5
I agree. Looking at a picture that already exists on the internet isn't hurting anyone, and isn't hurting the poor kid for sure. Now, one could argue that looking at child porn creates demand for it, thus encouraging creeps to make more porn. Let's be honest, though: no one who REALLLLLY wants to jerk off to kids isn't not searching for kiddie porn just because it is illegal. It's not like this ruling is going to result in a flood of guys who were just too scared to search for it before.
 

Chin nuts

Your breath smells like a dead baby's coffin.
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I agree but the smart thing to do is dump
everything if that ever happens to you Uncle Biv.
Exactly, but is there any trace left? Don't they have technology that if they really wanted to, it would still turn it up? I would think if you're in trouble for child porn they'd pull out all the stops to find it. Which I applaud. I'd set fire to every child molester alive if I could.
I'm a moron with computers so forgive me if it's a stupid question.
 

Chin nuts

Your breath smells like a dead baby's coffin.
Mar 17, 2006
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#7
It seems to be a completely legal site, but there are naked kids all over that shit. Sure, nothing sexual, just frolicking and such. But how is that okay?

Grey areas all over this bitch.
HOLY crap, that site should be shut down.
 

Ballbuster1

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Exactly, but is there any trace left? Don't they have technology that if they really wanted to, it would still turn it up? I would think if you're in trouble for child porn they'd pull out all the stops to find it. Which I applaud. I'd set fire to every child molester alive if I could.
I'm a moron with computers so forgive me if it's a stupid question.
I'm sure they could but if you really did accidentally
view it and just shut it off and dumped the cache, you
won't be getting any knocks on the front door.
 

Neon

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Viewing =/= Possessing is a very important ruling regarding the future of the internet. The fact that your computer stores everything you see online is almost like a design flaw in the legal sense. You have to have it in order to see it, which is not a problem that exists in the real world (you can go to a museum to look at a painting, but if you look at a painting on your computer, you now have that file in your cache). The fact that they ruled this way even though child pornography was involved is even more heartening, because that would be the easiest case to overlook the subtleties of viewership vs. possession.

"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," Ciparick wrote. "To hold otherwise, would extend the reach of (state law) to conduct — viewing — that our Legislature has not deemed criminal."
Honestly, I'm pretty shocked at how well they called this. Good job.


EDIT: By the way, couldn't this affect the UFC trying to sue people for watching illegal streams? Their whole argument there was that by nature of the process, simply viewing the stream meant you were storing it, and hence possessing it, but this ruling essentially says the exact opposite.
 

Party Rooster

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EDIT: By the way, couldn't this affect the UFC trying to sue people for watching illegal streams? Their whole argument there was that by nature of the process, simply viewing the stream meant you were storing it, and hence possessing it, but this ruling essentially says the exact opposite.
That's what I was thinking. One of the internet anti-piracy laws being bandied about last year I remember had some sort of stipulation that just streaming it would be a felony. And we're not even talking about just UFC. Anything somebody could make a copyright claim on.
 

Neon

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That's what I was thinking. One of the internet anti-piracy laws being bandied about last year I remember had some sort of stipulation that just streaming it would be a felony. And we're not even talking about just UFC. Anything somebody could make a copyright claim on.
Yup. This could end up being an oft cited case. Remember the name - New York v. Kent.
 

Evilton

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So, I went to 4chan...
 

Hate & Discontent

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Aug 22, 2005
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Good call by the court, actually. It starts the slippery slope, and goes hand-in-hand with shit like SOPA/ACTA. Not cool.
 

Voodoo Ben

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dang, Micheal Jackson just missed it.