Wednesday, May 09, 2012

Court ruling means that viewing child porn on the Internet is now legal

Viewing child porn on the Internet has been ruled perfectly legal, at least in New York State, in another example of how legislation and the law has failed to keep up with technology.
The Tuesday ruling came in the case of James D. Kent, an assistant professor of public administration at Marist College in Poughkeepsie, N.Y. In the case, the New York Court of Appeals ruled that viewing child pornography online isn't a crime, because accessing and viewing something on the Internet is not the the same as possessing it.

Kent's work computer was found to have stored more than a hundred illegal images in its Internet browser cache. At his sentencing, Kent - how was sentenced to one to three years in August of 2009 - said that he "abhorred" child pornography and claimed that someone else at Marist must have placed the images on his computer.

The New York Court of Appeals 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 Kent was convicted. The court, however, upheld the other counts against Kent.

The six judge panel ruled 4-2. Senior Judge Carmen Beauchamp Ciparick, writing for the majority, said "Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law.

"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 (state law) to conduct - viewing - that our Legislature has not deemed criminal."

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Essentially, it is all right to view child porn on the Internet, because you are not in possession of the images. The fact that your browser stores a cache of images, and that the images are in that cache, does not constitute procurement and therefore does not constitute actual possession of the images.

If, however, one were to take the images out of the browser cache or otherwise download them, that would be possession and punishable by law.

The technical details of the case revolve around images in the cache of Kent's Web browser, which were the basis of the two counts that were dismissed by the court. These and other materials were discovered during a virus scan that Kent requested because his computer had been running slowly.

In order for Kent to be in "possession" of the images in the cache, the court said that "the defendant's conduct must exceed mere viewing," Ciparick wrote. In addition, the court added "the mere existence of an image automatically stored in a cache" isn't enough and, since not everyone is a techie and thus is not necessarily aware of the existence of a browser cache, "a defendant cannot knowingly acquire or possess that which he or she does not know exists."

Kent remains convicted on other counts. Those counts depended on other evidence, including a folder on his machine that had about 13,000 saved images of girls; investigators estimated the girls to be approximately 8 or 9 years old. There were also four messages to an unidentified third party discussing a "research project" into the regulation of child pornography.

One of the messages said, "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," which apparently did not happen.

Regarding Kent's claim that the images were planted, it's possible, if not probable. In the U.K., a school handyman, Neil Weiner, was found to have planted numerous child porn images on the computer of his boss, Eddie Thompson, in an attempt to get him fired.

While charges were not filed against Thompson, he and his wife were harassed because of the publicity over the event. Eventually, though, Weiner was exposed and jailed.

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