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The Internet Politics

NY Ruling Distinguishes Downloading, Viewing Child Pornography 370

Posted by timothy
from the now-how-will-we-blackmail-people? dept.
bs0d3 writes "According to a recent ruling in New York state, from Senior Judge Carmen Beauchamp Ciparick, '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.' Which means under New York state law, creating, and possessing child pornography is illegal; the lawmakers never specifically said that merely viewing it is a crime. The prosecution mentioned that the images were saved on his hard drive via the browser cache. However the court ruled that this was not the same as having a saved image. This means that people from New York state who click the wrong link by accident will no longer face serious jail time and a lifetime of registering as a sex offender. People will be able to report what they've found to the police who can then go after the source of the child porn, instead of someone who was merely browsing the internet."
An MSNBC article summarizes the case, and offers this pithy summary: "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."

Of the defendant in the case which sparked the ruling, though, reader concertina226 asks "Errr... just because he didn't download the pictures, how does this make it okay? He's still accessing child porn! "
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NY Ruling Distinguishes Downloading, Viewing Child Pornography

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  • Re:Downloading? (Score:5, Informative)

    by V-similitude (2186590) on Thursday May 10, 2012 @08:42AM (#39953357)
    Did you even read the summary?

    The prosecution mentioned that the images were saved on his hard drive via the browser cache. However the court ruled that this was not the same as having a saved image.

    The court asserted that there must be some deliberate action to save/store said images, not just a transitory download via a browser.

  • by Shoten (260439) on Thursday May 10, 2012 @09:00AM (#39953623)

    I've been involved in situations where people accidentally got exposed to child porn (or any other kind) because of popups from malware, and situations where they deliberately went out to find it. Trust me; the two sets of behavior, from a computer forensics perspective, look NOTHING alike. A pedobear's cache will be filled with the stuff, while the innocent bystander will have relatively few of them. I thought the same thing you did, once, but was actually shocked to see how incredibly different the two behaviors look.

  • by CowTipperGore (1081903) on Thursday May 10, 2012 @09:02AM (#39953653)

    "Errr... just because he didn't download the pictures, how does this make it okay? He's still accessing child porn! "

    The bulk of the charges against him were confirmed and he'll still suffer heavy punishment. However, two counts were overturned because the law requires you to knowingly posses or obtain images and these two charges relied on data from his browser's web cache. The prosecution failed to prove that he was aware of the cache and how it works, so he couldn't have knowingly obtained or possessed those images. The law does not make it illegal to simply look at the images, whether on a billboard, a neighbor's back porch, or a web site. The judges agreed that child pornography is an abomination, but the majority said it was up to the Legislature to declare merely viewing to be a crime.

    However the court ruled that this was not the same as having a saved image. This means that people from New York state who click the wrong link by accident will no longer face serious jail time and a lifetime of registering as a sex offender. People will be able to report what they've found to the police who can then go after the source of the child porn, instead of someone who was merely browsing the internet."

    The court ruled that the the defendant must knowingly posses or obtain the images. This ruling helps you (directly, at least) only If you know nothing about browsing caching.

  • by CowTipperGore (1081903) on Thursday May 10, 2012 @09:27AM (#39953969)

    This decision is in the state of NY and based upon their state law, which apparently requires possession. The federal law is a bit different however. 18 USC 2252A (a)(5)(B) criminalizes someone who "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...". So, under federal law, access with intent to view doesn't require possession, but it does require knowledge and intent. The federal law also provides for an affirmative defense for this section if you possessed less than three images and immediately destroyed them.

  • by V-similitude (2186590) on Thursday May 10, 2012 @11:55AM (#39956331)
    Most (all?) private modes don't actually turn off the cache (that's usually rather impractical), they just clear it out when you're done with the session. However, that means the files did exist on your computer at some point, and could theoretically be found with an undelete program. I don't know of any browsers that run purely in RAM, but probably one exists somewhere (or would be interesting to create).
  • by s73v3r (963317) <.moc.liamg. .ta. .r3v37s.> on Thursday May 10, 2012 @12:20PM (#39956757)

    what makes prefering same sex pairings more 'normal' than someone who prefers children?

    I guess it's that most same sex pairings are between consenting adults, whereas children often are not able to give consent for such things.

Your own mileage may vary.

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