NY Ruling Distinguishes Downloading, Viewing Child Pornography 370
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! "
Sudden outbreak of common sense, I guess (Score:5, Interesting)
I've seen other people personal information just because it "appeared" on my screen (looking for a file but downloaded something else, etc) and getting in trouble just because I saw it on my monitor seems rather unfair...
Affirmative act... (Score:5, Interesting)
That's the key phrase. Stumbling upon it is not sufficient, but taking action to save those images is. While I didn't see this point addressed, continuing to view other images on that site, or logging into a site and viewing a significant amount of CP images could be interpreted as an affirmative, so I wouldn't say this is strictly limited to "downloading" or possession. This simply makes it clear that incidental access is not make one a violator. Sounds like a very sane ruling in an area that often goes overboard "for the children".
Re:Sudden outbreak of common sense, I guess (Score:5, Interesting)
I was thinking the same thing, though usually most folks know up-front that if you didn't actively seek and intentionally download it, you're not to blame.
I remember having to explain similar arguments a long time ago - not about CP, but about porn in general. A student had mis-typed a link in class, and suddenly got bombarded with pr0n - back in the days when pop-ups were all the rage. I merely turned off the monitor and killed power to the machine, then explained what can happen in such cases, but a young lady complained about the student to the school superintendent nonetheless.
They were ready to lynch the kid over it, and it took three hours to explain to these bureaucrats how such things can be accidental. I finally heaved a sigh, and told them to turn on a machine and "go to the White House's website at whitehouse dot com". They expected to find the President, but as you may have guessed, found the expected pr0n - this was before the meme became popular knowledge. Enough of the administrators got clued in by then to keep the kid from getting slammed.
So yeah... sometimes shit happens, and I can see it happening in a bad way for some slob who stumbles over the keyboard the wrong way. That's why I'm glad someone in the legal system is finally showing some sense.
Someone who systematically stores a shitload of CP on his hard drive and has a demonstrable history of actively seeking the shit out both on and offline? Nail 'em to the wall. Someone that accidentally stumbles into the wrong website on the other hand should never see the inside of a courtroom.
Re:IOW: Pedobears have a loophole (Score:4, Interesting)
The problem is the zero tolerance policy of prosecution and the general lack of understanding of the technology among law enforcement. You are no doubt correct, but making those sorts of distinctions is harder than it seems when the laws say "possession is possession". If a browser cache is defined as "possession", then it's much harder to avoid prosecution of innocents. Also I have limited experience with the sort of malware that others have commented on, but I wouldn't be surprised if something like that could populate your cache pretty fast (of course it should also leave its own signature, but again law enforcement isn't always expert in these matters). Frankly I think that a real "pedobear" would probably have at least some "favorite" stuff saved somewhere other than their browser cache; so this probably won't really hurt legitimate prosecutions much, but might help a few innocents.
Re:Sudden outbreak of common sense, I guess (Score:5, Interesting)
It's possible that the free distribution of existing child porn over the internet is probably the best thing that could happen (short of a cure) re: the problem of pedophilia. With its ease of accessibility, supply becomes high, resulting in, one would guess, a reduced chance for someone afflicted with pedophilia to use actual children to satisfy his desires, much in the same way that "normal" internet porn may reduce the occurrence of rape [stanford.edu].
What pedophiles need is help, especially when evidence proves that some pedophilic urges are caused by physical problems and can be cured by surgery [ama-assn.org]. (I'm not saying all pedophilia has physical causes; it seems obvious that much of it is caused by psychological problems during adolescent development)
Re:Sudden outbreak of common sense, I guess (Score:4, Interesting)
The fact that the USA is willing to put people in jail for viewing comics from other countries containing minors is beyond my comprehension. There was a case in Australia too, involving a Simpsons character or two ... its crazy. I'm against killing people, and think eating brains is disgusting, but I love a good zombie movie. Why is artistic depiction with no harm wrong exactly? For some logical reason that isn't a puritanical rant that is ...