Viewing Files on the Web Considered Possession?

Packet Pusher writes "A Georgia lawyer is taking a case to appeals court to prove that the mere act of viewing a website does not constitute possession of the materials that were automatically cached on your hard drive." While the case in question involves pornographic photos, the implications of such a declaration could reach far further.

Comments

Holely Cheese

[fembots]

What if someone "Save As" illegal images into "Temporary Internet files" folder?

I thought if someone knowingly viewed some illegal images, he should at least have the commonsense of clearing the cache!

Re:Holely Cheese

[timothv]

I thought if someone knowingly viewed some illegal images, he should at least have the commonsense of clearing the cache!

This technical know-how shouldn't be required to stay clear of law enforcement.

Re:Holely Cheese

[aussie_a]

This technical know-how shouldn't be required to stay clear of law enforcement.

Luckily it isn't. Not breaking the law is required to stay clear of it (NOTE: parent was talking about people KNOWINGLY looking at illegal images. I see knowing how to clear the cache akin to knowing how to clean blood from the floor so it leaves no marks).

Re:Holely Cheese

[Sancho]

Generally, if something you own or that is under your control causes something that results in some form of law-breaking and/or civil problems, you are considered accountable. If your car breaks go out and you hit someone, you're almost certainly going to be considered at fault. Same thing goes for animals under your control, and any number of other examples. In general, you are expected to be knowledgeable enough to control/maintain your possessions, or hire someone who can do so for you. Why should computers be any different?

Furthermore, there's hell raised on Slashdot about how "people should have a license to use their computer" when threads about Microsoft insecurity causing worms to run rampant and cause networking problems...people often rally a call to hold anyone who cannot maintain/patch/protect their machine accountable. Then we come to a thread like this, and you see a number of posts suggesting that it's not their fault if they don't know how to do something on their computer.

Please! At least the precedence of the law is on our side for holding people accountable for their possessions.

Re:Holely Cheese

[Fallen_Knight]

there is a diffrence with computers, where most poeple dont' understand how they work at all and can only do basic things. Most people understnad cars need to be kept up, and take them to mechanics to keep them safe. But computers are not like that. they could be spyware ridden and still work. And as long as the computer works no ones life is in dager and they are not going to pay.

this is important, because you dont' always know wtf a link points to before you click on it. And if you computer chaches a copy of something you where mislead to into viewing, should you be at fault? no.

and then theres that multiple people use any given computer. and that theres no way to prove who looked at or saved what.

There are many reasons why computer should be diffrent. existing laws do not take into account computers at all and many need to be changed.

it is not the end users fault for haveing spyware, i think most people blame MS, and the spyware companies (another palce where new laws need to be taken written)

So PLEASE, take note that computers DO require diffrent laws bceause they are TOTALY diffrent from anything else.

Re:Holely Cheese

[Acts of Attrition]

Don't worry.
All the guys I know whose girlfriends/wives also use the computer know EXACTLY what the cache is and how to clear it.

Re:Holely Cheese

[yRabbit]

It could also be potentially possible to get illegal images, etc. without even knowing it.
Something along the lines of .. img src="illegal.png" width=1 height=1
Or, I bet "fun" things could be done with a java applet, make all kinds of files get downloaded. :\

Re:Holely Cheese

[jp10558]

Oh, I agree you should know how to maintain your computer.

At first glance, this looks like a Heck ya. However, it brings up an interesting point - were the people watching the superbowl's "wardrobe malfunction" in possession of a nipple picture?

I think the issue is that you can end up places you don't expect to be on the net. Especially if using IE. Now, 400+ pics in temp internet files... that's a lot IMHO. It's suspicious.

I can't see a non techie claiming I'm currently "in possession" of this slashdot page in any meaningful way. I'm viewing it, but there's no exposed way for me to go back to it unless I actively save the content.

Also, if I'm in possession of everything I see on the internet, isn't that a big copyright violation?

I don't think you could reasonably claim files that your browser caches, without your input, as files you have possession of. They are like claiming a TV broadcast is in your possession. Now, I can see using them, in a case like this, to prove/prosecute for *viewing child porn*, but not being in possession of it.

Re:Holely Cheese

[Frodrick]

At least the precedence of the law is on our side for holding people accountable for their possessions.

Quite so. And I agree - NO ONE accidently looks at 150 kiddy porn images in one night. But the question being raised is whether or not the images in question can truly be said to be under his control as defined by law. He didn't attempt to store the images for his later use.

The only reason they were still on his machine was that he was too clueless to clear the cache - a trait that he shares in common with 90 percent of computer users.

I would hate to see this guy get off entirely, but if there is another - lesser - penalty for viewing/seeking out kiddy porn (but not keeping it), then it is possible that that is the more appropriate penalty.

Consider: A Hypothetical "Fred SundaySchoolTeacher" receives a dozen unsolicited emails to his yahoo account. He opens each email in turn to discover - to his disgust - that each one contains an image of a naked child engaged in sexual activity. He has been spammed by KiddyPornRUs.com who got his email address off of a church website.

Fred promptly deletes the emails and blocks the sender's email address. But that is not enough. That night his machine is mirrored by the Homeland Security Gestapo in Patriot Act Sneak-and-Peak acting on reports that he is a religious fanatic and possibly a terrorist. They don't find any evidence of terrorism, but in the course of their investigations they discover 12 Kiddy porn pics in his cache. They turn these over to state law enforcement authorities for further action.

Under the present interpretation of the law, Fred is in the pokey for 20 years.

But it ain't justice.

Re:Holely Cheese

[Anonymous Coward]

that's why I do all my browser caching on a usb2 flash drive when I'm looking at illicit internet pictures that I don't want my girlfriend to know I'm looking at.

Or at least I would. If I had a girlfriend, and wanted to look at illicit internet pictures and didn't want her to know it.

Re:Holely Cheese

[yuri benjamin]

Here's a possible solution:

rm -rf ~/.mozilla/{randomstring}/Cache
rm -rf ~/.mozilla/{randomstring}/history.dat
rm -rf ~/.mozilla/{randomstring}/cookies.txt
dd if=/dev/urandom of=bigfile #this will create a file filling all empty space

Wait for Device Full error.

rm bigfile

Repeat the last two commands. Might want to script it for a few hundred repetitions.

Theoretically it is still possible to recover the undelying data that was over-written. In practice it is very expensive and not 100% guaranteed.

Re:Holely Cheese

[syousef]

Generally, if something you own or that is under your control causes something that results in some form of law-breaking and/or civil problems, you are considered accountable. If your car breaks go out and you hit someone, you're almost certainly going to be considered at fault.

You're talking rubbish. If the car brakes go out after 2 years of not servicing the car, yes you're likely to wind up being found negligent. But if you were doing everything right and had it serviced days or weeks beforehand and the mechanic made a mistake the mechanic would be charged, not you.

Furthermore, there's hell raised on Slashdot about how "people should have a license to use their computer"

A few loud zealots do not "hell raised" make.

Then we come to a thread like this, and you see a number of posts suggesting that it's not their fault if they don't know how to do something on their computer. /. is a varied community where individuals hold different points of view. It is a not an unforgivable authoritarian police state that will charge you first and ask questions later.

I hate child exploitation. I have no problems with putting people who make the rubbish in jail. But viewing a web site - any web site - should not result in jail time. Not if you value your freedom!

Re:Holely Cheese

[RedWizzard]

If your car breaks go out and you hit someone, you're almost certainly going to be considered at fault.

Actually unless you're found negligent it is unlikely that you would be found to be at fault. It's even more unlikey that criminal charges would result (let alone a conviction). Your analogy doesn't support your argument.

Here's an analogy of my own: say you write to a company requesting a mail order catalog and they send you some illegal donkey porn instead. The police (for some reason) search your mailbox and find it. Should you be criminally charged? How about if you do see the donkey porn, but throw it away and they find it in your rubbish? I say 'no' in both cases, and I say 'no' in the case of the browser cache.

Re:Holely Cheese

[Qzukk]

Actually, if you tried to do that, you'd probably get the drive to hit at least one sector that wasn't quite right, and it would begin remapping sectors. Once it starts remapping blocks on the drive, you've got no way of knowing that you've overwritten everything, since the naughty bits might end up mapped out of the visible part of the drive by the drive's firmware.

Re:Holely Cheese

[koreaman]

If you want a more secure and efficient method, take a look at Peter Gutmann's work.

Actually, I'll save you a trip to google, just because I'm that nice.

http://www.cs.auckland.ac.nz/~pgut001/pubs/secure_ del.html

Re:Holely Cheese

[EvilSporkMan]

You can't shred a file if it's on, say, ReiserFS because the filesystem doesn't overwrite data in place. shred's manpage actually reveals that shredding just plain doesn't work nowadays, as it doesn't work on journalled filesystems. You would have to boot a live CD and run shred on the block device to be sure.

Re:Holely Cheese

[Kesh]

IANAL, but... the question is, could Officer Friendly have found the crack lab during the course of his search for the jewelry?

Typically, items may be seized as evidence if they are "in plain sight." Warrants follow a similar rule: if, during the search of the items in the warrant you discover something, it can be entered into evidence on its own charges.

That means if your warrant only allows you to search the garage, you can't go into the basement and "discover" the crack lab.*

In which case, if the warrant to search a computer includes the entire computer, then the cache is up for grabs. If it only specifies your email, the rest of the file system is technically off limits. This is why law enforcement usually just gets blanket permission to search the whole computer.

* Most states allow for the entry of evidence gathered during the course of securing a criminal or saving an individual from harm. Thus, if Officer Friendly goes to search the garage and someone runs into the basement, he can pursue them. If he spots the crack lab during the course of apprehending the suspect, in plain sight, it can be used against them.

Re:Holely Cheese

[Anonymous Coward]

You could just write a small program that moves the mouse randomly for you.

Re:Holely Cheese

[exKingZog]

Nah, my girlfriend loves pr0n as much as I do :p

Re:Holely Cheese

[cortana]

mount -t tempfs none ~/.mozilla

Put this at the beginning of your Mozilla launch script

mountpoint ~/.mozilla || { echo 'Mozilla profile directory not a tempfs'; exit 1; }

Re:Holely Cheese

[MoralHazard]

Theoretically it is still possible to recover the undelying data that was over-written. In practice it is very expensive and not 100% guaranteed.

This should read "In common IT myths, it is still possible to recover the underlying data that was over-written. In reality, it's not possible at all." Take it from someone who spent several years working in data forensics and repeatedly dealt with statements from bosses/clients along the lines of "Well, I read on the Internet that you can recover overwritten data with a [STM|MFM|whatever], and that teh NSA and CIA know how to do it."

It's bullshit. Trust me, it's bullshit. Peter Gutmann (teaches down in NZ) wrote a paper for USENIX '96 that references a couple of laboratory-grade techniques that might have worked on hard drives manufactured before 1996. THIS IS WHERE EVERYBODY GOT THE MYTH FROM. What nobody realizes is that Gutmann published an updated version of that paper in which he retracts virtually all his conclusions about recovering data on hard drives because IT'S NOT POSSIBLE ANYMORE.

Not to mention the fact that there have been a couple of incidents where large companies have spent multi-millions trying to make such a process work, and came away entirely empty-handed.

It's bullshit. On a modern hard drive, if you overwrite your data once, you're secure. Maybe if you're dealing with some ancient disks you have stuff to worry about, but that's it.

Re:Holely Cheese

[rleibman]

Right, and we are supposed to believe you. For all we know you are part of "them" and want us to think that the data cannot be recovered when in reality you've poisoned all drives so that they are twice the size we think they are and keep everything backed up for you to see.
Ok, now I'll go back to listening to Art Bell.

20 years over 4 hours?

[Synbiosis]

"He said most of the pictures were viewed between midnight on Dec. 2 and 4 a.m. on Dec. 3 in 2003."

I think it's absurd that someone could face 20 hours in prison for viewing illegal pictures for 4 hours. But that's just me.

Re:20 years over 4 hours?

[fembots]

Most murders killed their victims within 2 minutes.

Re:20 years over 4 hours?

[Jason1729]

But their victim is dead forever.

Re:20 years over 4 hours?

[RickPartin]

There are two things to consider

1. By viewing the images of exploited children you are creating a demand. Higher demand means more kids life's are ruined to create more pictures.

2. Punishments generally reflect how hard it is to catch a crime, not how much damage it causes. This is why you can go to prison for 209320938 years just for copying a movie for your friend.

Re:20 years over 4 hours?

[pHatidic]

1. By viewing the images of exploited children you are creating a demand. Higher demand means more kids life's are ruined to create more pictures.

Except that this doesn't apply in a post scarcity economy. If you buy apples, then you create demand for more apples. But by your logic then if you download music from a p2p site then you are creating demand for more music and thus more music will be created. However, in reality it is very hard to determine if this is the case, and if anything the opposite seems more likely to be true. But in any event, this many didn't 'use up' any of the pictures so by downloading them there aren't any less pictures for others to download, so no new ones need to be created.

Re:20 years over 4 hours?

[dr_dank]

By viewing the images of exploited children you are creating a demand. Higher demand means more kids life's are ruined to create more pictures.

I just flipped through a Crutchfield catalog. Did that do anything for the demand for car radios?

Seems like terrorism and child pornography are hot button issues that require logic be checked at the door at all times.

Re:20 years over 4 hours?

[adoarns]

Punishments generally reflect how hard it is to catch a crime, not how much damage it causes.

But is this justice?

Re:20 years over 4 hours?

[alan_dershowitz]

Come one, that's obviously wrong. By that logic, a popular web site would never have to update it's content because the current content never gets "used up." That's demonstrably false.

You have a finite amount of content on a site, and a finite number of visitors. Even if the content isn't "used up" for real, the consumption of the same content by a visitor has a diminishing return, and the visitor demands new content or they leave. You can run a site without adding content as long as you have a steady flow of new users, but it's not sustainable. If you want people to come back, you add new content.

Either the perv is paying for the site, and if there's no new content he stops paying, or if it's a free site, the advertizer stops paying. Either way, the site owner needs to find some way for people to keep paying, and that way is by adding new content, which in this case is pictures of children being molested.

Re:20 years over 4 hours?

[Anonymous Coward]

Excuse me, but I do not think you have any idea just how much child pornography is out there. I worked with the Red Cross for a short while, tracking these sites down so they could be nullrouted.

A single site can contain more child pornography than a pedophile human could ever hope to wank to without his/her penis/clit falling off.

You don't need to add more content.

Besides, P2P eliminates the need for someone to pay in order to obtain it, so the point isn't entirely valid. I agree that it's a very fine line to walk between just viewing (fine by me; don't see what's worse with this than watching Checznians cutting some poor bastard's throat), and actually contributing to the production (raising demand, causing profit), but the line is still there, IMHO.

Re:20 years over 4 hours?

[anthony_dipierro]

By viewing the images of exploited children you are creating a demand.

So when I watch the 6 O'Clock news I'm creating a demand for war, arson, murder, and genocide?

No, you're only creating a demand if you're paying for the item.

Time to move those mp3's

[winkydink]

to Temporary Internet Files :)

A good example

[Telastyn]

Of why -acts- should be crimes, not simply states or possession.

Re:A good example

[pHatidic]

I agree completely. If I have pictures of airplanes on my computer, it isn't the equivalent of hijacking an airplane and flying it into the world trade centers. If I have pictures of my front lawn, that isn't the same as making a fertilizer bomb and blowing up the federal building. But for some reason having pictures of naked kids means that you are going to commit child rape. Granted, I think kiddy porn is disgusting myself, but 20 years in prison seems a bit excessive. People who rape actual kids get less than that.

Re:A good example

[jd]

States can be crimes? Can we criminalize Florida, pleazzzzze? :)

Re:A good example

[Anonymous Coward]

But for some reason having pictures of naked kids means that you are going to commit child rape

I think you misunderstand. Possesion of child pornography isn't illegal because the law assumes that this person would the next day be going out to commit child abuse. It is illegal because it creates demand for the pictures which then encourages the original creator or others to abuse children to create the photos.

Re:A good example

[mangu]

You state that there is no child porn on the Internet? Well, I personally know a Police officer who is in cybercrimes that would beable to disprove that quite easily.

Perhaps. But certainly not by following the 1.040.000 links that Google finds in 0.21 seconds for "lolitas young pre-teen nude sex".

The fact is that true child pornography is *extremely* rare anywhere, both in the internet and the physical world. Children just aren't sexy. They don't have the bodies for being sexy. People who find children sexy are less common than people who get sexually excited by pieces of furniture. Child abuse is about power, not sex. People who spank children must be about a million times more common than people who have sex with children. The police should go after the spankers, not the wankers.

If it weren't for so many people who keep hammering this "child pr0n" meme, the whole idea of child pornography would disappear entirely from the world outside some very few specialized psychiatric clinics.

Re:A good example

[Mycroft_VIII]

How on earth can you equate spanking (NOT beating, spanking) with torture.
Next you'll equate saying 'no' to a childs demands with emotional cruelty and sending them to thier room with locking them in a 1m x 1m tin shed in some tropical third world prison camp.

Mycroft

Spyware?

[eggman9713]

What about malicious web sites or programs that secretly install said content on your computer? Porn Dialers?

Re:Same old story

[MillionthMonkey]

They're going to try the "my friend put the crack in my glove compartment" line.

This would be more like the cop finding rocks of crack stuck in the treads of your tires.

Not this again...

[nightcrawler.36]

This is going to get nasty. At some point--not in my lifetime. We won't have to deal with privacy issues or idiot lawyers trying to make a fast buck. Ambulance chasers--I tell ya...

Accedents

[a_greer2005]

What about accedents? I remember not so long ago typing .com instead of .gov would have nasty consequences, I understand and totaly support prosecuting (and then promptly castrating) child porn perveiors and those with large "collections" but should clicking the wrong link in Google or entering the wrong domain on accedent, which could result in massive ammounts of other sites launching, spy/ad/porn/shitware installing and so on be criminal?

I agree with the lawyer in so far as the cache should not be considered property.

Re:Accedents

[fourtyfive]

Obviously 4 hours _isnt_ an accident, so your point is moot. I didnt read the article (this is slashdot!) but if all he's getting is 20 hours of prison time, thats a joke. This person needs intensive therapy (10-15 hours per week). Sexual predators have a mental illness that disconnects them with the emotionality of sex and focuses them intensly on the sexuality. I'm tired of seeing sex offenders (so called "perverts") being stuck in prison and then released back into society. These people do not need prison time, they arent criminals (except by law), they are persons with _mental disabilities_! And as such they need counseling to assist them in seeing why they're wrong instead of just sending them to prison.

Re:Accedents

[Jeff DeMaagd]

I'm tired of seeing sex offenders (so called "perverts") being stuck in prison and then released back into society. These people do not need prison time, they arent criminals (except by law), they are persons with _mental disabilities_! And as such they need counseling to assist them in seeing why they're wrong instead of just sending them to prison.

It depends. If they violated another person, they need both prison and counseling. Looking at a web page is another matter though.

Re:Same old story

[Hays]

Umm... it does work if your friend put crack in your glove department. Sure the burden of proof might be on you at that point, but that IS a valid excuse.

Anyway, that's a bad analogy.

The key question here is- does the fact that someone has browser caching on instead of off make something drastically more illegal.

Re:Sophistry at its finest...

[Synbiosis]

"Sorry, but you can't very well look at the pics without downloading them...the file is just in your cache instead of a location you specify. As for not printing a hard copy, I fail to see how that is at all relevant."

The issue is that he's being charged with *posession*. Technically he's in violation, but if that argument can hold water in court, then anyone who views copyrighted images online using a cached browser can be charged with unauthorized copying of copyrighted images.

How to go to jail

[jarich]

Step one, install Mozilla and turn on the background prefetching.

Step two, go to Google and search on something

Step three, Mozilla will immediately start fetching the pages in the background and storing them on your machine.

Step four, get arrested for having every link on the results page cached on your machine. Even the crazy pornographic (and illegal) pages that you didn't click.

Re:How to go to jail

[aussie_a]

Step one: Buy some kiddy porn

Step two: Find out when someone's house is about to be searched.

Step three: Place said kiddy porn in their house.

Would the person then be charged? I don't think so (assuming the cops learn that the person didn't deliberately obtain the porn). Should be the same case with the internet.

If I have a page I've viewed that is obviously for porn (either accidental click or the google thing) and I don't click on any other links, it's fairly easy to prove I didn't deliberately view the porn (and stopped viewing when I realised what it was). But if I proceeded to click on numerous links after finding out, then it's easy to prove I knowingly looked at it.

Re:How to go to jail

[Anonymous Coward]

Why should surfing any kind of porn be illegal?

Not trolling -- but seriously, just LOOKING at certain PICTURES is now widely considered to be a crime?

Yeah, keep chanting that "land of the free" bullshit till the lynch mob comes for you. Mob rule isn't freedom.

Re:How to go to jail

[mabinogi]

I know that was a joke, but destructive actions should never be the result of a GET request anyway - for exactly that sort of reason.
GET should just get a page, and should be (relatively) repeatable. Modification should only happen on a POST.

Re:How to go to jail

[hacker]

"Step one, install Mozilla and turn on the background prefetching."

As I'm sure you've been told already, prefetching DOES NOT fetch hrefs, it fetches

<link ../>

tags, when specified. I'd wager that less than 5% of all web designers are actively using these.

Re:Sophistry at its finest...

[jrm228]

Someone could easily post an illegal picture as a 1-1 pixel image in a post on a site like this and it'd be in your cache. Are you sure you want to completely dismiss that defense?

Hopefully not possesion

[dj245]

Visitors to Shrubbery Porn may be in for a rude awakening when their bosses fire them for possesion of shrubbery porn on company computers.

People click links

[Jason1729]

Just look how "popular" tubgirl and goatse are. I doubt many of the people with those images in their possession on their hard drives viewed them on purpose.

I have a link in my sig. If there are illegal images there, should the people who follow the link be subject to prosecution?

Victimless Crimes, in General

[NetSettler]

This all begs the question of why viewing anything should ever be illegal. Who is the victim here?

Sure, if someone creates porn from actual people, unwilling to or unable to consent, that's something the creator has done. And maybe if someone has paid to fund that, there's an issue. If this guy has paid, they should go on the money. If he's not, I don't see how they have any good cause even though they may have a case.

When you start to admit victimless crimes, the whole algebra of causality is turned on its head and lots of strange things result, not the least of which is this case.

Re:Victimless Crimes, in General

[redelm]

Not quite, because free samples are given out by the image owner, while P2P happens contrary to the content owner's will. But it may still increase legit sales even if the content owner is too stupid to recognize free and effective marketing.

Re:Victimless Crimes, in General

[Duke Machesne]

The U.S. economy would collapse if all victimless activities (otherwise known as freedoms) were made legal.

http://www.prisonactivist.org/crisis/evans-goldber g.html

Re:Victimless Crimes, in General

[SuperDuG]

Welcome to the world of paternalism and Mill's Theory of Utility. I'd give a nutshell, but knowing what I know of Mill's a nutshell would do no one any favors. For those interested ... start here...

Needless to say this poses the question of "Harm" and how we as a society can protect ourselves from harm. The slippery slope that is the enforcement of morality.

Where can you make sure that any law can be passed? Do it for the protection of the innocent and impressionable children. Illinois just recently PASSED a law that will ban the sale of violent video games to minors. Obscenity laws can be found on the federal to township levels.

Does any of this make sense? Do drug laws, obscenity laws, prostitution laws, marriage laws, sex laws, liquor laws, or a slew of other laws make sense? If you ask Mill's or a number of libertarians, no. The only laws that make sense are those that protect against harm. Physical harm can be easily identified, it's the mental harm that people get so cloudy on.

If I do drugs am I harming anyone (assume that in this case that drug making, transportation, and selling is legal)? Am I harming anyone when a willing partner is ready to sell their sexual services and I take them up of the offer (assume that in this case protection is used ... etc)?

Don't get me wrong, I'm agreeing with you and not assuming you don't know about Utility, just trying to expand on your claim a little further.

Consider newsbots also.

[synthespian]

Consider newsbots...a user downloads massive quantities of material with a software. He doesn't know what he downloaded until he looks/hears it, because the whole point of newsbots is automation.

And, I haven't read the case the case, but what is the user supposed to do about cache/swap/temporary folder?

Mens Rea -- criminal intent

[redelm]

This goes to an underconsidered area of the law -- establishing intent. For many laws, the forbidden act alone (actus reus) is not enough to convict. Proving a guilty intent (mens rea) is also necessary. However, some offenses do not require mens rea.

In this case, if possession of kiddie pr0n requires mens rea, then the lawyer has a good argument. Most lusers do not know that the browser has caches and so did not know they possessed the offending material. The /. '1337 couldn't get off that easily :)

The prosecution can easily prove they viewed pr0n, but that may not be illegal. To posess something requires an act of knowingly taking possession. IANAL.

This is serious.

[pedantic bore]

If you RTFA you'll see that this is a very serious question with broad implications. Many laws are written in terms of possession, and there isn't a good definition of possession that works for things like browser caches.

Whether what this guy did is morally or ethically wrong is a different issue than whether what he did is illegal. If you have kiddie porn in your browser cache, do you possess it? What if someone mails you some raunchy spam and your mail client caches a copy on your disk -- do you possess it? In either case, planting evidence that could get someone serious jail time suddenly becomes trivial! I could put a link to an obscene photo on my home page and with a small amount of effort make it invisible to you but trick your browser into downloading (and possibly caching) it. Or I could wait until the Google crawler comes by, and then extort a little cash out of Google because now I can show that they possess this photo, etc. (The links don't point to my site; there's no evidence that I've ever possessed the photo.)

This is far from simple.

Re:This is serious.

[pedantic bore]

It's not about "viewing", it's about possession.

Imagine that someone has a pile of kiddie porn in their house. There's no way to prove that they have ever looked at it. The thing that's provable is whether it's physically in their house.

Look at the laws: people are charged with possession of kiddie porn, not looking at it; possession of controlled substances, not getting high, etc. That's why the definitions are so important here: if someone can effectively place illegal images or documents in your "possession" without any cooperation from you, then these laws are meaningless.

Can't Tell

[nmb3000]

This is a pretty tough one. I won't be able to decide until I see the evidence.

A flurry of frame-ups?

[heretic108]

How to frame up someone you don't like:

1. Set up a political blog intended for your political opponents to read.
2. Host it overseas under a false name, and be sure to use Tor when uploading stuff onto it
3. Populate it with political material, designed for repeat visits
4. Replace all full-stop characters on the page with img tags for child pr0n, sized to 1x1
5. A few days later, change the IMG tags back to full stops
6. A few days after that, rework the entire site to make it look like a typical pr0n site
7. Send emails to law enforcement agencies reporting the IP addresses of the visitors, and complaining that these people used false credit card info when accessing a legitimate adult site
8. Get a carton of beer, and gather round CNN, ABC, or Fox etc with a few friends and wait for the scandal to break

Re:A flurry of frame-ups?

[mccoma]

I think we need the "+1 Evil" moderation

Re:A flurry of frame-ups?

[Bill Walker]

I'm not a lawyer either but in the US, entrapment is something only policemen can be guilty of.

Re:A flurry of frame-ups?

[F�an�ro]

If the 1x1 pixels are changed back to dots, and the victim visits the page again, the new version will replace the old version in the cache, but the images stay.
You could even make it so that the 1x1 pixels are only included for the first access from the same IP. Then make the page reload itself.

better yet, use a javascript that silently submits a form in a hidden iframe. The target of that form is a page with the discriminating images. results of POST requests are not cached.

Isn't possession something you take?

[WolfWithoutAClause]

I mean, as an example, if I stuff drugs into your hand on the street- are you possessing? I would say not, you're only holding it. On the other hand if you look at it, and carefully put it into your pocket, then you possess it; or if you just paid for it, holding it in your hand is enough to possess it. I would argue that holding it in the cache is like holding it in your hand.

If it's something you take, then accidentally seeing something on the web doesn't imply possession.

On the other hand, deliberately seeing something means that you are clearly taking it to your computer.

It's a subtle difference, but it seems to me important here.

Here, particularly, it seems to me that he took possession of many files, he was clearly deliberately possessing them.

Now I'm worried

[mangu]

I think it's absurd that someone could face 20 hours in prison for viewing illegal pictures for 4 hours

You think that's "viewing"? FTA: A federal agent said Barton's computer contained more than 450 pornographic images

From my computer:

$ find graphics/xxx/ -name '*.jpg' | wc -l

25584

Now, That's what I call "viewing"!

View rate?

[redelm]

One small tidbit -- the article mentions that the accused viewed 450 images in 4 hours. That's a lot of hard surfing even for broadband 30sec/ea. Were these thumbnails?

Either way this is interesting

[jernst]

If he wins, one could conceivably argue that merely "viewing" (ahem, listening to) audio/video files does not constitute illegal copying.

If he loses, one can argue that a number of industries already allow the (temporary) copying of copyrighted material because they show it on the web.

This case may turn out to be not be about porn.

Click here and go to prison

[Free_Trial_Thinking]

What if this link contained said illegal images, all 20 of you who clicked it are now criminals since your browser would have loaded an illegal image and cached it (most likely).

Doesn't seem fair, does it? You were just curious where the link went.

Google Images

[dtfinch]

I bet they are in possession of a whole lot of illegal porn. An ISP that operates a squid cache might be liable too.

You ARE kidding, right? Images can be hidden.

[WidescreenFreak]

Apparently, you need to learn a bit about HTML. You could have a 1,600 x 1,200 image of some pervert doing a kid. If the image source reference in HTML explicitly stated "height=1 width=1" the image would be a single blip on the browser screen but the full image would still have been downloaded. And in the world of broadband, that image could have taken 1/2 second to download or less, meaning that the viewer would probably not have noticed.

Anyone who wants to be a real jerk could easily hide hi-res porn images on a site this way. And if the person was duped to visiting a web site that appears to be legitimate, he might never know what kind if images just ended up on his system. We often see this same type of thing on /. by those incompetent jackasses who like to link supposedly valid pictures that end up being tubgirl or lemon party. Well, guess what's then in our cache even though we probably don't want it there.

And the vast majority of people don't even know what a cache is, let alone how to clean it out regularly, so the argument about "They should know to clean it out regularly" doesn't work.

It's about intent.

[spiritraveller]

If they showed that he knew what they were and downloaded them intentionally, then he is guilty, regardless of whether he knew they would stay on his harddrive.

This is no different than borrowing someone else's kiddie porn magazine and reading it. Even if it's temporary, you intentionally had possession at some point. That makes you guilty.

Whether he knew the copies would remain on his computer is irrelevant if he intentionally accessed them, knowing they were pornographic images of children.

If there was no evidence that he intentionally accessed them, knowing what they were, then he should get off.

Re:Same old story

[Transcendent]

But if a malicious site uses JavaScript or any form of redirection to force you to view such a website, then is it really your fault?

That is what I think these people are trying to defend against. Just because a software program on your computer loaded material on to your computer, does not mean that YOU intentionally did it. Sure you run into the "my friend did it" situation, but this is an actual legitimate defense since you can control your friend easier than you can control a malicious piece of software or website.

Re:Sophistry at its finest...

[kooshvt]

I gotta uh go to the ummm bathroom...to...molest pixels

Well that one is just too easy...

[insert 'penis size' joke here]

why do I get the sudden feeling...

[yagu]

Why do I get the feeling that suddenly there are a few extra terabytes of free disk space across the country?

What about reasonable doubt?

[Cataleptic]

AFAICT, the reason why the mere possession of certain things is illegal is simply because there is no reasonable explanation of why you have them other than the intent to break the law. Whether or not that's actually that case is another matter, but isn't the central question actually one of reasonable doubt? To extropolate a few examples... If a cop finds me with a bag of sweet, juicy crack in my back pocket, and I insist that someone shoved them there and ran off, it does indeed look bad. However, if I have no prior drug-related convictions, a battery of character-witnesses testifying to my law-abiding nature and a squeaky-clean blood analysis, reasonable doubt says that I'll almost certainly get off. Similarly in this case, if there is kiddie-porn in the guy's cache, it looks bad. However, if there's none anywhere else on his PC, or in his house, and no reference to kidde-porn sites in his browser's history, then IMHO, he should probably be allowed to walk... because there are numerous explanations of how that stuff could've got there 'by itself' that do not involve any illegal activity. For it to be illegal simply to be in possession of a 'bad thing' regardless of context, and without any recourse to any kind of legal defense, is obviously dangerous.

Re:You ARE kidding, right? Images can be hidden.

[andreMA]

You could have a 1,600 x 1,200 image of some pervert doing a kid. If the image source reference in HTML explicitly stated "height=1 width=1" the image would be a single blip on the browser screen

Doesn't even need to be that. Prefetching images using javascript (eg, for responsive mouseovers) is commonplace.

Who's victimized when CP is viewed? I'll tell you.

[atomm1024]

Simple. The children in CP are victimized every time it is viewed, because it violates their natural right to privacy. If it's a crime to look in a neighbor's window while they're showering or changing, then this should similarly to apply to erotic images, where the act depicted, or the photography thereof, is not consensual. Presumably, this applies to most child pornography; and from a legal perspective, where nobody under a certain age can consent to sex, it applies to all child porn. (However, I do think the age of consent should be lower, maybe corresponding to the average age when puberty begins, because declaring sex with a 15-year-old to be legally equivalent to sex with a 5-year-old is just silly.)

20 years, not hours

[VidEdit]

Dude, he is getting 20 years not 20 hours! The man may be scum, but he is going to get longer for 4 hours of web browsing than most murders or actual child molesters get. He is being charged with a separate count for every image that his web browser displayed.

This is very, very dangerous. With typosquatting domains that make money of of pr0n pop ups and use endless "on exit" java script loops, anybody could wind up with illegal pr0n on their computer--and Walker County could prosecute you for each and every image as a separate count, regardless of whether you meant to download it.

This case is much, much bigger than the one person charge here. Charging people with possession for the mere act of seeing something is positively Orwellian.

Re:20 years, not hours

[VidEdit]

I think we are going to disagree on this issue. I'm more interested in the principle than the individual in this case.

The principle is that Walker County can charge you with possession even if you have never requested the images or viewed them. The images could be preloads, popups, or even downloaded via mal-ware. They don't care. They will charge you with a count for every image that your computer viewed--and pop-ups or mal-ware could download images for four hours.

Given that the Bush Administration believes that even pr0n that features consenting adults is illegal, this prosecution should be seen as extremely dangerous to your civil rights. It won't take vile child porn to get you thrown in jail--just anything the Administration doesn't approve of. It is guilt by association. Guilt for seeing. Guilty knowledge. And we are talking big time jail.

You are very impressed that he viewed the images for four hours. If that is what impresses you so, then the law should just state that viewing the images is illegal rather than possession. But laws don't do that because we know that we shouldn't throw people in jail for having seen something--hence the reason we require possession. If he had seen the images on TV we wouldn't be talking right now, but web browsers keep a temporary cache that is meant to be *temporary* and should not be considered possession anymore than the fact you could type in a URL and get the images should be considered possession.

Mind you, child molesters need to go to jail, but thought crimes and laws that presume guilt are a danger to us all.

PS, Orwellian *is* capitalized since it is based on Orwell's name.

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

Re:20 years, not hours

[1u3hr]

Ah yes, I noticed the 20 years thing after I read the article :) "Charging people with possession for the mere act of seeing something is positively Orwellian." Uhh, Yeah, that would be orwellian, but thats not what is happening here...

It is exactly Orwellian, "thought crime" specifically. He didn't do anything in the real world, just looked at some images. (If he paid for them, that's another thing, but since it wasn't mentioned in TFA, which would have made a stronger case, then I assume he didn't.)

One can sit on the subway and read American Psycho, one of the most revolting stories I've attempted to read without being arrested for thinking about extreme torture, murder and sexual abuse. One can look at books, movies or comics about "True Crime", complete with photos of dead bodies without harassment. As a society we can certainly disapprove of some or all of these actions, but to make it a serious crime worthy of decades of jail time boggles the mind.

Re:20 years, not hours

[Politburo]

I'm one of the biggest Bush-bashers around, but I don't ever recall the administration stating that they think porn is illegal. Maybe they think it should be illegal, but that has a completely different meaning then what you said.

Newsgroups

[Mistlefoot]

Joe user goes to the newsgroups after reading about how to view naked pictures of women for free.

He has a fetish for small breasts and after searching for breasts in the newsgroup names find a category that suits him.

He then decidees to download all the jpg's from the above newsgroup along with 22 other newsgroups that sound like they might interest him.

He does this before he goes to bed and lets them download while he sleeps. He gets up in the morning and turns off this computer. Why not. He works all day. He forgets about downloading the pictures and doesn't look at them.

If some of those 10's of thousands of pictures is (even though the categories do not include young or pedophile or even teen) is he a convictable pedophile?

I would guess that if he is then EVERY user who downloads any pictures from Kazaa or any file from any newsgroup is at risk for downloading ANY supposed legal porn as the fact is that you DO NOT KNOW what is on the file you are about to open. Virus scanning doesn't help here.

Re:Newsgroups

[Mistlefoot]

So you are implying that EVERY user MUST know the CONTENTS of EVERY file that he/she DOWNLOADS, even BEFORE looking at them or that person is deemed guilty?

Say goodbye to p2p if that were to be the case. And say good bye to downloads from newsgroups. The WWW is done too. How can I know what picture is to be shown to me on a page that I've not yet loaded?

Goatse is a pleasant example of people viewing unexpected pictures.

Whether or not a person is guilty is to be determined.....it is the assumption of guilt based upon the pictures being there that is bothersome.

Re:Newsgroups

[Alinabi]

Unfortunately that is true for US and most countries, not just Bali.

Re:Newsgroups

[yuri benjamin]

Guilty or not, the Powers That Be will still make an example of you. They have to be seen to be doing something about a perceived problem. This applies to dope planted in your luggage and illegal porn planted on your PC.

Re:Newsgroups

[amliebsch]

No, that is incorrect. They only must show knowledge of possession, not intent. 18 USC 2252A (excerpted):

(a) Any person who -

(5) either - (A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the United States Government, or in the Indian country (as defined in section 1151), knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography; or

(B) knowingly possesses any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer, shall be punished as provided in subsection (b).

Interestingly, the statute explicitly provides an affirmative defense once the possession becomes knowingly:

(d) Affirmative Defense. - It shall be an affirmative defense to a charge of violating subsection (a)(5) that the defendant -

(1) possessed less than three images of child pornography; and

(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof -

(A) took reasonable steps to destroy each such image; or

(B) reported the matter to a law enforcement agency and afforded that agency access to each such image.

The way I read that, if you immediately take "reasonable" (note does not have to be absoultely effective) steps to destroy any images you receive as soon as you become aware of them, this is an affirmative defense. If you let them sit around on your hard drive without even trying to delete them, and you knew about them, then you have a problem.

Re:Newsgroups

[FireFury03]

If I fly into Bali and find someone has sneaked 4.1Kg of marijuana into my boogie bag without my knowledge, am I guilty of illegal importation?

You can make reasonable efforts to keep your bag in sight at all times so someone doesn't get the opportunity. The same cannot be said about stuff you are downloading - you could download a Torrent that claims to be the latest copy of Fedora, only to find it's hard core kiddie porn - how were you to prevent this from happening?

begging the question?

[mblase]

This all begs the question of why viewing anything should ever be illegal.

No, it raises the question. Begging the question is another thing entirely.

Re:begging the question?

[hawkstone]

While it's true that the formal definition in the field of logic corresponds to the link you provided, I've always been bothered by it, because it relies on an archaic definition of the word "beg". (When was the last time, apart from this particular logical fallacy, that you heard someone in real life use this word in that manner?)

To use the more modern definition of the word "beg", or to "ask for", "begging the question" could quite literally mean that the proposed conclusion is so unfounded that it essentially begs related questions to be asked. So while it is not the historically correct usage, it does fit in perfectly well with modern English in my opinion.

Of course, I'm no apologist for commonplace modern incorrect usage of something to override its true correct definition -- spelling "spatial" as "spacial" or using the word "irregardless" irritates me to no end. But in this case, his usage was not incorrect per se.

(Aside: Of course, the real reason I even made this comment is that I always hated those tests where I had to remember all the fallacies, because "begging the question" never matched with what I knew the definitions of the individual words to mean. It wasn't until recently that I even learned that at some point in history "beg" meant "assume". So it's really a personal vendetta against that particular fallacy. If they'd just used some other phrase, or even the Latin, I'd probably never have been bothered by it.)

Doh

[nmb3000]

It's kiddie porn.

And this children, is why one should RTFA.

*cough*

Defendant not your average Joe

[Rogs]

According to another Walker County Messenger article, this guy was found "not guilty on five counts of child molestation and guilty of 106 counts of sexual exploitation of children" at his trial. Sounds like the child molestation charges were what prompted the case - and the forensic investigation of his computer - to begin with.

It also sounds like Superior Court Judge Kristina Connelly might not have been in agreement with the not guilty verdict (or for that matter, terribly pleased by it) and handed him a 20-year sentence for possessing child porn by (ab-)using consecutive sentencing - a sort of reverse "jury nullification." Now I don't know for sure that's what happened, and I hate pedophiles as much as the next guy, but every time a judge reshapes a jury verdict to his own liking during sentencing, justice loses. If pedophiles felt at risk of getting 20 years in jail for every 4 hours of binging on kiddie porn, they'd figure they might as well go out and try the real thing.

Virtual Crimes....

[John Seminal]

This makes zero sense to me, we are going to lock people up in jail and pay for their incarceration for looking at something.

For all the people, before there is a holy war, let me set some things straight. If a person arranges to meet someone underage, send them to jail. If a person chats with someone underage and tries to solicit sex, send them to jail. I am all for sending people to jail who harm others.

But when it comes to looking at something, should this be a crime?

I am afraid the direction we are going in. Are we protecting children, or are we making ourselves feel like we are protecting children because we locked up people who looked at the wrong websites?

This is an issue that is only going to get worse. What about websites with instructions on how to make bombs? What about websites that don't explicitly tell you how to make a bomb, but give you all the information in a way that anyone could figure out?

Okay, so you want to talk about intent. What is the intent of the person looking at a website? What is the intent of a person looking at a website with a naked girl? Are we going to start measuring the sexual excitement a person has?

If the real goal is to protect children, how about going after the website owners? Why not spend the money which would lock up joe sixpack for his browser cache violation, and use that money to find and hunt down the people who abuse the children? It seems to me that hunting down the website owners, and those who commited the violent act is much more effective than spending money on joe blow because one morning at 2am after drinking all night he went on the web and found the wrong website.

I feel like it is so difficult a position to defend, yet if we want free speech, free expression of ideas, then we have to draw a line when it comes to throwing people in jail, to those crimes that harm someone or something.

I would hate to see what society would do to Newton if he was alive today. There is a guy who 100% would look at anything and everything, and probably not be able to tell the difference of right and wrong. How he figured out calculus between the fits of emotional turmoil and pychological collapse is beyond me. Maybe we can have a wing of the prision for thinkers, people with an IQ over 140. Wait... that might be a bad idea.

and so it begins...the end

[N3wsByt3]

As I have recently said, this is the way it begins; not by huge and obvious destruction of citizens' rights, but by small, insidious steps, portrayed as the 'next logical step' for fighting whatever the state seems to think will manage to get little resistence.

I mean, what, you're not soft on childporn, are you? You don't want terrorist roaming around and using the internet without punity, do you?

If it's emotional and self-righteous enough, they know few will dare to oppose. Think of the children! think of 9/11! Ok, and now agree to our huge privacy invasion, because, you want to stop those people doing it again, don't you? Or are you pro CP and terrorism?

With such demagogic tricks they can fool the public almost every time.

Is retaining the best way to go? Does it actually help at all? Is the very unlikely possibility of stopping a relatively few worth the privacy invasion and the further degradation of civic rights of millions? Nowhere is that question ever raised by those that propose these laws. Instead, they continue to use platitudes: "We need the way to stop terrorists!" But as I said before:

Ah, yes, but who are the 'terror suspects'? Everyone reading books the state deems dangerous? Everyone using the internet? No? Then why should their privacy be invaded? Why not adher to decades of legal provisions, where it used to be that you could only be 'tapped' when you were considered a suspect, and AFTER a court agreed to it. Nowadays , everyone is a suspect, and the courts don't come into play anymore when your communications are being tapped.

Eroding ones' privacy and other rights because one is merely 'suspected' is the right way to go, if you want to end up in a policestate.

But, we ALL know the state will ONLY use its powers for the purposes it is meant, without ever abusing it. History has shown this already numerous times in the past, no?

Besides, 'if you have nothing to hide, why care that your private life is being invaded', right?

Illegalities of simulation

[SeanDuggan]

Seems to me that if the real concern is ONLY to not endanger children - then why doesn't the government create really good simulation software and simulate child pornography? Those who want to see child pornography get what they want, and the government gets what it wants since no children have to be abused anymore.

I'm forgetting the exact name of the act in the US, but there was a law put into force about 5 years ago, got repealed a few years ago, that specifically targetted simulated pornography for the reason you state, that the people involved might be emboldened by the viewing of the pictures to actually try something with a real child. *wry grin* I remember that when the law went into effect, the people who were most frightened were fanfiction authors. Suddenly, they had to come to grips with that the Sailor Moon characters were, in fact, defined to be about 15 and were therefore illegal to write sex scenes with. It did raise an interesting question, though, as to where exactly the line between appearance and reality needed to be drawn. In the case of these fictional characters, most of them looked much older, but official backstory was that they were younger. As an analogue, I have a female friend from high school who's currently 23, but doesn't look a day over 13, just something that runs in the females of her family line. Are pictures of her illegal? She looks underage and without context, any picture of her would seem to be illegal, but in actuality, she's in her majority. *wry grin* It raises all kinds of thorny questions, which is probably why the act was repealed.

You forgot a couple things

[Ih8sG8s]

1) Web cache would show changes in the site over time. Easy money for defense.

2) You think there would be any proceedings without finding the site owner? They may seem to be a consumer, but you would be the provider. They would hunt you down sooner than him/her.

2) In order to even try it, you would have to get your hands on kiddie porn. In this case, you should be publically gutted, after ebing castrated first.

Fun to read, but a weak strategy.