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

[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

[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

[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

[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.

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?

[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?

[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.

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: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.

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: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: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?

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

[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.

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.

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

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.

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.

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.

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

[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.