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Canada's Top Court Quashes Child Porn Warrant
m.ducharme writes "The CBC is reporting that the Supreme Court of Canada has handed down a decision quashing a search warrant used to obtain the computer of a man accused of possession of child porn. 'Urbain P. Morelli maintained his charter rights were violated when police searched his computer for child pornography after a technician who had visited his home to work on the machine expressed concerns to police.' What the Slashdot community may find notable about this decision is the distinction drawn between 'accessing' and 'possessing' digital images, most particularly the recognition that a user does not 'possess' cached data. From the decision: '[35] When accessing Web pages, most Internet browsers will store on the computer's own hard drive a temporary copy of all or most of the files that comprise the Web page. This is typically known as a "caching function" and the location of the temporary, automatic copies is known as the "cache." While the configuration of the caching function varies and can be modified by the user, cached files typically include images and are generally discarded automatically after a certain number of days, or after the cache grows to a certain size. [36] On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a "place" over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.'"
I didn't know that our legal system understood computers even that well, to distinguish browser cache "oh crap, what the hell did I just see?!" from deliberate "I done saved 3115 photos to my desktop that I probably shouldn't have".
Of, wait, it's not my legal system, it's Canada's. nevermind. Grats Canadians on having sane judges?
Surprisingly sophisticated and reasonable thinking on behalf of the court. I'm impressed.
The legal system understands anything that someone explains to it. So if you explain something to a judge or a lawyer, he or she is supposed to think about what you've explained and figure out how the law applies to it. A cache isn't something it's hard to explain, so--particularly when it's really important to a case--a judge will understand it.
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
I think they should stop wasting resources hunting pervs that look at the stuff and spend time hunting the predators that actually produce the stuff. It gets especially silly when they want to arrest someone for looking at cartoon porn - who is the victim? Or my biggest gripes is that they are harassing kids for taking pictures of themselves and sharing them. So they are self-victimizing and we need to give them a felony and register them as a sex offender instead of just telling their parents? I had a girlfriend when I was a teenager and we did more than hold hands and *gasp* there were provocative photos sometimes. Guess I'd better turn myself in.
At what price learning? At what cost wisdom? The price is a man's peace of mind, and the cost is his life.
So, you are basically stating for the public record that YOU PERSONALLY ACCEPT TOTAL RESPONSIBILITY for every last byte of data stored on your computers...
I hope your computer are stocked in a vault to which only you have physical access, and which is blocked from the net, and which doesn't have any mains power.
After all, you just stated you believe it is an absolute offence with no possible or acceptable defence.
Good of you to volunteer me for the same bullshit without first asking me though.
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FTFS: . While the cached file might be in a "place" over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.'"
No jury/judge will see it as accidently having muliple CP images. So that's 4. Jail Time!
I was wondering if the service personnel browsing dude's computer was routine? I've fixed a lot of PC's without rifling through the users cache and image files, other than if they were infected with a virus. Even backing up user profiles and data, I could tell you which files were infected but not what they were doing with their computer.
Just wondering why the technician was going through all that stuff? Seems like service people are being a lot more thorough than is required to get the computer working again.
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I was with you until
What is it with Americans being so gleeful about prison rape? It's barbaric.
Too often we use the term "he got off" when we should really be saying "the police are incompetent".
I once took an excursion to Reddit, and later HN. Unlimited up/down voting sucks when dealing with a hive-mind.
Umm, no. The law is written the way it is to protect innocents from people like you, who would crucify someone at the first allegation of "child porn", without asking questions and allowing for a fair trial, proper investigations and collection of evidence, etc. How do you know he really is the criminal you say he is? Or we could model ourselves after somewhere like Central America... mere accusations will get you lynched and set on fire.
This kind of crap would not fly in the United States. The computer user might not have knowingly possessed the images through his computer's browser cache, but I am sure he knowingly viewed the images through his browser.
But the law specifically says you cannot possess such material. It does not state that you cannot *view* the images. Which means that while the cache constitutes likely proof to show that he did view it -- that is not a criminal act. The distinction you're trying to erase is exactly the one that prevented him from being convicted.
The judge didn't say that he was innocent.
The judge said that the existence of CP in the cache doesn't in itself make him guilty; that the prosecution must also show "mens rea" (which translates essentially to "guilty intent", as I understand it).
If this guy is guilty, then show it, and you can chuck him in jail and take his computer. If he's innocent, give him his computer back.
Let's see.... based on the description, it is possible that the guy was into child-porn. However, what bugs me is that the evidence that was described to get the search warrant was this:
- a web cam pointed at an area where a three-year old plays, and plugged into a vcr
- a list of links in the taskbar, where it is unclear whether the technician actually followed them to identify them as adult and child porn. Or where they labeled "adult porn" and "child porn"? The article is unclear here.
And... that's about it. At no time did the technician actually see child porn on the computer. At no time did he see any abuse, or even signs that abuse has happened. So really, the warrant was based on the idea that pointing a web cam at your kid can only happen for the reason of producing child porn, and that the names of certain websites indicate the content of their images. That's bullshit. The first one is more likely due to parents wanting to have memories of their kids, and the second.... well, the odds that every girl on a pornsite that just happened to turn 18 is actually 18 are damn near zero. I'd say naming conventions for porn sites don't exactly hold up to scrutiny.
I'm assuming here that the conviction happened because the warrant actually turned up child pornography. What pisses me off though is that the warrant itself was bogus, and and now Mr kiddyporn is going free on a technicality.
However, I'd like to remind everyone that technicalities are there to protect everyone of us from idiots in power. What happened was exactly what was supposed to have happened. I just hope that the police now do it right and get him again... because he is likely to slip up again.
Those who can, do. Those who can't, sue.
Gasp! Are you saying we shouldn't imprison anyone even for a moment passes a thought we disagree with? Heavens! We must punish swiftly and severely for even the most trifling victimless offense so no one anywhere will be tempted to transgress, regardless of whether they hurt anyone or not. Summary punishment is too important to reserve only for the people who actually hurt people.
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mens rea
What? What the fuck kind of barbarian country is Canada where mens rea is still alive and kicking? Here, in the Civilized United States of America Incorporated, mens rea was abolished in the Nixonian War On Drugs.
That's it. We're invading next Thursday to stop this Godlessness.
--
BMO
Something is not very right when someone that goes drunk in a highway (and be able to cause the death of a lot of people, in fact, it keeps happening frequently) get a far less punishment (few months of jail and a fine at best?) that someone browsing random internet pages and hitting one with images that could be qualified as child porn (years in jail). In fact, maybe someone that physically attacks and do permanent injuries to someone could get less punishment, maybe just kill is the only crime that gets a worse punishment that anything that could be attached remotely the label of child porn, even if there was no minor involved at all.
You're right and wrong. The question of whether or not he possessed child porn really had little to do with the decision. HOWEVER, the Court did write exactly what the summary quoted. So it will serve as legal precedent.
The reason why he was acquitted is because the search warrant itself was quashed. An invalid search warrant means that the subsequent search is illegal. So while you're right that the police had a search warrant, it was improperly obtained and thus rendered invalid. You made it sound like they had a valid search warrant, which is false. To issue a search warrant, police need to provide reasonable grounds to a judge as to why the search warrant is necessary or, you might be able to see this coming, warranted. This is to protect Charter rights.
The Court found that the police did NOT have reasonable grounds, and that an objective reasonable person would only have a mere suspicion that he might be creating/consuming child porn. Suspicion is NOT enough to issue a search warrant. Furthermore, it wasn't the fault of the issuing judge that the search warrant was issued. The police used misleading language and omitted important exculpatory information in their Information To Obtain (ITO, basically a warrant application). If the police had not been misleading in their ITO, the judge probably would not have issued a search warrant.
You've conveniently included some of the deceptive claims made by the police. The Court found that the following information was pertinent and exculpatory, and, taken with the situation as a whole, would serve to more than mitigate any reasons to suspect the man:
1) The technician did not find probable child porn links. He found links that were entitled "lolita". If you've ever seen porn, you know that the term "lolita" is used in PLENTY of legal porn productions. These are POSSIBLE child porn links, at best.
2) The child showed NO signs of abuse, trauma, or anything other such signs of harm. The child was fully clothed and playing with her toys.
3) The mother was also in the house.
4) From the fact that the webcam was pointed at his daughter, you CANNOT then conclude that he might be making child porn. That would make it so that every person who has a video camera and likes to take home videos of their children child porn suspects. This is ludicrous.
5) The technician saw legal porn. But legal porn is legal, and from Morelli's consumption of legal porn, you can't suddenly conclude that he likes illegal porn. Logically questionable, at best.
The Court found that all of the above created a situation where you may, kind of, sort of, suspect child porn production. But that would involve an AWFUL LOT of speculation. Search warrants, again, cannot be issued on the basis of suspicion or speculation, but rather reasonable grounds. Since there are no reasonable grounds to issue a search warrant and the issuing judge was misled by the police, the original search warrant was invalidated. This means that the subsequent search and all the evidence obtained cannot be introduced in the Court. Without any evidence from the search, the charges do not hold. Morelli acquitted.
Probably for the same reason crusaders against adulterers and homosexuals are often caught doing those very acts. The more vocal someone is against something, it's because they're trying to prove they're against it.
In this case, I think someone has a deep, dark secret fantasy of being someone's bitch.
The issue isn't just one of "gateway habit" escalation. Nor is it just one of "abuse by proxy."
A child is hurt when child abuse happens. Most child porn, not counting teen self- or boyfriend-cell-phone stuff, are photos of child abuse in progress.
While passing those pictures around may or may not cause that particular child any further harm ("abuse by proxy"),* it generally does create a market for child pornography. In the aggregate, spread over all the people who view child pornography, this increases the chances that a child who would have otherwise been un-photographed or perhaps even un-molested will be victimized and that a child who is already a victim of being turned into a child porn "star" will have more photographs taken of her.
To put it another way, if by magic people stopped viewing child pornography for a year, you would see a decrease in the number of photos taken and a decrease in child molestation, even ignoring any possible "escalation" effect that other Slashdot contributors are suggesting.
By the way, I'm not speaking just of a dollars-and-sense marketplace, although there is no doubt some of that also based on the number of people stupid enough to use credit cards to buy k1dd13 pr0n. There is no doubt some "in kind" "your kid's picture for my kid's picture" trading and also some people who just do it for their own ego boost. Take away the ego boost, and the person may find some other way to boost his ego, hopefully a way that doesn't involve showing the world how he abused a kid.
*Sometimes when a child or grown-child-abuse realizes or is told her photos are "out there" it causes additional trauma, and sometimes it doesn't. Sometimes a child or grown-child-abuse victim finds out about a particular person viewing pictures of old photos, it causes additional trauma, sometimes it doesn't.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Indeed - it's nice to see a country using a more sensible definition of access versus possession, rather than one based on computer technicality.
The UK goes in completely the opposite direction however - the courts ruled that downloading not only counts as possession, but it counts as making child porn. And copy constitutes "making" it. So now we have the media talking about people being arrested for making child porn, with most people assuming that means the actual production, but in many cases that may be the same as downloading. (I'm not bothered if downloading is illegal, but it's nonsense to try to twist the terms - and anyhow, if downloading child porn is so obviously wrong, why do they have to pretend that they were making instead?)
Hmm. Does the same "mens rea" apply to that law, or can someone arrange to flash a CP photo on a projector at the next session of parliament and throw the lot of them in jail for a fortnight?
A lot of people NEED someone to hate.
In the US, pedophiles are the only people left that you can hate without offending someone. We don't allow antisemitism, racism, hatred of ethnic minorities, homophobia etc. etc. etc.
It's gonna be interesting in Europe. Since Mohammad was a pedophile I suppose they may have to give up hating pedophiles, but don't worry, they're already going back to hating Jews as a backup.
I could think of several ways somebody could have "CP" in his cache and have not gone looking for actual under age Porn
1 went shopping at a site that uses models to show clothes (got caught by "related items")
2 was looking at other Porn and mis-clicked
3 got a virus that does auto surfing
4 bait and switch on a banner
5 did a google picture search (or other graphic search) and got a few slipped in by mistake
6 was not him actually surfing
personally this is a subject where "Think of the Children" is the absolute last thing you need to do
(unless you are talking about thinking of the Victims who btw have a lot of other problems)
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