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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.'"
Will he have his computer back now?
Emotions! In your brain!
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!
What is in the caches on the supreme court judges' computers?
I once took an excursion to Reddit, and later HN. Unlimited up/down voting sucks when dealing with a hive-mind.
It never struck me as sensible that an individual is legally responsible for the contents of their cache file(s). If you inadvertently stumble upon obviously illegal child porn on the internet and report it to the appropriate authorities, you could be prosecuted just like a child molesting sex offender because those files were stored in your cache when you discovered them.
Thanks Canada, for making sense.
Curious to how this relates to the US. If drugs or weapons are in your car--without your knowledge--you are arrested for their possesion. "Sorry Mr. Officer that bag of weed must have been cached. It's just temporary."
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. His intent was to view the images and he was too dumb to know that his browser was storing copies of the photographs. That is enough to get a warrant and obtain an indictment. Hell, you could get a conviction with that evidence.
I will cede that, if the user was checking email and stupidly clicked a link and sent him to some child porn site, then he would not be committing a criminal act. If I found one site and only one page on that site were visited, then I would not pursue charges against the man. If he has visited multiple sites over multiple days and had viewed multiple pages, then I would tell me to prepare to be on the receiving end of one of the prison's Rectal Olympics games.
I have no sympathy for disgusting piece of shit that get off on child pornography.
1. Set cache size to 100 GB.
2. "accidentally" browse CP
3. ??
4. Profit!!
that oz of weed in my hand was just a cache copy which I used to smell and preview the item. It wasn't actually planning on buying it until I knew how good the quality was. Since the quality of the cannabis was sub par I was about to dump my cache on the ground and move on.
by TheSpoom (715771) Uncaring Linux user here. I have nothing to add to this but please continue. *munches popcorn*
be accessed faster in the future?
I may not have it worded exactly...but I if recall doesn't Explorer ask that first time you start it? (been years since I used Windows)
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.
Sounds a lot worse as a charge...
"Yes M'lud, Mr Taco is charged with making these images"
sounds a lot worse than
"Yes M'lud, Mr Taco is charged with owning a computer running Microsoft Windows 98 and Internet Explorer 5, which, when Mr Taco visited the website in question, caused cached copies of the images in question to be stored temporarily on the hard disk, in an area of files not used or accessed directly by Mr Taco, but by the Microsoft products aforementioned"
The latter is also sounding a lot weaker if you're trying to sell yourself as tough of peedos, anything for the childruuun, vote for meeeee!
http://slashdot.org/~GuyFawkes/journal
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.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
The only problem with this ruling is that, after a few incidents like this one occur, there will be a hew and outcry, and harsher and more encompassing laws passed, which will inevitably result in more arrests and convictions of people who oughtn't be bothered.
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.
Unless the guy is accused of making the pictures, distributing the pictures, or paying for the pictures, who exactly is the US helping by putting this person in jail?
that's a good decision, possession of child porn is not a good enough reason to seize a computer, because we all know the true motives of laws enabling arbitrary seizures
Yes, absolutely. The disgraceful tenor of some of the comments here is repulsive. Everyone who advocates child porn here is SICK. And their IP addresses should be forwarded to approriate Law Enforcement.
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
Why does your sig go to one of the low-end placeholder websites?
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
Did anyone commenting here actually read TFA (specifically, the court ruling)?
The reasoning for why the conviction was quashed had absolutely nothing to do with cached images. It was quashed because the police were ruled to have conducted an illegal (as per the Canadian Charter of Rights and Freedoms) search, despite having a search warrant to search for possession of child pornography.
Essentially, this is what happened:
1) Technician shows up to install an Internet connection on accused computer.
2) Technician notices probable child porn links in IE favourites (along with other legal porn links), and sees (legal) porn image, either on browser homepage or desktop. Technician also notices webcam hooked up to VCR (turned off at the time) directed at accused's 3 year old child.
3) Technician returns next day to finish work, and finds computer had been formatted.
4) Technician reports to social worker about possible child abuse. Social worker in turn informs RCMP.
5) Police obtain search warrant based on technician's observations.
6) (Four months after technician's initial visit) Police search accused's home, and find child pornography.
The court essentially ruled that the technician's observations did not legally justify a search. And I find this patently ridiculous.
I am the maverick of Slashdot
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.
I wonder what the "suspicious" links were. If they were in a bunch of other porn, was it something like "Hot teen action" (could still be legal if 18/19), "barely legals", "schoolgirl" porn (which could mean uniforms/dressup, possibly college), small-tit porn, etc..
If it was saying "underage girlz 11yr old" then it's pretty obvious, but "suspicious" doesn't seem to mean definitely KP.
Long long ago when I still used windows+IE, I seem to remember various sites which somehow managed to add things to my favs as well, even though I hadn't chosen to do so. So who knows.
Next, can we get courts to consider deleted files, snippets, or unexpected objects in an archive, or on a FTP server, downloaded (but never reviewed) not to be possessed next?
In particular, if some unknown user uploads an illegal file to a public FTP server's public-writable uploads directory (for whatever reason), and the FTP server operator deletes the file, when another FTP server reports it to them, or when reviewing to move from new uploads dir to a suitable place. The FTP server operator, and the person who reported the incident ought to be indemnified, assuming they either didn't know about, or fully destroyed the object.
I'd say and they 'reported the incident to authorities', but that is difficult to do, because authorities don't provide a standard online form for uploading suspicious objects and reporting circumstances behind them -----
also reporting to authorities in itself would seem to be so dangerous to the reporting person legally, since the reporter and possibly other entities did come to handle the illegal file accidentally in that case -- (risk of causing themselves to be severely inconvenienced by being subject to investigation themselves), that they should be held blameless even if they do not report to authorities out of fear.
I can't believe that this is the kind of activity you advocate. Clearly the legal line on this stuff has been moving the wrong way for a long time, and laws regarding child porn are *way* off the mark.
Have you even thought about blind people? We should lock up anyone who hears, touches, smells, tastes, or sees children. Don't forget people who say child-like things or try to attract children (ice cream men, for instance). Don't even get me started on five-year-old girls who kiss five-year-old boys. They've clearly demonstrated an affinity for minors.
Kidding aside, perhaps "taste" is a bit far.
Child porn is the root password to the Constitution.
See also:
http://en.wikipedia.org/wiki/Four_Horsemen_of_the_Infocalypse
No the courts acted perfectly in this case and did exactly what they should have.
I don't care what the crime was, So what what if hes a dirtbag and really is guilty, without the evidence, there is, and should not be a case.
Using the perceived vileness of a crime to justify legal abuses is unacceptable. Even criminals have rights. Especially criminals. They must apply universally to have any meaning.
Its an idiotic cycle we've seen played out over the years, politicians target the least popular groups in the society for infringing of rights because nobody will want to defend them, and once we infringe one groups rights its that much easier to spread it to the rest of us.
So this guy gets to walk, somehow I doubt he'll suddenly pack up his stuff and get an office job, he'll go right back to doing business as soon as the coast is clear, there will be other chances to catch him.
Call me crazy but I want Justice out of my legal system, not witch hunts. A technician, who told child services, who told the RCMP, he saw suspiciously labeled links on someone favorites is not probable cause for a search warrant. Its just damn pathetic.
http://www.youtube.com/watch?v=8APlx9btTn8
"Child Pornography is the only crime that is illegal to look at"
"If you are a parent, you probably don't want to hear this but [...] statistically, no one wants to fuck your kid. Now or ever! [...]. You want to think your kid is the reason all those pedophiles are there waiting in position [...] if you wanted your kid to get fucked just to prove how ultrafuckable that kid is you probably couldn't make it happen. If you put him up as bait dressed in a catholic school skirt jumping on a pogo stick with no underwear [...] he would still probably graduate a virgin, and you would look like an asshole."
Best. Comedy. Ever (The great 4: Lenny Bruce, George Carlin, Bill Hicks, Doug Stanhope)
WTF am I doing replying to an AC at 5 A.M on a Friday night?
The defendant was found guilty in the original trial because a police raid found child porn. Read that last sentence again, carefully and repeatedly until it makes sense to you. Do you imagine that trials are convened and conducted under Rules of Hearsay ? Perhaps this whole case is actually a Freedom of Expression test case ? Child porn is illegal in Canada, and virtually everyone is aware of that. The only possible way to avoid conviction would be a technical matter over evidence or procedure. And that is PRECISELY what happened here.
And what about:
-"Every person who accesses any child pornography is guilty of" an indictable offense or an offense punishable on summary conviction. (section 163.1(4.1))
-"a person *accesses* child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself" (section 163.1(4.2), emphasis mine)
I'm not sure why you omitted that. You might not have kept up on the criminal code. See Bill C-2, 2004.
From a computer-technical perspective, as long as the data is on your computer is a way you can, in principle, retrieve, you possess it. But that's a far cry from being able to control it, and therefore, it should be a far cry from legal possession.
Assuming no DRM, the only practical difference between possession and control in the Internet world is "does the person know he has a local copy and does he know how to access, copy, delete, or otherwise make use of the local copy?"
A person who visits a web site and knows how to retrieve something from an on-disk cache can be considered to be in control of it.
A total-computer-n00b who clicks "save" but has no clue how to find and access or even delete the file he saved has no control over it, morally speaking. He may have intended to be able to control it, but morally, he ceased to have control of it when he closed the web browser window or tab.
In other words, most /.ers shouldn't try the "but I didn't explicitly save it" defense.
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.
Accessing CP is a crime in Canada. It's even in the next subsection Criminal Code (163.1(4.1))!
Accessing child pornography
(4.1) Every person who accesses any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of forty-five days; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.
http://laws.justice.gc.ca/eng/C-46/page-4.html#codese:163_1-ss:_4_1_
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?)
Quite frankly if your getting off on pictures/videos of sex that doesn't involve the consent of everyone involved you deserve to be locked away for a very long time.
oh ok, just so long as you foot the 5-figure annual cost to keep someone imprisoned, I'm cool with it. Do you want to make monthly payments of $1800 or pay $11 000 every 6 months? Or do you want to rethink your stance on thought crimes?
Because laws can be written too narrowly. Realize that several number of people can stop a bad conviction--a police officer, a prosecutor, and sometimes a judge. But sometimes the law is written narrowly, and a judge may think the law shouldn't be what it is, but he still has to follow it as written, in most cases. (Occasionally he gets to write it.) Sometimes he finds a way out of it, and sometimes he gets it wrong. But if he feels his hands are tied by the law, and a jury feels their hands are tied by the law, then you bad convictions until the legislature gets the law changed.
You don't explain the whole tech. You figure out the part that matters and explain it very simply, possibly by analogy. Half the job of a lawyer is writing complex things simply. (The other half is writing simple things complexly.)
-- IANAL, this isn't legal advice, and definitely isn't legal advice for you. Also, Squee!
your missing the big view. this stuff is often produced by the rich, the powerful, the elite. the point of such laws is in large part to suppress anything embarrassing or that could be used for blackmail.
http://www.jonesreport.com/articles/021006_elitist_perversion.html
http://www.infowars.net/articles/january2007/030107UN_Sex.htm
http://news.branyvnimani.cz/?path=&article_id=9262&add_appdx=1
http://crime.suite101.com/article.cfm/modern_day_slavery
http://www.bbc.co.uk/blogs/haveyoursay/2010/03/can_catholic_church_overcome_c.html
A judge who knows about computers - that's impressive.
If Google really cared they would fix Android Chrome to reflow text, instead of discriminating
Do not let these f#1q& techs - strangers - look at your info. They have to swap out the hard drive before fixing your computer.
Web pages and other software can do things to your machine that you don't know anything about.
CYA - either learn how to hide your important stuff and leave a blank boot partition for inspectors or encrypt, or else fix your own computer, or be prepared to buy cheap disposable computers.
In the age of automation, you cannot trust the justice system to be just when you are in its clutches. So far, we can count ourselves lucky, but unfavorable odds may be accumulating. It is possible that any one of us might suck in a virus that sends a command to another computer, which in turn starts a machine and causes death and destruction - in the investigation how would one defend? Is there a way to divest oneself fully of identification on the Internet while maintaining a high speed account? A fake identity perhaps.
That which works for us can be used against us - Sep. 11 and the ensuing airport security could be a harbinger of the hoops that we have to dive through just to keep our asses out of a sling.
gknoy is correct but is incomplete.
The "market" is not just driven by money, it is also driven by "I'll give you mine if you'll give me yours" and "I'll give everyone mine because knowing thousands of people appreciate my kid the same way I do makes me feel good" ego reasons.
Cut out all 3 of these reasons and the market dries up, and less is produced. Yes, you will still have some produced for self-use and you will still have some produced and published by people who don't realize nobody is out there looking at it.
Regarding "gateway habit" - there are some who argue that using child porn is a gateway habit. There are also those who argue the opposite, that if someone did not have pictures to look at, he might go after a real child. Both arguments are probably true to some extent, but I have no clue what the "net" effect is. My strong hunch is that for every thousand men who view child porn regularly, the number who go on to hurt kids is higher than the number who would have hurt a kid but for the ability to satisfy their desires through pictures. However, I haven't seen any research one way or the other.
Regarding blame-shifting: If I knowingly walk down a seedy part of town known for street-robberies when it is not necessary to do so, and I'm wearing a Rolex and I'm a scrawny guy who looks like he doesn't belong, and I get robbed, here's how the blame goes: The assailant is 100% responsible. He gets the same punishment as if he robbed me in a "safe" part of town. I am also partially responsible for being stupid, and my friends and family will rightly chastise me for being an idiot. Note that my stupidity, carelessness, or other conscious choice to put myself at unnecessarily increased risk, does not in any manner reduce the culpability of the perpetrator, and it should in now way reduce his sentence.
Think of it another way: If I am a sober adult without a driver's license and I knowingly get into a car with an intoxicated driver and get hurt in a wreck that's his fault, it's all his fault but partially mine. He's 100% guilty but my friends have the right to ask me "what were you thinking???" and call me an idiot for it.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
The "market" is not just driven by money, it is also driven by "I'll give you mine if you'll give me yours" and "I'll give everyone mine because knowing thousands of people appreciate my kid the same way I do makes me feel good" ego reasons.
Cut out all 3 of these reasons and the market dries up, and less is produced. Yes, you will still have some produced for self-use and you will still have some produced and published by people who don't realize nobody is out there looking at it.
The problem with this statement is that there would still be just as much child abuse . Unless you're saying that it's all fine as long as we don't know about it, which does seem to be the prevailing attitude.
I'm proud to say that I am a personal friend of one of the non-dissenting judges, and you can be sure that I will congratulate him for his cluefulness in what constitutes a cache.
If the demand for child porn goes down, SOME of the would-be porn stars will still be abused, just not photographed.
However, some, notably the commercial-grade "stars" that are being abused for the purposes of filming and making money off of said filming may escape unharmed. Sadly, many of those same girls are probably being pimped out, and eliminating the porn market won't help them. But it may help a few.
It will also help those girls and boys who would otherwise grow up with their childhood forced-acting scattered all over the world. NOT having your picture scattered all over the world is one less thing to worry about as an adult, and Lord knows these child-abuse victims have enough stress in their lives.
Oh, and whether we know about it or not, child abuse is not fine.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
I am always glad when people make the right decisions. Makes be happy I live in Canada.
Now we just have to kill that Copyright bill again.Lets go!
Tomayto, Tomahto
People willing to trade their freedom of expression for temporary entertainment deserve neither and will lose both.