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.'"

Comments

Okay...

[Securityemo]

Will he have his computer back now?

Re:Okay...

[Anonymous Coward]

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.

Re:Okay...

[Entropius]

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.

Re:Okay...

[zill]

In Canada it's perfectly legal to access CP. The Criminal Code of Canada only prohibits possession of CP, specifically it is an offense to:
- possess any child pornography (section 163.1(4))
- make, print, publish or possess for the purpose of publication any child pornography (section 163.1(2))
- import, distribute, sell or possess for the purpose of distribution of sale any child pornography (section 163.1(3))

Everything was clearly stated year before this case. I would hardly call that a technicality.

Wow, Savvy Judge

[Skarecrow77]

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?

court intelligence

[Onymous Coward]

Surprisingly sophisticated and reasonable thinking on behalf of the court. I'm impressed.

Re:court intelligence

[MikeFM]

Intelligent law that doesn't give in to "but it's for the children" bullshit. I'm moving to Canada.

Re:court intelligence

[CharlyFoxtrot]

Surprisingly intelligent, yes, but it completely ignores the fact that a technician found evidence that he was producing child porn, only to find that he disassembled his setup and formatted his hard drive the next day. The ruling really is a mixed blessing. Ruling that cached data does not constitute possession is a good thing, but quashing the search warrant based solely on that point was a horrible thing to do due to the rest of the evidence.

If he formatted his drives then there was no evidence, a technicians testimony is hearsay not evidence. "No evidence = No prosecution" is a good thing even if it allows some criminals off the hook (as it inevitably will.)

Re:court intelligence

[Hojima]

Um, what was that "evidence" again? Oh yea a camera pointed to his fully clothed three year old daughter with her toys. The technician said he found 2 suspicious links (amongst the plethora of porn he had in his bookmarks). What I'm thinking is that the defendant liked petite LEGAL girls(i.e. he probably had a link that said "tiny teens" in his long list of fetishes). It's not untypical for someone to stumble on illegal porn when searching for legal porn. Sorry but this case was bullshit, and I commemorate the judge and jury on their competent choice.

Re:court intelligence

[TheRaven64]

it is most unfortunate that the police signally failed in their duty to secure a conviction for one of the most heinous and despicable offences

Looking at pictures of naked children is 'one of the most heinous and despicable offences'? Wow. Where do you put things like theft, rape, assault, or murder then? Personally, I'd prefer a thousand people who looked at pictures of naked children on their computers to one person who went around killing people.

Re:court intelligence

[Kell Bengal]

But that's not what the article even says. The judge ruled that the technician's testimony about the nature of the camera setup and the links observed on the computer where ambiguous. As the technician didn't even follow any of the links, it seems strange to me that he should be able to tell at-a-glance what they lead to (unless they were patently advertising what they linked to, which strikes me as unlikely).

The search warrant was quashed because it was issued under faulty information. "My god, judge - the guy had a camera setup and was filming his kid, and there were links on his computer to pornographic websites!" Well... was he filming his kid playing for Kodak memories in years to come, and were those links to pornography perfectly legitimate adult websites? Even in the article, you get the idea that simply having links to pornography somehow constitutes reasonable suspicion that you might be a kiddy-fiddler, regardless of whether that pornography is perfectly legal and unassociated with it.

I, for one, am tired of people tacitly assuming that pornography is corrupt and corrupting, regardless of what it contains. It's ignorant moral panic at its finest.

Re:court intelligence

[K. S. Kyosuke]

Very often those children are kidnapped, raped, assaulted or even murdered.

But none of these crimes is committed by the viewer of the photos, who - in the age of Photoshop, CGI etc. - does not necessarily have to be aware of how the photos were created in the first place. It's like buying apples at a marketplace. How is one supposed to tell that they were stolen/grown by exploited fruit growers living in desperate coditions/whatever, solely from the looks of the apples?

Re:court intelligence

[mysidia]

Very often those children are kidnapped, raped, assaulted or even murdered.

Have some people completely lost the ability to distinguish crimes from each other?

Some people possess money.

Very often those dollars had been stolen, involved in a bank robbery where innocent people are murdered, involved in drug trafficing where people are murdered..

Therefore anyone found possessing dollar bills should be tossed in jail for life. They were responsible for murder after all, right?

Re:court intelligence

[MartinSchou]

Even in the article, you get the idea that simply having links to pornography somehow constitutes reasonable suspicion that you might be a kiddy-fiddler, regardless of whether that pornography is perfectly legal and unassociated with it.

It's actually a fairly easy test:

1. Do you have a penis?
2. Do you have even the remotest access to children?

If you can answer yes to both of those questions, you are automatically suspected of being a kiddie-fiddler.

Re:court intelligence

[Draek]

Which is particularly sad as many actual pedophiles fail at the first one.

The legal system understands anything...

[Oxford_Comma_Lover]

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.

Child porn laws are out of control.

[MikeFM]

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.

Re:Child porn laws are out of control.

[ScottCooperDotNet]

Child porn is the root password to the Constitution.

Re:This is total horseshit

[GuyFawkes]

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.

Is this kind of browsing routine?

[HangingChad]

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.

Re:This is total horseshit

[Anonymous Coward]

I was with you until

prepare to be on the receiving end of one of the prison's Rectal Olympics games.

What is it with Americans being so gleeful about prison rape? It's barbaric.

You hit the nail on the head

[MyFirstNameIsPaul]

Too often we use the term "he got off" when we should really be saying "the police are incompetent".

Re:This is total horseshit

[thePowerOfGrayskull]

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.

Re:"Making" in the UK, not cache-ing

[TheRaven64]

Mr Taco is charged with owning a computer running Microsoft Windows 98 and Internet Explorer 5

This is a serious crime but, thankfully, it is its own punishment.

Re:This is total horseshit

[Todd Knarr]

Maybe he didn't. A number of browsers nowadays have a prefetch feature: they'll follow any links on a page and fetch the pages those links point to, to help speed things up when (or if) the user clicks on those links. That results in data in the cache for pages the user never visited.

Re:I'd Go Further

[mrsteveman1]

We ought to just lock up anyone who looks at a child anywhere at any time, who knows what they're thinking when they see that child?

And apparently some people even MAKE THEIR OWN children, we need to put a stop to this immediately.

Re:Ridiculous decision

[SpeedyDX]

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.