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NY Ruling Distinguishes Downloading, Viewing Child Pornography
bs0d3 writes "According to a recent ruling in New York state, from Senior Judge Carmen Beauchamp Ciparick, 'Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law. Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen.' Which means under New York state law, creating, and possessing child pornography is illegal; the lawmakers never specifically said that merely viewing it is a crime. The prosecution mentioned that the images were saved on his hard drive via the browser cache. However the court ruled that this was not the same as having a saved image. This means that people from New York state who click the wrong link by accident will no longer face serious jail time and a lifetime of registering as a sex offender. People will be able to report what they've found to the police who can then go after the source of the child porn, instead of someone who was merely browsing the internet."
An MSNBC article summarizes the case, and offers this pithy summary: "The decision rests on whether accessing and viewing something on the Internet is the same as possessing it, and whether possessing it means you had to procure it. In essence, the court said no to the first question and yes to the second."
Of the defendant in the case which sparked the ruling, though, reader concertina226 asks "Errr... just because he didn't download the pictures, how does this make it okay? He's still accessing child porn! "
Of the defendant in the case which sparked the ruling, though, reader concertina226 asks "Errr... just because he didn't download the pictures, how does this make it okay? He's still accessing child porn! "
I'm glad. I've never have that in my screen but it's pure luck.
I've seen other people personal information just because it "appeared" on my screen (looking for a file but downloaded something else, etc) and getting in trouble just because I saw it on my monitor seems rather unfair...
4chan celebrates this legal victory!
In all seriousness, I do support this. Over the years, so many images have been displayed on my monitors (#chan etc) and I would never have known for certain if one had involved a 16/17 year old instead of an 18+ year old if it did not explicitly say so.
I don't live in NY though...
I wonder what impacts cloud will have on this, with say googles terms of use they retain ownership of data, does that mean one day google would be registered as a sex offender?
Now finally I can visit 4chan without getting nervous about knocks on the door.
The comment "Errr... just because he didn't download the pictures, how does this make it okay? He's still accessing child porn! " is absolutely true and correct.
HOWEVER the current laws in most of the western world make it too dangerous to report any questionable (or clearly illegal) content to the police as you then risk being charged yourself. This means that when you click on a thumbnail and find out that what pops up is NOT what you wanted (I hope) then your actions are: close tab, clear history, never speak of this again.
That doesn't help, because the illegal content will just stay accessible. We want this kind of crap closed down, and if we want to close it down then reporting the crime has to be safe.
This is, IMO, a rare common sense ruling that seems to take into account the societal value of the ruling (no matter whether the defendant was guilty or not)
This is backwards. You can't know what you've downloaded until you've seen it.
You could very well have downloaded child porn without noticing it.
This is essentially like taking to prison people who have child porn in their mail box.
If we're distinguishing between illegal-intentional-downloads and legal-unintentional-downloads by the location the download is saved to, then ANY "temp" files should be exempt, right?
Who cares? Maybe now they'll actually start going after the creeps that make this stuff.
The conundrum is: how do you know what's on the page without viewing it? Any web page could contain any kind of images and you can't know what's on it before you make the request.
Just like police investigators can't determine whether porn is child porn without viewing it. If viewing it were illegal, the police officers and FBI agents would be breaking the law by enforcing it.
The prosecution mentioned that the images were saved on his hard drive via the browser cache. However the court ruled that this was not the same as having a saved image.
The court asserted that there must be some deliberate action to save/store said images, not just a transitory download via a browser.
First a New York judge rules that IP addresses are insufficient for copyright cases, now this? I'm proud of you, New York!
If they are not paying, they are not contributing to the abuse of children, so what is the justification for imprisoning them? As I remember it, the reason we imprison people for possessing child pornography is that we assume they paid for it; so if someone just browsed to a child porn website, paid nothing for it and just looked at the pictures, why should they be tossed in jail (where tax dollars are used to house, feed, and protect them)?
Palm trees and 8
now will someone please go after the child porn spammers on the newsgroups?
yes, i know, difficult, but it's ridiculous
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
The only situation I can think of where you can view it without downloading it is when it was already saved onto the computer by somebody else. But if you are the owner or operator of the computer, I'm not entirely sure how you're going to believably argue that it wasn't you who downloaded it or saved it there.
File under 'M' for 'Manic ranting'
Did you even read the summary?
Did you even read his Slashdot userid?
Beauty is in the eye of the beerholder.
Two smart court rulings in the same state in the same month? Hell must have frozen over and changed it's name to "Fluffy Bunny"
sudo make me a sandwich
That's the key phrase. Stumbling upon it is not sufficient, but taking action to save those images is. While I didn't see this point addressed, continuing to view other images on that site, or logging into a site and viewing a significant amount of CP images could be interpreted as an affirmative, so I wouldn't say this is strictly limited to "downloading" or possession. This simply makes it clear that incidental access is not make one a violator. Sounds like a very sane ruling in an area that often goes overboard "for the children".
make imaginary.friends COUNT=100 VISIBLE=false
While this does give a loophole to pedophiles, I think it is an acceptable risk. Just having a 'child porn' photo in you browser cache should not be enough evidence to charge you as a pedophile. I know here in the USA, even being charged with a 'child porn' related crime is devastating. It can ruin your career whether you are guilty or not. How many times have you had a unexpected pop up from porn site or virus/trojan infected site that displayed possibly illegal content. Also this helps the people who are interested in something else on a site but the site also happens to have under age material also. This is a important because what if some add banner shows some underage content. In the past, this could have been considered enough evidence.
The big thing here is that viewing (browser cache) doesn't necessarily prove intent.
No good deed goes unpunished.
[citation needed]
As I recall, Google's terms (and most that I've read) specifically say that the creator keeps ownership, but they perpetually keep a license to use, reproduce, etc. that information.
This ruling's also likely a good thing for them, as Google itself doesn't need to do anything. If child porn shows up on their servers through normal operations, they didn't make any action to specifically obtain it, so they're likely free and clear... though as a private entity they are under no obligation to respect users' privacy (except as detailed in their privacy policies and other documents that may be considered legal contracts) and can choose to turn over identification information about any user that uploads anything questionable.
You do not have a moral or legal right to do absolutely anything you want.
your point? its the site that is hurting the children. If you constantly go after the end point you are in no way remedying the issue and too many "innocent" people get hurt in the process. The sites and the recorders are the ones who need to be got. Pool less money toward prosocuting some poor bastard who had a popup site and spend more tracking the offenders that actually hurt the children.
The court asserted that there must be some deliberate action to save/store said images, not just a transitory download via a browser.
Actually, that's not completely accurate. The court said that the prosecution failed to prove that Kent knew about the browser cache. At least two previous cases (here and here) left open this possibility but those cases had clear-cut cases of the defendant accessing and using the browser's cache. The transitory download is still illegal if you know about it.
FFS mods, how is that trolling.
Someone self identifies as an idiot, and then proceeds to prove it.
Pointing out the obvious does not a troll make.
Beauty is in the eye of the beerholder.
Distinguishing the difference between actively downloading or browsing to, vs. walking by and noticing?
Technically yes. But the judge is making a legal distinction between the types of downloading.
;).
If you had a gun, and it fires and kills someone whether you are guilty of murder or not is typically based on what the Court thinks your intentions were.
Also relevant are stuff like gross negligence e.g. if your gun has a known habit of firing by itself, and you have been warned of the problem, you're usually going to be punished more severely.
If you bought a gun that you knew was prone to accidental firing, and purposely pointed it at a person you wanted to kill, and it accidentally went off, you could still be guilty of murder. Despite the fact that from a technical point of view it genuinely accidentally went off.
Some people may need to set their "Aspergers" knobs to 1 in order to understand the verdict better
In the event that a popup with a child porn image occurs, people should not wear a scarlet letter for life. Years ago, such a popup occurred on my spyware ridden PC. I almost puked, but it would be unfathomable that I be jailed or imprisoned in addition to a memory that I wish I could forget.
The authorities need to focus on the real criminals and not people that report images found on their system.
What if you know about it, but did not intend it? IE, you only knew about it after the fact?
File under 'M' for 'Manic ranting'
driving slowly by the playground is legal, just don't load up your van
how many pairs of boxer shorts should you own?
Mine's worse! :(
Correct me if I'm wrong, but technically don't you download a page in order to view it?
No. A page is downloaded indeed, but it doesn't mean that "you" download it (as in you willingly do something that triggers the action).
We can discuss technicalities all we want, but this seems like one of the cases where the judge doesn't need to care about tech stuff. Did the defendant want to see child porn and did something about it, or not? Was the defendant looking for something else and got to that porn stuff instead?
If we're distinguishing between illegal-intentional-downloads and legal-unintentional-downloads by the location the download is saved to, then ANY "temp" files should be exempt, right?
As is not uncommon in legal proceedings, the court is interested in the person's intent. Architecturally, something being stashed in a temporary cache of some flavor certainly counts as evidence in favor of it being 'unintentional'; but that is hardly equivalent to a stirring cry of "/tmp? He must go free!"
If it were discovered(by inspection of your browser's list of downloaded files, or by an expert witness' determination that the saves in the 'browser cache' don't actually follow the correct structure conventions for resource caches produced by that browser, or by looking at files-recently-opened as stored in the OS or some image viewer, say) that you were intentionally downloading and storing things in a normally unintentional location, the location would not save you.
It really isn't fundamentally different from any other attempt by a court at a finding of fact about whether something was intentional or not(which comes up a lot, in degrees of murder, attempted murder vs. assault, treble damages, etc.) Evidence in favor of an 'unintentional' finding doesn't have any legal bearing in itself, it is merely a clue by which to attempt to determine the defendant's intent state.
If you had a gun, and it fires and kills someone whether you are guilty of murder or not is typically based on what the Court thinks your intentions were.
Um, yes it is. Murder 1 vs Murder 2 vs Manslaughter.
I've been involved in situations where people accidentally got exposed to child porn (or any other kind) because of popups from malware, and situations where they deliberately went out to find it. Trust me; the two sets of behavior, from a computer forensics perspective, look NOTHING alike. A pedobear's cache will be filled with the stuff, while the innocent bystander will have relatively few of them. I thought the same thing you did, once, but was actually shocked to see how incredibly different the two behaviors look.
For your security, this post has been encrypted with ROT-13, twice.
The NT legislature is working right now on a law to make even seeing CP illegal.
If Slashdot were chemistry it would look like this:Cadaverine
No, but following up your own post with bitching about how it got modded is trolling for replies like this one.
"Errr... just because he didn't download the pictures, how does this make it okay? He's still accessing child porn! "
The bulk of the charges against him were confirmed and he'll still suffer heavy punishment. However, two counts were overturned because the law requires you to knowingly posses or obtain images and these two charges relied on data from his browser's web cache. The prosecution failed to prove that he was aware of the cache and how it works, so he couldn't have knowingly obtained or possessed those images. The law does not make it illegal to simply look at the images, whether on a billboard, a neighbor's back porch, or a web site. The judges agreed that child pornography is an abomination, but the majority said it was up to the Legislature to declare merely viewing to be a crime.
However the court ruled that this was not the same as having a saved image. This means that people from New York state who click the wrong link by accident will no longer face serious jail time and a lifetime of registering as a sex offender. People will be able to report what they've found to the police who can then go after the source of the child porn, instead of someone who was merely browsing the internet."
The court ruled that the the defendant must knowingly posses or obtain the images. This ruling helps you (directly, at least) only If you know nothing about browsing caching.
Doubt it works that way. If the Court finds out you were intentionally viewing child porn everyday then they are more likely to rule that you were doing something illegal even if you weren't saving it. Or you were opening up the temp files on a regular basis.
Speaking of piracy, if downloading music/movies for free kills the music/movie industry, shouldn't downloading child porn for free kill the child porn industry? So using the **AA's logic we should be pirating more child porn?
I am not sure the GP was actually asking a question.
Seemed to me he was just using this to attempt to spread the "Google Owns You" FUD.
Why is it so hard to only have politicians for a few years, then have them go away?
You cannot arrest someone for wanting to cause harm; everyone will want to harm another person at some point in their life. The point of arresting people who possess child pornography is that they might have paid for it, and thus encouraged someone to abuse children i.e. they indirectly caused harm to children. Yet a line must be drawn somewhere; having images in a browser cache is not proof that a person paid for child pornography or otherwise encouraged its production, and moreover it is not even proof that a person deliberately accessed child pornography (as you noted).
Palm trees and 8
Something like Link prefetching would make it fairly easy to 'download' in only the strictly technical sense of the term, without intent or knowledge on your part, which seems to be what the case means by 'download'. The same would be true of certain flavors of spam or malware infestations.
You go to page A, fasterfox starts gobbling its way through all the links on page A, all of Page B's images end up in your cache. Your computer obviously 'downloaded' the file; but the chain of intent between your actions and the download is pretty tenuous. If you went to page B, right-clicked, and hit 'save as' your computer was still the one that downloaded it; but the chain of intent is quite clear and points right back to you, not to an unintended behavior of a complex tool.
That would classify as "purposeful" downloading or viewing or whatever. The same goes if you watched a streaming movie on some rogue TV and movie streaming sight. Just because it was in a popup doesn't mean anything but if you sat there for an hour, you probably landed on that page on purpose and watched the movie.
Stop going to shitty porn sites and you won't be bombarded with russian lolitas and other questionable pornography that can get you in trouble.
The FBI can still arrest you even if you "accidentally" browse the site. A friend of a friend got arrested last year in Florida (pedo capitol btw) for just browsing these sites.
Another thing people don't realize is your internet cache.... some of these sites "download" images onto your internet cache folder. 4chan does it and you'd be surprised how many 120x120 thumbnail pictures are in there of where ever you happened to browse in 4chan that day.
torrents are the way to go for good quality, legal porn.
Pop up ads (or ads in general). While many of us use blockers and such, most people still do not. There is also the situation of simply clicking on links without knowing where they actually go... rickrolls and goatsx have gotten plenty of people over the years, it is plausible that someone could click on poorly worked links that end up being CP.
I don't know if that'll work. If you take a look at the similarly aimed "WAR ON DRUGS", targeting users instead of dealers has been a resounding success!
just because you can't put a dollar sign on it doesn't mean that the rules of demand and supply don't apply
those who consume these images create a market for it and are therefore culpable for its creation and should be punished
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
What if you know about it, but did not intend it? IE, you only knew about it after the fact?
Well, according to 18 USC 2252A, it seems that hinges on the definition of "knowingly". The law also specifically allows an affirmative defense if you possessed less than three images and promptly destroyed them (without sharing or retaining any of them).
now i just need to store all my child porn in my browser cache folder and i'm free and clear
Oh, never think that there are no pedos in the geeksphere. How do you think all that dark web stuff got created? Another geek site had some CP stories recently, and several posters defended *collecting* child porn. One even appeared to defend its creation if there was "no coercion" involved. The geek community has devolved into a sick place.
So, what keeps pedos from simply changing their downloadfolder to that of their browsercache-folder and be square with the law?
Many images from sites are stored in the 'cache'... Therefore downloaded/saved to your machine, but not with any users approval. Was this addressed?
This, right here.
The whole legal backing behind the illegality of CP is that a child was exploited in that manner to make the photographs. Catch the exploiters, and while harder to do, will have a far more fruitful outcome than simply throwing everyone in jail who happened to see it.
Quo usque tandem abutere, Nimbus, patientia nostra?
The problem is the zero tolerance policy of prosecution and the general lack of understanding of the technology among law enforcement. You are no doubt correct, but making those sorts of distinctions is harder than it seems when the laws say "possession is possession". If a browser cache is defined as "possession", then it's much harder to avoid prosecution of innocents. Also I have limited experience with the sort of malware that others have commented on, but I wouldn't be surprised if something like that could populate your cache pretty fast (of course it should also leave its own signature, but again law enforcement isn't always expert in these matters). Frankly I think that a real "pedobear" would probably have at least some "favorite" stuff saved somewhere other than their browser cache; so this probably won't really hurt legitimate prosecutions much, but might help a few innocents.
I don't need a million points of light, just two points of multi-mode fiber and a 10 Gig-E router.
The myth is that stumbling upon this kind of material would result in you getting charged with a crime. This whole article focuses on ONE out of DOZENS of criminal charges. So DOZENS more are valid charges not based solely on browser cache. Only persons who have vast amounts of child exploitation images on their devices ever get charged with any crime. It's simply not worth investigators, prosecutors and the courts time to charge any crime of child exploitation that is only based on a few images in browser cache.
Today's secret word is 'cache'.
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
So are you agreeing with him then?
Exactly. Just as the law says that all you have to do to view it legally without the internet is to have a friend who possesses it hold it up and show it to you. Read it again: Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law. This ruling simply clarifies that viewing a site doesn't constitute possessing the file. If you have an issue, it is with the law itself, not how it applies to the net. This is a simple but all too rare case of: Hey ... this judge actually understands the technology!
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
First Degree Murder: Premeditated
Second Degree Murder: Crime of passion, not premeditated
Manslaughter: Accidental Death of another person
Those are not near all the definitions to the different charges, but that alone shows that the Court clearly bases what you are charged with on what your intentions were while committing the crime.
Which is exactly what the original poster stated, just to be clear.
An excerpt, for easy reading:
whether you are guilty of murder or not is typically based on what the Court thinks your intentions were
... rape victims are no longer to be stoned. How fucked up does a place have to be for something like this to be something that was ever in doubt in the first place?
The ruling states that you, basically, have to take deliberate actions to save the image to your hard drive. Merely viewing a page in your browser without further actions on your part to "procure" the image (ie.. save it to a folder on your system, rather than just the browser cache) is what the court is speaking to.
Metaphor time: Having someone park a stolen car in front of your house is like viewing a page (#chan?) with CP on it without specifically looking for it. Going out and pulling that car into your garage and closing the garage door would be like saving the image to your hard drive for later perusal and enjoyment.
That's what the sentence you quoted said.
The ruling makes sense to me. In light of the outrageously stiff penalties for viewing CP, there should be some real clear intent. That said, I've browsed a vast, vast, vast, vast amount of internet pron in my day and have never happened upon CP, so I'm not sure how often it's accessed absently. Vast.
I wouldn't go that far. The cops at some point could use the cached images as "probable cause" to open a deeper investigation and then keep an eye on the subject's internet traffic. Building a history of the deviant seeking out those "viewing" sites could probably be used to convict them where the simple existence of illicit images in their browser cache could not. In that case, the police and prosecutors are held to a higher standard of proving that this person is actually trying to get this material, instead of just being able to say that the mere existence of them on the machine is proof. I think that would be a much better way to go about it, protecting more innocent people from accidents or even malicious frame jobs using the material to turn someone into an instant felon.
I've been involved in situations where people accidentally got exposed to child porn (or any other kind) because of popups from malware, and situations where they deliberately went out to find it. Trust me; the two sets of behavior, from a computer forensics perspective, look NOTHING alike. A pedobear's cache will be filled with the stuff, while the innocent bystander will have relatively few of them. I thought the same thing you did, once, but was actually shocked to see how incredibly different the two behaviors look.
Not useful if you're actually looking at forensics. But very useful if you're fishing for crimes you can pile on. Questionable conviction in software piracy? Find some CP in a browser cache, no matter how few instances, and you've got bank.
However the court ruled that this was not the same as having a saved image
That's really a false distinction, to me. I know that most people don't have enough knowledge to poke into the browser cache and that it is essentially a "black box," but there are no end of web clients, no end of ways of configuring them (or modifying the source!), and no way to reliably know what a person actually does or does not know how to do.
Meanwhile, the people drawing this false distinction don't seem to draw the more critical distinction: viewing a photograph of an incident of child abuse, verses actually engaging in child abuse!
Secession is the right of all sentient beings.
All they have to do is find a site on the internet to *view* from and it's legal.
So then the judge will grant a warrant based on all the other evidence, just like they do right now since they already don't have access to the browser's cache until AFTER they search it. Upon searching, they will use the data in the browser's cache to establish that a connection was indeed made. The next step is to identify the person using the machine at the time, again using established methods not related to this ruling. Next is to examine intent, again the amount in the cache can be used for this purpose. Finally, they hit them with possession, including that which is in the cache.
The decision makes it so that cache data cannot by itself be considered possession. If it's cached, they have to demonstrate intent to keep. But if you've got a record of multiple hits over different sessions to all sorts of known image locations you've already established intent. At that point using the cache data is just a technique to inflate penalties and make a good press release.
Oh, but nice hyperbole. Only an idiot would think this made anything legal.
Mind you, I am all in favor of this change. I hate the fact that accidental viewing could be like a legal version of catching a fatal disease via airborne virus.
Still, does this sort of thing actually come up in pop-ups? I've seen more naked people than I could count show up on my screen from mis-clicks, but not a one of them was underage, as far as I could tell. Even the "barely legal" ones were pretty obviously not children.
I think the real danger with the fact you could be jailed for viewing CP has a lot to do with its potential for malicious use against anyone at any time.
I had a hell of a time parsing that sentence too (yay for another "whether or not" string of confusion). But he's basically saying "Your intent is factored in when a court makes its decision."
No, I was just raising a point. Constructive feedback is constructive. Thank you!
Pop up ads (or ads in general). While many of us use blockers and such, most people still do not. There is also the situation of simply clicking on links without knowing where they actually go... rickrolls and goatsx have gotten plenty of people over the years, it is plausible that someone could click on poorly worked links that end up being CP.
Oh, you mean like this?
http://en.wikipedia.org/wiki/Virgin_Killer
Because "accessing" isn't the actual statutory offense, and "possessing" is? But never let facts get in the way of mindless moral panic, eh?
Liberty in your lifetime
And then there's the worrisome concept of "illegal content" itself.
One does wonder about the morality of arbitrary restrictions about what is legal to see, to know about, to think about...
The whole legal backing behind the illegality of CP is that a child was exploited in that manner to make the photographs.
Wrong. Child porn is illegal even if it consists only of drawings or animation that clearly involve no actual child.
Uh, no, the fact is the original poster was just wrong. A gun that accidentally goes off without any negligence on your part is not, in any way, murder or even manslaughter.
Likewise, a gun that you deliberately point at someone, but do not deliberately fire (Of course, guns do not act like this, but let's pretend.), is not murder, it's manslaughter.
The original poster does not appear to know what 'intent' means and how it's required for all criminal actions. You must be 'intending' to do what happened. It's just with crimes like negligence, it's 'intending to behave negligently' that is required. You must intentionally neglecting your duty to take precautions not to accidentally shoot people.
The problem is that CP laws should all have the word 'knowingly' in them, which requires that not only do people 'intentionally' do whatever they did, but that they expected that outcome. (Unlike negligence laws, where you just have to fail a basic duty, or do something specific, that a normal person can see is risky.)
But not all CP laws require possessing it 'knowingly', (Because it's harder to prove, and Won't Someone Think of the CHILDREN!), so we have apparently created a universe where 'using the WWW like normal' counts as negligent, because there is actually no way to stop your web browser from requesting whatever images the web page wants, and no way for you to know in advance, or even after it happened. (NY's law, luckily, does require it to happen knowingly, and a judge somehow understood the difference...but that doesn't help much elsewhere.)
If a basic behavior that 80% of the population does every day, and 99% of the adult population has done at one time, counts as 'negligent' under the law and can result in people being randomly locked up, I have to suggest the law is wrong.
Incidentally, other laws outlawing possession, like drug laws, do require you possess drugs knowingly. Because otherwise drug dealers have lots of fun mailing drugs to the chief of police.
I have to ask that people in other countries, where surely it's possible to find an image that is legal there but illegal here (There are a few famous movies that are illegal here because of the age of the actors appearing nude, but many countries have exceptions for that sort of thing, so start there.), and start mailing that image at the people creating these idiotic laws.
If corporations are people, aren't stockholders guilty of slavery?
If viewing it were illegal, the police officers and FBI agents would be breaking the law by enforcing it.
No, quite wrong. Prosecutors, police and professionals involved in carrying necessary duties in an investigation cannot be prosecuted for doing so. Just like a doctor cannot be prosecuted for examining a child's genitals in the course of carrying out their professional duties.
Are pictures of any other crimes illegal?
Utterly technically speaking, there is such a thing as browser cache that might contain such "illegal" material that can be saved for further "reference". There's clearly an intent if so, nothing transitory. Legal loop in place ...
Nah, the real world equivalent would be "feel free to do your normal van-related activities around a playground without getting arrested when the fat kid trips and accidentally shows you his ass crack." On the other hand, If you're taking your van out of the way in the hopes the fat kid will trip, yeah, you're a fuckup and did something wrong. This shit really isn't hard.
Wrong. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
The original intent of outlawing CP in 1973 was to go after the producers---the people who actually sexually assaulted children. It had nothing to do with legislating morality, criminalizing paraphilias, and so on. Over the next 20-30 years, though, the U.S. Government slowly expanded these laws to cover all manner of victimless crimes, like they do with everything else. And of course since so many people are so disgusted by CP and pedophilia that they either don't even notice this or don't care.
Liberty in your lifetime
Depends on which country we're speaking about.
Anyone seen NYCL in a while? I'm surprised to not see him posting on these stories.
"If you have nothing to hide, you have nothing to fear." - Every fascist, ever
*smirk* that would indeed be an good example.
Of course with digital cameras in the hands of kids they are certainly the leading producers of underage nude portraiture...
You're right.... Lol, but I guess many people misunderstood the same way, since I still got modded-up for it.
my god you are an idiot
Catch the exploiters, and while harder to do, will have a far more fruitful outcome than simply throwing everyone in jail who happened to see it.
But the actual criminals might be dangerous. Just like it is easier to go after the drug users than the suppliers, and it is easier to go after people who killed a criminal in self defense than it is to go after the criminal, it is easier to go after the guy in his mom's basement that browses CP. Of course, it has backfired with drugs, because now the users are becoming criminals just to obtain the drugs or obtain the money to get the drugs, so now they have become dangerous. Perhaps the same thing might happen to people who browse CP or people who killed a criminal in self defense might now start shooting at the cops when they come to throw them in jail.
If you are not allowed to question your government then the government has answered your question.
fap fap fap fap fap
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There's not really a zero-tolerance policy, though. It may appear so from the law, but there are a lot of other factors. Few prosecutors (and forensic analysts, for that matter) are willing to waste their time on something that is clearly accidental. (It's even rarer that accidental downloads even get caught, because the few sting operations that are out there are built to appeal to habitual downloaders. Most incidences of CP possession are reported by a third party or are a suspect who is being picked up on another, related charge.) The innocent usually fight it in court with the obvious "accidental" defense. It's not cheap for the prosecutor to fight it in court when it can create bad press and is likely to either result in either an acquittal or a ruling exactly like this.
Police don't generally investigate software piracy, since it's civil instead of criminal. Something larger-scale, the FBI might get involved, but then their search warrant is going to need to be broad enough to cover "anything illicit we might happen to find on this computer"; otherwise the CP they run across is of little value. A lot of computer search warrants these days aren't drawn up that broadly any more.
Correct me if I'm wrong, but technically don't you download a page in order to view it?
Technically, yes. Your computer may also "save" the page in your browser cache. But you do not take possesion of what is on the page until you press a button and save it somewhere where you can find it again.
Finding cached images requires a search of the hard disk, which requires seizure of the computer hardware, which requires probable cause in order to get a search and seizure warrant. So if you have probable cause, you can find data that gives you probable cause?
The real danger from browser cache files, in my mind, is when they're old enough that the no longer have strong Web history attached to them. Maybe even they're off in the unallocated space in the disk (that is, the cached files have been "deleted), so it's not even clear that they're browser cache files. Now you have some CP images that are on your computer and it's not clear to the investigator *why* they're there. That's more dangerous (to you) then if there's information that makes it clear that they are there as a result of an accident (or some other non-willful mechanism). Some judges and prosecutors won't accept unallocated-space CP (since there's no evidence of intent), but some will.
The transitory download is still illegal if you know about it.
That would mean that one could be guilty just by knowing that the browser cache exists, even if you didn't try to keep the files that were in it. That makes little sense.
The only situation I can think of where you can view it without downloading it is when it was already saved onto the computer by somebody else. But if you are the owner or operator of the computer, I'm not entirely sure how you're going to believably argue that it wasn't you who downloaded it or saved it there.
You are thinking like a computer programmer. Yes, downloading one or more files is a part of the technical process of viewing a web page. But it is very different (as perceived by the user) from downloading a file and saving it for later use. The essence of this ruling is that what matters is what the human being operating the computer did, not what the computer did behind the scenes in order to carry out its master's will.
Still, does this sort of thing actually come up in pop-ups? I've seen more naked people than I could count show up on my screen from mis-clicks, but not a one of them was underage, as far as I could tell. Even the "barely legal" ones were pretty obviously not children.
Unfortunately, "as far as I could tell" doesn't keep you out of prison if the DA wants to come across as non-lenient toward child porn. And "obviously not children" doesn't work either when the age of consent is 18. You can't tell the difference between "barely legal" and "barely not legal". Unless you have a guaranteed statement that the site kept its whatever-federal-code-number legal records (all models were above the age of 18 blah blah blah), you're not safe.
And if you're still not sure as to where you'd find questionable material, I have one word for you: amateur. Tired of stale, canned acting from girls with bleached hair and boob jobs, where the script is a semi-serious attempt to get a dude's load blown on her tits? Put "amatuer" + "porn" in the Google search field... not everything that shows up if you start browsing those sites is going to come with that legal disclaimer, or any disclaimer, other than "this site is not responsible for the stuff that people upload, browse at your own risk".
your stance assumes we know the pedophile urges about this person. that the person has volunteered this information about himself
obviously, this information is not going to be freely offered. you can imagine why. so we leave children alone with this person, because we don't know, and then we find out the hard way the person likes children sexually
or, we find them when we see they have a large stash of child porn on their computers. and we act before the inevitable. you can't chaperone the guy for the rest of his life. you lock him up, because base human sexual desire is always there, and human will power is often weak. during that moment of weakness, alone, around a child, the inevitable happens. we owe it to our children to ensure that this moment never happens to a child, by removing the person with these predilections from society, permanently
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
The Fed cp "viewing" statute, and I believe all similar state statutes, requires both "knowing" access and "intent" to view. "Accidentally" accessing and viewing cp is not, never has been, and never will be a crime. Additionally, knowingly accessing cp with the intent to view appropriately carries the lowest penalty among fed cp offenses.
Charging a crime without requiring any mental state (such as knowingly accessing and have the specific intent to view - 2 mental state requirements) is called strict liability. For public policy and historical reasons, the US has very few strict liability crimes (e.g., I think interstate shipping tainted food is a strict liability offense - i.e., it does not matter if you knew or intended the ship tainted food, you are criminally liable if your warehouse is so infested with rats it taints the food).
Child sex abuse is a serious problem and disinformation, such as stating no mental state is/was required, undermines efforts to tackle the problem. As a person on the front line for almost 10 years (both state and fed), note that there is a trend of the victims of getting younger. For example, a significant % of the cp videos and images in my last 3 cases depicted infants and toddlers being sexually abused. The problem is getting worse - and in nearly 10 years of prosecutions and hundreds of matters, I have almost never seen a matter in which the vast majority of the cp did not depict prepubescent children (children under 12-10 years-old).
That would mean that one could be guilty just by knowing that the browser cache exists, even if you didn't try to keep the files that were in it. That makes little sense.
It's pretty straightforward actually; perhaps you're looking at this from the wrong end.
You are guilty if found to be in possession of CP. A possible defense (and one which worked in this case) is that you couldn't be held responsible for possessing something that you never knew you had. If you know that your browser caches images and there is CP in your browser cache, that defense is unlikely to work.
I asked V-similitude a direct question. Assuming you are him, again: So you agree with the poster above you (http://tech.slashdot.org/comments.pl?sid=2841383&cid=39953525) that the court does take into account your intentions when charging you with one of those charges? And you simply replied to reiterate what had already been said because you didn't take the time to read the post I linked above properly?
So I was right - police ARE above the law!
I was logged into a Chat Site and went to view a members profile and viola. Had the Picture right on the screen. Maybe only 2 or 3 times this happened to me and then it stopped. Some saw them a lot or not at all. With the Internet anything can and will happen. The Admins and Moderators tried to keep and eye out and remove the accounts as fast as they could but anyone can create an account just as fast. Hijacked links or whatever still occur. This sounds like someone was exercising a little common sense to establish "real" intent rather than the typical witch hunts.
That would mean that one could be guilty just by knowing that the browser cache exists, even if you didn't try to keep the files that were in it. That makes little sense.
It's pretty straightforward actually; perhaps you're looking at this from the wrong end.
You are guilty if found to be in possession of CP.
I understand that. The question is: does one posses (in a legal sense) the contents of one's browser cache. You seem to be saying that you do if you know that the browser cache exists. But this would mean that if two persons open the same web page without knowning its content, see that it contains CP and immediately close the window, the one who does not know about browser caches is innocent but the one who knows is guilty of possession. This is what the courts call an absurd result. They try to find a way to interpret the law so as to avoid such results.
The question is: does one posses (in a legal sense) the contents of one's browser cache.
That seems like an absurd question. Of course you do, generally speaking.
You seem to be saying that you do if you know that the browser cache exists.
Again, you're coming at this ass backwards. You're not guilty because you know how a browser works. You are guilty because you have CP on your computer. However, if you can convince a judge/jury that you had no idea that it was there, you might get away with it.
But this would mean that if two persons open the same web page without knowning its content, see that it contains CP and immediately close the window, the one who does not know about browser caches is innocent but the one who knows is guilty of possession.
Both have broken the law (assuming neither clears the cache or otherwise gets rid of the images). The one who knows they still have the pictures but does nothing to get rid of them is pretty likely to get in trouble for it. The other one has a pretty good argument for some mitigating circumstances. This is how the legal system works.
This is what the courts call an absurd result. They try to find a way to interpret the law so as to avoid such results.
I'm not defending the law. It has a huge loophole because it does not criminalize viewing the content. As written, you can look at all the CP you want as long as you don't possess it. But that's really unrelated to your complaint.
Maybe a car analogy would help you? If you rob a bank and I then drive you to the bus station in the next town, that looks bad and I'm likely to get arrested or at least detained by the cops. If I knew you robbed that bank and was the fleeing the cops, I'm probably in big trouble. If I had no idea about any of that and just did you a neighborly favor, I'm much less likely to get in trouble. Is this absurd?
Or if you need something involving possession, how about drugs? If your friend drops off a package on your porch and the cops show up and find drugs in it, is it fair for you to be charged for possession of drugs if you had no idea what was in the package? Is it absurd for a judge to consider whether or not you knew, or should have known, that you had an illicit substance in your house?
....
This means that people from New York state who click the wrong link by accident will no longer face serious jail time and a lifetime of registering as a sex offender. ....
They should be stoned to near death, hung and beheaded in public square, and finally burned to ashes, like they do in other states to people who change diapers of small babies.
Its all Obamas fault -- he is not TOUGH on crime
where are repubs when we need them?
china, russia and iran are responsible for this
we should attack some small country to correct this situation
Correct me if I'm wrong, but technically don't you download a page in order to view it?
Technically, yes. Your computer may also "save" the page in your browser cache. But you do not take possesion of what is on the page until you press a button and save it somewhere where you can find it again.
Just wanted to mention that in the disent a number of deliberate acts which could be considered the taking of possession are named. It is suggested that a person may be taking posession of PD images if he opens additional pages, keeps them open in tabs, or does other things to indicate that he wants PD images to be on his screen. This seems to be a good way to preserve the intent of the statute in the Internet age.
But even in this more liberal interpretion of possession, person would have to take some action to possess CP that appeared unexpectedly on his screen.
WE all know that viewing and downloading a file is really the same thing. If you're worried about accidentally downloading kiddie porn, there's something in criminal law called "intention" that protects you from being wrongfully convicted. It's the same reason why you can't "accidentally murder" someone. Although in that case, you may be found intentionally and therefore criminally negligent or reckless.
The question is: does one posses (in a legal sense) the contents of one's browser cache.
That seems like an absurd question. Of course you do, generally speaking.
I am not sure. I have been reading definitions of legal possession and they frequently require the possessor to excercise control over the object in order for it to be considered in his possesion.
When I read this legal decision, I get the impression that the justices are reluctant to directly answer the question of whether a web browser user is in possession of any given file in his browser's cache. They say that he can't possibly be if he has never heard of the browser cache. Then the majority and the disenter separately advance their theories as to when a person gains possession of an image which has been displayed in his browser window. The majority says that he goes from seeing it to possessing it when he orders the computer to keep it (I am paraphrasing here). The disenter says that he comes into possession of it when he, after understanding the nature of the website, begins to use it actively.
Nowhere can I find a statement by either the majority or the dissent which would suggest that a person who opened a web page with child pornography without knowing in advance what was on it has violated any laws, even technically.
They do not specifically discuss whether a person who accidently opened a page with child pornography is legally oblidged to flush his browser cache. It would of course be a good idea and if one had did so it could be proof that one deliberately rejected possession of the images. But, I think a court might decide that a person who left it in the cache (along with thousands of other files with meaningless names) until it had expired had abandoned it and thus not taken possession.
We will have to wait and see how this developes.
Even thinking about this as a "loophole" misses the point. It wasn't always illegal to possess child pornography.
In the beginning, it was made illegal to produce and sell it. To produce it is, obviously, very wrong. Banning the selling was intended to cut off the profit incentive.
But the police complained that they couldn't find these sellers. So it was made illegal to purchase it. That, surely, would dry up the profits.
But then the police complained that, when they arrested someone with child pornography, they couldn't prove that he actually bought it. So it was made illegal to even possess it. To make conviction easier on mere evidence of possession.
Then the nitwit chorus took up the refrain "he was viewing it! Obviously viewing it makes you evil; that's why it's illegal, isn't it? Everyone knows that!"
Viewing child porn is a secondary crime, not an inherent evil. I don't care if he did intend to view it. Get over it.
And, in general, I am sick of the law not evolving with the digital age, tubes and all. Viewing a web site is... like watching TV.
No one ends up with a huge cache of child porn on their computer by accident. It's just a loophole for paedophiles.
To have a right to do a thing is not at all the same as to be right in doing it
They do not specifically discuss whether a person who accidently opened a page with child pornography is legally oblidged to flush his browser cache. It would of course be a good idea and if one had did so it could be proof that one deliberately rejected possession of the images. But, I think a court might decide that a person who left it in the cache (along with thousands of other files with meaningless names) until it had expired had abandoned it and thus not taken possession.
Perhaps so. It is a reasonable angle for a defense attorney to try. I think most judges and juries are so scared of CP that they would convict based upon the following simple series:
Prosecutor: "Did you, accidentally or otherwise, use your computer to view one more images of child pornography?"
[after some objections are overruled, the defendant will be reminded to answer with a yes or no]
Defendant: "Yes, but..."
Prosecutor: "Are you aware that Internet Explorer (and all major Web browsers) use a technology known as caching whereby images from the Internet are stored on your computer to speed up future downloads of the same page?"
Defendant: "Well, I'm not sure"
Prosecutor: "Have you ever been told by tech support to clear your browser's cookies and temporary internet files?"
Defendant: "I believe so"
Prosecutor: "Did you do that after viewing this child pornography?"
Defendant: "I don't remember"
Prosecutor: "The pictures were still there, so you either saved them intentionally or didn't bother to delete them. Which is it?"
Defendant: "I guess I didn't think to clear my cache."
Prosecutor: "So, you viewed child porn, were aware that it was still on your computer, and didn't take any action to remove it? That sounds like a clear-cut of possession to me"
A good judge very well may see through this and but most won't. I think it will be immaterial soon enough because every law will get updated to criminalize the act of viewing (or requesting for the purpose of viewing, or something similar).
"As the plow follows words, so God rewards prayers."
Different poem:
"An Angel came to me and said: 'O pitiable foolish young man! O horrible! O dreadful state! consider the hot burning dungeon thou art preparing for thyself to all eternity, to which thou art going in such career.' "
I'm the real Vorokrytin P. Winterbuttocks.
Prosecutor: "So, you viewed child porn, were aware that it was still on your computer, and didn't take any action to remove it? That sounds like a clear-cut of possession to me"
A good judge very well may see through this and but most won't. I think it will be immaterial soon enough because every law will get updated to criminalize the act of viewing (or requesting for the purpose of viewing, or something similar).
I agree with you completely. Prosecutors try to shortcut the difficult process of proving possession all the time. And the laws will definitely have to be updated. Let's hope that when they are, the law makers focus on the acts of the human being and what he sees on his screen (as the judges in this case seem to have done) rather than the inner workings of his computer. I think the law makers should ask themselves "what would constitute possession of a pornagraphic magazine? What are the equivelent actions on the World Wide Web?" The dissenting judge in particular seems to be exploring this question.