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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! "
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.
Who cares? Maybe now they'll actually start going after the creeps that make this stuff.
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
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.
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.
Despite what the "tough on crime" short-sighted idiots would say, this is not only a necessary decision, but a really long-time-coming one. Considering how many links people click on over the course of the day, with hardly any idea (implicitly or explicitly) of what's going to be found on the other side, there have been many unintentional violations of the current law. Furthermore, I wonder how many people who surfed the internet for legal (consentual, adult) pornography, have seen what looked like child porn at one time or another. But under current law, no matter how disgusted you may have been, or how quickly you closed the page, you were guilty by definition. Furthermore, if you reported what you saw, you not only were guilty, but you had confessed as well. This was akin to the UK case where a man found a shotgun that was thrown into his garden from a passing vehicle, and turned it into the police, only to be jailed for weapons possession, since he was "in possession" of it during the course of bringing it to the police station.
This is an important decision for internet safety, and should be applauded, and will hopefully serve as precedent for cases outside of New York as well, since the practice of trawling the browser cache for suspect images is fairly prevalent. And I have to say - I doubt that anyone who intentionally views child pornography would be that obvious, unless they were stupid. And if they were that stupid, there'd be plenty of other "downloaded" evidence all over the place. In short, the draconian law as it stands right now is simply not necessary for prosecution of real purveyors of child porn, and likely served only to trawl for victims.
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 was once browsing a Tumblr porn blog, and came across something that looked very much like child porn. After leaving the page and scrubbing my eyes out, I cleared the browser cache and history and did everything I could to scrub every trace of those bytes from my machine.
I loathe child porn, and people who make it and enjoy it should definitely be punished. But that intense fear I felt that the authorities might come after me because my browser accidentally downloaded some? I shouldn't have to feel that. This ruling is a very good thing.
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!
I've always found it disgusting how quick school administrators are to ruin a kid's life over innocent mistakes.
Bring a multitool that happens to have a blade to school? Call the police. Arrest them, rather than just confiscate the device and send it home to parents.
Draw a movie action scene where some guy is blowing people away with a machine gun? OH NOS HE MIGHT DO IT FOR REAL. Call the cops. Suspend him. Ruin him psychologically for being creative!
It's gotten way beyond control. Stuff that would have gotten a kid suspended or detention when I was in school 20 years ago is getting them thrown in jail, expelled or placed into psychiatric care these days. It's no wonder our kids are growing up not-quite-centered. Sigh.
Great in theory, but how many 'mundanes' know to clear their browser cache? How many of them know how to clear their cache? You could slide over 3 or more kiddie porn images in 4 or 5 years no problem, and by the Fed statute, still be prosecutable.
I for one applaud the New York ruling, it stops the police from going for a quick slamdunk 'conviction' (hey, how much easier can it get when the 'criminal' calls you up and reports finding this shit?) and forces them to go after the source.
Understanding the scope of the problem is the first step on the path to true panic.
Thing with all this is, I doubt that you're ever going to stop pervs completely. In fact, if someone is a perv, that's their own problem. It's only when they can actually hurt children where there is a problem.
If this data is being passed freely over p2p networks, no one is turning it into a business and making money off it. The fact is, stopping *free* dispersion of this material over the Internet isn't going to stop the source of it, and the source is where the children are being hurt. I suppose you could say that seeing that sort of thing encourages certain behavior, but I don't know that is true. And if some perv stays at home and looks at that instead of using their free time stalking some child at a school or something, it could have an unintended benefit.
Point being, simply allowing pervs to maybe see some free porn that has already been made is definitely not worth turning an innocent person into a felon sex offender because they clicked on the wrong page because it doesn't help a single child.
I for one applaud the New York ruling, it stops the police from going for a quick slamdunk 'conviction' (hey, how much easier can it get when the 'criminal' calls you up and reports finding this shit?) and forces them to go after the source.
I agree with your sentiment, but I think you're missing some important details here. First, if you call the cops and report that you have it, then you obviously are aware of your possession and would not be helped in the least by this ruling. Secondly, the NY law is crafted such that possession = guilty. The only affirmative defense provided is that you thought the person was not a minor; good luck with that one. The law is pretty simple:
A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.
There is no element of intent involved. If you are aware that you posses CP, you have broken the law. Kent was able to get a handful of the approximately 150 counts dismissed because they didn't prove that he was aware that he possessed the images found in his browser cache.
Years ago (my first full time job) I got a panicked call from the company head of sales. One of our clients thought it would be funny to send our sales guy a link that opened 10 child porn sits and each side opened another 10 and before he knew it his computer was overloading and deep into swap with hundreds of child porn windows. I walked in, figured I would rather deal with a broken windows 2000 install than any amount of viewing child porn and pulled the power cord from the machine.
I would have no problem with arresting everyone who views child porn if we could somehow guarantee that each person arrested willingly went with the intent to view it but is far too easy for some other jerk to be the reason for viewing child porn for simple viewing to be a crime.
Don't confuse the people who are pro sexual freedom but not sexual freedom. Christians had a line in the sand and got in trouble for it, now the liberals have their own line in the sand ... what makes prefering same sex pairings more 'normal' than someone who prefers children? Nothing. The 'normalcy' defense has been used over and over to defend gay rights but its irrelevant to discussing pedos for some reason.
For the record, I defend neither group; I'm a straight married white dude who doesn't deserve an opinion, but I do find the whole situation ironic.
- Michael T. Babcock (Yes, I blog)
Actually anybody who has cleaned lots of infected PCs frankly has already seen it thanks to the "clickjack" bugs and their variants. I've seen plenty of those bugs that will just spray the screen with tons of sleazy topsites to get their clicks up and a lot of those thumbnails on those topsites? Fucking gross.
This is just common sense because one can see something on the net they are not hunting for. How many here have been Rickrolled? two girls? Hell there was a sick troll that hung around HERE a few years back that would put links to CP images as his version of a Rickroll just to show he didn't worry about shit with his "7 proxies". Whether those that like the red scare we have going on around CP accept it or not there are plenty of easy ways to end up seeing something you REALLY didn't want to see. I know I sure as hell didn't click on a Lemon party or Tubgirl link on purpose, thanks.
ACs don't waste your time replying, your posts are never seen by me.
what makes prefering same sex pairings more 'normal' than someone who prefers children?
I guess it's that most same sex pairings are between consenting adults, whereas children often are not able to give consent for such things.
He said preferring, not executing. There certainly is a societal problem with non-consensual sex. Wanting non-consensual sex however, is purely a personal problem. As is wanting anything that you can't have.
I don't know what this "line in sand" is that he's talking about though. I'm pretty liberal and would happily defend homosexuals, pedophiles, necrophiles, zoophiles, polygamists... almost any others that you could name. But not rapists. Is that my line? Rape? I don't anticipate getting in trouble for that.
(Don't think this is a free pass for you zoophiles - I'm not okay with animal rape either.)
As a voluntaryist, I take the same position. Rape is a nonconsensual act and thus has an actual victim. All of these other things are just paraphilias and, however strange, are just people's desires. Desires are inherently victimless; they're just thoughts. And thoughts only become "wrong" when they're translated into action that involves unwilling participants (victims).
Liberty in your lifetime