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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
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.
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?
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
"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.
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.
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!
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
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.
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
Tell that to the **AA. If downloading music for free is killing the music industry, why shouldn't downloading child porn for free kill the child porn industry?
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.
torrents are the way to go for good quality, legal porn.
Torrents...huh. I am guessing you use the word 'legal' loosely.
Entia non sunt multiplicanda praeter necessitatem.
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.
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!
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...
LOL
and of course, that sarcastic comment is exactly right. people trade and love free music, and are therefore very much involved in fostering its creation
a guy will spend more effort creating a song that puts a smile on a woman's face, as his only payment, than he will in a year's worth of labor at a job that pays him cold hard cash
demand != $$$
demand --> supply
going after demand is a fair target in the fight against child porn
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
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?
just because you can't put a dollar sign on it doesn't mean that the rules of demand and supply don't apply
If nobody is willing to trade, supply and demand do not enter the picture. You might say there is "no demand" -- that is, nobody is willing to pay any price or make any sort of trade. Now, there are some people who are willing to pay -- and I think there is are good arguments for arresting them -- but people who are unwilling to make any trade for child pornography are people who do not even count in terms of demand.
Let's put it this way: distributing a child porn image is a risky activity, especially if you are the one depicted in that image (and likewise, allowing someone to photograph you abusing a child is risky). That risk necessitates some sort of trade; there must be some incentive for someone to take on that sort of risk, perhaps money, perhaps additional child pornography, perhaps something else. Someone who is just downloading child pornography, without paying or trading, is someone who is doing nothing to encourage its production, and may even discourage its production by making the producers nervous (e.g. someone who downloads an image and disappears could be a cop or someone who will report the image to the cops).
So yeah, just consuming child pornography is not encouraging its production, unless there are people out there who are willing to pay or trade. Which is why I said that people who pay are people who should be arrested: they are actually creating the market.
Yes, I know that what I am saying is that some guy sitting there getting off to a child porn image should be left alone, as long as he did not pay for the image. It is not something that people like to hear, but someone who cannot be shown to have harmed children is not someone who needs to be kept in prison, He may be a creep, he may be a pervert, you may not feel comfortable having your children near him, but an image does not harm a child. We also have limited law enforcement resources, and a large number of child abusers who should be in prison -- and people who pay for child pornography are not only encouraging child abuse, they are also a source of valuable intelligence for finding child abusers (whatever they pay with must be sent somewhere, and even a digital cash transaction still has to have some counterparty).
Palm trees and 8
Strategic advice noted. This is not an argument for a court, though. There is no crime in visiting "shitty sites" and according the law there's no reason reason people should avoid doing so, merely based on the site's shittiness. You have to try to see something illegal-to-see, for this particular court to treat you as a criminal, or at least that's what they're saying, in this instance.
If the FBI arrests you because of your bumper sticker or because a site you browsed contains kiddie porn, or because your skin is too dark, yes you are still fucked because you were suddenly kidnapped and because you're going to be spending money on legal defense. But at least if you get this judge, you might end up without a criminal record. The color of your skin or the fact that your browser loaded a kiddie porn image, won't be considered evidence that you were trying to get kiddie porn. His argument is that storing kiddie porn isn't enough; you have to want to do it or know you did it, in order for the act to be illegal.
The court appears to be saying that's a good thing: not realizing you have a cache. If I'm reading this right, if you know how web browsers work, the act of viewing illegal content is more likely to be considered a crime by the court, than it would be for another person who doesn't know about caching.
"Believe me!" -- Donald Trump
Inconvenience. By conflating your temporary trash files with your desired working set, yes, you can make it harder to analyze what you're doing, and cast ambiguity on evidence. But that works both ways: it makes it harder for you to keep shit together, and you're failing to use the power of computers to organize things for you. It's also not safe; this doesn't "square you with the law"; it simply provides an advantage.
Once could even argue that by creating such a situation, the law is functioning correctly: it's deterring kiddie porn by making the collecting and viewing of it a less pleasant experience. True, it's not as unpleasant as prison, but this measure is a much cheaper for us than prison (or even investigating a suspect), so the balance tips at least in the right direction, if not the degree that everyone would like.
"Believe me!" -- Donald Trump
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.
Nothing. What's your point? That we should keep punishing innocent people so guilty people can't claim to be innocent?
Liberty in your lifetime
well more importantly, a guy wacking off to a child porn image is a guy who is someone who is sexually aroused by children. you are comfortable with such a person being free in your community?
Honestly? As long as they can keep it to themselves and not try to have sex with any children, I really do not care. I do not want to be in the business of judging people or imprisoning them for what they are thinking about, no matter how perverse their thoughts may be. What people become sexually aroused by is not really anyone's business. Arrest or ostracize people for their actions, not their thoughts.
Now, I say this knowing full well that I would try to keep a person who admits to being aroused by children as far away from my little cousin (I have no children to speak of) as I can. It is only natural to be suspicious of someone who is not afraid to admit to being a pedophile, even if they never act out on that impulse. Yet being distrustful of someone is not the same as thinking that the police should march in and arrest them, or that tax dollars should be spent housing them in a prison.
if you demonstrate pedophile urges, you need to be permanently kept away from society
No, if someone demonstrates pedophile behavior they need to be kept away. We should not be in the business of prosecuting people for thinking things that disturb us, that is a path that ends in tyranny.
your sexual urges means you have no right to freedom
No, a person's thoughts are their business and theirs alone. Arrest people only for actions, and only for actions that can be shown to harm others. Prisons are not disposal bins for anyone whose thoughts or fantasies disgust us, nor are prisons a memory hole for people we do not trust.
Palm trees and 8
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...
Yes, and the fact that the government got away with outlawing child porn a few decades ago (1973 in the U.S., for example) has since been used as justification to outlaw photos and videos of animal cruelty ("crush videos"), photos of extreme violence and gore, and in some places like the U.K. now, things like consensual bondage/S&M pornography.
Any power we give to the government will ultimately be abused.
Liberty in your lifetime
consuming child pornography is a pretty clear statement of intent
It sounds more like a statement of a person's own fantasies to me, or in some cases just their curiosity.
Palm trees and 8
You're right.... Lol, but I guess many people misunderstood the same way, since I still got modded-up for it.
Demand does not magically create supply. Child pornography is extremely risky to produce and distribute; nobody is going to do it just to satisfy demand, they do it because they expect to receive some form of payment, which may or may not be money.
Palm trees and 8
I'll be honest, I'm attracted to women and yet I've never sexually abused one. Does that restore your faith in humanity, or do you think I'm just an outlier?
We hope your rules and wisdom choke you / Now we are one in everlasting peace
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.
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.
Then looking at images of dead bodies creates murderers. Anyone who views an image of a corpse should be tried as if they killed the person themselves. Right?
well more importantly, a guy wacking off to a child porn image is a guy who is someone who is sexually aroused by children. you are comfortable with such a person being free in your community?
He is clearly sexually aroused by pictures of children. Whether he will be sexually aroused by actual, live, children remains in question.
I would not be comfortable with such a person being alone with a child. However, if other adults were present, I'd expect them to be very careful to avoid drawing suspicion when they were around children, and in all probability avoid children in general and seem uninterested in being around them, as long as not given the opportunity for private encounters with them.
pedophilia is like a curse. because it renders you incompatible with free and open society.
I agree with you there.
if you demonstrate pedophile urges, you need to be permanently kept away from society. you only represent potential damage on young lives. your sexual urges means you have no right to freedom
And disagree there.
Children are a wonderful part of life. Confining someone to a world without children is downright cruel and unusual. If they enjoy being around children in safe environments with other adults present, of course.
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
There's a big difference between women legally being able to consent, and women choosing to consent. There are plenty of guys with absolutely no luck with women who are not rapists.
We hope your rules and wisdom choke you / Now we are one in everlasting peace
I am not really seeing your point -- am I supposed to care more about my neighbor fantasizing about experimenting with plutonium? No, I do not think I have any business inspecting my neighbors' thoughts. They can fantasize about pink pony themed websites, or they can fantasize about vivisecting human beings, as long as they are not going out and harming people I really do not care.
Palm trees and 8
That would be one FSCKing argument to use in court if you were silmutaniously being sued and charged for both respectively...
whois gawk date unzip strip find touch finger mount join nice man top fsck grep eject more yes exit umount sleep dump
. . ., and in some places like the U.K. now, things like consensual bondage/S&M pornography.
Have you got a citation for this? Being from the UK I realised that CP ('indecent images of children', whether photographic or not) and zoophilia (bestiality) were illegal, but not bondage/S&M.
You never know what is enough unless you know what is more than enough. - Blake
Well, if they don't want others to encourage the production of more child pornographer, then they should at least have to prove, beyond a reasonable doubt, that they did just that merely by possessing an image. Someone is innocent until proven guilty, and if they want to arrest someone over child pornography, the least they could do is prove that they encouraged the production of more.
Of course, I'd prefer it if we didn't waste our tax dollars going after people who look at images to begin with...
Filthy, filthy copyrapists!
New UK law to outlaw violent porn. When does kinky porn become illegal?. The Criminal Justice and Immigration Act 2008 (2008 c. 4) is the bill; it's in part 5, section 63.
Liberty in your lifetime
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.
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?
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.
well more importantly, a guy wacking off to a child porn image is a guy who is someone who is sexually aroused by children. you are comfortable with such a person being free in your community?
What about a guy who whacks off to rape porn? Rape is illegal too, yet rape porn is perfectly legal -- are you going to argue that we should feel unsafe around this guy, too, because he gets off on something like that?
Note that I'm not arguing that it is or should be ok to make child porn -- children can't consent, whereas the actresses in the rape porn can. I'm specifically questioning your willingness to lock people up for having urges (even if they've never acted on them) that you find disagreeable.
--Jeremy
Jesus was a liberal
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.
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
well more importantly, a guy wacking off to a child porn image is a guy who is someone who is sexually aroused by children. you are comfortable with such a person being free in your community?
Yes, of course. You're basically advocating thoughtcrime here. Civilized societies don't punish people for their thoughts.
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.
They also created demand for photos of dead people, therefore creating a market for murderers.
APK likes to ask for responses to the same things over and over. Maybe he just likes the responses?