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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?
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.
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.
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
Now finally I can visit 4chan without getting nervous about knocks on the door.
There are far lesser reasons to avoid 4chan
Beauty is in the eye of the beerholder.
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.
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.
"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.
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).
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 federal law already does. 18 USC 2252A (a)(5)(B) covers someone who "knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography..." However, prosecuting someone under this requires demonstration of intent and knowledge.
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
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.
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
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
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
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
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