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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...
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.
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
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
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 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.
Proof 2012 is end of the world... Judges making technically savvy rulings.
Never answer an anonymous letter. - Yogi Berra
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.
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.