Only if you're lucky. In my case, they received my DOA laptop, then claimed they didn't and refused to honor the return. I had to reverse the charges with my credit card company and ceased dealing with them. I was blown away by how dishonest they were and just how bad their customer service was. I had used them for years but no more.
I used NewEgg for years but my last dealing with them was during 2011's Black Friday sales. They shipped me a DOA laptop (subsequent reviews on the site indicated that a huge number of them had the same problem). I obtained an RMA, packed the unit up, and shipped it back. After several weeks, I finally received an automated notification that they had my package. A few days later, I was notified that they received an empty box and therefore couldn't process my return.
I spent almost two months fighting with NewEgg and the shipper. This was some of the worst customer service I've ever endured. I was lied to repeatedly by NewEgg call center agents, by agents on chat, and by customer service managers. During one of the conversations, they slipped and admitted to having pictures of the package. It took three weeks and numerous requests, but they finally provided them. They had told me and the shipper that the box arrived completely destroyed; that the side was completely ripped out and that someone apparently stole the laptop during shipment. The picture showed a box in perfect condition with the end flaps cut open, just as they would do when receiving a package.
At this point I officially contested the charges with my credit card company and had the charges reversed. When I completed the form and attached my evidence, the person at the bank was blown away by NewEgg's actions. I swore to never deal with NewEgg again and I've made sure to tell everyone else about the experience. All of the money I saved with them over the years wasn't worth the dishonesty, disrespect, and theft of my time for this transaction.
Let me clarify my assumed situation. Many companies are on the cusp of VDI today. These companies issue desktops to "normal" desk-bound employees and laptops to mobile employees. Many mobile (and some less mobile) employees also have a smartphone and/or tablet. A big benefit of VDI is savings in hardware and simplifying support by moving to simple terminals instead of full-blow workstations. But these mobile workers complicate this by requiring a laptop.
What if the more mobile users were instead given a tablet and docking station? For a cost somewhere between the terminals and laptops, you are still mobile and still using a remote desktop. I'm not suggesting that every employee and every situation warrants a mobile device and docking station. Only that the consistent cries of "this can't work because there are too few native apps on tablets" are seemingly misguided in the cases where the arrangement otherwise makes sense.
Trashing some mod points to respond since I've yet to see anyone else mention this in the thread.
Why does everyone assume that all the work has to happen on the local device? With the the movement to VDI and good RDP clients for ever major mobile platform, why can't we use a dock and a remote desktop? I could have a full-size display, mouse, keyboard, and a Windows desktop served by TS, Citrix, or VMWare while at my desk, and pop out the iPad, Transformer, etc, to carry with me when mobile. Something like Good Technology's MDM would give me secure email access while on the go and I could use a VPN connection to get my desktop if I needed more.
Of course this won't work well for apps that don't do well in a VDI environment but I don't see why it wouldn't suffice for the bulk of our office workers, executives, sales staff, etc.
Indeed. I ran Firefox for years but had to keep IE around (using the IETab add-in) for particular sites. When I moved to Comodo Dragon a few months ago, I put it on my work laptop, our home laptop, our two netbooks, and our old XP desktop. I haven't needed or used Firefox or IE since. Sure, a few sites bitch that I'm on an "unsupported browser" but they work fine, and a rare few sites screw up the page layout. But, unlike using Firefox five years ago, I've yet to find anything that simply doesn't work or that absolutely requires IE. Progress baby.
When I was an undergrad, library reserves usually consisted of hard copy materials that the professor used to supplement the required items. It might be a different textbook, some notes that he had put together over the years, old tests, or any other similar materials. There were usually only one or two of these items so they were pretty tightly controlled by the library (kept behind the desk, check-out time very limited, can't leave the library, etc).
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).
That's fair enough. The other cases I have linked in my replies demonstrated a much clearer affirmative action (copying out of the cache, manually deleting the cache files, etc). However, I tend to think most judges aren't going to be quite so demanding on this. Also, this case will spur state legislatures to make sure their laws include viewing. Then the cache will support the viewing piece, whether or not it proves possession.
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?
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.
It really would depend on the quantity and how the attorneys presented it. Having a cache filled with months of CP and no alternate explanation for how it got there is unlikely to be looked on favorably by a judge and/or jury. Several federal cases have tried to use a similar defense (see http://law.justia.com/cases/federal/appellate-courts/F3/305/1193/593156/) without success, but all I've seen had evidence of the defendant manipulating the files in the cache so they really couldn't claim ignorance.
I don't think that's quite right. It was not that he did not know he possessed them, it was that he did not posses them even though they were in his browser cache
That's a great theory, but it doesn't seem to match up with what the ruling actually says:
We must consider, among other issues, the evidentiary significance of "cache files," or temporary internet files automatically created and stored on a defendant's hard drive, and the defendant's awareness of the presence of such files. We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant's knowing procurement or possession of those files.
The difference between viewing pornography on the Internet and possessing pornography may be illustrated this way: Suppose that word gets around a school that "there is a dirty picture in the third stall in the boy's room" and some of the boys make excuses to go and look. They do not become possessors of the picture. But one could become a possessor by taking the picture down, taking it home, and hiding it under his matress. And, if we assume (for purposes of argument) that what the boys did was wrong, what the last boy did was more wrong.
Thanks for the lesson but your analogy is off. Under NY state law, looking at that picture on the wall is not illegal (federal law is another story but not in play in this case) but taking a picture of it so you can look again without going to the stall (i.e. caching it locally) means you now possess it. But what if the kid who took the picture didn't know that he has the picture, didn't look at it again, and didn't even take it on purpose. Can he be said to possess for purpose of criminal prosecution? The court said no. Taking it home and hiding it under his mattress would be a completely different story.
What has happened here is the judges now understand what a browser cache is: a temporary storage area over which users do not ordinarily excercise control. It may be a storage container in a technical sense, but not in a legal sense. The fact that a document or an image is in the cache does not indicate that the computer's user is trying to keep it. The judges understand that something which would not be considered a crime if done using old technology should not accidently become a crime when committed using a new technology just because of some obscure technical detail of how the new technology works.
Yet in other cases where the defendant was shown to have manually deleted images from the cache and/or copied them to other locations, this same defense has failed. If you actually read the ruling (and others that I've linked in other posts in this story), you'll see that the critical issue is whether the defendant demonstrated that they were aware of the cached images.
In that case, the legislature may have to decide what level of repeated viewing incures the same guilt as keeping it. But this decision has to be made by the legislature, not by calling viewing possession.
Which is exactly what the judges said in this case. The state law speaks only to possession, unlike the federal law that wasn't used in this case. Rest assured that the NY legislature will update their law.
The NY law at issue doesn't speak to intent at all. If you posses CP images, you are breaking the law. End of story. The issue in this case was whether someone can be held responsible for possessing something he doesn't know he has (i.e. images cached by the browser). This is completely separate from the intent required by the federal law. If he was charged under it, the prosecutor would have to prove that he was looking for CP or at least knew what he was getting when he looked at it.
I agree but you're off-base assuming this ruling relates at all to your point. The court simply ruled that the NY law under which Kent was convicted requires possession and that something he didn't know he had could hardly be considered. This eliminated a handful of counts from the approximately 150 initially brought forth. The NY law is shit - it doesn't have any provisions for intent and it doesn't address viewing. If you have CP, then you are guilty. FWIY, the federal law attempts to do a better job; it addresses accessing with intent to view and requires knowledge of what you're doing.
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.
Hate to reply to myself, but to clarify - this ruling was regarding the NY state law. US federal law already covers access with intent to view, but it does require knowledge and intent. In theory, accidentally stumbling upon some CP shouldn't run afoul of the law but a case like Professor Kent would be covered.
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.
Apparently the NY state law requires possession and the court ruled you can't be charged with possession if you didn't even know you had it. The federal law does not require possession but says there must be an intent to view the child porn.
Even outside NY, I believe (though IANAL) the ruling can be used as precedent, and can be referred to in other cases to persuade the judge to come to the same conclusion.
Only if their local laws are written similarly to NY's. Keep in mind that the federal statute does make viewing (regardless of possession) illegal, but it does require intent.
This decision is in the state of NY and based upon their state law, which apparently requires possession. The federal law is a bit different however. 18 USC 2252A (a)(5)(B) criminalizes 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...". So, under federal law, access with intent to view doesn't require possession, but it does require knowledge and intent. The federal law also provides for an affirmative defense for this section if you possessed less than three images and immediately destroyed them.
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).
"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 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.
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And most importantly, the service is 1000% better. NewEgg's customer service is worse than some random Chinese EyePadd site.
Only if you're lucky. In my case, they received my DOA laptop, then claimed they didn't and refused to honor the return. I had to reverse the charges with my credit card company and ceased dealing with them. I was blown away by how dishonest they were and just how bad their customer service was. I had used them for years but no more.
I used NewEgg for years but my last dealing with them was during 2011's Black Friday sales. They shipped me a DOA laptop (subsequent reviews on the site indicated that a huge number of them had the same problem). I obtained an RMA, packed the unit up, and shipped it back. After several weeks, I finally received an automated notification that they had my package. A few days later, I was notified that they received an empty box and therefore couldn't process my return.
I spent almost two months fighting with NewEgg and the shipper. This was some of the worst customer service I've ever endured. I was lied to repeatedly by NewEgg call center agents, by agents on chat, and by customer service managers. During one of the conversations, they slipped and admitted to having pictures of the package. It took three weeks and numerous requests, but they finally provided them. They had told me and the shipper that the box arrived completely destroyed; that the side was completely ripped out and that someone apparently stole the laptop during shipment. The picture showed a box in perfect condition with the end flaps cut open, just as they would do when receiving a package.
At this point I officially contested the charges with my credit card company and had the charges reversed. When I completed the form and attached my evidence, the person at the bank was blown away by NewEgg's actions. I swore to never deal with NewEgg again and I've made sure to tell everyone else about the experience. All of the money I saved with them over the years wasn't worth the dishonesty, disrespect, and theft of my time for this transaction.
Let me clarify my assumed situation. Many companies are on the cusp of VDI today. These companies issue desktops to "normal" desk-bound employees and laptops to mobile employees. Many mobile (and some less mobile) employees also have a smartphone and/or tablet. A big benefit of VDI is savings in hardware and simplifying support by moving to simple terminals instead of full-blow workstations. But these mobile workers complicate this by requiring a laptop.
What if the more mobile users were instead given a tablet and docking station? For a cost somewhere between the terminals and laptops, you are still mobile and still using a remote desktop. I'm not suggesting that every employee and every situation warrants a mobile device and docking station. Only that the consistent cries of "this can't work because there are too few native apps on tablets" are seemingly misguided in the cases where the arrangement otherwise makes sense.
How about an RDP application? Now you can run any office application you want.
Trashing some mod points to respond since I've yet to see anyone else mention this in the thread.
Why does everyone assume that all the work has to happen on the local device? With the the movement to VDI and good RDP clients for ever major mobile platform, why can't we use a dock and a remote desktop? I could have a full-size display, mouse, keyboard, and a Windows desktop served by TS, Citrix, or VMWare while at my desk, and pop out the iPad, Transformer, etc, to carry with me when mobile. Something like Good Technology's MDM would give me secure email access while on the go and I could use a VPN connection to get my desktop if I needed more.
Of course this won't work well for apps that don't do well in a VDI environment but I don't see why it wouldn't suffice for the bulk of our office workers, executives, sales staff, etc.
Indeed. I ran Firefox for years but had to keep IE around (using the IETab add-in) for particular sites. When I moved to Comodo Dragon a few months ago, I put it on my work laptop, our home laptop, our two netbooks, and our old XP desktop. I haven't needed or used Firefox or IE since. Sure, a few sites bitch that I'm on an "unsupported browser" but they work fine, and a rare few sites screw up the page layout. But, unlike using Firefox five years ago, I've yet to find anything that simply doesn't work or that absolutely requires IE. Progress baby.
http://www.library.gatech.edu/services/reserves/index.php
When I was an undergrad, library reserves usually consisted of hard copy materials that the professor used to supplement the required items. It might be a different textbook, some notes that he had put together over the years, old tests, or any other similar materials. There were usually only one or two of these items so they were pretty tightly controlled by the library (kept behind the desk, check-out time very limited, can't leave the library, etc).
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).
That's fair enough. The other cases I have linked in my replies demonstrated a much clearer affirmative action (copying out of the cache, manually deleting the cache files, etc). However, I tend to think most judges aren't going to be quite so demanding on this. Also, this case will spur state legislatures to make sure their laws include viewing. Then the cache will support the viewing piece, whether or not it proves possession.
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?
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.
It really would depend on the quantity and how the attorneys presented it. Having a cache filled with months of CP and no alternate explanation for how it got there is unlikely to be looked on favorably by a judge and/or jury. Several federal cases have tried to use a similar defense (see http://law.justia.com/cases/federal/appellate-courts/F3/305/1193/593156/) without success, but all I've seen had evidence of the defendant manipulating the files in the cache so they really couldn't claim ignorance.
I don't think that's quite right. It was not that he did not know he possessed them, it was that he did not posses them even though they were in his browser cache
That's a great theory, but it doesn't seem to match up with what the ruling actually says:
We must consider, among other issues, the evidentiary significance of "cache files," or temporary internet files automatically created and stored on a defendant's hard drive, and the defendant's awareness of the presence of such files. We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant's knowing procurement or possession of those files.
The difference between viewing pornography on the Internet and possessing pornography may be illustrated this way: Suppose that word gets around a school that "there is a dirty picture in the third stall in the boy's room" and some of the boys make excuses to go and look. They do not become possessors of the picture. But one could become a possessor by taking the picture down, taking it home, and hiding it under his matress. And, if we assume (for purposes of argument) that what the boys did was wrong, what the last boy did was more wrong.
Thanks for the lesson but your analogy is off. Under NY state law, looking at that picture on the wall is not illegal (federal law is another story but not in play in this case) but taking a picture of it so you can look again without going to the stall (i.e. caching it locally) means you now possess it. But what if the kid who took the picture didn't know that he has the picture, didn't look at it again, and didn't even take it on purpose. Can he be said to possess for purpose of criminal prosecution? The court said no. Taking it home and hiding it under his mattress would be a completely different story.
What has happened here is the judges now understand what a browser cache is: a temporary storage area over which users do not ordinarily excercise control. It may be a storage container in a technical sense, but not in a legal sense. The fact that a document or an image is in the cache does not indicate that the computer's user is trying to keep it. The judges understand that something which would not be considered a crime if done using old technology should not accidently become a crime when committed using a new technology just because of some obscure technical detail of how the new technology works.
Yet in other cases where the defendant was shown to have manually deleted images from the cache and/or copied them to other locations, this same defense has failed. If you actually read the ruling (and others that I've linked in other posts in this story), you'll see that the critical issue is whether the defendant demonstrated that they were aware of the cached images.
In that case, the legislature may have to decide what level of repeated viewing incures the same guilt as keeping it. But this decision has to be made by the legislature, not by calling viewing possession.
Which is exactly what the judges said in this case. The state law speaks only to possession, unlike the federal law that wasn't used in this case. Rest assured that the NY legislature will update their law.
The NY law at issue doesn't speak to intent at all. If you posses CP images, you are breaking the law. End of story. The issue in this case was whether someone can be held responsible for possessing something he doesn't know he has (i.e. images cached by the browser). This is completely separate from the intent required by the federal law. If he was charged under it, the prosecutor would have to prove that he was looking for CP or at least knew what he was getting when he looked at it.
I agree but you're off-base assuming this ruling relates at all to your point. The court simply ruled that the NY law under which Kent was convicted requires possession and that something he didn't know he had could hardly be considered. This eliminated a handful of counts from the approximately 150 initially brought forth. The NY law is shit - it doesn't have any provisions for intent and it doesn't address viewing. If you have CP, then you are guilty. FWIY, the federal law attempts to do a better job; it addresses accessing with intent to view and requires knowledge of what you're doing.
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.
Hate to reply to myself, but to clarify - this ruling was regarding the NY state law. US federal law already covers access with intent to view, but it does require knowledge and intent. In theory, accidentally stumbling upon some CP shouldn't run afoul of the law but a case like Professor Kent would be covered.
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.
Apparently the NY state law requires possession and the court ruled you can't be charged with possession if you didn't even know you had it. The federal law does not require possession but says there must be an intent to view the child porn.
Even outside NY, I believe (though IANAL) the ruling can be used as precedent, and can be referred to in other cases to persuade the judge to come to the same conclusion.
Only if their local laws are written similarly to NY's. Keep in mind that the federal statute does make viewing (regardless of possession) illegal, but it does require intent.
This decision is in the state of NY and based upon their state law, which apparently requires possession. The federal law is a bit different however. 18 USC 2252A (a)(5)(B) criminalizes 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...". So, under federal law, access with intent to view doesn't require possession, but it does require knowledge and intent. The federal law also provides for an affirmative defense for this section if you possessed less than three images and immediately destroyed them.
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).
"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 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.