Beta

Slashdot: News for Nerds

×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

Canada's Top Court Quashes Child Porn Warrant

Soulskill posted more than 4 years ago | from the canuck-cache-case-quash dept.

Canada 363

m.ducharme writes "The CBC is reporting that the Supreme Court of Canada has handed down a decision quashing a search warrant used to obtain the computer of a man accused of possession of child porn. 'Urbain P. Morelli maintained his charter rights were violated when police searched his computer for child pornography after a technician who had visited his home to work on the machine expressed concerns to police.' What the Slashdot community may find notable about this decision is the distinction drawn between 'accessing' and 'possessing' digital images, most particularly the recognition that a user does not 'possess' cached data. From the decision: '[35] When accessing Web pages, most Internet browsers will store on the computer's own hard drive a temporary copy of all or most of the files that comprise the Web page. This is typically known as a "caching function" and the location of the temporary, automatic copies is known as the "cache." While the configuration of the caching function varies and can be modified by the user, cached files typically include images and are generally discarded automatically after a certain number of days, or after the cache grows to a certain size. [36] On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a "place" over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.'"

cancel ×

363 comments

Okay... (5, Interesting)

Securityemo (1407943) | more than 4 years ago | (#31550602)

Will he have his computer back now?

Re:Okay... (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#31550720)

Why, so he can go look at more CP?

Clearly, the law needs to be rewritten. Those of you celebrating this decision should be ashamed of yourselves.

Re:Okay... (5, Insightful)

Anonymous Coward | more than 4 years ago | (#31550876)

Umm, no. The law is written the way it is to protect innocents from people like you, who would crucify someone at the first allegation of "child porn", without asking questions and allowing for a fair trial, proper investigations and collection of evidence, etc. How do you know he really is the criminal you say he is? Or we could model ourselves after somewhere like Central America... mere accusations will get you lynched and set on fire.

Re:Okay... (0)

Anonymous Coward | more than 4 years ago | (#31550998)

There was a trial, in which the evidence showed that he was indeed looking at CP. He got off on a technicality.

Re:Okay... (5, Informative)

zill (1690130) | more than 4 years ago | (#31551108)

In Canada it's perfectly legal to access CP. The Criminal Code of Canada only prohibits possession of CP, specifically it is an offense to:
- possess any child pornography (section 163.1(4))
- make, print, publish or possess for the purpose of publication any child pornography (section 163.1(2))
- import, distribute, sell or possess for the purpose of distribution of sale any child pornography (section 163.1(3))

Everything was clearly stated year before this case. I would hardly call that a technicality.

Re:Okay... (1)

mrsteveman1 (1010381) | more than 4 years ago | (#31551258)

The "technicality" being the completely illegitimate way the warrant that started the case, was obtained?

Re:Okay... (0)

Anonymous Coward | more than 4 years ago | (#31550890)

Riiiight. Because accidents never happen? You've never been redirected to a site with content that skirts the law? Hell, you've never browsed any of the chans?

If he has kiddie porn stashed away then lock him up, but don't bust his ass because he clicked on a link looking for a deal on auto insurance.

http://tinyurl.com/totallylegitandnotCP [tinyurl.com]

Is this a link for savings on your auto insurance, or is it something far more sinister? There's only one way to find out!

Re:Okay... (0)

Anonymous Coward | more than 4 years ago | (#31551002)

Yup, the only [tinyurl.com] way is to blatently click random urls.

Re:Okay... (0)

Anonymous Coward | more than 4 years ago | (#31551216)

Fantastic work ignoring half of his point while completely missing the other half. You're a sharp one.

Re:Okay... (5, Insightful)

Entropius (188861) | more than 4 years ago | (#31550942)

The judge didn't say that he was innocent.

The judge said that the existence of CP in the cache doesn't in itself make him guilty; that the prosecution must also show "mens rea" (which translates essentially to "guilty intent", as I understand it).

If this guy is guilty, then show it, and you can chuck him in jail and take his computer. If he's innocent, give him his computer back.

Re:Okay... (0)

Anonymous Coward | more than 4 years ago | (#31551192)

The judge didn't say that he was innocent.

Judges don't say you're innocent (well, almost never). You are innocent BY DEFAULT.

Normally judges say that you are guilty or not guilty.

I'd Go Further (0, Flamebait)

jmanners (1771888) | more than 4 years ago | (#31551062)

Yes, absolutely. The disgraceful tenor of some of the comments here is repulsive. Everyone who advocates child porn here is SICK. And their IP addresses should be forwarded to approriate Law Enforcement.

Re:I'd Go Further (0)

Anonymous Coward | more than 4 years ago | (#31551148)

I'd go further yet again. Anyone who even mentions child pornography should be locked up immediately for an indeterminate amount of time before having their wang cut off and beaten to de

Re:I'd Go Further (4, Funny)

mrsteveman1 (1010381) | more than 4 years ago | (#31551276)

We ought to just lock up anyone who looks at a child anywhere at any time, who knows what they're thinking when they see that child?

And apparently some people even MAKE THEIR OWN children, we need to put a stop to this immediately.

Re:Okay... (1)

Runaway1956 (1322357) | more than 4 years ago | (#31551076)

Actually, CP isn't that hard to just "stumble over". You've heard of the dark net, I presume. Go, install I2P, or some other dark net application. Browse around a bit. You'll be surprised to find that A: there is some interesting shitzls on the dark net, and B: about half the content on the dark net is CP. You don't have to look at CP - all you need do is browse around, looking for the rare gem of a political perspective, or some of the activist stuff, and you WILL stumble over CP. It's right there in front of you.

While I don't actually *advise* that you browse through the CP - for educational purposes, there is nothing like seeing what has everyone in an uproar. It ranges from distasteful, to disgusting - not all of it is equal. Except, of course, in the eyes of the law. A video of two sixteen year olds is as likely to land you in prison, as a video of "Daddy doing his 11 year old daughter".

As for Canada's ruling - I'm not quite sure how I feel about it. Caching is not pessession - but, if the guy was viewing CP and getting off on it, he's guilty, IMHO. Deviant bastid needs to be cut, then tied down over a fire ant hill. I just don't know what to think.

I don't think the US Supreme court would have ruled in his favor - he's lucky to be in Canada!!

Wow, Savvy Judge (5, Insightful)

Skarecrow77 (1714214) | more than 4 years ago | (#31550640)

I didn't know that our legal system understood computers even that well, to distinguish browser cache "oh crap, what the hell did I just see?!" from deliberate "I done saved 3115 photos to my desktop that I probably shouldn't have".

Of, wait, it's not my legal system, it's Canada's. nevermind. Grats Canadians on having sane judges?

The legal system understands anything... (4, Insightful)

Oxford_Comma_Lover (1679530) | more than 4 years ago | (#31550664)

The legal system understands anything that someone explains to it. So if you explain something to a judge or a lawyer, he or she is supposed to think about what you've explained and figure out how the law applies to it. A cache isn't something it's hard to explain, so--particularly when it's really important to a case--a judge will understand it.

Re:The legal system understands anything... (1)

MikeBabcock (65886) | more than 4 years ago | (#31550722)

You've never tutored have you? There are people who either refuse or are incapable of understanding certain concepts. Some judges fall into this category in certain areas, and one would hope it wasn't the case, but it happens, especially when judges are elected based on popularity and not appointed on merit.

Re:The legal system understands anything... (0)

Anonymous Coward | more than 4 years ago | (#31550778)

While it is true that some people may have a gut feeling that a "cache of cp" can't be much different than a "cache of weapons" (even though one was automatically popped into your file system regardless of intent and the other was physically collected with full intent), I doubt that explaining a caching function to a judge would be all that difficult.

Re:The legal system understands anything... (1)

perlchild (582235) | more than 4 years ago | (#31551304)

Just a note, there's nothing wrong with your post, you just assume the rules in the US happen everywhere else.

Judges are not elected in Canada, but appointed.

Popularity does play a role, since a politician does the appointing, but it's not an election.

Re:The legal system understands anything... (0)

Anonymous Coward | more than 4 years ago | (#31551308)

In what benighted backwater are judges elected?
Judges? Seriously?

Re:Wow, Savvy Judge (2, Insightful)

MikeBabcock (65886) | more than 4 years ago | (#31550710)

I'm proud of being Canadian when judgments like this come down. We've had a number of other salient ones in the last number of years too.

Child porn laws are out of control. (5, Insightful)

MikeFM (12491) | more than 4 years ago | (#31550744)

I think they should stop wasting resources hunting pervs that look at the stuff and spend time hunting the predators that actually produce the stuff. It gets especially silly when they want to arrest someone for looking at cartoon porn - who is the victim? Or my biggest gripes is that they are harassing kids for taking pictures of themselves and sharing them. So they are self-victimizing and we need to give them a felony and register them as a sex offender instead of just telling their parents? I had a girlfriend when I was a teenager and we did more than hold hands and *gasp* there were provocative photos sometimes. Guess I'd better turn myself in.

Re:Child porn laws are out of control. (5, Insightful)

ScottCooperDotNet (929575) | more than 4 years ago | (#31550862)

Child porn is the root password to the Constitution.

Re:Child porn laws are out of control. (1)

Runaway1956 (1322357) | more than 4 years ago | (#31551132)

"stop wasting resources hunting pervs that look at the stuff and spend time hunting the predators that actually produce the stuff."

I fully agree. I mean, even if the perv has thousands of images and hundreds of videos, he's not actually touched one single child while collecting them.

In my post above, I mentioned the dark net. The predators are proud of their "work". You get full facial views of the predators enjoying their sport. How hard can it be for the police forces to combine their intelligence, and match the face to somoene? Often enough, tatoos and other marks make the job easier.

So, yeah, go after the predators FIRST, at least.

Re:Wow, Savvy Judge (2, Insightful)

CharlyFoxtrot (1607527) | more than 4 years ago | (#31550832)

Of, wait, it's not my legal system, it's Canada's. nevermind. Grats Canadians on having sane judges?

Let's hope that even though many of us don't live in Canada and the case doesn't directly set precedent in our legal systems the case is widely reported among legal professionals and they get a better understanding of the technical side of the argument. At the very least this should give lawyers in other countries ideas for a better defense for their clients.

court intelligence (4, Insightful)

Onymous Coward (97719) | more than 4 years ago | (#31550642)

Surprisingly sophisticated and reasonable thinking on behalf of the court. I'm impressed.

Re:court intelligence (4, Insightful)

MikeFM (12491) | more than 4 years ago | (#31550670)

Intelligent law that doesn't give in to "but it's for the children" bullshit. I'm moving to Canada.

Re:court intelligence (0, Troll)

Anonymous Coward | more than 4 years ago | (#31550846)

There are other problems in Canada. The immigration/refugee system, for instance, is very broken. Being apparently intelligent, well-educated, and knowing English, you'd probably have no chance of getting in. You'd be forced to jump through hoop after hoop over the course of many years, and likely would get rejected in the end.

Now, if you were an uneducated Somalian with gang ties, a long criminal record, and no knowledge of English or French, you'd be bumped to the front of the line. You'd get significant amounts of social assistance, you'd never have to work, and you'd get a passport within a few years. You'd be able to travel the world, committing a variety of serious crimes, and then you could cry to the Canadian government to bail you out when you get caught. Rather than letting your sorry ass rot in a third-world prison, they'd waste millions of dollars to get you back to Canada, although you never paid a cent in Canadian taxes.

Third-worlders have ruined huge parts of most major Canadian cities. Yet the government, regardless of which party is in charge, keeps bringing more and more of them in. This is just beginning to become a problem, and it will only be getting worse and worse.

Re:court intelligence (0)

Anonymous Coward | more than 4 years ago | (#31550910)

Je suis un americain qui parle un peu de francais. QC baby, here I come!

Re:court intelligence (1)

Runaway1956 (1322357) | more than 4 years ago | (#31551152)

Show off. So, you paid attention in language classes, while I fell asleep. I hate you . . . .

Re:court intelligence (0)

Anonymous Coward | more than 4 years ago | (#31551164)

see ya

Re:court intelligence (0)

Anonymous Coward | more than 4 years ago | (#31551166)

but you should also remember that "child porn" includes any drawing representing a child... so theorically, if you draw a stick figure and say it's a 9 years old without any clothes, it becomes child porn...

Re:court intelligence (2, Insightful)

Jailbrekr (73837) | more than 4 years ago | (#31550708)

Surprisingly intelligent, yes, but it completely ignores the fact that a technician found evidence that he was producing child porn, only to find that he disassembled his setup and formatted his hard drive the next day. The ruling really is a mixed blessing. Ruling that cached data does not constitute possession is a good thing, but quashing the search warrant based solely on that point was a horrible thing to do due to the rest of the evidence.

Re:court intelligence (4, Insightful)

CharlyFoxtrot (1607527) | more than 4 years ago | (#31550858)

Surprisingly intelligent, yes, but it completely ignores the fact that a technician found evidence that he was producing child porn, only to find that he disassembled his setup and formatted his hard drive the next day. The ruling really is a mixed blessing. Ruling that cached data does not constitute possession is a good thing, but quashing the search warrant based solely on that point was a horrible thing to do due to the rest of the evidence.

If he formatted his drives then there was no evidence, a technicians testimony is hearsay not evidence. "No evidence = No prosecution" is a good thing even if it allows some criminals off the hook (as it inevitably will.)

Re:court intelligence (3, Informative)

gnasher719 (869701) | more than 4 years ago | (#31550964)

If he formatted his drives then there was no evidence, a technicians testimony is hearsay not evidence.

A technician can always testify in court to what he saw on the hard drive as a witness, and that would not be hearsay. Hearsay would be a policeman testifying in court "the technician told me..." or the technician testifying "the customer told me..."

Re:court intelligence (1)

mysidia (191772) | more than 4 years ago | (#31551070)

A Technician's testimony is probable cause to obtain a search warrant to find physical evidence of a crime the technician indicates exists.

And it would not be hearsay, it would be 1st party testimony about what they saw

Hearsay would only occur if the Technician testified someone else saw evidence of a crime, or someone else observed something suspicious.

What a witness themselves observed and testifies to the court is NOT hearsay, period.

Re:court intelligence (4, Insightful)

Hojima (1228978) | more than 4 years ago | (#31550860)

Um, what was that "evidence" again? Oh yea a camera pointed to his fully clothed three year old daughter with her toys. The technician said he found 2 suspicious links (amongst the plethora of porn he had in his bookmarks). What I'm thinking is that the defendant liked petite LEGAL girls(i.e. he probably had a link that said "tiny teens" in his long list of fetishes). It's not untypical for someone to stumble on illegal porn when searching for legal porn. Sorry but this case was bullshit, and I commemorate the judge and jury on their competent choice.

Re:court intelligence (4, Insightful)

Kell Bengal (711123) | more than 4 years ago | (#31550906)

But that's not what the article even says. The judge ruled that the technician's testimony about the nature of the camera setup and the links observed on the computer where ambiguous. As the technician didn't even follow any of the links, it seems strange to me that he should be able to tell at-a-glance what they lead to (unless they were patently advertising what they linked to, which strikes me as unlikely).

The search warrant was quashed because it was issued under faulty information. "My god, judge - the guy had a camera setup and was filming his kid, and there were links on his computer to pornographic websites!" Well... was he filming his kid playing for Kodak memories in years to come, and were those links to pornography perfectly legitimate adult websites? Even in the article, you get the idea that simply having links to pornography somehow constitutes reasonable suspicion that you might be a kiddy-fiddler, regardless of whether that pornography is perfectly legal and unassociated with it.

I, for one, am tired of people tacitly assuming that pornography is corrupt and corrupting, regardless of what it contains. It's ignorant moral panic at its finest.

offtopic - sig (1)

TaoPhoenix (980487) | more than 4 years ago | (#31551112)

Why does your sig go to one of the low-end placeholder websites?

Re:court intelligence (1)

Xeno man (1614779) | more than 4 years ago | (#31551114)

What evidence? The tech saw nothing. Unless the bookmark was labeled "Totally illegal child porn" the tech never saw anything because he never followed any of the links. Even if it was child porn links, it's not like a lot of adult websites automatically add bookmarks for you with Javascript. Oh wait, that's what those hundreds of pop ups do. Plus there were only 2 suspect links among the dozen or so adult bookmarks so who knows if he even knew what was bookmarked. Also on top of that, bookmarks are not child porn.

As for the camera, it was pointed at the kid and connected to a vcr. Holy shit, remind me not to take a camera to my nephews birthday party as I was going to point it at a lot of kids. To think I almost could have gone to jail over that. You don't know what he was doing and to assume the worst is irresponsible. Maybe he was trying to record home movies, maybe he was setting up a nanny cam. Maybe he was arranging the kids toys into a pentagram and calling for the spirit of Satan. The web cam is completely innocent but was painted in a dark image by a tech that was either offended by porn links or was pregistist about a guy that view porn.

Re:court intelligence (-1, Troll)

Anonymous Coward | more than 4 years ago | (#31550820)

Sounds to me like the guy got off on a technicality. The problem was entirely with the police in obtaining an inapproriate warrant. So while the decision is regrettable, it is also unavoidable. Deschamps, making his dissenting opinion, perhaps ought to have argued more of a public interest line.

I most certainly don't think the Supreme Court decision was reasonable or sane - it was forced. The whole matter rested on the initial search warrant, not the perspicacity of the judges' ability to distinguish technical categories of possession.

Let us not forget that the original conviction was based on physical evidence, not hearsay. The actual evidence sufficient to convict existed, and it is most unfortunate that the police signally failed in their duty to secure a conviction for one of the most heinous and despicable offences.

You hit the nail on the head (4, Insightful)

MyFirstNameIsPaul (1552283) | more than 4 years ago | (#31550852)

Too often we use the term "he got off" when we should really be saying "the police are incompetent".

Re:court intelligence (5, Insightful)

TheRaven64 (641858) | more than 4 years ago | (#31550894)

it is most unfortunate that the police signally failed in their duty to secure a conviction for one of the most heinous and despicable offences

Looking at pictures of naked children is 'one of the most heinous and despicable offences'? Wow. Where do you put things like theft, rape, assault, or murder then? Personally, I'd prefer a thousand people who looked at pictures of naked children on their computers to one person who went around killing people.

Re:court intelligence (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#31550956)

Very often those children are kidnapped, raped, assaulted or even murdered. Child porn is not a victimless crime, and the very suggestion that it is, makes me shudder at the vile ignorance and stupidity of some of the comments here.

Re:court intelligence (4, Insightful)

K. S. Kyosuke (729550) | more than 4 years ago | (#31551100)

Very often those children are kidnapped, raped, assaulted or even murdered.

But none of these crimes is committed by the viewer of the photos, who - in the age of Photoshop, CGI etc. - does not necessarily have to be aware of how the photos were created in the first place. It's like buying apples at a marketplace. How is one supposed to tell that they were stolen/grown by exploited fruit growers living in desperate coditions/whatever, solely from the looks of the apples?

Re:court intelligence (4, Funny)

mysidia (191772) | more than 4 years ago | (#31551236)

Very often those children are kidnapped, raped, assaulted or even murdered.

Have some people completely lost the ability to distinguish crimes from each other?

Some people possess money.

Very often those dollars had been stolen, involved in a bank robbery where innocent people are murdered, involved in drug trafficing where people are murdered..

Therefore anyone found possessing dollar bills should be tossed in jail for life. They were responsible for murder after all, right?

Re:court intelligence (1)

Runaway1956 (1322357) | more than 4 years ago | (#31551286)

You cite the worst case scenarios.

But, you offer no citations. Do you have numbers to back that up? It is my belief that the vast majority of abducted children are brutalized for the predator's own pleasure, rather than for CP. No, I have no citations, hence, my statement that "it is my belief".

Re:court intelligence (1)

Ralph Yarro (704772) | more than 4 years ago | (#31551066)

Looking at pictures of naked children is 'one of the most heinous and despicable offences'?

Doing so deliberately for purposes of arousal, yes it is.

Where do you put things like theft, rape, assault, or murder then?

Rape and murder are also some of the most heinous and despicable offences. Assault can be, depends on the details. Theft, absent aggravating cirumstances, isn't.

Do you really need people to tell you that?

Re:court intelligence (0)

Anonymous Coward | more than 4 years ago | (#31551184)

"Doing so deliberately for purposes of arousal, yes it is."

I can't wait to jail the FUCK out of you for thoughtcrimes committed.

Re:court intelligence (0)

Anonymous Coward | more than 4 years ago | (#31551232)

People who feign "outrage" at child porn are almost always pedophiles themselves.

Re:court intelligence (1)

Runaway1956 (1322357) | more than 4 years ago | (#31551266)

"secure a conviction for one of the most heinous and despicable offences."

I might argue that CP is what you say it is - but I won't bother.

I will point out, that plenty of people have been busted for CP, when pornography was the furthest thing from their minds. Time was, when a naked infant, toddler, or even young child in a photograph raised no eyebrows anywhere. Grandma sent many a photo off to be developed in the '50's and 60's. Somewhere in my young adulthood - late '70's, we'll call it - I started reading about grandmothers being busted for those photos.

So - I claim that your depiction of child porn is part of the over reaction that threatens the most innocent of people. Mothers, grandmothers, aunts, and cousins who just LOVE to compare little details, like the dimples on the cheeks of Baby Rose's ass, to those of her Aunt Betty.

I can't claim that the defendant in this case was entirely innocent, but you can't claim that he was guilty, either - because we just don't KNOW!! A few images do not a child molester make.

I wonder, (0, Troll)

MyFirstNameIsPaul (1552283) | more than 4 years ago | (#31550674)

What is in the caches on the supreme court judges' computers?

This makes sense. (0)

Anonymous Coward | more than 4 years ago | (#31550676)

It never struck me as sensible that an individual is legally responsible for the contents of their cache file(s). If you inadvertently stumble upon obviously illegal child porn on the internet and report it to the appropriate authorities, you could be prosecuted just like a child molesting sex offender because those files were stored in your cache when you discovered them.

Thanks Canada, for making sense.

Re:This makes sense. (2, Informative)

rjstanford (69735) | more than 4 years ago | (#31550924)

I've had objectionable stuff pop up through ad-blockers before when randomly surfing as well that I'd like to report (not even sure if it was legit or not, closed windows fast) ... but haven't, for that very fear. Sad, but what can you do? I'm certainly not going to incur thousands of dollars of legal fees to try to figure out the "right" way to report something that would probably either be ignored, on a jurisdiction that the police are unable to do anything about, or might get me accused of a felony. If it turns out its even illegal.

Curious to how this relates to the US. (0)

Anonymous Coward | more than 4 years ago | (#31550682)

Curious to how this relates to the US. If drugs or weapons are in your car--without your knowledge--you are arrested for their possesion. "Sorry Mr. Officer that bag of weed must have been cached. It's just temporary."

Re:Curious to how this relates to the US. (1)

Xeno man (1614779) | more than 4 years ago | (#31550758)

It doesn't relate at all. US doesn't give a shit what Canada does when enforcing their own laws. The US will shout, complain and threaten Canada and other countries to be more like them but Canadian and American laws have nothing to do with each other. In fact there are several areas where laws differ greatly such as copyright, medical marijuana, banking laws and gay rights.

Re:Curious to how this relates to the US. (1)

Ian Alexander (997430) | more than 4 years ago | (#31551200)

Very correct, although of course now that the argument that a web cache doesn't constitute possession has been made in one court system it might be possible to adapt the argument for another, and hopefully it will happen. It's utterly insane that somebody should be held legally liable for the contents of their cache.

Re:Curious to how this relates to the US. (1)

mmmmbeer (107215) | more than 4 years ago | (#31550768)

It's much more likely and far more reasonable that you could have cached images on your computer without your consent than contraband in your car without your consent. The prosecution could still argue that you are responsible, but they would have a difficult time overcoming the "reasonable doubt" of innocence. On the other hand, if you had contraband in your car, you would have to give a reason why it could be there without your knowledge. After all, your car didn't pick them up itself. Still, if you did so, and it was sufficient to provide a reasonable doubt (ie. just saying so isn't enough), then charges would probably be dropped.

Re:Curious to how this relates to the US. (3, Interesting)

Yold (473518) | more than 4 years ago | (#31550826)

It doesn't, it is Canada.

Constructive possession is a concept where if the drugs are accessible to you, e.g. you are the passenger of a car and drugs are found in the center console, you can be charged with possession without even knowing you are there. This sort of charge routinely fucks people out of gainful employment for decades; imagine this. Your buddy picks you up, and you are pulled over, drugs are found in the center console. Although you had no idea the drugs were there, you can be charged with possession if the driver doesn't admit to owning the drugs, or perhaps even if he does. If you are moderately wealthy, you get a lawyer, he plays buddy-buddy with the judge and prosecutor, and the charge will get dropped or downgraded to a non-drug offense, but if you are poor which is overwhelmingly the case, you wind up with probation and no hopes of finding a job in the next decade.

Re:Curious to how this relates to the US. (0)

Anonymous Coward | more than 4 years ago | (#31551294)

In sane countries, your criminal record is only consulted for jobs in which it is relevant. And can only be consulted if the relevant job is listed in the law, in any other case you cannot get a printout to show the employer. Say, banking jobs, police-related jobs, three-letter agencies etc.

This is total horseshit (-1, Troll)

Montezumaa (1674080) | more than 4 years ago | (#31550698)

This kind of crap would not fly in the United States. The computer user might not have knowingly possessed the images through his computer's browser cache, but I am sure he knowingly viewed the images through his browser. His intent was to view the images and he was too dumb to know that his browser was storing copies of the photographs. That is enough to get a warrant and obtain an indictment. Hell, you could get a conviction with that evidence.

I will cede that, if the user was checking email and stupidly clicked a link and sent him to some child porn site, then he would not be committing a criminal act. If I found one site and only one page on that site were visited, then I would not pursue charges against the man. If he has visited multiple sites over multiple days and had viewed multiple pages, then I would tell me to prepare to be on the receiving end of one of the prison's Rectal Olympics games.

I have no sympathy for disgusting piece of shit that get off on child pornography.

Re:This is total horseshit (3, Interesting)

wshs (602011) | more than 4 years ago | (#31550742)

What makes you so sure he wasn't a victim of spam or the like? In the US, you have to show that the person knowingly and willingly sought out to download the images. If there's just 3, that's gonna be impossible to prove. If there's half a billion, then intent is easy to show. This was recently changed because people were spamming the hell out of other people with sick porn to try and get them in trouble. Distribution, on the other hand, ignores intent completely.

Re:This is total horseshit (0, Troll)

Montezumaa (1674080) | more than 4 years ago | (#31551034)

You obviously have no clue about how the legal system works then.

Re:This is total horseshit (4, Insightful)

GuyFawkes (729054) | more than 4 years ago | (#31550780)

So, you are basically stating for the public record that YOU PERSONALLY ACCEPT TOTAL RESPONSIBILITY for every last byte of data stored on your computers...

I hope your computer are stocked in a vault to which only you have physical access, and which is blocked from the net, and which doesn't have any mains power.

After all, you just stated you believe it is an absolute offence with no possible or acceptable defence.

Good of you to volunteer me for the same bullshit without first asking me though.

Re:This is total horseshit (5, Insightful)

Anonymous Coward | more than 4 years ago | (#31550822)

I was with you until

prepare to be on the receiving end of one of the prison's Rectal Olympics games.

What is it with Americans being so gleeful about prison rape? It's barbaric.

Re:This is total horseshit (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#31551022)

Here in America, we love our gay rapist criminals so much that we're happy to know that our tax dollars are being used to supply them with free sex slaves.

Re:This is total horseshit (1, Funny)

Anonymous Coward | more than 4 years ago | (#31551050)

It's a Republican thing. Most Republicans are closet gays, and basically spend their days dreaming of getting reamed up the ass by fat hairy men. Rather than admit their true queer feelings, they end up feeling very guilty for some reason. It's probably because their closet-gay priests (who like to diddle children) scream repeatedly about how "horrid" homosexuality supposedly is.

Anyway, being socially unable to be openly homosexual, these Republicans push hard for lengthy jail terms for minor "crimes", ensuring years and years of sodomy. Then they secretly hope that some day they'll be caught, and get to live their lifelong fantasy of near-constant bumsex and anal rape.

Re:This is total horseshit (4, Insightful)

thePowerOfGrayskull (905905) | more than 4 years ago | (#31550886)

This kind of crap would not fly in the United States. The computer user might not have knowingly possessed the images through his computer's browser cache, but I am sure he knowingly viewed the images through his browser.

But the law specifically says you cannot possess such material. It does not state that you cannot *view* the images. Which means that while the cache constitutes likely proof to show that he did view it -- that is not a criminal act. The distinction you're trying to erase is exactly the one that prevented him from being convicted.

Re:This is total horseshit (1)

aoeuid (250239) | more than 4 years ago | (#31551150)

But the law specifically says you cannot possess such material. It does not state that you cannot *view* the images. Which means that while the cache constitutes likely proof to show that he did view it -- that is not a criminal act. The distinction you're trying to erase is exactly the one that prevented him from being convicted.

In the link to the decision you can see in the second paragraph that the Criminal Code of Canada apparently does make this distinction. There are two charges: Possession of Child Pornography, and Accessing Child Pornography. This guy was charged with possession, not accessing. If the charge had been made under s. 163.1(4.1) (accessing) rather than s. 163.1(4) (possessing), the outcome likely would have been different. The cops screwed up, it's as simple as that.

Re:This is total horseshit (0, Troll)

Montezumaa (1674080) | more than 4 years ago | (#31551156)

You could not be more wrong. Receiving illegal contraband does not require that you continue to possess said contraband for any length of time. It is illegal to possess, receive, distribute, and/or produce child pornography(see 18 U.S.C. 2251, 2252, 2252A). You can try and double-talk all you want, but I will promise you that you will be looking at the long end of a bad prison sentence if you try and obtain child porn; even for 30 seconds.

People always believe they are more intelligent that the government, but I always proved people wrong. There is no excuse or story that I have not heard during my time in law enforcement, and 99% of them never worked.

Really? (0)

Anonymous Coward | more than 4 years ago | (#31550928)

Unless the guy is accused of making the pictures, distributing the pictures, or paying for the pictures, who exactly is the US helping by putting this person in jail?

Re:This is total horseshit (2, Insightful)

NeutronCowboy (896098) | more than 4 years ago | (#31550976)

Let's see.... based on the description, it is possible that the guy was into child-porn. However, what bugs me is that the evidence that was described to get the search warrant was this:
- a web cam pointed at an area where a three-year old plays, and plugged into a vcr
- a list of links in the taskbar, where it is unclear whether the technician actually followed them to identify them as adult and child porn. Or where they labeled "adult porn" and "child porn"? The article is unclear here.

And... that's about it. At no time did the technician actually see child porn on the computer. At no time did he see any abuse, or even signs that abuse has happened. So really, the warrant was based on the idea that pointing a web cam at your kid can only happen for the reason of producing child porn, and that the names of certain websites indicate the content of their images. That's bullshit. The first one is more likely due to parents wanting to have memories of their kids, and the second.... well, the odds that every girl on a pornsite that just happened to turn 18 is actually 18 are damn near zero. I'd say naming conventions for porn sites don't exactly hold up to scrutiny.

I'm assuming here that the conviction happened because the warrant actually turned up child pornography. What pisses me off though is that the warrant itself was bogus, and and now Mr kiddyporn is going free on a technicality.

However, I'd like to remind everyone that technicalities are there to protect everyone of us from idiots in power. What happened was exactly what was supposed to have happened. I just hope that the police now do it right and get him again... because he is likely to slip up again.

Re:This is total horseshit (4, Informative)

Todd Knarr (15451) | more than 4 years ago | (#31551032)

Maybe he didn't. A number of browsers nowadays have a prefetch feature: they'll follow any links on a page and fetch the pages those links point to, to help speed things up when (or if) the user clicks on those links. That results in data in the cache for pages the user never visited.

Re:This is total horseshit (0)

Anonymous Coward | more than 4 years ago | (#31551040)


I have no sympathy for disgusting piece of shit that get off on child pornography.

I have no sympathy for disgusting "i have no sympathy".

Hey, dumbass: you forgot that in order to put someone to jail you have to prove someone's guilt. Not to prove that he might be guilty.

Re:This is total horseshit (1)

thetoadwarrior (1268702) | more than 4 years ago | (#31551056)

Now CP peddlers know to store their collections on your computer because you'll take the blame.

Solution for CP lovers (1, Funny)

Dr_Banzai (111657) | more than 4 years ago | (#31550712)

1. Set cache size to 100 GB.
2. "accidentally" browse CP
3. ??
4. Profit!!

Re:Solution for CP lovers (2, Insightful)

ddxexex (1664191) | more than 4 years ago | (#31550790)

FTFS: . While the cached file might be in a "place" over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.'"

No jury/judge will see it as accidently having muliple CP images. So that's 4. Jail Time!

Re:Solution for CP lovers (1)

Iyonesco (1482555) | more than 4 years ago | (#31551154)

"it is necessary to satisfy mens rea"

The discussion is about child porn not gay porn.

Re:Solution for CP lovers (0)

Anonymous Coward | more than 4 years ago | (#31550816)

Child Pr0n viewers prefer Windows 7 to Vista. (No UAC to interrupt... things)

I think IE9 defaults to about 100GB for caching anyhow, so you're in luck.

"Goddamit, GO AWAY clippy I'm BUSY!"

Re:Solution for CP lovers (1)

Kell Bengal (711123) | more than 4 years ago | (#31550946)

"Hi, you look like you're trying to download illegal pornography. Would you like to use a template?"

Re:Solution for CP lovers (0)

Anonymous Coward | more than 4 years ago | (#31550818)

Actually, *accessing* child porn is also illegal in Canada. It seems like if the warrant in this case had been to look for evidence of accessing porn, the accused could have been sentenced for something. But I Am Not A Lawyer.

Re:Solution for CP lovers (0)

Anonymous Coward | more than 4 years ago | (#31550824)

"It is better to risk saving a guilty person than to condemn an innocent one" - Voltaire.

A sentiment I wholly agree with. What if you're an innocent ole' 4chan troll, and some nerd-squad or whatever life failure for whatever reason is browsing your cache. ? You're not a pedobear, you're just a troll who happens upon CP from tiem to tiem.

Not that any of the fine upstanding purveyors of this website would be caught dead placing their computer in the hands of incompetence to begin with.... But I think you see my point.

Your Honor (0, Troll)

future assassin (639396) | more than 4 years ago | (#31550718)

that oz of weed in my hand was just a cache copy which I used to smell and preview the item. It wasn't actually planning on buying it until I knew how good the quality was. Since the quality of the cannabis was sub par I was about to dump my cache on the ground and move on.

Re:Your Honor (0)

Anonymous Coward | more than 4 years ago | (#31551228)

In Canada, having marijuana in your possession is not necessarily illegal. Dumping it on the ground however could be littering...

Would you like to store your web page so it may... (1)

JDmetro (1745882) | more than 4 years ago | (#31550732)

be accessed faster in the future?
I may not have it worded exactly...but I if recall doesn't Explorer ask that first time you start it? (been years since I used Windows)

"Making" in the UK, not cache-ing (1)

GuyFawkes (729054) | more than 4 years ago | (#31550754)

Sounds a lot worse as a charge...

"Yes M'lud, Mr Taco is charged with making these images"

sounds a lot worse than

"Yes M'lud, Mr Taco is charged with owning a computer running Microsoft Windows 98 and Internet Explorer 5, which, when Mr Taco visited the website in question, caused cached copies of the images in question to be stored temporarily on the hard disk, in an area of files not used or accessed directly by Mr Taco, but by the Microsoft products aforementioned"

The latter is also sounding a lot weaker if you're trying to sell yourself as tough of peedos, anything for the childruuun, vote for meeeee!

Re:"Making" in the UK, not cache-ing (0)

Anonymous Coward | more than 4 years ago | (#31550878)

"files not used or accessed directly by Mr Taco, but by the Microsoft products aforementioned"

A-ha! There! I knew Microsoft was somehow to blame!

Re:"Making" in the UK, not cache-ing (5, Funny)

TheRaven64 (641858) | more than 4 years ago | (#31550930)

Mr Taco is charged with owning a computer running Microsoft Windows 98 and Internet Explorer 5

This is a serious crime but, thankfully, it is its own punishment.

Is this kind of browsing routine? (5, Insightful)

HangingChad (677530) | more than 4 years ago | (#31550804)

I was wondering if the service personnel browsing dude's computer was routine? I've fixed a lot of PC's without rifling through the users cache and image files, other than if they were infected with a virus. Even backing up user profiles and data, I could tell you which files were infected but not what they were doing with their computer.

Just wondering why the technician was going through all that stuff? Seems like service people are being a lot more thorough than is required to get the computer working again.

Re:Is this kind of browsing routine? (1)

JDmetro (1745882) | more than 4 years ago | (#31550954)

I had to fix a friends computer the other day and all of his problems were directly related to the cache.
Like the random gay fetish porn that would pop up on his desktop.
The point is if he never went to the gay fetish site he never would have downloaded their movie player and got a virus.
Then I would have never known (or his family wife and kids were kind of shocked) he liked gay fetish porn.
I nailed down the virus by him telling me when the problem first occured (8:45 pm sunday) and then looking for files modified at that time. Which lead me to the cache.
Now can you honestly say he didn't possess gay fetish porn? He went to the site and downloaded to player and by browsing to site collected many images in his cache.
He's probably innocent of browsing gay porn right?

Re:Is this kind of browsing routine? (1)

thetoadwarrior (1268702) | more than 4 years ago | (#31551162)

Maybe it was actually his wife and she just likes to see twice as many dicks in her porn.

Re:Is this kind of browsing routine? (2, Informative)

MMInterface (1039102) | more than 4 years ago | (#31551292)

I can't say he did or he didn't. The stuff you mentioned doesn't say much. You can go to a straight porn website and get malware that serves gay porn popups etc. In fact plenty of straight porn sites have ads, links or redirects that will send plently of gay porn your way if you aren't protected and have bad browsing habits. Also bombarding someones computer with gay porn popups and viruses is one of the oldest gags in the book. Even the movie player can be installed without his knowledge or from an entirely different category of porn. Point being the type of content that his computer was infected with isn't necessarily going to match the content he was browsing. Anyways, I'm sure you had some better evidence to come to this conclusion but you haven't presented it.

Re:Is this kind of browsing routine? (0)

Anonymous Coward | more than 4 years ago | (#31551080)

I was wondering if the service personnel browsing dude's computer was routine? Seems like service people are being a lot more thorough than is required to get the computer working again.

Read some old news about it: sky news [sky.com]

progress (1)

TheSHAD0W (258774) | more than 4 years ago | (#31550842)

The only problem with this ruling is that, after a few incidents like this one occur, there will be a hew and outcry, and harsher and more encompassing laws passed, which will inevitably result in more arrests and convictions of people who oughtn't be bothered.

Re:progress (2, Insightful)

Kell Bengal (711123) | more than 4 years ago | (#31551004)

Gasp! Are you saying we shouldn't imprison anyone even for a moment passes a thought we disagree with? Heavens! We must punish swiftly and severely for even the most trifling victimless offense so no one anywhere will be tempted to transgress, regardless of whether they hurt anyone or not. Summary punishment is too important to reserve only for the people who actually hurt people.

child porn seizure (1)

krapski (1478035) | more than 4 years ago | (#31550938)

that's a good decision, possession of child porn is not a good enough reason to seize a computer, because we all know the true motives of laws enabling arbitrary seizures

Re:child porn seizure (1)

Montezumaa (1674080) | more than 4 years ago | (#31551054)

It is an excellent reason to seize a computer. If someone is dealing/purchasing drugs in their vehicle or house, those items can and will be seized. Deal in child pornography(regardless of whether or not you are obtaining it for yourself or peddling the disgusting smut) will net the same effect.

If you do not like that fact, then do not commit the crime. It cannot be any simpler.

Say What? (2, Insightful)

bmo (77928) | more than 4 years ago | (#31551072)

mens rea

What? What the fuck kind of barbarian country is Canada where mens rea is still alive and kicking? Here, in the Civilized United States of America Incorporated, mens rea was abolished in the Nixonian War On Drugs.

That's it. We're invading next Thursday to stop this Godlessness.

--
BMO

Ridiculous decision (1)

d_jedi (773213) | more than 4 years ago | (#31551278)

Did anyone commenting here actually read TFA (specifically, the court ruling)?
The reasoning for why the conviction was quashed had absolutely nothing to do with cached images. It was quashed because the police were ruled to have conducted an illegal (as per the Canadian Charter of Rights and Freedoms) search, despite having a search warrant to search for possession of child pornography.

Essentially, this is what happened:
1) Technician shows up to install an Internet connection on accused computer.
2) Technician notices probable child porn links in IE favourites (along with other legal porn links), and sees (legal) porn image, either on browser homepage or desktop. Technician also notices webcam hooked up to VCR (turned off at the time) directed at accused's 3 year old child.
3) Technician returns next day to finish work, and finds computer had been formatted.
4) Technician reports to social worker about possible child abuse. Social worker in turn informs RCMP.
5) Police obtain search warrant based on technician's observations.
6) (Four months after technician's initial visit) Police search accused's home, and find child pornography.

The court essentially ruled that the technician's observations did not legally justify a search. And I find this patently ridiculous.

Load More Comments
Slashdot Account

Need an Account?

Forgot your password?

Don't worry, we never post anything without your permission.

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>
Create a Slashdot Account

Loading...