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NY Ruling Distinguishes Downloading, Viewing Child Pornography

timothy posted about 2 years ago | from the now-how-will-we-blackmail-people? dept.

The Internet 370

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! "

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370 comments

Sudden outbreak of common sense, I guess (5, Interesting)

ccguy (1116865) | about 2 years ago | (#39953239)

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...

Re:Sudden outbreak of common sense, I guess (1)

dmbasso (1052166) | about 2 years ago | (#39953449)

On the other hand, now it is possible for a "virus" to serve cached images on a p2p network... quite convenient for the pervs.

Re:Sudden outbreak of common sense, I guess (5, Insightful)

tnk1 (899206) | about 2 years ago | (#39954303)

Thing with all this is, I doubt that you're ever going to stop pervs completely. In fact, if someone is a perv, that's their own problem. It's only when they can actually hurt children where there is a problem.

If this data is being passed freely over p2p networks, no one is turning it into a business and making money off it. The fact is, stopping *free* dispersion of this material over the Internet isn't going to stop the source of it, and the source is where the children are being hurt. I suppose you could say that seeing that sort of thing encourages certain behavior, but I don't know that is true. And if some perv stays at home and looks at that instead of using their free time stalking some child at a school or something, it could have an unintended benefit.

Point being, simply allowing pervs to maybe see some free porn that has already been made is definitely not worth turning an innocent person into a felon sex offender because they clicked on the wrong page because it doesn't help a single child.

Re:Sudden outbreak of common sense, I guess (5, Insightful)

TheMeuge (645043) | about 2 years ago | (#39953569)

Despite what the "tough on crime" short-sighted idiots would say, this is not only a necessary decision, but a really long-time-coming one. Considering how many links people click on over the course of the day, with hardly any idea (implicitly or explicitly) of what's going to be found on the other side, there have been many unintentional violations of the current law. Furthermore, I wonder how many people who surfed the internet for legal (consentual, adult) pornography, have seen what looked like child porn at one time or another. But under current law, no matter how disgusted you may have been, or how quickly you closed the page, you were guilty by definition. Furthermore, if you reported what you saw, you not only were guilty, but you had confessed as well. This was akin to the UK case where a man found a shotgun that was thrown into his garden from a passing vehicle, and turned it into the police, only to be jailed for weapons possession, since he was "in possession" of it during the course of bringing it to the police station.

This is an important decision for internet safety, and should be applauded, and will hopefully serve as precedent for cases outside of New York as well, since the practice of trawling the browser cache for suspect images is fairly prevalent. And I have to say - I doubt that anyone who intentionally views child pornography would be that obvious, unless they were stupid. And if they were that stupid, there'd be plenty of other "downloaded" evidence all over the place. In short, the draconian law as it stands right now is simply not necessary for prosecution of real purveyors of child porn, and likely served only to trawl for victims.

Re:Sudden outbreak of common sense, I guess (5, Insightful)

Anonymous Coward | about 2 years ago | (#39953755)

I was once browsing a Tumblr porn blog, and came across something that looked very much like child porn. After leaving the page and scrubbing my eyes out, I cleared the browser cache and history and did everything I could to scrub every trace of those bytes from my machine.

I loathe child porn, and people who make it and enjoy it should definitely be punished. But that intense fear I felt that the authorities might come after me because my browser accidentally downloaded some? I shouldn't have to feel that. This ruling is a very good thing.

Re:Sudden outbreak of common sense, I guess (2)

Defenestrar (1773808) | about 2 years ago | (#39953917)

Considering how many links people click on over the course of the day, with hardly any idea (implicitly or explicitly) of what's going to be found on the other side...

Leaving intentional clicks to unknown locations aside, it hasn't been that long since it's been reasonably easy to be free of those endless rapidly spawning popups or the pop-up viruses installed by a drive-by. Without a law like this, how many little-old ladies would we have had to throw in prison under a strict per-decision interpretation for calling in the horrible things on their computer.

Re:Sudden outbreak of common sense, I guess (5, Informative)

CowTipperGore (1081903) | about 2 years ago | (#39953969)

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.

Re:Sudden outbreak of common sense, I guess (3, Insightful)

jamstar7 (694492) | about 2 years ago | (#39954227)

Great in theory, but how many 'mundanes' know to clear their browser cache? How many of them know how to clear their cache? You could slide over 3 or more kiddie porn images in 4 or 5 years no problem, and by the Fed statute, still be prosecutable.

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.

Re:Sudden outbreak of common sense, I guess (1)

Anonymous Coward | about 2 years ago | (#39954305)

It is at least debatable as to whether viewing free child porn should be legal. You're not abusing anyone, you're not paying so not helping the child abusers, it may help to stop some people abusing children, and you don't get into the quagmire about when a cartoon depiction turns from legal to illegal because it becomes "too realistic".

Re:Sudden outbreak of common sense, I guess (5, Interesting)

Penguinisto (415985) | about 2 years ago | (#39953877)

I was thinking the same thing, though usually most folks know up-front that if you didn't actively seek and intentionally download it, you're not to blame.

I remember having to explain similar arguments a long time ago - not about CP, but about porn in general. A student had mis-typed a link in class, and suddenly got bombarded with pr0n - back in the days when pop-ups were all the rage. I merely turned off the monitor and killed power to the machine, then explained what can happen in such cases, but a young lady complained about the student to the school superintendent nonetheless.

They were ready to lynch the kid over it, and it took three hours to explain to these bureaucrats how such things can be accidental. I finally heaved a sigh, and told them to turn on a machine and "go to the White House's website at whitehouse dot com". They expected to find the President, but as you may have guessed, found the expected pr0n - this was before the meme became popular knowledge. Enough of the administrators got clued in by then to keep the kid from getting slammed.

So yeah... sometimes shit happens, and I can see it happening in a bad way for some slob who stumbles over the keyboard the wrong way. That's why I'm glad someone in the legal system is finally showing some sense.

Someone who systematically stores a shitload of CP on his hard drive and has a demonstrable history of actively seeking the shit out both on and offline? Nail 'em to the wall. Someone that accidentally stumbles into the wrong website on the other hand should never see the inside of a courtroom.

Re:Sudden outbreak of common sense, I guess (4, Insightful)

ZorinLynx (31751) | about 2 years ago | (#39953941)

I've always found it disgusting how quick school administrators are to ruin a kid's life over innocent mistakes.

Bring a multitool that happens to have a blade to school? Call the police. Arrest them, rather than just confiscate the device and send it home to parents.

Draw a movie action scene where some guy is blowing people away with a machine gun? OH NOS HE MIGHT DO IT FOR REAL. Call the cops. Suspend him. Ruin him psychologically for being creative!

It's gotten way beyond control. Stuff that would have gotten a kid suspended or detention when I was in school 20 years ago is getting them thrown in jail, expelled or placed into psychiatric care these days. It's no wonder our kids are growing up not-quite-centered. Sigh.

Re:Sudden outbreak of common sense, I guess (1, Troll)

cpu6502 (1960974) | about 2 years ago | (#39954301)

>>>it took three hours to explain to these bureaucrats how such things can be accidental

Wow.
The leaders of the school are dumber than the kids they are not teaching.

But I disagree with you that people should be arrested for possessing images of kiddie porn, just as they should not be arrested for images of murder victims, or car accidents, or a pile of cocaine. The holder of the image is Not the guilty person who committed the crime.

And I especially do not think people should be arrested for comics of kids, because there is no victim. No victim == no rights have been infringed. (Of course I'm sure you disagree, just as you probably want to force everyone to attend church weekly.)

Re:Sudden outbreak of common sense, I guess (1)

SpanglerIsAGod (2052716) | about 2 years ago | (#39954139)

Pure luck is certainly part of it. Especially when you consider that not all countries set the age of consent at 18. It is quite possible to be out searching for proper porn and come across a foreign site containing a nude 17 year old; suddenly you are a pedo.

Re:Sudden outbreak of common sense, I guess (1)

cpu6502 (1960974) | about 2 years ago | (#39954149)

>>>I've never have that in my screen but it's pure luck.

Are you sure?
Some of these stupid laws would arrest you for looking at a merely nude image of a teenager, so if you've ever visited a nudist website, or seen images of Brroke Shields & other starlets nude, then you could be prosecuted under these laws.

IOW: Pedobears have a loophole (-1)

denis-The-menace (471988) | about 2 years ago | (#39953251)

All they have to do is find a site on the internet to *view* from and it's legal.

Re:IOW: Pedobears have a loophole (2)

oztiks (921504) | about 2 years ago | (#39953279)

I wonder what impacts cloud will have on this, with say googles terms of use they retain ownership of data, does that mean one day google would be registered as a sex offender?

Re:IOW: Pedobears have a loophole (1)

Sarten-X (1102295) | about 2 years ago | (#39953489)

[citation needed]

As I recall, Google's terms (and most that I've read) specifically say that the creator keeps ownership, but they perpetually keep a license to use, reproduce, etc. that information.

This ruling's also likely a good thing for them, as Google itself doesn't need to do anything. If child porn shows up on their servers through normal operations, they didn't make any action to specifically obtain it, so they're likely free and clear... though as a private entity they are under no obligation to respect users' privacy (except as detailed in their privacy policies and other documents that may be considered legal contracts) and can choose to turn over identification information about any user that uploads anything questionable.

Re:IOW: Pedobears have a loophole (2)

Dishevel (1105119) | about 2 years ago | (#39953663)

I am not sure the GP was actually asking a question.
Seemed to me he was just using this to attempt to spread the "Google Owns You" FUD.

Re:IOW: Pedobears have a loophole (5, Insightful)

twocows (1216842) | about 2 years ago | (#39953351)

Who cares? Maybe now they'll actually start going after the creeps that make this stuff.

Re:IOW: Pedobears have a loophole (2, Insightful)

kidgenius (704962) | about 2 years ago | (#39953767)

I don't know if that'll work. If you take a look at the similarly aimed "WAR ON DRUGS", targeting users instead of dealers has been a resounding success!

Re:IOW: Pedobears have a loophole (1)

Penguinisto (415985) | about 2 years ago | (#39954041)

This, right here.

The whole legal backing behind the illegality of CP is that a child was exploited in that manner to make the photographs. Catch the exploiters, and while harder to do, will have a far more fruitful outcome than simply throwing everyone in jail who happened to see it.

Which is how it should be (3, Insightful)

betterunixthanunix (980855) | about 2 years ago | (#39953367)

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)?

Re:Which is how it should be (2, Insightful)

Anonymous Coward | about 2 years ago | (#39953599)

You are misremembering. The justification is 'Ewww, CP'.

Re:Which is how it should be (5, Insightful)

jythie (914043) | about 2 years ago | (#39953691)

Moral panics do not need justification, all they need is outrage and 'reasons' become 'common sense'.

Re:Which is how it should be (1)

L4t3r4lu5 (1216702) | about 2 years ago | (#39953693)

In the UK, the term "creating a market" is used to justify ruining the lives of regular Jo sent the over-the-top equivalent of Goatse in a link. Here, it's List 99 and prison for viewing indecent images of a minor. List 99 and prison for both a 17 year old sending a pic of herself to her 18 year old boyfriend, and the boyfriend himself, doing exactly what they are legally allowed to do in the privacy of their own homes. You can't inform the police if you do get sent such a thing maliciously, because... Yup, List 99 and prison.

You cannot escape the outrageous leaps of idiocy people will go to when the phrase "protect the children" is intoned. I'm glad at least one place has seen sense; I just wish it was here.

Re:Which is how it should be (1)

gstoddart (321705) | about 2 years ago | (#39953793)

I don't think "paid for" has ever been the threshold for determining if you've been viewing kiddie porn or if it's illegal.

the reason we imprison people for possessing child pornography is that we assume they paid for it

Ummm ... really? I think we imprison people for possessing child pornography is because it's illegal to possess it. Not because they paid for it.

This decision is more about the threshold for 'downloaded' and basically says an image in your cache isn't enough to face legal charges because you may have stumbled into it without any intention to see that crap. So a malicious link that isn't what you think it is isn't enough to land you in jail as a sex offender. Having found some of this crap on usenet once, I think this ruling makes sense if accidentally finding it doesn't make you a felon.

This has nothing to do with if you've paid for it -- it's not like they're trying to make sure you pay your taxes on it.

Or are you seriously claiming that child pornography would be OK if you got it for free? Because you'll truly be well into some creepy territory if you're claiming that.

any demand creates a supply (0)

circletimessquare (444983) | about 2 years ago | (#39953827)

just because you can't put a dollar sign on it doesn't mean that the rules of demand and supply don't apply

those who consume these images create a market for it and are therefore culpable for its creation and should be punished

Re:any demand creates a supply (1)

Anonymous Coward | about 2 years ago | (#39954365)

Tell that to the **AA. If downloading music for free is killing the music industry, why shouldn't downloading child porn for free kill the child porn industry?

Re:Which is how it should be (0)

Anonymous Coward | about 2 years ago | (#39953975)

Did the site have advertisements? If so, they paid for it. The site profits when they visit.

Re:Which is how it should be (1)

Kjella (173770) | about 2 years ago | (#39954121)

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

You're assuming money is the only driver which would be quite stupid. For one they don't have to get paid by you directly, they can run ads and pop-ups and pop-unders and sell access for exploit scripts or whatever else sleazeball activity that won't care where the clicks come from and new content drives traffic. Secondly there's trade, obviously trade in itself is purely digital but somewhere, somehow that creates an incentive to "print your own money" by making it yourself.

Third there's simple popularity. Take for example all the people making videos for YouTube or RedTube, obviously they're doing it for the attention even though they don't get paid. Hit counters, comments, everything contributes to the impression that "wow, this is popular - people want it" which is enough for some. Particularly if you're on a site that sells it, a visitor that doesn't sign up is in the "interested, but not tempted enough" category - maybe they need something better to get a better conversion rate? Or simply as part of a normalization process, we're many that feel this way.

Maybe ideally if you could take it entirely without anyone knowing, nothing that feeds back into the system than maybe. But to me is seems pretty hard to not give away any interest at all, and an interested person is a potential.

Re:IOW: Pedobears have a loophole (0)

Anonymous Coward | about 2 years ago | (#39953491)

your point? its the site that is hurting the children. If you constantly go after the end point you are in no way remedying the issue and too many "innocent" people get hurt in the process. The sites and the recorders are the ones who need to be got. Pool less money toward prosocuting some poor bastard who had a popup site and spend more tracking the offenders that actually hurt the children.

Re:IOW: Pedobears have a loophole (3, Informative)

Shoten (260439) | about 2 years ago | (#39953623)

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.

Re:IOW: Pedobears have a loophole (3, Interesting)

DrgnDancer (137700) | about 2 years ago | (#39954065)

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.

Pedobears ALWAYS had a loophole (2)

Zero__Kelvin (151819) | about 2 years ago | (#39954199)

"All they have to do is find a site on the internet to *view* from and it's legal."

Exactly. Just as the law says that all you have to do to view it legally without the internet is to have a friend who possesses it hold it up and show it to you. Read it again: Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law. This ruling simply clarifies that viewing a site doesn't constitute possessing the file. If you have an issue, it is with the law itself, not how it applies to the net. This is a simple but all too rare case of: Hey ... this judge actually understands the technology!

Tonight... (5, Funny)

Anonymous Coward | about 2 years ago | (#39953265)

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...

Re:Tonight... (1)

Sarten-X (1102295) | about 2 years ago | (#39953535)

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.

Re:Tonight... (1)

CowTipperGore (1081903) | about 2 years ago | (#39954005)

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.

Re:Tonight... (0)

Anonymous Coward | about 2 years ago | (#39953953)

By US law I became a pedophile the day I turned 18 - thankfully local laws says having sex (well wanting to at least) with minors aged above 15 are ok as long as you are not in a trusted circle (e.g. teacher, parent of a friend etc).

Downloading? (-1, Troll)

JustAnotherIdiot (1980292) | about 2 years ago | (#39953297)

Correct me if I'm wrong, but technically don't you download a page in order to view it?

Re:Downloading? (1)

Anonymous Coward | about 2 years ago | (#39953353)

The conundrum is: how do you know what's on the page without viewing it? Any web page could contain any kind of images and you can't know what's on it before you make the request.

Just like police investigators can't determine whether porn is child porn without viewing it. If viewing it were illegal, the police officers and FBI agents would be breaking the law by enforcing it.

Re:Downloading? (5, Informative)

V-similitude (2186590) | about 2 years ago | (#39953357)

Did you even read the summary?

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.

Re:Downloading? (4, Funny)

MarkGriz (520778) | about 2 years ago | (#39953411)

Did you even read the summary?

Did you even read his Slashdot userid?

Re:Downloading? (3, Insightful)

MarkGriz (520778) | about 2 years ago | (#39953505)

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.

Re:Downloading? (0)

Anonymous Coward | about 2 years ago | (#39953647)

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.

No, but following up your own post with bitching about how it got modded is trolling for replies like this one.

Re:Downloading? (0)

Anonymous Coward | about 2 years ago | (#39953905)

Oh, never think that there are no pedos in the geeksphere. How do you think all that dark web stuff got created? Another geek site had some CP stories recently, and several posters defended *collecting* child porn. One even appeared to defend its creation if there was "no coercion" involved. The geek community has devolved into a sick place.

Re:Downloading? (1)

CowTipperGore (1081903) | about 2 years ago | (#39953499)

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 [justia.com] and here [openjurist.org] ) 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.

Re:Downloading? (1)

mark-t (151149) | about 2 years ago | (#39953541)

What if you know about it, but did not intend it? IE, you only knew about it after the fact?

Re:Downloading? (2)

CowTipperGore (1081903) | about 2 years ago | (#39953845)

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).

Re:Downloading? (0)

mark-t (151149) | about 2 years ago | (#39953405)

The only situation I can think of where you can view it without downloading it is when it was already saved onto the computer by somebody else. But if you are the owner or operator of the computer, I'm not entirely sure how you're going to believably argue that it wasn't you who downloaded it or saved it there.

Re:Downloading? (2)

fuzzyfuzzyfungus (1223518) | about 2 years ago | (#39953681)

Something like Link prefetching [wikipedia.org] would make it fairly easy to 'download' in only the strictly technical sense of the term, without intent or knowledge on your part, which seems to be what the case means by 'download'. The same would be true of certain flavors of spam or malware infestations.

You go to page A, fasterfox starts gobbling its way through all the links on page A, all of Page B's images end up in your cache. Your computer obviously 'downloaded' the file; but the chain of intent between your actions and the download is pretty tenuous. If you went to page B, right-clicked, and hit 'save as' your computer was still the one that downloaded it; but the chain of intent is quite clear and points right back to you, not to an unintended behavior of a complex tool.

Re:Downloading? (1)

jythie (914043) | about 2 years ago | (#39953747)

Pop up ads (or ads in general). While many of us use blockers and such, most people still do not. There is also the situation of simply clicking on links without knowing where they actually go... rickrolls and goatsx have gotten plenty of people over the years, it is plausible that someone could click on poorly worked links that end up being CP.

Re:Downloading? (1)

synapse7 (1075571) | about 2 years ago | (#39953517)

Distinguishing the difference between actively downloading or browsing to, vs. walking by and noticing?

Re:Downloading? (0)

Anonymous Coward | about 2 years ago | (#39953525)

Technically yes. But the judge is making a legal distinction between the types of downloading.

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.

Also relevant are stuff like gross negligence e.g. if your gun has a known habit of firing by itself, and you have been warned of the problem, you're usually going to be punished more severely.

If you bought a gun that you knew was prone to accidental firing, and purposely pointed it at a person you wanted to kill, and it accidentally went off, you could still be guilty of murder. Despite the fact that from a technical point of view it genuinely accidentally went off.

Some people may need to set their "Aspergers" knobs to 1 in order to understand the verdict better ;).

Re:Downloading? (5, Insightful)

V-similitude (2186590) | about 2 years ago | (#39953595)

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.

Re:Downloading? (0)

Anonymous Coward | about 2 years ago | (#39954105)

So are you agreeing with him then?

Re:Downloading? (0)

Anonymous Coward | about 2 years ago | (#39954221)

First Degree Murder: Premeditated
Second Degree Murder: Crime of passion, not premeditated
Manslaughter: Accidental Death of another person

Those are not near all the definitions to the different charges, but that alone shows that the Court clearly bases what you are charged with on what your intentions were while committing the crime.

Re:Downloading? (1)

ccguy (1116865) | about 2 years ago | (#39953563)

Correct me if I'm wrong, but technically don't you download a page in order to view it?

No. A page is downloaded indeed, but it doesn't mean that "you" download it (as in you willingly do something that triggers the action).

We can discuss technicalities all we want, but this seems like one of the cases where the judge doesn't need to care about tech stuff. Did the defendant want to see child porn and did something about it, or not? Was the defendant looking for something else and got to that porn stuff instead?

Phew.. (1)

Anonymous Coward | about 2 years ago | (#39953313)

Now finally I can visit 4chan without getting nervous about knocks on the door.

Re:Phew.. (2)

MarkGriz (520778) | about 2 years ago | (#39953457)

Now finally I can visit 4chan without getting nervous about knocks on the door.

There are far lesser reasons to avoid 4chan

rare common sense (5, Insightful)

arikol (728226) | about 2 years ago | (#39953317)

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)

Re:rare common sense (4, Insightful)

Anonymous Coward | about 2 years ago | (#39953455)

Deleting all traces and pretending it never happened is still the safest and sanest route. Even the smallest chance of being labeled (officially or not) a pedo is too large.

Re:rare common sense (0)

Anonymous Coward | about 2 years ago | (#39953529)

A national anonymous reporting would solve the issue of fear of reporting w/o loosening the laws to allow true pedos to escape justice by hiding behind this new "just viewing" defense.

We need to be sure that this judgement does not allow the true criminals, those who create or enable the creation through payment (even if the payment is just via ad views) to continue to operate.

Re:rare common sense (0)

Anonymous Coward | about 2 years ago | (#39953709)

Clear the history? You might want to do better than that. If somehow the authorities figure out that your IP was used (perhaps if they happen to raid/seize the server you accidentally accessed and then look through its logs...or plain and simple Big Brother) and they look for traces on your computer, chances are they will attempt to recover deleted files, since normally space is only marked as "ready to be overwritten" but still accessible if someone really wants it until it is actually overwritten. If the history is still accessible that way, your life is probably ruined.

You don't always know what you download (5, Insightful)

loufoque (1400831) | about 2 years ago | (#39953319)

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.

Re:You don't always know what you download (1)

CowTipperGore (1081903) | about 2 years ago | (#39954035)

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.

Can pirates legally download to a temp folder also (1)

Anonymous Coward | about 2 years ago | (#39953343)

If we're distinguishing between illegal-intentional-downloads and legal-unintentional-downloads by the location the download is saved to, then ANY "temp" files should be exempt, right?

Re:Can pirates legally download to a temp folder a (2)

fuzzyfuzzyfungus (1223518) | about 2 years ago | (#39953585)

If we're distinguishing between illegal-intentional-downloads and legal-unintentional-downloads by the location the download is saved to, then ANY "temp" files should be exempt, right?

As is not uncommon in legal proceedings, the court is interested in the person's intent. Architecturally, something being stashed in a temporary cache of some flavor certainly counts as evidence in favor of it being 'unintentional'; but that is hardly equivalent to a stirring cry of "/tmp? He must go free!"

If it were discovered(by inspection of your browser's list of downloaded files, or by an expert witness' determination that the saves in the 'browser cache' don't actually follow the correct structure conventions for resource caches produced by that browser, or by looking at files-recently-opened as stored in the OS or some image viewer, say) that you were intentionally downloading and storing things in a normally unintentional location, the location would not save you.

It really isn't fundamentally different from any other attempt by a court at a finding of fact about whether something was intentional or not(which comes up a lot, in degrees of murder, attempted murder vs. assault, treble damages, etc.) Evidence in favor of an 'unintentional' finding doesn't have any legal bearing in itself, it is merely a clue by which to attempt to determine the defendant's intent state.

Re:Can pirates legally download to a temp folder a (0)

Anonymous Coward | about 2 years ago | (#39953655)

Doubt it works that way. If the Court finds out you were intentionally viewing child porn everyday then they are more likely to rule that you were doing something illegal even if you weren't saving it. Or you were opening up the temp files on a regular basis.

Speaking of piracy, if downloading music/movies for free kills the music/movie industry, shouldn't downloading child porn for free kill the child porn industry? So using the **AA's logic we should be pirating more child porn?

Re:Can pirates legally download to a temp folder a (1)

slashmydots (2189826) | about 2 years ago | (#39953715)

That would classify as "purposeful" downloading or viewing or whatever. The same goes if you watched a streaming movie on some rogue TV and movie streaming sight. Just because it was in a popup doesn't mean anything but if you sat there for an hour, you probably landed on that page on purpose and watched the movie.

Twice in two weeks (2)

pellik (193063) | about 2 years ago | (#39953365)

First a New York judge rules that IP addresses are insufficient for copyright cases, now this? I'm proud of you, New York!

good (2)

circletimessquare (444983) | about 2 years ago | (#39953401)

now will someone please go after the child porn spammers on the newsgroups?

yes, i know, difficult, but it's ridiculous

Re:good (1)

betterunixthanunix (980855) | about 2 years ago | (#39953483)

There are still child porn spammers in newsgroups? It could be that I only really read a handful of technical groups, but I have not seen such things in pretty long time...

Re:good (1)

circletimessquare (444983) | about 2 years ago | (#39953763)

you have to go to alt.binaries.pictures.erotica...

they spam everything there

you're innocently looking for your pictures of lactating heavily pierced transvestite dwarves and... GAH

actually, i shouldn't joke, it's not funny

so thank god for this ruling, because living in the state of new york, and the ruling directly applies to me: i've gotten child porn images on my computer without any intention of doing so, and this is how: newsgroups

Re:good (1)

betterunixthanunix (980855) | about 2 years ago | (#39953809)

Oh those groups. My Usenet provider does not even carry binaries groups (thus allowing them to run a free service), so I guess I have been shielded from such things. A few years ago I saw cleartext advertisements for child porn on some newsgroup, I thought perhaps you were referring to that sort of spam...

Re:good (1)

fuzzyfuzzyfungus (1223518) | about 2 years ago | (#39953701)

Incidentally, are the motivations of these spammers known? Are they just trolling the group? Providing a first-hit-is-free to prospective customers? Is this the kiddie-porn equivalent of numbers stations, indiscriminately broadcasting a signal intended for only a few recipients?

Re:good (1)

betterunixthanunix (980855) | about 2 years ago | (#39953771)

Well, a few years ago there was a large group of people who used anonymous remailers to send encrypted images to each other over Usenet. Most of them managed to remain anonymous, as far as I know, and law enforcement was only able to identify a small number of the participants or their victims. That was encrypted, however; some years ago I saw cleartext advertisements for child porn posted on Usenet, but it was a while ago.

Incredible (1)

Sparticus789 (2625955) | about 2 years ago | (#39953435)

Two smart court rulings in the same state in the same month? Hell must have frozen over and changed it's name to "Fluffy Bunny"

Affirmative act... (5, Interesting)

gstrickler (920733) | about 2 years ago | (#39953443)

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".

Re:Affirmative act... (2)

Loosifur (954968) | about 2 years ago | (#39953803)

Let me first say that I'm in favor of this ruling, especially as a friend of mine is currently serving 5 years in prison because of child porn that was posted in a regular ol' legal porn trading forum he frequented.

If your intent is to look at child porn, there is no reason under the terms of this law why you couldn't go to a site with child porn, view it, and access it later simply by opening the file from your browser cache. Provided that you don't clear the cache, it's still there. Distribution would be the same vis a vis illegality and risk of being caught, but if you ran a child porn site/service/whatever, there's no reason there couldn't be some sort of quid pro quo arrangement whereby someone could safely access child porn while also compensating the pornographer.

Again, I think this is a good ruling, but I also think that there's a pretty big loophole that could be exploited. I don't believe that it will make a difference in the actual amount of child exploitation that happens, but I do think it will help keep people from being branded as a sick pedo because they went to some of the seedier (but legal) corners of the Internet, which makes it worthwhile.

Re:Affirmative act... (1)

Anonymous Coward | about 2 years ago | (#39953849)

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

No, it shouldn't.

Unless the amount of content is over 50% of cached objects on said pages, it should never count as affirmative.
And even then, it should be scrutinized to high hell and back.
It could easily be a case that the site in question has terrible moderation, or even bad moderation at a certain time (which is a problem with the internet since it is global)

And what of the poor folks who download one thing and end up with a ton of CP instead?
What's that, MIB3? Instead of downloading a several gig film, he ends up with several gigs of images and possibly small videos.
That'd be horrible. But worse, the poor person could get locked up with intent to consume child pornography when in fact he was just a case of "Another hopeless film pirate."
And you'd better believe the MAFIAA would twist the hell out of the law to make them look even worse and get them put on all sorts of lists.

This sort of stuff needs to stop.
It isn't illegal to see a person being killed. Entire websites are up with gore on them. (probably even kids too!)
Why then is it illegal for people to see this? People are being hurt and abused, but you never done it. Why should you suffer because someone else was tormenting a child, or slicing their head off?
These kids might even be found and rescued if they can figure out locations in content. (long shot, but anything is better than nothing)
Just burying it and smashing your hard drive with a SUN isn't going to help the issue. Reporting it and getting the source dealt with is much better.
There are plenty of companies around various countries that help with the effort. But their effort, likewise, is being fucked with because stupid laws are interfering with their work.
Look at the whole Facebook thing recently, they have been helping with the effort recently by following up reports of abuse and forwarding them to NCMEC was it, yeah that one.

Just a shame that it is only in law that this is changing.
The damage has already been done to society by idiots.
If you are viewing CP, intentional or not, you are the rapist as far as most are concerned.
Don't even try argue logic with them, they don't know how to logic.

Intent Matters (5, Insightful)

Hydrian (183536) | about 2 years ago | (#39953467)

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.

People are not arrested for being pedophiles (2)

betterunixthanunix (980855) | about 2 years ago | (#39953673)

You cannot arrest someone for wanting to cause harm; everyone will want to harm another person at some point in their life. The point of arresting people who possess child pornography is that they might have paid for it, and thus encouraged someone to abuse children i.e. they indirectly caused harm to children. Yet a line must be drawn somewhere; having images in a browser cache is not proof that a person paid for child pornography or otherwise encouraged its production, and moreover it is not even proof that a person deliberately accessed child pornography (as you noted).

Good (0)

Anonymous Coward | about 2 years ago | (#39953531)

In the event that a popup with a child porn image occurs, people should not wear a scarlet letter for life. Years ago, such a popup occurred on my spyware ridden PC. I almost puked, but it would be unfathomable that I be jailed or imprisoned in addition to a memory that I wish I could forget.

The authorities need to focus on the real criminals and not people that report images found on their system.

a common sense extension of real-world precedent (1)

bitt3n (941736) | about 2 years ago | (#39953549)

driving slowly by the playground is legal, just don't load up your van

Don't worry (1)

paiute (550198) | about 2 years ago | (#39953633)

The NT legislature is working right now on a law to make even seeing CP illegal.

Re:Don't worry (2)

CowTipperGore (1081903) | about 2 years ago | (#39954089)

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.

Judges who actually followed the law?! (4, Informative)

CowTipperGore (1081903) | about 2 years ago | (#39953653)

"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.

Re:Judges who actually followed the law?! (1)

Anonymous Coward | about 2 years ago | (#39953851)

... but the majority said it was up to the Legislature to declare merely viewing to be a crime.

Wouldn't that also make it illegal for the prosecutors to view the CP to determine whether they should charge someone? AFAIK, unless specifically written into law, there is no exception for law enforcement.

Re:Judges who actually followed the law?! (1)

CowTipperGore (1081903) | about 2 years ago | (#39954151)

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.

Stop going to shitty porn sites (0)

Anonymous Coward | about 2 years ago | (#39953725)

Stop going to shitty porn sites and you won't be bombarded with russian lolitas and other questionable pornography that can get you in trouble.

The FBI can still arrest you even if you "accidentally" browse the site. A friend of a friend got arrested last year in Florida (pedo capitol btw) for just browsing these sites.

Another thing people don't realize is your internet cache.... some of these sites "download" images onto your internet cache folder. 4chan does it and you'd be surprised how many 120x120 thumbnail pictures are in there of where ever you happened to browse in 4chan that day.

torrents are the way to go for good quality, legal porn.

Devil's Advocate (0)

Anonymous Coward | about 2 years ago | (#39953911)

So, what keeps pedos from simply changing their downloadfolder to that of their browsercache-folder and be square with the law?

What about browser cache? (0)

Anonymous Coward | about 2 years ago | (#39953989)

Many images from sites are stored in the 'cache'... Therefore downloaded/saved to your machine, but not with any users approval. Was this addressed?

Remember, this is only one of DOZENS of charges. (1)

anthropromorph (968354) | about 2 years ago | (#39954083)

The myth is that stumbling upon this kind of material would result in you getting charged with a crime. This whole article focuses on ONE out of DOZENS of criminal charges. So DOZENS more are valid charges not based solely on browser cache. Only persons who have vast amounts of child exploitation images on their devices ever get charged with any crime. It's simply not worth investigators, prosecutors and the courts time to charge any crime of child exploitation that is only based on a few images in browser cache.
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