I wish this was a “bait and switch” blog title.
But, it isn’t.
According to a New York Appeals court, last week, a case involving a college professor who had a work computer fill with hundreds of web cached child pornographic images:
“Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law.”
— Senior Judge Carmen Beauchamp Ciparick (writing for the majority — 4 to 6)
What?
Judge Ciparick goes on to explain:
“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. To hold otherwise, would extend the reach of (state law) to conduct — viewing — that our Legislature has not deemed criminal.”
In a nutshell:
“The purposeful viewing of child pornography on the internet is now legal in New York.”
— Judge Victoria A. Graffeo wrote in one of two concurring opinions.
You see, the defendant claims he didn’t know the images were on his computer. Therefore, an image stored in cache is not treated the same as an image saved in a none-cached area of the computer, print outs, photographs or film. The professor was sentenced, but only because of additional “evidence, including a folder on his machine that stored about 13,000 saved images of girls whom investigators estimated to be 8 or 9 years old and four messages to an unidentified third party discussing a research project into the regulation of child pornography.”
This is a basic issue of technology moving past the courts and lawmakers failing to understand and act intelligently regarding tech law. While lawmakers cater to the big money of Hollywood’s SOPA/PIPA bills, they’ve failed to protect the innocent.
Although it’s illegal to produce, distribute or possess child pornography in New York, you can freely view it online.
Now what?
[via MSNBC | Image via somethingstartedcrazy]
Eric J says
This is a great example of a Judge interpreting the law instead of making the law, now it is up to the legislator to fix it. Here is another example http://www.huffingtonpost.com/2012/05/04/france-sexual-harassment-law_n_1477859.html
Eric Dye says
True. Again, the law is behind the curve on this stuff.
Michael says
I get why this is so bothersome, but there is a certain perverse logic to this ruling. The government has to ask themselves if they want to start prosecuting people based on what they view on the internet. Maybe it is appropriate for them to do this in the case of child pornography, but you could easily come up with other scenarios where being arrested because of a link you clicked would seem extreme. Like if you were viewing a page on how to make a bomb, or just reading Al Qaeda propaganda.
At the end of the day I’m OK with everybody who has child porn in their cache being locked away, but I can also see where that is a dangerous precedent.
Eric Dye says
Agreed. Although, I think there is a distinct difference between viewing child porn and reading Al Qaueda propaganda. You could be reading the propaganda for other reasons. Even curiosity. No harm done. Whereas with child porn …
Ben Miller says
I don’t think the judge said that it is legal to view child porn online, just that having cached child porn images on your computer is not enough evidence of a crime. I can see his point. For example, someone can create a website with hidden images in it that download and cache, but never appear on the screen. I don’t know how common this is, but I bet if you look at all the cached images on your computer, you would be surprised what’s in there. If someone actually has a problem with porn, there will be other evidence on the computer, such as in the bookmarks, cached URLs, cached search results, or saved image folders (just as there was in this case). I’m all for prosecuting the creeps, but if someone’s reputation and future is going to be destroyed, we’d better make sure they deserve it.
Eric Dye says
True.
Vince says
I think you’re missing the bigger point here. In a free world it shouldn’t be illegal to view anything on the web.
What if you click on a spam link from twitter and end up seeing child porn? Should you be prosecuted? If it’s that easy, lives of innocent people who stumble on a bad link could be ruined.
The judge made the right call here for sure, as ugly as child porn is.
Eric Dye says
I think you (and others) have an excellent point with the spam links and “hidden” images that can load in your cache. As for EVERYTHING being legal to view on the web, I’m not sure I agree with that. Unless you mean there are some things (like child porn) that are ILLEGAL to host on a website. Then I would tend to agree with your statement. So then, let me ask you, who should be held responsible for the online child porn?
Vince says
right…hosting on a site and viewing are two different things.
Vince says
For anything a country would deem illegal content; they should go after the content creators and curators.
Eric Dye says
Considering the dangers of this junk landing on a computer without the users knowledge, I’m leaning your way on this, man. Just because something is REALLY bad, doesn’t mean we should overreact. Great feedback, Vince. 🙂