NY Court: “Watching Child Porn Online OK”…. Really?

Photo by: James Clayton

According to a recent New York Court of Appeals decision, merely viewing child pornographic material online, without creating or downloading it, is not sufficient to constitute procurement or possession of child pornography for the purposes of New York Penal Law.

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 decisions for the court earlier this month.  James Kent, a Marist College professor of public administration, was sentenced to prison in 2009 after a virus sweep of his computer uncovered more thousands of files of image data of child pornography in the computer’s memory cache.  Kent’s appeal eventually made it to the Court of Appeals where his convictions were dismissed.  But, upon closer investigation, the Court does not endorse viewing child porn at all, but merely attempts to define possession in a highly technical crime.  But does it matter when the result is essentially legalizing such a heinous crime?

To fully understand the court’s ruling, it is important to understand the technology behind downloading and viewing images on a computer.  When a person views an image on their computer, data from that image – but not the image itself – is automatically saved to the computer’s “memory cache.”  Cache files are essentially temporary internet files created automatically when something is viewed on a computer.  There is no affirmative action by the user required to create these files.  This is the defining point of the Court’s opinion.  To demonstrate possession of the images in the cache, “the defendant’s conduct must exceed mere viewing,” Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges.  “Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that the defendant in fact exercised dominion and control over the images that were on his screen,” Ciparick wrote.  “To hold otherwise, would extend the reach of (state law) to conduct – viewing – that our Legislature has not deemed criminal.”

While working at Marist College, Kent received a new work computer as part of an overall technology upgrade at the school.  His work and files from his old computer were transferred over to his new computer.  Kent complained to the school’s IT department that his computer was not functioning correctly and a student worker in the IT department was sent to take a look at it.  The student ran a virus detection program to help diagnose the problem and found a file that contained numerous “.jpg” or picture files displayed as “thumbnails” of scantily clad, prepubescent females in provocative poses.  When the virus scan failed to correct the problem, the student removed the computer’s hard drive and brought it to his supervisor.  Upon seeing the image files, the school submitted the hard drive and a “Consent to Search” letter to the local police department.

A police department computer investigator, upon searching the hard drive, found a cache folder with data from numerous obscene websites, none of which are appropriate to list here, and .jpgs that depicted child pornography, as well as internet searches found in the computer’s “unallocated space,” – memory files that are not accessible by the user; normally files that have been deleted from the computer at some time and are no longer active.  On the computer’s “allocated space” – memory and files accessible by the user – the investigator found various “work” files with over 17,000 images of female children, estimated to be 8 or 9 years old, dressed in swimsuits and lingerie and in provocative poses.  The investigator also found various movies and photos that had been saved to the computer’s allocated space by Kent sometime between 2005 and 2007 but had since been deleted from the computer, leaving them in the computer’s unallocated space.  At trial, Kent was convicted of Promoting a Sexual Performance by a Child and Possessing a Sexual Performance by a Child and was sentenced to 1 – 3 years in prison.  Kent appealed, which brings us here.  To be sure, Kent was charged and convicted of over 140 offenses of possessing child pornography; only 2 of the offenses he was convicted of were ultimately overturned.

The Appellate Division affirmed Kent’s conviction but grappled with the issues of knowledge and intent when it came to accessing, procuring or possessing the images.  Ultimately, although they stated “the mere existence of an image automatically stored in a cache, standing alone, [is] legally insufficient to prove either knowing procurement or knowing possession of child pornography,” the Court held that “a Web page stored in a cache is evidence of past procurement of the images on that page.  Specifically, the cached Web page from the [name removed as inappropriate] site is evidence that the Web page was accessed and displayed on the defendant’s computer screen.”  Essentially, the images had, at one point, been knowingly downloaded and saved to the computer and subsequently deleted.  Since Kent could no longer access the files, the data that was automatically saved from those files could not be used to establish knowing possession.  Is the New York Court of Appeals saying that a person must presently possess child pornography at the time they are charged in order to be convicted of knowing possession or procurement of child pornography?  What if Kent had deleted the pictures from his computer hours before the IT student scanned his computer?  Is he any more guilty if, instead of deleting them one hour before, Kent simply didn’t delete them?  He still, at one point, knowingly downloaded sexually explicit images of children onto his computer.  Should it matter if they were deleted or not?  The point of laws banning child pornography and its possession or creation is to protect children from being abused and sexually objectified.  This opinion seems to side-step that intent.

The New York Court of Appeals in this case, although unintentionally, is setting a dangerous precedent.  The message being taken from this case is that downloading child porn is okay as long as you delete it when you’re done.  Surely society and the interests of justice are not served by this opinion.  Obviously the evidence I’ve listed would not be considered direct evidence, but surely it could be considered circumstantial evidence for the jury to consider.  Although the intent of the court in this opinion was to clearly state that viewing does not count as possession, the effect could be much different until the Legislature changes the wording of the statute.  Kent’s lawyer said the “real problem here is that legislation is not keeping up with technology,” explaining that the statutes fail to mention images stored in a browser cache.

The federal child pornography statute – 18 U.S.C. 2252A – does not mention browser caches either.  The few federal cases on point have stated that cached images alone can establish possession if the defendant knows about the browser’s caching function.  The defendant need not know that specific images of child pornography have been cached, only that the browser used to view those images has an automatic caching function generally.

So what is the take-away from this article?  Legislatures need to amend statutes ahead of, or in step with, technological advances.  If they don’t, opinions like this happen.

 

Paul Yokabitus, Former Associate Editor
About Paul Yokabitus, Former Associate Editor (6 Articles)
Paul graduated from Campbell Law School in 2013. Paul previously worked as a criminal defense and family law paralegal, a Summer Intern at the Wayne County District Attorney’s Office in Goldsboro, NC, Pharmaceutical Compliance Intern with Compliance Implementation Services in Morrisville, NC, Research Assistant to Prof. Matthew Sawchak at Campbell Law School, and Summer Associate at Smith Debnam Narron Drake Saintsing & Myers, LLP. Paul was also a Symposium Editor for the Campbell Law Review.
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