Viewing on-line child porn ruled legal in New York

Apparently, in the state of New York on-line child pornography isn’t a crime anymore. Or better still, an appeal court ruled that Internet users can’t be convicted if they just “view” images related to that particular kind of wicked stuff on a Web browser.

The debated decision came from the New York Court of Appeals on the case of James D. Kent, an assistant professor of public administration at Marist College (Poughkeepsie) on whose computer were found, during a virus scan he requested in 2007, child pornography images.

After the uncovering, Kent was convicted for 134 counts of possessing child porn and 2 counts of having “procured” the images. The man was sentenced to a maximum of three years in jail, but the appeal verdict has now reconsidered (and dismissed) one count of possession and two counts of promoting a sexual performance involving kids.

These particular charges, the Appeal judges decided, can’t be upheld because the corresponding images were found within the defendant’s web browser cache. “Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law”, judge Carmen Beauchamp Ciparick wrote in the sentence.

“Rather – the sentence states – 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”. The judges agreed on the fact that child pornography is a wicked affair, yet the Court majority didn’t think that criminalizing “all use of child pornography to the maximum extent possible” was required by the laws of NY State.

Web cache aside, professor Kent was still found guilty of possessing about 13,000 child porn images saved in a separate folder of his computer’s hard drive, a fact that the man justified as being part of a research project on the regulation of on-line child pornography.

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This protects all the people who have this content unwillingly pushed to their temp folders whilst browsing sites like 4chan.
I saw some ****er spray CP on the wall in a match of TF2 once, I presume user-sprays are cached to the disk, does that mean everyone playing in that server should be arrested?

So does this mean that all you need to do is save illegal content with in a browser's cache folder, and then nothing can be done about it? People are going to be exploiting this loophole like hell.

Ad Man Gamer said,
So does this mean that all you need to do is save illegal content with in a browser's cache folder, and then nothing can be done about it? People are going to be exploiting this loophole like hell.

No, READ THE ARTICLE.

It means that an image being located in the cache ALONE will not be enough to secure a conviction. They can still examine the data to see if there are other clues to it having been accessed deliberately. For example, they can look when it was last accessed, and if it has been accessed since it was downloaded, that's a big clue that it is being used.

@Ejocys Your logic doesn't make any sense. The guy wasn't just watching a crime being committed, he was a part of it. He was in possession of the product of the crime, and not a victimless one at that. The product of a bank robbery isn't the video tape.

Your robbery logic should be more like: If you're caught spending money that you know was recently stolen from the bank, it doesn't mean you stole it.

Bottom line is that it's painfully obvious that he was seeking out child porn and he should rot in jail for contributing to such a disgusting act. On the other hand, I'm glad New York is so lenient on child porn. Maybe all the pedophiles will make mass exodus to New York and leave California all together. Fine with me.

If you watch security tape with shop robbery on YouTube then it doesn't mean that you are participating in it. Supporting or ignoring criminal activity is a different matter.

FMH said,
The real criminals are the ones who created this. Viewing is nothing, compared to that!

People create this FOR the viewers. Viewers are as much to blame as those who create it.

Also, the behaviour of these depraved individuals can escalate. People who are sexually attracted to children will probably one day try to act on those fantasies.

Personally, as a high internet user and one that frequently visits adult sites I have NEVER 'stumbled' across child porn. I would imagine someone would need to be seeking such material.

After the uncovering, Kent was convicted for 134 counts of possessing child porn and 2 counts of having “procured” the images

So anything found on this guys computer whether in the browser cache or not obviously wasn't there by accident so ergo the ruling is crap he was actively searching for child porn

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

I agree with the decision.

I would assume a Google search in the browser's history for "child porn" would be an affirmative act, even if the person never downloaded or saved the images; thus they would then be guilty if they had actually searched for the images and not accidentally or tangentially viewed some images.

I agree with some of the people here. I mean, aren't these crazy laws the same that got an underage girl in trouble for having nude photos of herself on her phone? How in the hell...

People that are looking at this stuff are to dumb to properly hide any trace of this ****... Take hard disk and smash with a jackhammer But seriously what the hell were these people thinking? Ugh I hate this country sometimes...

Ah, child porn. The one issue where suddenly everybody who wants the government staying off their harddrive turns around and demands that every single remotely suspicious case require Hollywood levels of analysis and investigation.

Joshie said,
Ah, child porn. The one issue where suddenly everybody who wants the government staying off their harddrive turns around and demands that every single remotely suspicious case require Hollywood levels of analysis and investigation.

Well said.

Adore the hypocrisy... Sit back, grab the popcorn and enjoy the show, the hypo's are trolling our legal system again. LOL

GS:mac

It's not illegal to watch a video of a real murder or rape either. So why should this be. Just saying. I don't agree with child porn lol

What if you looked at porn and didn't know the girls were under age. Or if you just accidentally clicked on a picture of an underage. One shouldnt get in trouble for this. It should be the people hosting the files and the people taking the photos/videos.

Slammers said,
What if you looked at porn and didn't know the girls were under age. Or if you just accidentally clicked on a picture of an underage. One shouldnt get in trouble for this. It should be the people hosting the files and the people taking the photos/videos.

I can't remember which case it was, but somebody ran the defence that they were looking at regular porn when they clicked on an image of an underage girl and it was kicked out of court.

Totally sensationalistic and completely inaccurate headline. Really Neowin, how much further can you sink?

TRC said,
Totally sensationalistic and completely inaccurate headline. Really Neowin, how much further can you sink?

I don't even like having this "headline" in my RSS reader :-/

TRC said,
Totally sensationalistic and completely inaccurate headline. Really Neowin, how much further can you sink?

Not really inaccurate. The judge ruled it's not illegal to have child pornography in your browser's cache (i.e. you just clicked on the page) - meaning, you can legally (albeit very immorally) view child porn online. It's just illegal to download, save or share such images.

The Teej said,

Not really inaccurate. The judge ruled it's not illegal to have child pornography in your browser's cache (i.e. you just clicked on the page) - meaning, you can legally (albeit very immorally) view child porn online. It's just illegal to download, save or share such images.


No, it's still illegal. Just having it in your cache is not enough proof to convict you though. If you go to your local police station, and start browsing some child pornography, then there's more proof and you will be convicted.

The Teej said,

Not really inaccurate. The judge ruled it's not illegal to have child pornography in your browser's cache (i.e. you just clicked on the page) - meaning, you can legally (albeit very immorally) view child porn online. It's just illegal to download, save or share such images.

If there were child porn images in your browser cache, and the "last accessed time" was closer to the present than the "created time," that would probably be enough to show that the accessing of those images was intentional, as the file has been looked at since it was downloaded.

Law enforcement could probably request information from the user's ISP also. When requesting the images, did the browser send a referrer header? If so it was probably directed there by some website. Does the browser the user was using support prefetching?

If however it could be proven that the user performed google searches (or any other search engine) which led to the sites the images were downloaded from, that would be a clear indication it was intentional.

It's not LEGAL to look at child porn, it's just that the presence of images within the cache is not enough to secure a conviction, which makes perfect sense.

Shiranui said,
Well, I wish they would devote more resources to going after those who actually produce this stuff.

Precisely. The other issues are on a dangerous free speech slippery slope, but we can ALL agree that the child pornographers themselves should be drawn and quartered.

Shiranui said,
Well, I wish they would devote more resources to going after those who actually produce this stuff.

very hard..most of it is produced in Russia and other ex-Soviet and/or poor\mafia-run countries, where the laws don't really matter, and "good and cheap" "products" are available everywhere for virtually nothing..

I guess it depends on the context in which the material is viewed. On the wedding day of Prince William and Kate Middleton, I looked at her Facebook and some douche-bags had uploaded thousands of child and adult pornography and tagged her in them so they would show up on her Facebook page. Because of me seeing those images, they would then be in my browser cache, even though I did not intentionally view the content. From what I'm reading here, this is what they're worried about. They aren't legalizing child porn, they're protecting people from incarceration if the only traces of it on their PCs are in the browser cache.

Gerowen said,
I guess it depends on the context in which the material is viewed. On the wedding day of Prince William and Kate Middleton, I looked at her Facebook and some douche-bags had uploaded thousands of child and adult pornography and tagged her in them so they would show up on her Facebook page. Because of me seeing those images, they would then be in my browser cache, even though I did not intentionally view the content. From what I'm reading here, this is what they're worried about. They aren't legalizing child porn, they're protecting people from incarceration if the only traces of it on their PCs are in the browser cache.

That's exactly what the law is saying. And in the US, there's a presumption of innocence - "Innocent until proven guilty." I agree with the ruling 100%. And the person in question was found guilty on other counts -- so he wasn't let off.

I like that last paragraph... "I wasn't killing my ex-wife I was merely researching the effects of placing a sharp metallic object inside of her and repeating the process over and over again".

This is just retarded. So, what if someone downloads pictures to the same folder as their browser cache? They get of scott-free because it can't be proven that they downloaded it?

giantpotato said,
This is just retarded. So, what if someone downloads pictures to the same folder as their browser cache? They get of scott-free because it can't be proven that they downloaded it?
Exactly. All somebody has to do is view the pages with their browser and then renavigate to the folder whenever they want to view them again.

Still, I'm opposed to the idea that viewing such porn should be a criminal offence. The crime should be producing it or facilitating it (i.e. subscribing to a website). The most obvious problem going forward is going to be the creation computer generated child porn and then the current idea that viewing it supports a physical crime is eliminated, which means that you're censoring a concept.

theyarecomingforyou said,
Exactly. All somebody has to do is view the pages with their browser and then renavigate to the folder whenever they want to view them again.

Still, I'm opposed to the idea that viewing such porn should be a criminal offence. The crime should be producing it or facilitating it (i.e. subscribing to a website). The most obvious problem going forward is going to be the creation computer generated child porn and then the current idea that viewing it supports a physical crime is eliminated, which means that you're censoring a concept.

No that wouldn't work, because the last accessed time for the file would be constantly updated whereas the creation date would be a long time ago. If the file was created a year ago but viewed yesterday, it's obvious that it's being looked at.

It has to be a criminal offence. Looking at such material is the main reason people continue to make it. If nobody looked at it, a lot of it would stop.

S00N3R FR3AK said,
Well this law is gonna change in a hurry.

No its not - and shouldn't.

Some people do stumble across such websites. Some browsers even begin to download all of the links on a page that you're viewing so that they can load faster. Such downloading of child porn wouldn't have been intended and so prosecution would be unreasonable.

Clearly there would still need to be an investigation to figure out what happened.

Hardcore Til I Die said,

No its not - and shouldn't.

Some people do stumble across such websites. Some browsers even begin to download all of the links on a page that you're viewing so that they can load faster. Such downloading of child porn wouldn't have been intended and so prosecution would be unreasonable.

Clearly there would still need to be an investigation to figure out what happened.

ROFL whens the last time you " stumbled" across a site containing child porn.......hmmmm ....... in the 14yrs of using the internet I've never just stumbled upon a child porn site and I've been to a fair few shady places on the net.. If they were in his browser cache he was purposefully looking for it end of story

Athlonite said,

ROFL whens the last time you " stumbled" across a site containing child porn.......hmmmm ....... in the 14yrs of using the internet I've never just stumbled upon a child porn site and I've been to a fair few shady places on the net.. If they were in his browser cache he was purposefully looking for it end of story


you sir, are an idiot. Main reason: you just used your individual experience to set a baseline for every single internet user, like because you have never done it, that can't happen (similar example, I've never had cancer, so it doesn't exist).

Now there are many ways this could happen, main one that springs to mind is a site gets hacked and infected, redirects you. You see a load of crsp and close the browser. The browser on the otherhand started caching all links on the dodgy site you were redirected to. One of them sites had images that are classed as child porn. You take this pc into a pc shop soon after as ita infected (from the initial hacked site). Next thing you know police are knocking on your door and there's a story in the papers about you being a paedophile - and people generally think "there's no smoke without fire".

The example above is unlikey to hit a lot of people, but hitting one person with the paedo stick when they are innocent is one too many, s##t like this sticks!

duddit2 said,

you sir, are an idiot. Main reason: you just used your individual experience to set a baseline for every single internet user, like because you have never done it, that can't happen (similar example, I've never had cancer, so it doesn't exist).

Now there are many ways this could happen, main one that springs to mind is a site gets hacked and infected, redirects you. You see a load of crsp and close the browser. The browser on the otherhand started caching all links on the dodgy site you were redirected to. One of them sites had images that are classed as child porn. You take this pc into a pc shop soon after as ita infected (from the initial hacked site). Next thing you know police are knocking on your door and there's a story in the papers about you being a paedophile - and people generally think "there's no smoke without fire".

The example above is unlikey to hit a lot of people, but hitting one person with the paedo stick when they are innocent is one too many, s##t like this sticks!

Another example could be, if you chill on irc and sometimes people or bots randomly post links with interesting captions causing people to click on the links only to be tricked and exposed to nasty pictures or viruses.

Athlonite said,

ROFL whens the last time you " stumbled" across a site containing child porn.......hmmmm ....... in the 14yrs of using the internet I've never just stumbled upon a child porn site and I've been to a fair few shady places on the net.. If they were in his browser cache he was purposefully looking for it end of story

Never, but doesn't mean it can't happen. People smarter than you and me have forensically examined computers in the past and determined that images were not purposely looked at. End of.

Ok, I saw this headline in passing and thought it was defending the people that come across this crap innocently (As a tech, like us, fixing a computer), but this guy sounds like he just got away with murder.

Dot Matrix said,
Ok, I saw this headline in passing and thought it was defending the people that come across this crap innocently (As a tech, like us, fixing a computer), but this guy sounds like he just got away with murder.

Did you read the end of the article?

"Web cache aside, professor Kent was still found guilty of possessing..."

Some specific charges were dropped, but not all of them.

Ambroos said,
Unintentional doublepost. Can't you devs implement a 10 sec delay between comments?

How about you just edit and delete your text instead of inconveniencing the rest of us?

Idiots. As soon as you view something on line it will be somewhere on your disk in a cache or whatever, and with the right tools it will show up when searched after, even after the cache has been wiped.

Ambroos said,
Idiots. As soon as you view something on line it will be somewhere on your disk in a cache or whatever, and with the right tools it will show up when searched after, even after the cache has been wiped.

Which is why he wasn't able to be prosecuted for THOSE images.

But you'd know that already if you had actually read the article...

virtorio said,
Seems like something they need to change, real fast.

Why? So I can send you a link to a page containing child pornography and then call the police?

virtorio said,
I assume they can figure out the difference between someone opening one link by accident and someone viewing dozens of images.

I don't have that same faith in our legal system. Guilty before proven innocent.

virtorio said,
I assume they can figure out the difference between someone opening one link by accident and someone viewing dozens of images.

maybe that could count as an affirmative action..

This could turn watching illegal movies online legal then would it not? Interesting how this could mess with those laws.