Adam's Antics

May 10, 2012

NY High Court OKs viewing Child Porn

Filed under: Law — Adam Scott Wandt @ 7:45 am

In a rather disturbing example illustrating how courts don’t understand societal use and impact of computers and technology, it seems that the Court of Appeals of the State of New York (NY’s highest court) has held that it is perfectly legal to view child pornography on the Web (or at least non-convictable as possession), as long as the viewer does not pay for it or intentionally download a copy to a computer.

In a decision that will be formally released at the end of this week, Judge Ciparick writes in the majority opinion in The People v James D. Kent  that detectives finding “cached Internet files” of child pornography on a defendant’s computer does not constitute possession of child pornography. The Court further “conclude[s] that merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement [of child pornography] within the meaning of our [NYS] Penal Law.” This would apply even in the case where the defendant browsed several child pornography pictures in a row, which were cached on the computer as internet files. (Caching is the process of automatically saving a copy of browsed website images to the computer, so that it can be quickly loaded the next time the user visits the same website).

The Defendant, Professor of Public Administration James D. Kent, of a Dutchess County College, was properly convicted on other counts of possessing child pornography on his work  computer that he had downloaded and saved to his “Documents” folder  (so justice was served). However, the precedent that was created in this case will, without a doubt, be exploited by future pedophiles who will use this legal loophole to safely view and build caches of child pornography without having to fear a criminal conviction for possession. It is more than possible for those interested in child pornography to build large caches of internet child pornography, without formally “downloading them.” Those caches could later be retrieved, shared and distributed without leaving any evidence that they were accessed.

I also think it is ridiculous in today’s digital age for someone as sophisticated as this defendent to claim that he was ignorant that images viewed on his computer were cached by the system. In 2012, I believe this is common knowledge.

The burden now lies with the NYS Legislature to draft and pass new legislation preventing people from exploiting this upsetting loophole, while protecting those who may accidentally stumble upon such disturbing contraband while innocently surfing the Web.

The soon to be released opinion in “The People v James D. Kent” can be found here: http://www.nycourts.gov/ctapps/Decisions/2012/May12/70opn12.pdf

Follow Professor Wandt on Twitter: @Prof_Wandt

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