New York High Court OKs Child-Porn Web Surfing

[Adrean]

^{The New York Court of Appeals building. Photo: New York Court of Appeals}

Accessing and viewing child pornography over the internet is not necessarily a crime under New York law, the state’s highest court ruled Tuesday.

The unanimous court said that child porn stored in a computer’s browser cache is not enough evidence to convict someone for child-porn possession under state law.

The New York Court of Appeals ruled that the authorities, under New York’s child-porn statutes, must prove that an internet surfer knew that his computer automatically stored cached images, or printed or downloaded the images.

“Nonetheless, that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession,” Judge Carmen Ciparick wrote (.pdf) for the court.

(A cache contains images or portions of a web page that are automatically stored when that page is visited and displayed on a computer screen. If the web surfer visits a web page again at a later date, the images are recalled from the cache rather than being pulled from the internet, allowing the page to load more quickly.)

Judge Victoria Graffeo concurred with the results in a separate opinion but blasted it nonetheless. She said the decision “will, unfortunately, lead to increased consumption of child pornography by luring new visitors who were previously dissuaded by the potential for criminal prosecution.”

Patrick Trueman, president of Morality in Media, also decried the decision, saying the court has given “permission to pedophiles and child molesters to continue the sexual molestation and recording of child sex abuse.”

High courts in Georgia and Alaska have ruled similarly. To counter similar rulings by two federal appeals courts, Congress in 2008 amended federal child-porn statutes to include language making it a crime to “knowingly access” child porn.

Child pornography generally may be prosecuted as either a state or federal crime.

The case before New York’s highest court concerned James Kent, a former Marist College professor, who claimed the thousands of child pornography images found on his work computer were for a research project.

In 2007, his computer hard drive was malfunctioning. College technicians examined the hard drive for defects and encountered the porn, much of it downloaded and stored. The high court’s ruling did not alter James Kent’s 141 convictions in connection to downloaded child pornography, but it reversed the two convictions dealing with porn discovered in the cache.

He was sentenced to an indeterminate term of one to three years, which is unlikely to change under the court’s decision.

:view:Original Article: Wired

[Ambrocious]

They might as well put up a great big sign that reads "PEDOPHILES AND PERV'S, WE WELCOME YOU HERE!"

This makes me sick...and I hope that thousands of angry parents march up to that court angry as hell and raise their voices. You wanna know a fast way to collapse a society? Make it pretty much legal to view child porn. If they made it legal to kill one person per month, people would also do that too, mark my words.

[i2av]

So I should link you child porn through tinyurl and then call the cops on you?

*edit - convictions for things like this lead to convictions for just visiting your favorite music/movie sharing site.

[Win7nerd]

better parenting i think thats what should happen!

[GRiM]

So I should link you child porn through tinyurl and then call the cops on you?

*edit - convictions for things like this lead to convictions for just visiting your favorite music/movie sharing site.

Very good point. I was going to reply to his comment with something similar.

Yes at first it sounds like a bad decision, especially when sensationalized by the title and no doubt your going to get loads of people complaining but these people are not seeing or care about the bigger picture here (no pun intended).

[visualbuffs]

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.