On Tuesday, the New York Court of Appeals in Albany delivered a ruling which declared that viewing child pornography online is not a crime. Simply “viewing” online does not meet the standard the court determined was necessary for “possession” of the photos.
Judge Carmen Beauchamp Ciparick wrote in the majority opinion for the court, “The defendant’s conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving. Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law.”
Federal law provided no cover, as it is only illegal to “knowingly access child pornography with intent to view.” Saving images, printing, or forwarding them would show intent. Evidence of having viewed images does not alone show intent.
The defendant in the NY case, former Marist College professor James Kent, was convicted in 2009 of two counts of procuring child pornography, and 134 counts of possessing child pornography. The appeal ruling only overturned one count of each, and was based on a narrow finding.
Files were found in Kent’s web browser cache, where copies of websites visited are stored. A browser cache speeds loading of web pages, as instead of downloading all the information on a page, your browser only needs to download page information which has changed since your last visit.
That is where the ruling in this case turned. The conviction was upheld for any photos or videos “saved” on the computer, but overturned for images stored in the “cache”, which had been viewed but not saved.
There is an adage, “the operation was a success, but the patient died.” In this case, a convicted possessor or child pornography will still serve one to three years of prison time for the 134 counts which remained upheld after his appeal.
The appeals court, by overturning two counts, established a precedent: viewing child pornography online, so long as it cannot be proven you viewed it intentionally, is not illegal. But what is proof of intent?
In 2003, musician Pete Townshend was arrested on charges he visited a child pornography site, and paid for access using his credit card. He told police he was only doing research. He was cleared but placed on the Sex Offender Registry.
In 2007, San Francisco radio host Bernie Ward was charged with two counts of distributing child pornography, and one count of receiving. His defense was he was doing research for a book. He accepted a plea bargain and is serving 87 months in prison.
In 2010, a Sioux Falls lawyer was acquitted of child pornography charges after claiming he viewed the images at work as part of his legal research.
The court set a dangerous precedent which must be corrected quickly.
The state legislature, and Congress through federal statutes, needs to update child pornography law to reflect the changes and challenges of the digital age and determine how we conclusively prove there was intent to view.