Viewing child pornography not a crime according to New York court ruling

[garbon]

http://news.yahoo.com/blogs/sideshow/viewing-child-pornography-not-crime-according-york-court-165025919.html

In a controversial decision that is already sparking debate around the country, the New York Court of Appeals ruled Tuesday that viewing child pornography online is not a crime.

"The purposeful viewing of child pornography on the internet is now legal in New York," Senior Judge Carmen Beauchamp Ciparick wrote in a majority decision for the court.

The decision came after Marist College professor James D. Kent was sentenced to prison in August 2009 after more than 100 images of child pornography were found on his computer's cache.

Whenever someone views an image online, a copy of the image's data is saved in the computer's memory cache.

The ruling attempts to distinguish between individuals who see an image of child pornography online versus those who actively download and store such images, MSNBC reports. And in this case, it was ruled that a computer's image cache is not the same as actively choosing to download and save an image.

"Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law," Ciparick wrote in the decision.

A copy of the court's full ruling on the child pornography decision can be viewed online.

The court said it must be up to the legislature, not the courts, to determine what the appropriate response should be to those viewing images of child pornography without actually storing them. Currently, New York's legislature has no laws deeming such action criminal.

As The Atlantic Wire notes, under current New York law, "it is illegal to create, possess, distribute, promote or facilitate child pornography." But that leaves out one critical distinction, as Judge Ciparick stated in the court's decision.

"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," Ciparick wrote. "To hold otherwise, would extend the reach of (state law) to conduct — viewing — that our Legislature has not deemed criminal."

The case originated when Kent brought his computer in to be checked for viruses, complaining that it was running slowly. He has subsequently denied downloading the images himself.

[DGuller]

Regardless of how objectionable child pornography is, making the act of seeing anything illegal is absurd on many levels.  Good on NY for once.

[garbon]

I don't know - I mean I know that my computer saves images when I go-to websites and this seems to open a nice loophole. Save it down or keep those pages perpetually open.

[DGuller]

Big deal.  I'm not sure why even downloading child pornography should be illegal.  After all, you can watch someone being beheaded on the Internet, is watching a child porn really worse compared to that?

[Barrister]

Big deal.  I'm not sure why even downloading child pornography should be illegal.  After all, you can watch someone being beheaded on the Internet, is watching a child porn really worse compared to that?

Nobody goes around deliberately beheading people just so it can be filmed and shown on the internet.

There are plenty of people who do however go around taking sexually explicit pictures of young people for precisely that purpose.  Possessing child porn is illegal to shut down the production of it.

[The Brain]

Big deal.  I'm not sure why even downloading child pornography should be illegal.  After all, you can watch someone being beheaded on the Internet, is watching a child porn really worse compared to that?

Nobody goes around deliberately beheading people just so it can be filmed and shown on the internet.

[CountDeMoney]

Nobody goes around deliberately beheading people just so it can be filmed and shown on the internet

[DGuller]

Nobody goes around deliberately beheading people just so it can be filmed and shown on the internet.

I'm pretty sure that publicity of it is exactly why it's done.

[ulmont]

A couple of items to note about that decision:

1) The guy was convicted of 136 separate counts, of 143 charged.  This opinion reverses his conviction on 2 of the 136, leaving 134 convictions.  I'm sure that will make a big difference in his sentence.

2) If you know about cache files, that's all that's required.

[DontSayBanana]

Yeah.  Not to mention if it's cached, you've navigated to it, e.g. promoted by virtue of increasing its traffic counters.  All this really does is cover a user's ass if they navigate to an otherwise legit website that has pop-ups depicting child pornography.

[viper37]

Nobody goes around deliberately beheading people just so it can be filmed and shown on the internet.

I don't know... there seems to be tons of psychos on the 'net, I wouldn't be surprised there's some porn fetish involved with that.

There are plenty of people who do however go around taking sexually explicit pictures of young people for precisely that purpose.  Possessing child porn is illegal to shut down the production of it.

true.  But I wonder if they produce it because they enjoy it first, or because there's a market to it. 

[viper37]

Yeah.  Not to mention if it's cached, you've navigated to it, e.g. promoted by virtue of increasing its traffic counters.  All this really does is cover a user's ass if they navigate to an otherwise legit website that has pop-ups depicting child pornography.

but someone else can use your computer.  Anyway, I'm not sure someone would be convicted solely because of his/her cache content.  I see it as more damning evidence, but not as a definite proof in itself.

[Barrister]

Nobody goes around deliberately beheading people just so it can be filmed and shown on the internet.

I don't know... there seems to be tons of psychos on the 'net, I wouldn't be surprised there's some porn fetish involved with that.

There are plenty of people who do however go around taking sexually explicit pictures of young people for precisely that purpose.  Possessing child porn is illegal to shut down the production of it.

true.  But I wonder if they produce it because they enjoy it first, or because there's a market to it.

I see what everyone found so funny.  Yeah, yeah, jihadists.  But it's not all that common a phenomenon.

But to answer Viper's question - because CP is so very, very illegal, you really can't make money selling it.  Instead it is largely traded by "enthusiasts" - the act of trading one image is seen as a way of ensuring the person is not an undercover cop.

[MadImmortalMan]

It's also possible that the virus in question downloaded the image, and not the guy's surfing.

[Martinus]

It's funny that Barrister Boy would decry child pornography, considering what he uses as his avatar.