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Does Viewing A Website Constitute Possession Of That Site?
from the ah,-tangible-laws-for-an-intangible-world dept
You can't say that people weren't warned ahead of time that this would be a legal issue at some point. Two and a half years ago we linked to a story saying that new "first offense" anti-child porn laws were going to run into problems because it was difficult to define possession. The issue, was that if someone just views a webpage by accident, any images are likely to be stored in the browser's cache. So is it fair to lock someone up for child porn "possession" if they just happened to view a website? Especially in an age of spyware and adware that often force unsuspecting surfers to porn websites. Slashdot points out that this exact issue is being debated in a Georgia courtroom right now -- as someone who viewed some child porn websites is being charged with possession of child pornography. This is an issue that's obviously going to come up again in the future as well, and will impact things well beyond child porn (which always seems to cloud the issue, because child porn itself is so despicable, people forget to look at the actual legal issues). For example, if viewing a website is considered possession, then there should be plenty of copyright questions concerning putting just about anything online, as just about viewing a website is making an "unauthorized" copy (the response, of course, being that by putting it on the web, they're authorizing your ability to copy it, but it could get tricky). The real point, though, is that these are laws for an offline world being applied to the online one, and people are realizing that they don't quite match up nicely.
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This is one of those situations where common sense SHOULD rule but law-makers will have to codify into absurdity (because that's the nature of the beast).
Technically, yes, anything that sits in your cache IS possession because its on YOUR PC...it is residing there (albeit temporarily)...so it should constitute possession in that sense. I mean, even disconnected to the internet you could go browse those images and with certain setting tweaking, keep them there.
However, should this mean that someone who gets accidentally (or maliciously) re-routed to a childporn site be charged with possession? Of course not...that's just plain stupid. I'm not a lawyer so I don't know how these cases go, but I imagine a large part of proving the charge would be to show a consistent pattern of behavior (maybe daily "accidental" surfing of those sites and other pictures elsewhere on the drive or off pc).
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Re:
>However, should this mean that someone who gets accidentally (or maliciously) re-routed to a childporn site be charged with possession?< BR>There is precedence for this type of BS. There are cases of the USPS Postal Inspector sending unsolicited Child Pornography to someone (as a registered package that must be signed for) and as soon as they get the signature turning around and arresting the recipient for "Possession of Child Pornography " before the package is even opened (and thus the person has not had a chance to inspect its contents to learn that he has been "stung" in an entrapment operation).
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CP in cache
Here in the Eastern District of Missouri the interpretation is that if the only place a suspect has CP is in the cache, there is plausible deniability he intended to download it. (A hijacked browser or popup can do pretty ugly stuff).
If it's anywhere else on the drive or on removable media, he's got some 'splaining to do.
Now if it's on CD's, DVD's, saved in folders, AND in the cache, the AUSA may well include the images in the cache as "prior bad acts" since the intent to possess it can be argued from the weight of the other evidence.
Paul V
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Re: CP in cache
Look at my comment:
This is my story in inquisition21.com. There is all
information about case written by Irish writer Brian
Rothery.
http://www.inquisition21.com/article~view~7~page_num~3.html
This is publication in Wired news
http://www.wired.com/news/infostructure/0,1377,63391,00.html
This is publication in Theregester
http://www.theregister.co.uk/2004/05/13/browser_hijacking_risks/
Article in Globe and Mail newspaper
http://ctv.globetechnology.com/servlet/story/RTGAM.20040617.gttwhijac17/tech/Technology/t echBN/ctv-technology
Article in ZDnet
http://zdnet.com.com/2100-1105_2-5344831.html
This is article in Washington Times, May 22, 2004
There is information about my case.
http://www.cato.org/cgi-bin/scripts/printtech.cgi/dailys/05-30-04.html
Article in Crime research center:
http://www.crime-research.org/news/07.22.2004/506/
Article in Dallas, TX Newspaper
http://www.zwire.com/site/news.cfm?newsid=13614767&BRD=1426&PAG=461&dept_id =528214&rfi=6
Child porn law was declared unconstitutional in Hennepin County, Minnesota, USA'
http://xbiz.com/news_piece.php?id=11750
(reply to this comment) (link to this comment)
There is a precident for this
Someone was already prosecuted for this and was released. He was acquited, and the prosecutors have been fuming ever since. I have no idea whether the law was sharpened in one of those midnight retooling sessions when a rider was attached to some unrelated bill and run thru the mill, however.
(reply to this comment) (link to this comment)
my case is example
I would like to send you some links to publications about my child porn criminal
case. This case is getting public
attention as an example of a miscarriage of justice. I could not
defend myself, because I did not have enough money for a computer
expert.
I was forced to confess to the
possession of child porn. My browser was hijacked while I was browsing
the web. I was redirected to illegal sites against my will. Some
illegal pictures were found on my hard drive, recovering in
unallocated clusters, without dates of file creation/download.
I do not know how courts can widely press these charges on people to
convict them, while the whole Internet is a mess.
This is my story in inquisition21.com. There is all
information about case written by Irish writer Brian
Rothery.
http://www.inquisition21.com/article~view~7~page_num~3.html
This is publication in Wired news
http://www.wired.com/news/infostructure/0,1377,63391,00.html
This is publication in Theregester
http://www.theregister.co.uk/2004/05/13/browser_hijacking_risks/
Article in Globe and Mail newspaper
http://ctv.globetechnology.com/servlet/story/RTGAM.20040617.gttwhijac17/tech/Technology/t echBN/ctv-technology
Article in ZDnet
http://zdnet.com.com/2100-1105_2-5344831.html
This is article in Washington Times, May 22, 2004
There is information about my case.
http://www.cato.org/cgi-bin/scripts/printtech.cgi/dailys/05-30-04.html
Article in Crime research center:
http://www.crime-research.org/news/07.22.2004/506/
Article in Dallas, TX Newspaper
http://www.zwire.com/site/news.cfm?newsid=13614767&BRD=1426&PAG=461&dept_id =528214&rfi=6
Child porn law was declared unconstitutional in Hennepin County, Minnesota, USA'
http://xbiz.com/news_piece.php?id=11750
"I came here to the US as political refugee from the former Soviet
Union, and, now like many other people in the US, I feel shame that
all of this can happen in the US – supposed to be the greatest
democracy in the world."
(reply to this comment) (link to this comment)
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