Thursday, May 10, 2012

NY Court Rules Viewing Child Pornography Isn't A Crime??!!

I don't know how many of you have heard about this recent outrageous court ruling, but I haven't seen or heard much of it in the national media.  This week a New York Court of Appeals ruled viewing child pornography online isn't a crime! 

Viewing child pornography online isn't a crime, the New York Court of Appeals ruled Tuesday in the case of a college professor whose work computer was found to have stored more than a hundred illegal images in its Web cache.

The court dismissed one of the two counts of promoting a sexual performance of a child and one of the dozens of counts of possession of child pornography on which James D. Kent was convicted. The court upheld the other counts against Kent, an assistant professor of public administration at Marist College in Poughkeepsie, N.Y.

Kent — who said at his sentencing that he "abhorred" child pornography and argued that someone else at Marist must have placed the images on his computer — was sentenced to one to three years in state prison in August 2009.

The decision rests on whether accessing and viewing something on the Internet is the same as possessing it, and whether possessing it means you had to procure it. In essence, the court said no to the first question and yes to the second.[my emphasis]

"Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law," Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges. 

"Rather, 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."

Read the full appeals court ruling (.pdf)

In other words, "the purposeful viewing of child pornography on the internet is now legal in New York," Judge Victoria A. Graffeo wrote in one of two concurring opinions that agreed with the result but not with the majority's reasoning.

The Court came to this conclusion because the law isn't clear on images stored in a users browser cache. The professor claimed ignorance to knowing the images could be stored on his cache, even though he deleted the files from his computer. 

The federal statute outlawing possession of child pornography — 18 USC 2252A — doesn't mention browser caches. The few cases that have examined the issue at the federal level — notably a 2002 federal appeals case involving a Utah man and a 2006 federal appeals case involving a visitor to Las Vegas — generally conclude that cached images alone can establish possession if the defendant knows about the browser's caching function.

Both courts noted that it was hypothetically possible for the defendants to be innocent if they were ignorant of the cache function....

Thankfully, Kent was convicted to three years in prison, because 13,000 other images of child pornography were found in a separate folder on the computer;but not because of the images found in his cache. It seems obvious to me if he was storing them in a seperate folder he must have intentionally been downloading them from the internet, which would have required purchasing them illegally and illegally possessing child pornography. The fact that there were more images on his cache shows he was intentionally downloading them from the internet as well, so why the Court found him innocent of viewing them online is absurd. Where else do they think he obtained the thousands of images he had stored in a separate folder?? 

In conclusion, the court should always find on the side of children and protect them from harm. By ruling that viewing child porn online is legal is a violation of the laws against child pornography&pedophilia. Child porn is a crime, therefore viewing it/accessing it online should always be a crime. Someone who claims they accidentally came upon it online would need to prove it,if they can't prove it then they must be guilty of accessing&downloading it onto their system,especially if there is more than one image on their system. If it was only in their cache and was a one time thing, that could prove they came upon it by accident, but it should be reported immediately so the site is taken down and the pedophiles who posted it&operate the site are charged.

However, some say there are ways that hackers can use your system as a backup without a user knowing it,despite having virus software&a firewall. To protect yourself from these risks, always turn your system off when not in use and always run regular scans for viruses or malicious software. In addition, I'd recommend making sure your software or firewall settings are set to block adult sites. Windows 7 users can use Windows Live Family Safety software for free to monitor your system&block such sites&set limits based on users if you have children. Other than that it's up to you to prove your innocence and up to the Courts to prove your guilt.

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