Viewing Files on the Web Considered Possession?

Packet Pusher writes "A Georgia lawyer is taking a case to appeals court to prove that the mere act of viewing a website does not constitute possession of the materials that were automatically cached on your hard drive." While the case in question involves pornographic photos, the implications of such a declaration could reach far further.

20 years over 4 hours?

[Synbiosis]

"He said most of the pictures were viewed between midnight on Dec. 2 and 4 a.m. on Dec. 3 in 2003."

I think it's absurd that someone could face 20 hours in prison for viewing illegal pictures for 4 hours. But that's just me.

Re:20 years over 4 hours?

[fembots]

Most murders killed their victims within 2 minutes.

Re:Holely Cheese

[timothv]

I thought if someone knowingly viewed some illegal images, he should at least have the commonsense of clearing the cache!

This technical know-how shouldn't be required to stay clear of law enforcement.

A good example

[Telastyn]

Of why -acts- should be crimes, not simply states or possession.

Spyware?

[eggman9713]

What about malicious web sites or programs that secretly install said content on your computer? Porn Dialers?

Accedents

[a_greer2005]

What about accedents? I remember not so long ago typing .com instead of .gov would have nasty consequences, I understand and totaly support prosecuting (and then promptly castrating) child porn perveiors and those with large "collections" but should clicking the wrong link in Google or entering the wrong domain on accedent, which could result in massive ammounts of other sites launching, spy/ad/porn/shitware installing and so on be criminal?

I agree with the lawyer in so far as the cache should not be considered property.

Re:Same old story

[Hays]

Umm... it does work if your friend put crack in your glove department. Sure the burden of proof might be on you at that point, but that IS a valid excuse.

Anyway, that's a bad analogy.

The key question here is- does the fact that someone has browser caching on instead of off make something drastically more illegal.

How to go to jail

[jarich]

Step one, install Mozilla and turn on the background prefetching.

Step two, go to Google and search on something

Step three, Mozilla will immediately start fetching the pages in the background and storing them on your machine.

Step four, get arrested for having every link on the results page cached on your machine. Even the crazy pornographic (and illegal) pages that you didn't click.

Re:Sophistry at its finest...

[jrm228]

Someone could easily post an illegal picture as a 1-1 pixel image in a post on a site like this and it'd be in your cache. Are you sure you want to completely dismiss that defense?

People click links

[Jason1729]

Just look how "popular" tubgirl and goatse are. I doubt many of the people with those images in their possession on their hard drives viewed them on purpose.

I have a link in my sig. If there are illegal images there, should the people who follow the link be subject to prosecution?

Re:Holely Cheese

[aussie_a]

This technical know-how shouldn't be required to stay clear of law enforcement.

Luckily it isn't. Not breaking the law is required to stay clear of it (NOTE: parent was talking about people KNOWINGLY looking at illegal images. I see knowing how to clear the cache akin to knowing how to clean blood from the floor so it leaves no marks).

Victimless Crimes, in General

[NetSettler]

This all begs the question of why viewing anything should ever be illegal. Who is the victim here?

Sure, if someone creates porn from actual people, unwilling to or unable to consent, that's something the creator has done. And maybe if someone has paid to fund that, there's an issue. If this guy has paid, they should go on the money. If he's not, I don't see how they have any good cause even though they may have a case.

When you start to admit victimless crimes, the whole algebra of causality is turned on its head and lots of strange things result, not the least of which is this case.

Consider newsbots also.

[synthespian]

Consider newsbots...a user downloads massive quantities of material with a software. He doesn't know what he downloaded until he looks/hears it, because the whole point of newsbots is automation.

And, I haven't read the case the case, but what is the user supposed to do about cache/swap/temporary folder?

Mens Rea -- criminal intent

[redelm]

This goes to an underconsidered area of the law -- establishing intent. For many laws, the forbidden act alone (actus reus) is not enough to convict. Proving a guilty intent (mens rea) is also necessary. However, some offenses do not require mens rea.

In this case, if possession of kiddie pr0n requires mens rea, then the lawyer has a good argument. Most lusers do not know that the browser has caches and so did not know they possessed the offending material. The /. '1337 couldn't get off that easily :)

The prosecution can easily prove they viewed pr0n, but that may not be illegal. To posess something requires an act of knowingly taking possession. IANAL.

This is serious.

[pedantic bore]

If you RTFA you'll see that this is a very serious question with broad implications. Many laws are written in terms of possession, and there isn't a good definition of possession that works for things like browser caches.

Whether what this guy did is morally or ethically wrong is a different issue than whether what he did is illegal. If you have kiddie porn in your browser cache, do you possess it? What if someone mails you some raunchy spam and your mail client caches a copy on your disk -- do you possess it? In either case, planting evidence that could get someone serious jail time suddenly becomes trivial! I could put a link to an obscene photo on my home page and with a small amount of effort make it invisible to you but trick your browser into downloading (and possibly caching) it. Or I could wait until the Google crawler comes by, and then extort a little cash out of Google because now I can show that they possess this photo, etc. (The links don't point to my site; there's no evidence that I've ever possessed the photo.)

This is far from simple.

Re:20 years over 4 hours?

[RickPartin]

There are two things to consider

1. By viewing the images of exploited children you are creating a demand. Higher demand means more kids life's are ruined to create more pictures.

2. Punishments generally reflect how hard it is to catch a crime, not how much damage it causes. This is why you can go to prison for 209320938 years just for copying a movie for your friend.

A flurry of frame-ups?

[heretic108]

How to frame up someone you don't like:

1. Set up a political blog intended for your political opponents to read.
2. Host it overseas under a false name, and be sure to use Tor when uploading stuff onto it
3. Populate it with political material, designed for repeat visits
4. Replace all full-stop characters on the page with img tags for child pr0n, sized to 1x1
5. A few days later, change the IMG tags back to full stops
6. A few days after that, rework the entire site to make it look like a typical pr0n site
7. Send emails to law enforcement agencies reporting the IP addresses of the visitors, and complaining that these people used false credit card info when accessing a legitimate adult site
8. Get a carton of beer, and gather round CNN, ABC, or Fox etc with a few friends and wait for the scandal to break

Isn't possession something you take?

[WolfWithoutAClause]

I mean, as an example, if I stuff drugs into your hand on the street- are you possessing? I would say not, you're only holding it. On the other hand if you look at it, and carefully put it into your pocket, then you possess it; or if you just paid for it, holding it in your hand is enough to possess it. I would argue that holding it in the cache is like holding it in your hand.

If it's something you take, then accidentally seeing something on the web doesn't imply possession.

On the other hand, deliberately seeing something means that you are clearly taking it to your computer.

It's a subtle difference, but it seems to me important here.

Here, particularly, it seems to me that he took possession of many files, he was clearly deliberately possessing them.

Re:Holely Cheese

[Sancho]

Generally, if something you own or that is under your control causes something that results in some form of law-breaking and/or civil problems, you are considered accountable. If your car breaks go out and you hit someone, you're almost certainly going to be considered at fault. Same thing goes for animals under your control, and any number of other examples. In general, you are expected to be knowledgeable enough to control/maintain your possessions, or hire someone who can do so for you. Why should computers be any different?

Furthermore, there's hell raised on Slashdot about how "people should have a license to use their computer" when threads about Microsoft insecurity causing worms to run rampant and cause networking problems...people often rally a call to hold anyone who cannot maintain/patch/protect their machine accountable. Then we come to a thread like this, and you see a number of posts suggesting that it's not their fault if they don't know how to do something on their computer.

Please! At least the precedence of the law is on our side for holding people accountable for their possessions.

View rate?

[redelm]

One small tidbit -- the article mentions that the accused viewed 450 images in 4 hours. That's a lot of hard surfing even for broadband 30sec/ea. Were these thumbnails?

Either way this is interesting

[jernst]

If he wins, one could conceivably argue that merely "viewing" (ahem, listening to) audio/video files does not constitute illegal copying.

If he loses, one can argue that a number of industries already allow the (temporary) copying of copyrighted material because they show it on the web.

This case may turn out to be not be about porn.

Re:How to go to jail

[Anonymous Coward]

Why should surfing any kind of porn be illegal?

Not trolling -- but seriously, just LOOKING at certain PICTURES is now widely considered to be a crime?

Yeah, keep chanting that "land of the free" bullshit till the lynch mob comes for you. Mob rule isn't freedom.

Click here and go to prison

[Free_Trial_Thinking]

What if this link [illegalimages.com] contained said illegal images, all 20 of you who clicked it are now criminals since your browser would have loaded an illegal image and cached it (most likely).

Doesn't seem fair, does it? You were just curious where the link went.

Re:A good example

[jd]

States can be crimes? Can we criminalize Florida, pleazzzzze? :)

Google Images

[dtfinch]

I bet they are in possession of a whole lot of illegal porn. An ISP that operates a squid cache might be liable too.

Re:Victimless Crimes, in General

[redelm]

Not quite, because free samples are given out by the image owner, while P2P happens contrary to the content owner's will. But it may still increase legit sales even if the content owner is too stupid to recognize free and effective marketing.

Re:Same old story

[Transcendent]

But if a malicious site uses JavaScript or any form of redirection to force you to view such a website, then is it really your fault?

That is what I think these people are trying to defend against. Just because a software program on your computer loaded material on to your computer, does not mean that YOU intentionally did it. Sure you run into the "my friend did it" situation, but this is an actual legitimate defense since you can control your friend easier than you can control a malicious piece of software or website.

Re:A good example

[Anonymous Coward]

But for some reason having pictures of naked kids means that you are going to commit child rape

I think you misunderstand. Possesion of child pornography isn't illegal because the law assumes that this person would the next day be going out to commit child abuse. It is illegal because it creates demand for the pictures which then encourages the original creator or others to abuse children to create the photos.

Re:Holely Cheese

[Fallen_Knight]

there is a diffrence with computers, where most poeple dont' understand how they work at all and can only do basic things. Most people understnad cars need to be kept up, and take them to mechanics to keep them safe. But computers are not like that. they could be spyware ridden and still work. And as long as the computer works no ones life is in dager and they are not going to pay.

this is important, because you dont' always know wtf a link points to before you click on it. And if you computer chaches a copy of something you where mislead to into viewing, should you be at fault? no.

and then theres that multiple people use any given computer. and that theres no way to prove who looked at or saved what.

There are many reasons why computer should be diffrent. existing laws do not take into account computers at all and many need to be changed.

it is not the end users fault for haveing spyware, i think most people blame MS, and the spyware companies (another palce where new laws need to be taken written)

So PLEASE, take note that computers DO require diffrent laws bceause they are TOTALY diffrent from anything else.

Re:20 years over 4 hours?

[dr_dank]

By viewing the images of exploited children you are creating a demand. Higher demand means more kids life's are ruined to create more pictures.

I just flipped through a Crutchfield catalog. Did that do anything for the demand for car radios?

Seems like terrorism and child pornography are hot button issues that require logic be checked at the door at all times.

Re:Accedents

[Jeff DeMaagd]

I'm tired of seeing sex offenders (so called "perverts") being stuck in prison and then released back into society. These people do not need prison time, they arent criminals (except by law), they are persons with _mental disabilities_! And as such they need counseling to assist them in seeing why they're wrong instead of just sending them to prison.

It depends. If they violated another person, they need both prison and counseling. Looking at a web page is another matter though.

Re:Holely Cheese

[yRabbit]

It could also be potentially possible to get illegal images, etc. without even knowing it.
Something along the lines of .. img src="illegal.png" width=1 height=1
Or, I bet "fun" things could be done with a java applet, make all kinds of files get downloaded. :\

Re:Sophistry at its finest...

[Anonymous Coward]

I hope you're just being intentionally daft, but to be sure... you do realize that you can display an image at a different size on the page from its real size? You could have a 1600x1200 image and display it as 1x1 and the user wouldn't have a clue beyond the delay from the download, and the full file would be in the cache.

Re:20 years over 4 hours?

[adoarns]

Punishments generally reflect how hard it is to catch a crime, not how much damage it causes.

But is this justice?

Re:This is serious.

[pedantic bore]

It's not about "viewing", it's about possession.

Imagine that someone has a pile of kiddie porn in their house. There's no way to prove that they have ever looked at it. The thing that's provable is whether it's physically in their house.

Look at the laws: people are charged with possession of kiddie porn, not looking at it; possession of controlled substances, not getting high, etc. That's why the definitions are so important here: if someone can effectively place illegal images or documents in your "possession" without any cooperation from you, then these laws are meaningless.

Re:Holely Cheese

[jp10558]

Oh, I agree you should know how to maintain your computer.

At first glance, this looks like a Heck ya. However, it brings up an interesting point - were the people watching the superbowl's "wardrobe malfunction" in possession of a nipple picture?

I think the issue is that you can end up places you don't expect to be on the net. Especially if using IE. Now, 400+ pics in temp internet files... that's a lot IMHO. It's suspicious.

I can't see a non techie claiming I'm currently "in possession" of this slashdot page in any meaningful way. I'm viewing it, but there's no exposed way for me to go back to it unless I actively save the content.

Also, if I'm in possession of everything I see on the internet, isn't that a big copyright violation?

I don't think you could reasonably claim files that your browser caches, without your input, as files you have possession of. They are like claiming a TV broadcast is in your possession. Now, I can see using them, in a case like this, to prove/prosecute for *viewing child porn*, but not being in possession of it.

Who's victimized when CP is viewed? I'll tell you.

[atomm1024]

Simple. The children in CP are victimized every time it is viewed, because it violates their natural right to privacy. If it's a crime to look in a neighbor's window while they're showering or changing, then this should similarly to apply to erotic images, where the act depicted, or the photography thereof, is not consensual. Presumably, this applies to most child pornography; and from a legal perspective, where nobody under a certain age can consent to sex, it applies to all child porn. (However, I do think the age of consent should be lower, maybe corresponding to the average age when puberty begins, because declaring sex with a 15-year-old to be legally equivalent to sex with a 5-year-old is just silly.)

20 years, not hours

[VidEdit]

Dude, he is getting 20 years not 20 hours! The man may be scum, but he is going to get longer for 4 hours of web browsing than most murders or actual child molesters get. He is being charged with a separate count for every image that his web browser displayed.

This is very, very dangerous. With typosquatting domains that make money of of pr0n pop ups and use endless "on exit" java script loops, anybody could wind up with illegal pr0n on their computer--and Walker County could prosecute you for each and every image as a separate count, regardless of whether you meant to download it.

This case is much, much bigger than the one person charge here. Charging people with possession for the mere act of seeing something is positively Orwellian.

Newsgroups

[Mistlefoot]

Joe user goes to the newsgroups after reading about how to view naked pictures of women for free.

He has a fetish for small breasts and after searching for breasts in the newsgroup names find a category that suits him.

He then decidees to download all the jpg's from the above newsgroup along with 22 other newsgroups that sound like they might interest him.

He does this before he goes to bed and lets them download while he sleeps. He gets up in the morning and turns off this computer. Why not. He works all day. He forgets about downloading the pictures and doesn't look at them.

If some of those 10's of thousands of pictures is (even though the categories do not include young or pedophile or even teen) is he a convictable pedophile?

I would guess that if he is then EVERY user who downloads any pictures from Kazaa or any file from any newsgroup is at risk for downloading ANY supposed legal porn as the fact is that you DO NOT KNOW what is on the file you are about to open. Virus scanning doesn't help here.

Re:A good example

[mangu]

You state that there is no child porn on the Internet? Well, I personally know a Police officer who is in cybercrimes that would beable to disprove that quite easily.

Perhaps. But certainly not by following the 1.040.000 links that Google finds in 0.21 seconds for "lolitas young pre-teen nude sex".

The fact is that true child pornography is *extremely* rare anywhere, both in the internet and the physical world. Children just aren't sexy. They don't have the bodies for being sexy. People who find children sexy are less common than people who get sexually excited by pieces of furniture. Child abuse is about power, not sex. People who spank children must be about a million times more common than people who have sex with children. The police should go after the spankers, not the wankers.

If it weren't for so many people who keep hammering this "child pr0n" meme, the whole idea of child pornography would disappear entirely from the world outside some very few specialized psychiatric clinics.

Re:Newsgroups

[Mistlefoot]

So you are implying that EVERY user MUST know the CONTENTS of EVERY file that he/she DOWNLOADS, even BEFORE looking at them or that person is deemed guilty?

Say goodbye to p2p if that were to be the case. And say good bye to downloads from newsgroups. The WWW is done too. How can I know what picture is to be shown to me on a page that I've not yet loaded?

Goatse is a pleasant example of people viewing unexpected pictures.

Whether or not a person is guilty is to be determined.....it is the assumption of guilt based upon the pictures being there that is bothersome.

Re:20 years over 4 hours?

[alan_dershowitz]

Come one, that's obviously wrong. By that logic, a popular web site would never have to update it's content because the current content never gets "used up." That's demonstrably false.

You have a finite amount of content on a site, and a finite number of visitors. Even if the content isn't "used up" for real, the consumption of the same content by a visitor has a diminishing return, and the visitor demands new content or they leave. You can run a site without adding content as long as you have a steady flow of new users, but it's not sustainable. If you want people to come back, you add new content.

Either the perv is paying for the site, and if there's no new content he stops paying, or if it's a free site, the advertizer stops paying. Either way, the site owner needs to find some way for people to keep paying, and that way is by adding new content, which in this case is pictures of children being molested.

Re:Who's victimized when CP is viewed? I'll tell y

[Anonymous Coward]

but it is NOT a crime to look in a neighbor's window (assuming that you are not trespassing to do so)

Re:Holely Cheese

[syousef]

Generally, if something you own or that is under your control causes something that results in some form of law-breaking and/or civil problems, you are considered accountable. If your car breaks go out and you hit someone, you're almost certainly going to be considered at fault.

You're talking rubbish. If the car brakes go out after 2 years of not servicing the car, yes you're likely to wind up being found negligent. But if you were doing everything right and had it serviced days or weeks beforehand and the mechanic made a mistake the mechanic would be charged, not you.

Furthermore, there's hell raised on Slashdot about how "people should have a license to use their computer"

A few loud zealots do not "hell raised" make.

Then we come to a thread like this, and you see a number of posts suggesting that it's not their fault if they don't know how to do something on their computer. /. is a varied community where individuals hold different points of view. It is a not an unforgivable authoritarian police state that will charge you first and ask questions later.

I hate child exploitation. I have no problems with putting people who make the rubbish in jail. But viewing a web site - any web site - should not result in jail time. Not if you value your freedom!

Re:20 years, not hours

[1u3hr]

Ah yes, I noticed the 20 years thing after I read the article :) "Charging people with possession for the mere act of seeing something is positively Orwellian." Uhh, Yeah, that would be orwellian, but thats not what is happening here...

It is exactly Orwellian, "thought crime" specifically. He didn't do anything in the real world, just looked at some images. (If he paid for them, that's another thing, but since it wasn't mentioned in TFA, which would have made a stronger case, then I assume he didn't.)

One can sit on the subway and read American Psycho, one of the most revolting stories I've attempted to read without being arrested for thinking about extreme torture, murder and sexual abuse. One can look at books, movies or comics about "True Crime", complete with photos of dead bodies without harassment. As a society we can certainly disapprove of some or all of these actions, but to make it a serious crime worthy of decades of jail time boggles the mind.

Virtual Crimes....

[John Seminal]

This makes zero sense to me, we are going to lock people up in jail and pay for their incarceration for looking at something.

For all the people, before there is a holy war, let me set some things straight. If a person arranges to meet someone underage, send them to jail. If a person chats with someone underage and tries to solicit sex, send them to jail. I am all for sending people to jail who harm others.

But when it comes to looking at something, should this be a crime?

I am afraid the direction we are going in. Are we protecting children, or are we making ourselves feel like we are protecting children because we locked up people who looked at the wrong websites?

This is an issue that is only going to get worse. What about websites with instructions on how to make bombs? What about websites that don't explicitly tell you how to make a bomb, but give you all the information in a way that anyone could figure out?

Okay, so you want to talk about intent. What is the intent of the person looking at a website? What is the intent of a person looking at a website with a naked girl? Are we going to start measuring the sexual excitement a person has?

If the real goal is to protect children, how about going after the website owners? Why not spend the money which would lock up joe sixpack for his browser cache violation, and use that money to find and hunt down the people who abuse the children? It seems to me that hunting down the website owners, and those who commited the violent act is much more effective than spending money on joe blow because one morning at 2am after drinking all night he went on the web and found the wrong website.

I feel like it is so difficult a position to defend, yet if we want free speech, free expression of ideas, then we have to draw a line when it comes to throwing people in jail, to those crimes that harm someone or something.

I would hate to see what society would do to Newton if he was alive today. There is a guy who 100% would look at anything and everything, and probably not be able to tell the difference of right and wrong. How he figured out calculus between the fits of emotional turmoil and pychological collapse is beyond me. Maybe we can have a wing of the prision for thinkers, people with an IQ over 140. Wait... that might be a bad idea.

Re:Newsgroups

[yuri benjamin]

Guilty or not, the Powers That Be will still make an example of you. They have to be seen to be doing something about a perceived problem. This applies to dope planted in your luggage and illegal porn planted on your PC.

Re:Holely Cheese

[Anonymous Coward]

This is EXACTLY how we caught a peadophile at my previous job. He brought his PC in because he'd accidentally deleted a few word documents that he needed badly.

We ran the undelete software picked and it picked up his temp internet files too. In our contract of employeemen, we made provisions so that we could search an employees computer for porn in we wanted to.

When I looked in there, there was some seriously underage stuff. After a day of deliberation, we phoned the police and he was arrested. His trial is in September. So yes, it really does happen this way.

A.C.

Re:Newsgroups

[FireFury03]

If I fly into Bali and find someone has sneaked 4.1Kg of marijuana into my boogie bag without my knowledge, am I guilty of illegal importation?

You can make reasonable efforts to keep your bag in sight at all times so someone doesn't get the opportunity. The same cannot be said about stuff you are downloading - you could download a Torrent that claims to be the latest copy of Fedora, only to find it's hard core kiddie porn - how were you to prevent this from happening?

and so it begins...the end

[N3wsByt3]

As I have recently said, this is the way it begins; not by huge and obvious destruction of citizens' rights, but by small, insidious steps, portrayed as the 'next logical step' for fighting whatever the state seems to think will manage to get little resistence.

I mean, what, you're not soft on childporn, are you? You don't want terrorist roaming around and using the internet without punity, do you?

If it's emotional and self-righteous enough, they know few will dare to oppose. Think of the children! think of 9/11! Ok, and now agree to our huge privacy invasion, because, you want to stop those people doing it again, don't you? Or are you pro CP and terrorism?

With such demagogic tricks they can fool the public almost every time.

Is retaining the best way to go? Does it actually help at all? Is the very unlikely possibility of stopping a relatively few worth the privacy invasion and the further degradation of civic rights of millions? Nowhere is that question ever raised by those that propose these laws. Instead, they continue to use platitudes: "We need the way to stop terrorists!" But as I said before:

Ah, yes, but who are the 'terror suspects'? Everyone reading books the state deems dangerous? Everyone using the internet? No? Then why should their privacy be invaded? Why not adher to decades of legal provisions, where it used to be that you could only be 'tapped' when you were considered a suspect, and AFTER a court agreed to it. Nowadays , everyone is a suspect, and the courts don't come into play anymore when your communications are being tapped.

Eroding ones' privacy and other rights because one is merely 'suspected' is the right way to go, if you want to end up in a policestate.

But, we ALL know the state will ONLY use its powers for the purposes it is meant, without ever abusing it. History has shown this already numerous times in the past, no?

Besides, 'if you have nothing to hide, why care that your private life is being invaded', right?

Re:A good example

[Mycroft_VIII]

How on earth can you equate spanking (NOT beating, spanking) with torture.
Next you'll equate saying 'no' to a childs demands with emotional cruelty and sending them to thier room with locking them in a 1m x 1m tin shed in some tropical third world prison camp.

Mycroft

Re:20 years over 4 hours?

[anthony_dipierro]

By viewing the images of exploited children you are creating a demand.

So when I watch the 6 O'Clock news I'm creating a demand for war, arson, murder, and genocide?

No, you're only creating a demand if you're paying for the item.

Re:20 years, not hours

[Politburo]

I'm one of the biggest Bush-bashers around, but I don't ever recall the administration stating that they think porn is illegal. Maybe they think it should be illegal, but that has a completely different meaning then what you said.