Viewing Files on the Web Considered Possession? 719
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.
Holely Cheese (Score:4, Interesting)
I thought if someone knowingly viewed some illegal images, he should at least have the commonsense of clearing the cache!
Re:Same old story (Score:5, Interesting)
This would be more like the cop finding rocks of crack stuck in the treads of your tires.
Re:Sophistry at its finest... (Score:4, Interesting)
The issue is that he's being charged with *posession*. Technically he's in violation, but if that argument can hold water in court, then anyone who views copyrighted images online using a cached browser can be charged with unauthorized copying of copyrighted images.
Re:A good example (Score:3, Interesting)
Re:How to go to jail (Score:2, Interesting)
Step two: Find out when someone's house is about to be searched.
Step three: Place said kiddy porn in their house.
Would the person then be charged? I don't think so (assuming the cops learn that the person didn't deliberately obtain the porn). Should be the same case with the internet.
If I have a page I've viewed that is obviously for porn (either accidental click or the google thing) and I don't click on any other links, it's fairly easy to prove I didn't deliberately view the porn (and stopped viewing when I realised what it was). But if I proceeded to click on numerous links after finding out, then it's easy to prove I knowingly looked at it.
Re:Accedents (Score:4, Interesting)
It's about intent. (Score:4, Interesting)
This is no different than borrowing someone else's kiddie porn magazine and reading it. Even if it's temporary, you intentionally had possession at some point. That makes you guilty.
Whether he knew the copies would remain on his computer is irrelevant if he intentionally accessed them, knowing they were pornographic images of children.
If there was no evidence that he intentionally accessed them, knowing what they were, then he should get off.
Re:20 years over 4 hours? (Score:5, Interesting)
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.
Except that this doesn't apply in a post scarcity economy. If you buy apples, then you create demand for more apples. But by your logic then if you download music from a p2p site then you are creating demand for more music and thus more music will be created. However, in reality it is very hard to determine if this is the case, and if anything the opposite seems more likely to be true. But in any event, this many didn't 'use up' any of the pictures so by downloading them there aren't any less pictures for others to download, so no new ones need to be created.
Re:Victimless Crimes, in General (Score:2, Interesting)
http://www.prisonactivist.org/crisis/evans-goldbe
Re:Victimless Crimes, in General (Score:5, Interesting)
Needless to say this poses the question of "Harm" and how we as a society can protect ourselves from harm. The slippery slope that is the enforcement of morality.
Where can you make sure that any law can be passed? Do it for the protection of the innocent and impressionable children. Illinois just recently PASSED a law that will ban the sale of violent video games to minors. Obscenity laws can be found on the federal to township levels.
Does any of this make sense? Do drug laws, obscenity laws, prostitution laws, marriage laws, sex laws, liquor laws, or a slew of other laws make sense? If you ask Mill's or a number of libertarians, no. The only laws that make sense are those that protect against harm. Physical harm can be easily identified, it's the mental harm that people get so cloudy on.
If I do drugs am I harming anyone (assume that in this case that drug making, transportation, and selling is legal)? Am I harming anyone when a willing partner is ready to sell their sexual services and I take them up of the offer (assume that in this case protection is used ... etc)?
Don't get me wrong, I'm agreeing with you and not assuming you don't know about Utility, just trying to expand on your claim a little further.
What about reasonable doubt? (Score:2, Interesting)
Re:Holely Cheese (Score:3, Interesting)
Quite so. And I agree - NO ONE accidently looks at 150 kiddy porn images in one night. But the question being raised is whether or not the images in question can truly be said to be under his control as defined by law. He didn't attempt to store the images for his later use.
The only reason they were still on his machine was that he was too clueless to clear the cache - a trait that he shares in common with 90 percent of computer users.
I would hate to see this guy get off entirely, but if there is another - lesser - penalty for viewing/seeking out kiddy porn (but not keeping it), then it is possible that that is the more appropriate penalty.
Consider: A Hypothetical "Fred SundaySchoolTeacher" receives a dozen unsolicited emails to his yahoo account. He opens each email in turn to discover - to his disgust - that each one contains an image of a naked child engaged in sexual activity. He has been spammed by KiddyPornRUs.com who got his email address off of a church website.
Fred promptly deletes the emails and blocks the sender's email address. But that is not enough. That night his machine is mirrored by the Homeland Security Gestapo in Patriot Act Sneak-and-Peak acting on reports that he is a religious fanatic and possibly a terrorist. They don't find any evidence of terrorism, but in the course of their investigations they discover 12 Kiddy porn pics in his cache. They turn these over to state law enforcement authorities for further action.
Under the present interpretation of the law, Fred is in the pokey for 20 years.
But it ain't justice.
Re:begging the question? (Score:2, Interesting)
To use the more modern definition of the word "beg", or to "ask for", "begging the question" could quite literally mean that the proposed conclusion is so unfounded that it essentially begs related questions to be asked. So while it is not the historically correct usage, it does fit in perfectly well with modern English in my opinion.
Of course, I'm no apologist for commonplace modern incorrect usage of something to override its true correct definition -- spelling "spatial" as "spacial" or using the word "irregardless" irritates me to no end. But in this case, his usage was not incorrect per se.
(Aside: Of course, the real reason I even made this comment is that I always hated those tests where I had to remember all the fallacies, because "begging the question" never matched with what I knew the definitions of the individual words to mean. It wasn't until recently that I even learned that at some point in history "beg" meant "assume". So it's really a personal vendetta against that particular fallacy. If they'd just used some other phrase, or even the Latin, I'd probably never have been bothered by it.)
Re:Holely Cheese (Score:5, Interesting)
Here's an analogy of my own: say you write to a company requesting a mail order catalog and they send you some illegal donkey porn instead. The police (for some reason) search your mailbox and find it. Should you be criminally charged? How about if you do see the donkey porn, but throw it away and they find it in your rubbish? I say 'no' in both cases, and I say 'no' in the case of the browser cache.
Re:Holely Cheese (Score:3, Interesting)
Typically, items may be seized as evidence if they are "in plain sight." Warrants follow a similar rule: if, during the search of the items in the warrant you discover something, it can be entered into evidence on its own charges.
That means if your warrant only allows you to search the garage, you can't go into the basement and "discover" the crack lab.*
In which case, if the warrant to search a computer includes the entire computer, then the cache is up for grabs. If it only specifies your email, the rest of the file system is technically off limits. This is why law enforcement usually just gets blanket permission to search the whole computer.
* Most states allow for the entry of evidence gathered during the course of securing a criminal or saving an individual from harm. Thus, if Officer Friendly goes to search the garage and someone runs into the basement, he can pursue them. If he spots the crack lab during the course of apprehending the suspect, in plain sight, it can be used against them.
Illegalities of simulation (Score:3, Interesting)
I'm forgetting the exact name of the act in the US, but there was a law put into force about 5 years ago, got repealed a few years ago, that specifically targetted simulated pornography for the reason you state, that the people involved might be emboldened by the viewing of the pictures to actually try something with a real child. *wry grin* I remember that when the law went into effect, the people who were most frightened were fanfiction authors. Suddenly, they had to come to grips with that the Sailor Moon characters were, in fact, defined to be about 15 and were therefore illegal to write sex scenes with. It did raise an interesting question, though, as to where exactly the line between appearance and reality needed to be drawn. In the case of these fictional characters, most of them looked much older, but official backstory was that they were younger. As an analogue, I have a female friend from high school who's currently 23, but doesn't look a day over 13, just something that runs in the females of her family line. Are pictures of her illegal? She looks underage and without context, any picture of her would seem to be illegal, but in actuality, she's in her majority. *wry grin* It raises all kinds of thorny questions, which is probably why the act was repealed.
You forgot a couple things (Score:3, Interesting)
1) Web cache would show changes in the site over time. Easy money for defense.
2) You think there would be any proceedings without finding the site owner? They may seem to be a consumer, but you would be the provider. They would hunt you down sooner than him/her.
2) In order to even try it, you would have to get your hands on kiddie porn. In this case, you should be publically gutted, after ebing castrated first.
Fun to read, but a weak strategy.
Re:Holely Cheese (Score:4, Interesting)
This should read "In common IT myths, it is still possible to recover the underlying data that was over-written. In reality, it's not possible at all." Take it from someone who spent several years working in data forensics and repeatedly dealt with statements from bosses/clients along the lines of "Well, I read on the Internet that you can recover overwritten data with a [STM|MFM|whatever], and that teh NSA and CIA know how to do it."
It's bullshit. Trust me, it's bullshit. Peter Gutmann (teaches down in NZ) wrote a paper for USENIX '96 that references a couple of laboratory-grade techniques that might have worked on hard drives manufactured before 1996. THIS IS WHERE EVERYBODY GOT THE MYTH FROM. What nobody realizes is that Gutmann published an updated version of that paper in which he retracts virtually all his conclusions about recovering data on hard drives because IT'S NOT POSSIBLE ANYMORE.
Not to mention the fact that there have been a couple of incidents where large companies have spent multi-millions trying to make such a process work, and came away entirely empty-handed.
It's bullshit. On a modern hard drive, if you overwrite your data once, you're secure. Maybe if you're dealing with some ancient disks you have stuff to worry about, but that's it.
Re:Holely Cheese (Score:3, Interesting)
Ok, now I'll go back to listening to Art Bell.