Viewing child porn on Web not a crime in New York, court rules

State law proscribes procurement and possession but not viewing

Just viewing child pornography on the Web is not necessarily a crime according to New York law, the state's Court of Appeals decided Tuesday, but upheld the conviction of the appellant by a county court on other counts of storage of images and video of child pornography on his hard disk.

A dissenting judge has however recommended that the legislature review and amend the state law to reflect new online technologies.

Cached links to child pornography websites were allegedly found on the browser of the computer of defendant James D. Kent, a professor of public administration at a Dutchess County college.

But Kent claimed that merely "accessing and displaying" Web images of child pornography does not constitute procurement for the purposes of penal law. He said he was not aware of the cache function in his Firefox browser.

Presenting the majority view, Judge Carmen Ciparick observed that regardless of the defendant's awareness of his computer's cache function, the files stored in the cache may constitute evidence of images that were previously viewed, according to court documents.

But to possess those images, the defendant had to do more than viewing to "encompass more affirmative acts of control such as printing, downloading or saving," the Judge said.

"We further conclude that merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law," the Judge added.

Federal law relating to child pornography provides that any person who either "knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography" is subject to a fine and imprisonment.

In contrast, the law in New York does not have comparable language, the Judge said. The provisions of the penal law at issue do not contain comparable language targeted toward the "pull technology" by which one accesses and views Internet images. "The words that are employed -- "procures" and "possesses" -- would not, in ordinary speech, encompass the act of viewing," she added.

In an opinion, Judge Victoria Graffeo said that the result of the majority's view is that the purposeful viewing of child pornography on the Internet is now legal in New York.

"A person can view hundreds of these images, or watch hours of real-time videos of children subjected to sexual encounters, and as long as those images are not downloaded, printed or further distributed, such conduct is not proscribed," Judge Graffeo said.

As pornography on the web is digital and intangible and cannot be covered under the term "possessed" in the state law, the legislature needs to revisit this definition if its intention has been to extend the scope of proscribed conduct to the intentional Internet viewing of child pornography, Judge Graffeo added.

The cached images and other content on Kent's office computer were said to have been found when staff of the college's IT department investigated his hard drive as his computer was malfunctioning. Kent claimed he was considering research on the regulation of child pornography.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's e-mail address is john_ribeiro@idg.com

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John Ribeiro

IDG News Service
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