Viewing Child Porn Not a State Crime, N.Y. Appeals Court Rules

May 8, 2012 6:00 PM PST

ALBANY, N.Y. — The New York Court of Appeals has ruled that viewing child porn online doesn't constitute either criminal possession or procurement under state penal law.

James D. Kent, an assistant professor of public administration at Marist College in Poughkeepsie, N.Y., was convicted of two counts of procuring and 134 counts of possessing child porn after his computer underwent a virus scan by a school IT employee in 2007.

On appeal, the court dismissed one of the two counts of procuring child porn and one count of possession of child porn.

Kent's computer at the school had such labeled folders as "Pedoland," "Best CP Sites Portal and the "Best Lolita CP Sites," according to his indictment.

One subfolder contained about 13,000 saved images of female children, whom one investigator estimated to be eight or nine years old, dressed in lingerie or bathing suits and many with theirb legs spread open. Another subfolder contained an additional 17,000 saved images of female children, some organized into further subfolders named for a particular child.

Kent — who argued that someone else at Marist must have placed the images on his computer — was sentenced to one to three years in state prison by a lower court in August 2009.

In the appeal, a five-judge panel said Kent was properly convicted because he had downloaded, saved and deleted 132 images, but the majority decided some images in his computer cache, temporary files automatically stored from porn sites he viewed, cannot be held against him under state law.

"While the cached page provided evidence that defendant previously viewed the site, the People presented no evidence that defendant downloaded, saved, printed or otherwise manipulated or controlled the image while it was on his screen," the court said. "That defendant accessed and displayed the site, without more, is not enough.

"Defendant argues that merely 'accessing and displaying' web images of child pornography does not constitute procurement for purposes of Penal Law § 263.15," the court said. "Defendant further contends that his possession convictions are invalid because Penal Law § 263.16 criminalizes the possession of tangible items only and that, absent proof that defendant was aware of his computer's cache function, he could not have knowingly possessed any item stored in the cache.

"For the reasons that follow, we agree with promotion or possession conviction is premised on cached images or files as contraband, the people must prove, at a minimum, that the defendant was aware of the presence of those items in the cache.

"We hold, however, that regardless of a defendant's awareness of his computer's cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant's conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving."

The appeals court said that the federal statute regulating conduct related to child pornography, 18 U.S.C. § 2252A, provides a useful contrast.

"Neither provision of the penal law at issue here contains comparable language targeted toward the "pull technology" by which one accesses and views Internet images," the court said. "The words that are employed — 'procures' and 'possesses' — would not, in ordinary speech, encompass the act of viewing."

The panel, which dismissed two counts of the indictment, remanded the case back to the lower court for Kent's resentencing.

Appeals Court Judge J. Graffeo, who concurred with the opinion, said that the "result of the majority's analysis 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," he said in a concurring opinion.

Tim Henning, ASACP's executive director, said that the decision is "a disappointing precedent."

"Clearly what is at issue in this case is the status of child pornography files stored automatically in a computer's cache folders," Henning told XBIZ. "The status of such files has been a point of hotly debated contention with law makers and the judicial system for some time. Many people view child pornography accidentally while online or via spam email and take no action to seek it out or actively store the content. Many of these people seek avenues to report suspected child pornography they accidentally find online to hotlines and authorities.

"While these people need to be protected from wrongful prosecution, those that abuse children need to be successfully prosecuted. Penal Law 263.16 requires that there be proof offered by the prosecution that clearly shows knowledge and intent regarding the storage of files in the computer cache folders. In the absence of such proof possession is not met.

"It is an intolerable situation which now effectively legalizes the purposeful viewing of child pornography in the state of New York."

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