The New York Court of Appeals just ruled that "viewing" child porn online is not the same as "possessing" it. But is the idea of "possessing" a digital file outdated?
Posted 05.09.2012 at 4:25 pm
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In a ruling yesterday, the New York Court of Appeals dismissed several counts of possession of child pornography charged to college professor James D. Kent, after a computer he brought to university IT for anti-virus service was found to contain child pornography in its browser cache.
For those specific counts--he's still going to jail on other, related charges--Kent was found to have not committed an "affirmative act" such as downloading, saving, or printing the image files in order to "possess" them; rather, they were passively saved by his browser in its hidden cache.
This may sound like a minute technicality, but it's in fact a revealing comment on the way we consume today's web. It all comes down to one very new problem: the concept of what we "possess" online is based on the increasingly outdated concept of the digital "file." What happens to the law in a streaming, cloud-connected world? A world where there are no more "files"?
Throughout internet history to date, there has been a distinct difference between viewing and possessing. Looking at a Far Side cartoon on a Geocities web page is different than printing it out and thumb-tacking it to your cubicle door. Simple. But as connections have sped up, hardware has gotten faster, and the internet on our phones has become equally if not more usable than the one on our computers, that line has all but disappeared. When you have constant, high-speed and portable access to the entire internet--text, photo, video--why do you ever need to download it?
Child porn is an extreme example, but many of us are guilty of breaking the law with more innocuous, but still illegal, material. Copyright violation is much more common--rampant on the web, even--and the laws surrounding it are murky at best, contradictory and useless at worst. You can buy a used CD or book in a shop or off of Craigslist, performing a perfectly legal transaction. You can lend your friend a CD or book for free, also perfectly legal. But try to do the same general act online, using something like BitTorrent? You'll find yourself on extremely shaky legal ground, in which you may or may not be eligible for a fair use exemption, may or may not be prosecuted, and may or may not be convicted. And that's for downloading actual files, which is much simpler to paint as "possession" than something like streaming.
We're moving to a time when we may not ever have to "download" anything, at least by the old definition (which is actually just copying a file from one place to another). What about streaming? Though streaming is technically downloading--you're just watching it in real time as it downloads, and then neglecting to keep the file once you're finished--the law views "downloading" as possession, and streaming as something...else. Copyright holders see a difference here too--there's a reason it costs more to "purchase" and download a movie on iTunes than "stream" it via your monthly Netflix subscription. But Netflix, Hulu, Rdio, and Spotify, plus MegaVideo, Videoweed.es, and all the other "streaming" services, legal and illegal, are the future--and when you can stream a song or video from anywhere, with any device, in full quality, doesn't that count as "possession"? Isn't it just a technicality that you can't point to a file on your computer?
The primary difference between downloading and streaming--or the transferring of physical objects like CDs--is the possibility of distribution. If you listen to an album at a friend's house, you are enjoying copyrighted material you did not pay for, but you don't have the ability to distribute it. According to this thought process, unless you have a file--a JPG, an AVI, an MP3, an EPUB--you can't distribute it, and are therefore not in possession of the property. But when everyone has access to the same material on the internet, does that really matter? If you have the links to a hundred illegal files and can distribute those links, does it matter that you don't have the actual files? You can share them just as easily as if you did. Why bother saving a copy of an image to a hard drive? Why not just view it from any of the bazillion devices that can view images online? Is bookmarking the same as saving? Are you in possession of an image if you've just left yourself directions for how to find it again? These are questions we need to think about, but the basic new fact we need to contend with is the same:
The file doesn't matter anymore.
If you need proof, take a closer look at an iPhone or iPad. Try to find the .mp3 file of the song you're listening to, or the .txt file of the note you just wrote to yourself. You can't. Because files and folders? Those are the past.
This comes up more than you'd think. The recent kerfuffle amongst publishing types regarding Instapaper, Readability and other service that take longer articles from any site, strip them of anything but the text, images, and video (including ads, which pay for the content) and send them for easy reading on the device of choice, is a good example. Choire Sicha over at The Awl explained it well here, but this is another murky area. Are Instapaper and its ilk illegal? If they are, and the materials snipped by it are in violation, when is a user "in possession" of that illicit material? Is "saving" something to your Instapaper queue the same as downloading, or possessing? If you read it on Instapaper's site, there's no file you can point to--it's just some text on a server somewhere that's been formatted for you on the fly when you pointed your browser toward it. You don't have it.
This seems like the kind of concept we're all semi-comfortable with when it applies to stuff we as users want people to have access to, like the new Santigold album. We like being able to stream it from SoundCloud, or from Rdio, or "watch" videos containing the songs and a still image of the album cover on YouTube. We'll even fight for it! We're okay with things being legal but of questionable financial help to content creators (Rdio), sometimes legal and sometimes not (SoundCloud), or convenient but totally illegal and likely to get pulled down at any moment (YouTube). We'll stick black bars on our Twitter avatars to protest (admittedly awful, overreaching, potentially disastrous) legislation that attempts to stop us from doing these things! But what about stuff we really don't want people to have access to?
If "possession" just means that you have some material or a copy of the material, for access any time, then we need a serious rethinking of that term and the laws that rely on it. And if "distribution" can mean both sending an email with child porn in an attachment and simply sharing a link where the same files can be found and downloaded, we've got to rethink the legality of those two very different actions--because they have the same result.
Right now, a shrewd copyright violator or child pornography enthusiast could completely obey the law while taking advantage of illegal material everywhere. I'm not sure if there's anyone in any current legislature who's capable of understanding and tackling the problem of writing laws that actually protect and govern in a to-the-minute way, which is what we need when talking about technology. But it's serious business, and we need flexible, modern thinking to avoid being outsmarted by regular, everyday people using the internet in regular, everyday ways.
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This is a good ruling. If the FBI sent you a link that didn't contain any child porn but the hyperlink said it did, they can record your IP address and perform a dawn raid. As it relates to this article, someone could inject thumbnails into Google Images that you never even saw. This protects people from being accused of possessing child pornography for automatically generated caches. Still, there should be a base limit to what is accidental vs intentional.
With this ruling, you have to prove intent; simply viewing the child porn could have been accidental.
While I agree with most of what Vapur9 says about accidental viewing, I disagree about the ruling itself. If it was on James Kent's computer, technically he possessed it. I can't think of any valid argument refuting that. How it got there is another matter entirely.
I don't think we need to update laws to clarify "possession" of illegal materials for web content; you can't possibly cover every nuance related to it. I think more weight should be given to HOW it came to be in someone's possession.
Frankly, if it's in your browser cache and it's your computer, you possess it. But that doesn't necessarily mean you were the one who browsed it on the web. Someone else may have used your computer. Or you may have accessed it inadvertently. Lots of people have accidentally run across pornography, for example, without intending to.
What needs to be established is whether or not there was intent to view it. There are lots of ways to figure this out; none of them especially difficult. Is there a little or a lot in the browser cache? Over what time frame? How many times was it accessed? Seems like anyone who is marginally conversant with browsers and their cache should be able to determine that without a lot of fuss.
The New York Court of Appeals seems to be saying that ignorance of the law is an excuse.
So I could say, "I didn't know the dead guy was in the trunk!" Or "Hey, that's not my cocaine!"
I don't doubt that many people could have illegal images stored on their computers. The issue is did they know it. I assume some Granny is out that that typed in a URL wrong and had popup's from some place. I don't assume that this cache is the result of some accident that the actor didn't know about. Therefore it was not ignorance. The actor did know they had that data at one time. I guess proving it would be difficult. Have to put the gun in the hand.
lets look at the ruling from a different view: The ruling is good, else everyone would be in violation of copyright laws because they viewed a copyrighted picture and that picture was stored in the cache (on the computer); meaning unlawful reproduction of copyrighted material.
i think what we really need is congress men and women who actually understands what the internet is and the technology behind it. i think we also need a judicial system that can recognize the difference between stumbling upon child pornography and actively searching it out.
for instance, the same internet cache that would tell a judge that the user had accessed child pornography would also tell you how many times and how many different sites he viewed that have the elicit material on it. stumbling upon a website that happens to be a pimps website is different then googling "naked children" and romping around the websites.
we have this general distaste when it comes to actually trusting the judicial system to make accurate decisions using more than just evidence. it's like when there was a bomb scare a while ago because a 13 year old set off a "dry ice bomb" in his back yard, anyone who knows what i'm talking about knows that it's a noise maker and mostly harmless even under the worst cases but the evidence was there that it was technically dangerous thus the kid was sent to Juvenal detention and the parents were sent to jail.
and that's the problem, people don't understand what the hell they're talking about when it comes to the judicial system, the judge doesn't decide if the person is guilty or not, the jury does. the judge just decides how lenient or strict the ruling is going to hold to the law as in does the murderer get 10 years and probation or life with no bail.
if people actually knew what they were talking about in our judiciary and legislative branches then we really wouldn't have these problems and it wouldn't be this big gigantic controversy.
to mars or bust!
If child porn being in your cache was equal to possession, than images of child porn mistakenly coming up in a Google Images search, even if you never notice them, or if a pop-up ad containing these images is displayed without your consent or desire, can wrongfully label someone a pedophile. I agree with the court's decision, which would have set a horrible precedent if it was the opposite. Images in your cache do not equal possession.
People in the political sphere really need to be educated more, especially in Congress. It's sad when a decision is made based on ignorance. If you don't understand the technology or science behind something then you need to learn it. It's time for the American people to start electing intelligent people in Congress.
"CaniLupine", I agree with you. I own a digital publishing company and we do a lot of research on the Internet for images that we can use to design covers for the e-books. We sometimes have to use search terms that bring up some really spooky images...images that has nothing to do with the search terms, but yet, stored in our cache...some multiple times. We empty our cache often but the ghost image remains behind that can be easily retrieved with any retrieval software. Just because they are there multiple times does not mean that we seek them out or that we are possessing them or even should be held accountable for their presence. What we should be held accountable for is the images we store in our files and folders; these images, we are in possession of and take full responsibility. I think the judge made a sound decision, even if you do not agree with the content.
Dan's last two paragraphs zero in on the real issue: many of our current laws are outdated and law enforcement finds itself ill equipped to protect intellectual property. Be honest, which is more efficient- (1) tracking millions of individual citizens in an attempt to catch and prosecute a few exemplary individuals (who may just be the lowest hanging fruit, or some of the most egregious offenders), or (2) targeting the servers, companies and individuals who are enabling them? Our current methodology reminds me of our traditional approach to drug enforcement that has come under such criticism recently: instead of focusing on the producers, suppliers and distributors, we are instead targeting the addicts.
The time has come for our legislators to *create* new laws to better control the channels for content delivery. As Dan has stated, "'streaming' services, legal and illegal, are the future". Our laws need focus on present and future realities. It will take a great deal of effort to explain the need for this type of legislation to the general public, but it will be time and money well spent.
To the companies who would argue that their business models could not survive such a restructuring of intellectual property law, I say with all sincerity that in your case, it is time for a new business model. Leaching hurts all of us in the long run.
If I told you that a basketball player has possession of the ball, you would know what that means. It means that he has not only physical contact of the ball, but he controls what happens to that ball.
A link to a file is not the same thing as controlling that file. It does allow access, and some IP holders used to ban links to files, even going to court over it; but, the person linking is not necessarily the person who controls access to the file.
The author underestimates the fluidity of the Internet. Contrary to some statements commonly made, one cannot find just anything on the Internet. In fact, quite often, I am unable to find that one file I want, even if it is a news article that I just read. Google has something to do with that; it changes from day-to-day what my search results will show. I've found several instances in which the only way I could retrieve a public news article was that I happened to have saved a direct link to it or its exact title.
But, the situation is worse than that. Much Internet content is removed, or moved. Links break, files are deleted, domains are expired, sold or transferred. As anyone who has maintained a page of links knows, retaining access to accessible files requires at least periodic maintenance. Merely linking to a file in the cloud does not at all give the user possession of the file.
To the illustration used at the start of the article, my understanding of the law is that possession is not the point of child porn laws. I mean, what difference does it make to anyone if I am looking at a picture of them? I could be looking at a picture of any number of people right now, and none of them would ever know it or be any different for it. The theory behind criminalization of child porn is that accessing child porn creates a demand for it, which encourages its production, which results in child sexual abuse. I'm not clear on all the reasoning that goes into that supposition.
If someone pasted a picture to a wall, it might not make any difference to anyone if I saw the picture as I walked past it, because no one would necessarily even know I was there. On the Internet, though, viewing images requires considerable expenditures that are invisible to me. The file has to have been created in the first place, then stored on a server--which isn't free--then retrieved and transmitted on demand. These are discrete events that require specific actions to perform. Most likely, they are logged events. So, someone could easily know that a file is being accessed. Does that count as demand? Or, does demand require an appeal to a person's motivation? Why do people post child porn, anyway? What do they get out of that?
I suppose the same questions could be asked of any number of files that people post online. Indeed, why am I typing this long message to a forum? I'm not going to be paid for it. I probably won't even know if anyone even reads it, unless someone replies to it. But, it provides me an outlet, and a way of exercising my thinking on something that I enjoy.
Possession seems like an unnecessary criterion in the criminalization of child porn. I suppose it is there to relieve law enforcement of the need to demonstrate that the possessor got the material from anyone else.
In this case, I have to agree with the judges, that a Web cache does not amount to possession, because many people don't have control over the files in their cache. Web browsers do their caching automatically, w/o the knowledge or control of the user. In fact, it is possible for a Web browser to anticipate what someone might download, and do a pre-cache, so that even if the user doesn't look for a certain file, the browser might download it, anyway. Nothing prevents someone from creating such programs. This sounds like the way Google operates.
The court should have considered another fact -- did he pay for the content? The law says one can not facilitate child porn. If you pay, you are making it economically feasable to produce it, and in fact providing an incentive to commit the making of the porn.
If he paid to see the content, he should still be guilty of a crime, as he is paying somebody to commit the crime.
You are all focusing on the wrong thing , bad guy got caught move on. The problem as I see it is the fact the it guys were asked to fix a computer and instead were digging through files on his computer. What if instead of child porn they found his confidential research files and put them on the web there goes his grant; or if they found his bank login info there goes his money. The big problem is the violation of trust.
"Pooua", let me set your mind at ease; I read your comment and I think you are a well informed intelligent person. It is a shame that so far there is only one judge who can come close to your understanding. This law is important to me because of my publishing business. I am an admirer of the 1st and 5th Amendment and I fight to retain them. I am not breaking the law by looking or by using an image that is not copyrighted and I have never used an image that would be recognized around the world as pornographic. Some of American laws are very stupid, designed by some very stupid fickle people, and they are outdated. It is sad that our country is so fickle and refuse to correct these laws and bring them into the 21st Century, or even have the knowledge of how to do so. I think most all these judges should go back to school and relearn their trade.
I look at this from the IT side. I can control what is in my cache and what is not. My histories and cache gets cleared several times a day. This is to improve performance on my super outdated systems. I also have never ever had anything pop-up or get redirected to porn on accident. Not once since 1996. Again, I control what my systems are doing at all times. I also avoid Google, Facebook, and other social networking like the plague and their plug-in features on other websites are prevented from running.
Paranoid? No, I just refuse to risk my job over something stupid. But to address this court ruling, if the file actually exists on a hard drive then you are in possession. If it is in volatile memory (like RAM), then no you do not possess it as it will go away as soon as power is cut off. If you make a fist, do you possess the air in your hand? ROM and other non-volatile memory gets gray quickly. This will stay if the power gets shut off. Pagefiles (aka virtual memory or log files) on your hard drive would be an example. Would the average user be able to retrieve a file by normally searching the hard drive, no, but you can with special software. If I delete something it can stay in a pagefile for awhile. So if I did get an unwanted picture of a twig and two bits, immediately and permanently deleted it, it would still be "on" my system, just not where I could easily access it. I would not consider this possession either. The gray question would be if I intended to possess this picture.
These online content "possession" laws do need to be revamped along with the extremely outdated and unconstituitonal copyright laws. Just because I viewed a datastream does not mean I possess it anymore than I hold water in a real stream in my hand. Only if the data sources are on my hardware do I possess it. Links are not possession either. One could have a link to my home address, but they do not possess a copy of my home. If the government wishes to make links and streaming possession, then software will come out to "scrub" traces off machines similar to the software paranoid tinfoil hatters have that with figuratively "nuke" their systems should the Goobermint come a knockin'.
Reads like the "Thought Police" are in full flower!
jeltez: It's nice for you that you've never gotten redirected to porn but that is probably the exception rather than the rule. My job requires that I do a lot of image searches and I just accept that a certain percentage of any and all searches, no matter how improbably will produce pornographic images and that the likeliness of getting porn increases the farther down a given Google search you go.
Rule 34 is strongly in force out there in internet land.
I work at home and have kids in the house all the time so I've tuned up my sense of what thumbnails are likely to be porn and not click on them but I manage to get inappropriate images on my screen by accident with regularity, want them or not.
I also save links to sites for image references all the time that may have questionable images on other pages or even further down on blog pages from the image I've searched. If I was legally responsible for the content of all the pages or sites that I ever go to I would be in serious trouble.
It's also nice that you clear your cache and history and avoid all social networking and Google but not all of us can or want to do that to avoid looking guilty when the secret police raid our computers. These things are legal tools which I, for one, use constantly in my job. As long as porn is so accessible for free with just a single errant click we have to think long and hard before we start prosecuting people for having visited pages that contain it.
I am an IP,server,host,client, AND one of five users. Even running a Linux system there is no way for me to know if I have any of that crap on my machine(s). The big problem with a law regarding content on a computer is that the system provided as the bandwidth flowing through is not secure. Nothing that's based on any of the typical smut sites is secure. Clickjacking still works. My HP all-in-one tries to make contact through the cloud AS A PRIMARY PATHWAY from every damn place ANY user on this system visits. This HP thing should be outright illegal. So, isn't the law supposed to provide remedy if a citizen is harmed? Where's MY remedy to ensure that I am not inadvertently breaking the law or providing means for others to do so? Make a law, and enforce it knowing full well in advance that it doesn't fulfill the requisites of a law in this nation?
Criminals will go to extraordinary lengths to conceal their identities and their online activities, such as using encrypted connections and private surfing profiles. The latter eliminates caching of questionable material.
Read software licenses. We may 'own' the hardware, but unless we wrote the software running the computer, consumers can not claim that they 'own' the software on their machine.
While firewalls, anti-virus, anti-malware, and anonymous web surfing can catch most malicious code, but there is no better way to avoid infection than good websurfing practices.
There's always time to do it better NOW.
I just want to know why Popular Science found it necessary to use an Apple Mac OS icon in this article? Are they trying to suggest that owners of Apple computers are more likely to view questionable images or content on the Internet? No I'm not being over sensitive, little things like this are easily misunderstood and create a perception rather than the truth. Wish they would have been more creative and used something different.
So I don't have anything useful to add to the conversation, but I need your knowledge of the way things work. I was recently on a friend's computer & found some obviously underage images, I found this very disturbing. I know that he is a pretty avid porn watcher. I confronted him about these images because that was something I couldn't let go. He claimed that the images were embedded on his computer because of other sites he was visiting, is this true? Can you go to a regular, of age, legal-ish porn site and have under-aged girls end up on your computer? Really hoping someone can help clear this up for me...