The New York Court of Appeals building. Photo: New York Court of Appeals
Accessing and viewing child pornography over the internet is not necessarily a crime under New York law, the state’s highest court ruled Tuesday.
The unanimous court said that child porn stored in a computer’s browser cache is not enough evidence to convict someone for child-porn possession under state law.
The New York Court of Appeals ruled that the authorities, under New York’s child-porn statutes, must prove that an internet surfer knew that his computer automatically stored cached images, or printed or downloaded the images.
“Nonetheless, that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession,” Judge Carmen Ciparick wrote (.pdf) for the court.
(A cache contains images or portions of a web page that are automatically stored when that page is visited and displayed on a computer screen. If the web surfer visits a web page again at a later date, the images are recalled from the cache rather than being pulled from the internet, allowing the page to load more quickly.)
Judge Victoria Graffeo concurred with the results in a separate opinion but blasted it nonetheless. She said the decision “will, unfortunately, lead to increased consumption of child pornography by luring new visitors who were previously dissuaded by the potential for criminal prosecution.”
Patrick Trueman, president of Morality in Media, also decried the decision, saying the court has given “permission to pedophiles and child molesters to continue the sexual molestation and recording of child sex abuse.”
High courts in Georgia and Alaska have ruled similarly. To counter similar rulings by two federal appeals courts, Congress in 2008 amended federal child-porn statutes to include language making it a crime to “knowingly access” child porn.
Child pornography generally may be prosecuted as either a state or federal crime.
The case before New York’s highest court concerned James Kent, a former Marist College professor, who claimed the thousands of child pornography images found on his work computer were for a research project.
In 2007, his computer hard drive was malfunctioning. College technicians examined the hard drive for defects and encountered the porn, much of it downloaded and stored. The high court’s ruling did not alter James Kent’s 141 convictions in connection to downloaded child pornography, but it reversed the two convictions dealing with porn discovered in the cache.
He was sentenced to an indeterminate term of one to three years, which is unlikely to change under the court’s decision.