I used to try to teach people to look before they leap on social and political issues. No one ever listens, so I’ve stopped. However, maybe this time it might stick. Recently, in People v. James Kent, New York State Court of Appeals No. 70, the highest court in New York determined that a cached image of child pornography did not constitute possession of child pornography. (Note: That is, the cached image in this particular case didn’t constitute possession of child pornography.) As far as I’m concerned, this case was properly decided under New York law, and New York law is reasonably solid on the subject, but at the very least, the case is a reasonable approach to technology law. Unfortunately, most people are outraged, as if this is clearly a bad decision. Let’s examine this case to see why they’re jumping the gun.
What the Case Didn’t Say
Right off the bat let me make it clear that the case did not legalize child pornography, and you’re stupid – not merely ignorant, but stupid – if you think it did. Even without reading the case, you should assume that New York wouldn’t legalize child pornography. I know everyone likes drama, but please, don’t be an idiot.
So What Did the Case Say?
The defendant was James Kent, a professor of public administration at a Dutchess County college. While attempting to deal with a problem with the defendant’s computer, a tech support employee found thumbnails of “scantily clad, prepubescent girls in provocative poses.” These images were held in a “cache,” which is an area on a hard drive that stores temporary files. The use of the cache is automatic; the computer user rarely interacts with it, and many computer users don’t know it exists. A few “messages” (emails, I presume) stored on the hard drive backed up the defendant’s story that the images were connected to a research project, and the defendant was very much concerned about the illegality of his activity.
“[The d]efendant was indicted on two counts of Promoting a Sexual Performance by a Child (Penal Law § 263.15) and 141 counts of Possessing a Sexual Performance by a Child (Penal Law §263.16). Counts 1 and 142 related, respectively, to defendant’s alleged procurement and possession of [an adult-child interaction] webpage; counts 2 and 143 related, respectively, to defendant’s alleged procurement and possession of [a child pornography] video; counts 3 through 141 charged defendant with possession of the .jpg images recovered from the unallocated space of the hard drive.”
“Unallocated space” refers to areas of the hard drive containing deleted files. When files are “deleted,” they often still remain on the hard drive. What are actually deleted are the pointers to those files. Thus, those images represent files the user can no longer access, but are still on there, waiting to be overwritten by new files.
The Court Cases
After a six-day trial, the Defendant was sentenced to concurrent prison terms of one to three years. The Appellate Division affirmed, but the Court of Appeals reversed the convictions on counts 1 and 142 (i.e., defendant’s alleged procurement and possession of an adult-child interaction webpage).
The Court of Appeals first pointed out that the relevant statute was 30 years old and doesn’t properly address the use of the Internet in child pornography. That doesn’t mean that a court can’t apply the law to the Internet, but it does present some difficulties. In this case, the statute was held to cover most of the aspects of counts 1 and 142 (e.g., definition of an “image,” definition of “sexual conduct”), but where it ran into problems is in the definition of “procure.” Specifically, the Court of Appeals held that 1) merely accessing and displaying a webpage is not “procurement” under the statute, and 2) in order for images in the cache to constitute promotion or possession of child pornography, the defendant must be aware that the files are there; however, their presence could be used as evidence that the images were previously viewed by the defendant, but possession required more activity (e.g., “printing, downloading, or saving”).
That’s a bit muddled, so let’s clear it up a bit. The Court of Appeals pointed out that, unlike the Appellate Division and the holdings in other states, the Federal Courts had it right. Possession can’t be founded on the existence of cached files unless the defendant knew about the cache because, in order to possess something (legally), you must know it exists. In order to exist in the cache, those files must, at some point, have been viewed on the screen; however, the Court noted that this doesn’t mean the defendant had actual control over the images appearing on the screen.
For example, what about pop-up ads? If you visit a website, and a pop-up ad containing child pornography comes up on your screen, assuming you’re not a piece of garbage, you’re going to delete it immediately. The image would then go to your cache, and if you weren’t aware of the existence of the image at that point, how would it be fair for you to be convicted of child pornography? What if all of this occurs as you’re walking away from your computer to hit the fridge? The fact that you didn’t delete the image for a few minutes would also be explainable (i.e., it doesn’t prove you were ogling the image for several minutes). Then, there’s the concern that it wasn’t even you that did it, but instead was your friend playing a stupid trick on you, or your kid accidentally surfing to the wrong site. If, on the other hand, you saved the image or printed it to a printer, that would strengthen the evidence of your guilt (thought he concern of other people using the computer still exists for unsecured computers). This is what the Court of Appeals was saying. Whether you ultimately agree with it or not, it’s at least a reasonable approach to the law, isn’t it?
On top of all of this, the Court noted that the laws of New York simply don’t include the means to accept a different rule. It’s important to note that the legislature, not the judiciary, makes laws. There is something called “common law” that’s an exception to that rule, but a judicial decision can never (legally) contradict a law that covers the subject matter. Here, the legislature has acted, and the law as written doesn’t support a conviction for possession. In fact, it never has, and it’s rare for mere viewing of child pornography is criminal. There are far too many situations in which you might view it by accident or by force for such a broadly-worded law to be just. This brings up another point: Constitutional concerns might require the New York law to be written the way it is, and for states that have adopted a contrary rule, they may find their law’s days numbered.
As a side note, there are two concurrences in this case. These are opinions written by a justice that agree with the outcome, but not the reasoning, of the majority of the justices. In Justice Smith’s concurrence, an argument was made that the majority’s rationale was too strict. In other words, Justice Smith viewed the conviction on those two counts as even more flimsy than the majority. I’ll leave it to you to read that (and the other) concurrence if you so choose.
So, He Gets Off?
(Tee- hee. See what I did there?)
No, he doesn’t. Of the 143 counts against him, 141 were upheld! (This is “legalizing child pornography”?!) The Court of Appeals simply returned the case for resentencing. The punishment for the 2 counts in question will be disregarded, but the punishment for the other 141 counts will still be applied. This guy is going to jail, and unless I’m mistaken this won’t affect the total time he serves (i.e., 3 years), but according to the wording of the case, he will definitely serve at least one year. The Court of Appeals is the highest court in New York, so unless the governor commits political suicide and pardons the guy, he’s serving his time. (If you want to complain about something, complain about the length of the sentence. It seems a bit light, but even that assumption might be jumping the gun. There are, after all, longer sentences for other child pornography-related crimes.)
Amazing, isn’t it? You’re all claiming that child pornography has now been legalized, but the defendant’s jail sentence remains unaffected. What’s wrong with this picture?
Some Sound for Your Deaf Ears
So, what have you learned? Probably nothing. What you should have learned, though, is that jumping to conclusions without research almost always results in poor assumptions and unfair statements. Here’s a case that supposedly legalizes child pornography, yet in fact provides a fairly reasonable holding. Quite a swing on the scale of right v. wrong, eh?
Start caring about the truth, and look before you leap.
This blog entry was inspired, in part, by a Twitter conversation with @KesselJunkie. He raised a couple of issues I want to address. First, the legal ramifications of caching have been addressed in other areas. Specifically, defendants were sued for copyright infringement because of caching. It’s been fairly well-settled since my law school days (1996-2000) that caching doesn’t result in copyright infringement. Ergo, these principles actually have, in a roundabout way, been applied to the music industry, so this doesn’t contradict those rulings, either literally or figuratively. Second, there have been many cases recently where the federal legislature has written bad laws based on their ignorance of the technology in play. (I’m looking at you, SOPA.) This is not one of those cases. I found no glaring, technological misconceptions in Justice Ciparick’s majority opinion. If you did, please share them in the comments.
I also blog on sports matters, and in particular on mixed martial arts (i.e., MMA), an industry that is overwhelmed with fake journalists (“MMAJ”) operating out of their parents’ basements yet cited by ESPN, NBC Sports, etc. Needless to say, these MMAJ aren’t immune to the same disregard for facts and research as the rest of society, and the result are claims of, “So MMA is illegal in New York, but child pornography isn’t?” This example was also a source for inspiration for this blog entry. Maybe your jumping the gun has no consequences (note: actually, it probably does at the voting booth), but if you ever get a job in which they do, you may find that your old habits die hard.