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Univ. of South Carolina School of Law

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Saturday, May 19, 2012

A Certain Cache: Court Of Appeals Of New York Finds Web "Cache" Evidence Insufficient To Uphold Child Pornography Convictions

A defendant is charged with two counts of promoting a sexual performance by a child and 134 counts of possessing a sexual performance by a child. Some of these charges are the result of the discovery of images of child pornography in the Web "cache" on the defendant's computer. Does the prosecution have to prove that the defendant had knowledge that when he viewed child pornography on his computer,the pornography was automatically stored in the cache to secure his conviction? According to the recent opinion of the Court of Appeals of New York in People v. Kent, 2012 WL 1580439 (N.Y. 2012), the answer is "yes."

In Kent, the facts were as stated above. Specifically,

The allocated space under the Jim profile on Mozilla Firefox contained a temporary internet file known as a Web "cache." A cache contains images or portions of a Web page that are automatically stored when that page is visited and displayed on the computer screen; if the user visits the 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. The cache under the Jim profile contained a .jpg image of a child pornography Web site called "School Backyard" that depicted children engaged in sexual intercourse with adults.

According to the Encase software, the "School Backyard" page had been accessed on the morning of February 21, 2007. Within minutes of accessing "School Backyard," three other pages were accessed—two images of a young girl sitting in the front seat of her car with her wrists bound and a Web page labeled "Pedoland"—which were also stored in the Web cache. The cache contained several other Web pages labeled, among other things, "Best CP Sites Portal, the Best Lolita CP Sites," that provided links to child pornography Web sites. Additionally, the Real Player history included links to numerous videos with file names indicating that they contained child pornography that were accessed, some on multiple occasions, between 2005 and 2007. There was no evidence that defendant was aware either of the cache function of his computer or that any of these files were stored in the cache.

The prosecution used these cached images to convict the defendant of (1) Promoting a Sexual Performance by a Child:

A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age.

and (2) Possessing a Sexual Performance by a Child:

A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.

The Appellate Division upheld these convictions:

Addressing the evidentiary significance of the presence of internet files stored in a cache, as well as the significance of defendant's knowledge or lack of knowledge regarding the cache function of his computer, the court undertook a review of both federal and state approaches to these issues....Noting that "[t]he consistent thread in these cases is the need to distinguish inadvertent or unintentional acquisition or possession of the offensive material from knowing or intentional procurement and possession," the court stated its preliminary "agreement with the underlying premise that the mere existence of an image automatically stored in a cache, standing alone, is legally insufficient to prove either knowing procurement or knowing possession of child pornography"....

The court adopted the view, however, that "a Web page stored in the cache is evidence of past procurement of the images on that page. Specifically, the cached Web page from the 'School Backyard' site is evidence that the Web page was accessed and displayed on the defendant's computer screen"....That defendant knowingly accessed the page was demonstrated by a totality of evidence including defendant's pattern of Internet browsing for child pornography Web sites, his Real Player history, and his messages to "P.B." acknowledging his possession of child pornography....The court further held that the evidence was legally sufficient to prove defendant's knowing possession of the images on the "School Backyard" page, finding that defendant "knowingly accessed the Web page and displayed it on his computer screen...establishing his dominion and control over the images."

On appeal, the Court of Appeals of New York began by laying out the competing approaches to the issue. On one hand,

Federal Courts have held that for digital images to constitute evidence of knowing possession of child pornography, such images must be connected to something tangible (e.g., the hard drive), as they are when stored in a cache, and that the defendant must be aware of that connection....At least two state courts have adopted the federal approach.

On the other hand, 

The rule espoused by several other states and by the Appellate Division—that defendant's awareness of the automatic cache function is immaterial because it is not the cached files that constitute the contraband but the images previously displayed—is conceptually distinct as it does not rely on the tangibility of the image (i.e., its permanent placement on the defendant's hard drive and his ability to access it later) but on the fact that the image was, at one time, knowingly accessed and viewed.

The Court of Appeals decided to side with the federal approach:

Like the federal courts to address the issue, we agree that where no evidence shows defendant was aware of the presence of the cached files, such files cannot underlie a prosecution for promotion or possession. This is necessarily so because a defendant cannot knowingly acquire or possess that which he or she does not know exists.

The court did acknowledge that

cached images can serve as evidence of defendant's prior viewing of images that were, at one time, resident on his computer screen. Such evidence, like a pattern of browsing for child pornography, is relevant to the mens rea of both crimes by showing that a defendant did not inadvertently access an illicit image or site or was not mistaken as to its content.

But the court found that this was not enough to uphold the defendant's convictions on these counts because the fact

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. We do not agree that "purposefully making [child pornography] appear on the computer screen—for however long the defendant elects to view the image—itself constitutes knowing control"....Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen....

Here, the "School Backyard" Web page was automatically stored in the cache in allocated space that was accessible to defendant. The People did not demonstrate that defendant knew that the page, or any other, for that matter, had been cached. 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. That defendant accessed and displayed the site, without more, is not enough. Thus, the evidence was insufficient to show that defendant knowingly possessed the "School Backyard" Web page, either in the form of the cached file or as an image on his screen. It follows, therefore, that there was not sufficient evidence that defendant procured the "School Backyard" page; defendant did not “get possession of [the page] by particular care or effort”....Thus, defendant's convictions under counts 1 and 142 should be reversed.

(Hat tip to Christian Deichert for the link)

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/05/a-defendant-is-charged-withtwo-counts-of-promoting-a-sexual-performance-by-a-child-and-134-counts-of-possessing-a-sexual-perf.html

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