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November 4, 2006

Child Porn Statute Fails to Do Its Job

"Although the pornographic images were automatically saved to an internet cache file on the computer's hard drive, there is no evidence that Diodoro knew that the images were saved. Therefore, the issue is whether merely viewing child pornography on the internet without intentionally saving or downloading any of the images constitutes 'knowing possession' of child pornography under section 6312(d). We conclude that it does not." So ruled a Pennsylvania court interpreting what "possession" means in the age of computers. The opinion is here. The court expressed regret at the failure of the legislature to criminalize merely viewing such materials:

We note that it is well within the power of the legislature to criminalize the act of viewing child pornography on a website without saving the image. The language used in section 6712(d), however, is simply “possession.” Because this is a penal statute with an ambiguous term when it comes to computer technology, it must be construed strictly and in favor of the defendant. See 1 Pa.C.S.A. § 1928(b)(1). A defendant must have fair notice that his conduct is criminal. Because of the ambiguity, sufficient notice was not provided here. For this reason, we are constrained to reverse and leave it to the legislature to clarify the language if it intends to make the mere “viewing” of child pornography a crime.

November 4, 2006 in Current Affairs | Permalink

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