New York Case Clarifies Meaning of "Possession" of Child Pornography

August 17, 2012

In 2007, when James Kent, an assistant professor of public administration at Marist College, found that his work computer was not working like it should, he had a member of the technology department take a look at it. What that technician found landed Kent in prison and led the New York Court of Appeals to rule that just viewing images of child pornography on a computer is not enough to convict a person for possession.

While running a virus scan on Kent's computer, the Marist technology department found several photos and videos of nude girls, most of whom, according to MSNBC, were as young as 8 or 9 years old. A folder on Kent's computer contained approximately 13,000 images, and state forensic scientists found nearly 30,000 more in the computer's cache.

During his defense, Kent stated that he was researching child-pornography regulation and that the images were viewed as part of that research. MSNBC reports that at his sentencing, Kent stated that he "abhorred" pornography involving children, and that he believed someone else at Marist might have put some of the images on his computer.

Ultimately, in 2009, Kent was found guilty in a nonjury trial of over 140 counts of possessing child pornography and promoting the sexual performance of a child, and sentenced to a one-to-three-year prison sentence.

Kent appealed the conviction, claiming that just viewing pornographic images of children is not the same as possession under New York law, and the New York Court of Appeals agreed.

Computer Cache

To understand how the court reached its decision and its distinction between possession and viewing, it is necessary to briefly talk about cache memory on a computer.

Forensic scientists were able to find nearly 30,000 images of child pornography on Kent's computer. These images were not saved or downloaded by Kent, but were saved on the computer in what is called the "cache" memory.

Cache memory supports a computer's main memory, and its primary task is to help a computer run faster. For instance, websites viewed (and images contained within) on the Internet are stored in the cache, so when a user goes to visit a previously visited website on the Internet, the page can be loaded quickly from the cache instead of requiring the computer to reload the content from the website's server.

The key being that even if a computer user doesn't affirmatively save images viewed on a website, the viewed images are still saved by the computer and can be accessed again.

Court Decision

When Kent began fighting the possession charges, the question before the New York Court of Appeals became: do images stored in a computer's cache constitute possession under the law?

The court's answer was "no," not without further affirmative action or knowledge of the cache.

Writing for the court, Judge Carmen Ciparick stated: "Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement with the meaning of our Penal Law."

In describing how images stored in the computer's cache might constitute possession, Judge Ciparick said: "The defendant's conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving."

Judge Ciparick also noted that "at a minimum" a person must be aware of the computer's cache and that images are stored there.

Essentially, the court ruled that under New York law a person unaware of the computer's cache functionality cannot be found in possession of child pornography if the images are only viewed and no affirmative action to save the images is made. Judge Ciparick clarified: "A defendant cannot knowingly acquire or possess that which he or she does not know exists."

The court's ruling highlights a significant difference between New York state law and federal law. Under the federal law, it is illegal to "view ... an image of child pornography ..." (18 U.S.C. ? 2252). New York law, according to the New York Court of Appeals, does not have a similar viewing-only provision and an element of possession must be met before a person will face child pornography charges.

Texas Law

While Texas law does not specifically make viewing child pornography a crime, a viewer of child pornography in Texas can run afoul of Texas law. In Wise v. State, the Court of Criminal Appeals of Texas stated, "When a computer user views a webpage, the web browser stores a copy of the page on the computer's hard drive in a folder or directory." The Court went on to state that pornographic images of children in "the free space" of a computer (the computer's cache) is enough evidence for a jury to infer that a person "knowingly and intentionally had possession" of the images.

This means that if the image was placed in the computer's cache merely by viewing images on the internet, the viewer could now be an illegal possessor of child pornography, for which he could be prosecuted and sent to prison.

The Wise case indicates that the threshold of possession in Texas is lower than that of New York, and in Texas just viewing pornographic images online could consequently result in a charge for illegal possession of child pornography.

Being charged with possession of child pornography is a serious offense. A conviction may result in a lengthy prison sentence, years of probation, restrictions on where you can live and work, and the stigma of being convicted of a sex offense. Speak with an experienced attorney as soon as you discover you are being investigated for or charged with a child pornography crime.

Article provided by Law Offices of Ray Taylor & Associates, P.C.
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