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Subscribe to RSSA day after the state's top court found that simply viewing child pornography wasn't a crime in New York, two legislators said Wednesday that they would soon introduce a measure to make it one.
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Reuters contributed to this report by M. Alex Johnson of msnbc.com. Follow M. Alex Johnson on Twitter and Facebook. |
The state Court of Appeals — the equivalent of the Supreme Court in most other states — ruled Tuesday in the case of a college professor whose work computer was found to contain illegal images that "merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement," which are illegal under state law.
Viewing child porn on the Web 'legal' in New York, state appeals court finds
"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," Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges.
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The ruling generated headlines and opposition across the country. Patrick Trueman, president of the conservative institute Morality in Media and director of the Child Exploitation and Obscenity Section of the U.S. Justice Department during the Reagan administration, called on state authorities to take over all child pornography cases "until this opinion is overturned."
Wednesday, two lawmakers from Brooklyn — Sen. Martin Golden, a Republican, and Assemblyman Joseph Lentol, a Democrat — said they planned to introduce a bill within the next few weeks that would prohibit "knowingly accessing" child pornography "with intent to view."
"Federal regulations are already in place to see that those who access child pornography face the stricter standards of the law," Golden told Reuters on Wednesday. "New York must adopt these same policies."
The decision Tuesday didn't free the defendant. Instead, it dismissed one of the two counts of promoting a sexual performance of a child and just one of dozens of counts of possession of child pornography on which James D. Kent was convicted. The court upheld the other counts against Kent, an assistant professor of public administration at Marist College in Poughkeepsie, N.Y.
Kent — who said at his sentencing that he "abhorred" child pornography and argued that someone else at Marist must have placed the images on his computer — was sentenced to one to three years in state prison in August 2009.
The decision turned on the question of whether accessing and viewing something on the Internet is the same as possessing it. In essence, the court said "no."
The court noted that possessing or procuring child pornography is illegal, but the majority said that it was up to the Legislature, not the courts, to decide whether it's also illegal to passively view it online, without taking any other action.
The practical effect, wrote Judge Victoria A. Graffeo — who concurred with the result but disagreed with the majority's reasoning — is that "the purposeful viewing of child pornography on the Internet is now legal in New York."
You can read the full ruling here, in .pdf form.
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Should have been the law all along.
Just wait, RwEvans, until it becomes Law where YOU live -- and your computer becomes infected with a virus that downloads kiddie porn without you having to do anything at all.
That's right, you will then be guilty of "viewing" kiddie porn!
Where does child porn come from and who are the unbelievable bass-tards that bestow it? Send them to the gallows I'll hammer it shut.
Lusit: One does not hammer a gallows shut. If the trapdoor doesn't "open," one cannot hang someone on it. Just sayin.
I think he means stocks and shackles...
But making the production of child porn punishable by hanging, MIGHT... just might deter people from producing it.
I think he's ignorant.
If there were a gallow I'd hammer you shut.
It's gallows, Bro, with a s.
Troll..
The Quacked One,
It would be pretty damned easy to tell if a virus took you to the source, or downloaded anything; so don't try this defense when you get caught.
This statement shows how technically inapt she is. You cannot view anything on the web without "downloading" it. And these judges are allowed to make decisions that affect us all.
We are doomed by idiots pretending that they are intelligent.
That's where you're wrong, you can view pages, videos, etc. without downloading a single file. Youtube lets you watch videos without the needs to download them. Pictures can be found online with a simple Google search without the needs to download anything. Perhaps you should look into your computer software a bit more if you're going to bash someone for not knowing about the internet.
Mouzie, try looking through your cache sometime. Everything is downloaded in packets and assembled by the browser, all the way down to the flash videos that some sites stream. Some of it can't be rendered outside of the browser, but it is there. The article describing the circumstances dismissing the charges stated that the person wasn't aware of the cache, and the judge saw the defendant had no intent to retain the content. Being as how it's a college professor, that doesn't surprise me...
Thanks for your brilliant comment, too bad you don't have clue. And I suspect you also vote and drive.
It only caches if you have it set that way you can set it to load directly to ram only if you use one of the private browsing options. It is to prevent files being left on public machines but I guess it could be used to meet this definition.
Streaming never saves the contents... think TV broadcast.... Years ago, before cable and satellite were big, it was possible to view broadcast shows from Canada that did not blur the naughty bits. While able to view the content one did not possess it. The wardrobe malfunction is another example... would anyone consider that to be distributing porn to minors?
I applaud the lawyers that are making this happen. Anyone contributing to child exploitation should be imprisoned. Including viewing the videos.
Are yoiu kidding? How can anyone watch children being abused without wanting to beat the living crap out of the sicko's involved.
I view pictures on the web without downloading them all the time. All I do is open a browser window, and alakazam -- there are pictures on my computer screen!
klm123, just wait until your browser opens a porn site -- so can "view" porn without even having to deliberately doing anything. Just so you know, there ARE computer viruses that are specifically designed to not only send you to porn sites, but also put stuff that you do not want on your computer -- yes, even kiddie porn.
How sure are you that there is nothing unwanted/embarrassing/immoral/illegal on YOUR computer?
If you turn off "Safe Search" on Google and type in "Child" in the search, you might run across a picture that could be questionable if not illegal... Under such a law, you'd be arrested for "accidentally viewing". Heck, even with "Safe Search" on, you might still accidentally see such pictures.
I think this very Blog sight should be investigated," gives me the creeps..
@Lusitania,
You give me the creeps, so you should also be investigated. This is following your logic, isn't it??
bill from oregon. . . your statement shows how techincally inept you are.
I could make a web page with image elements with style=display:none, or position=absolute;left=1000000px
And you would have no idea that you downloaded and viewed the image.
These lawmakers need to be run out of office as they are too stupid to make decisions that effect the populace.
Damn right there should be a law against it!! God Damn Perverts!
Do not USE God's name in vain...needs to be a law against this as well.!!!
branxoz, if you really want to have a law against saying GOD DAMN -- move to another country where the government is a THEOCRACY. I understand that Iran is one such country.
Here in the U.S.A., we have a REPUBLICAN DEMOCRACY.
The USA is a Republic with a representative democracy.
Damn straight Suck as- pervs should be shot in the head...
Doubleplusgood.
Anyone who even looks at child porn is one sick puppy. They should be shot.
Lets ignore the accidental for a second. It seems to me though that if you view an image on the web intentionally,then you ARE in possesion of it. You executed a command on your computer that told it to transfer data from a remote server and display it on your screen,and there it is,on your screen,where you can do as you please with it. How is that not possessing it.
Now then there is the issue of accidental access and possession. This is not only limited to the digital domain. Suppose your uncle dies,going throuhg his stuff you find a box of hard copy child porn. Your now in possession of child porn. Clearly there should be a way for you to protect yourself and do the right thing. Most people would agree that if you immediately tossed them into a fire you should not be prosecuted for possesion of it.
Similarly,if you click a link,and end up at a porn site,and in fact there is a virus that infects windows that randomly redirects google links to do exactly that,your not responsible for that. A normal person hits the back arrow,closes the 50 windows that pops up,swears a bit,and then gets back to looking for whatever he was looking for.
For that matter,there are tons of servers out there that have these images on them,through no fault of the owners. Google for instance probably has copies of every single child porn photo that exists on the web in their servers. There is no way they could ever find them. Its just a side affect of the way their software works. So the IT people at google are guilty of a crime? Well,suppose they try to get rid of them. They have a programmer make a search algorithm to find them all. Now first,he has to check the algorithm to see if it works. I suspect they they would end up having to cast lots. The poor bastard that got the short straw would be tasked with counting up the number of legitimate images vs the number of what looked to be child porn and making graphs for various versions of the algorithms to determine which worked best under what conditions. Now,for his trouble trying to REMOVE the child porn from googles server,hes now looked at it and is a felon. How does THAT make sense.
Attention Mary Jones, then let just shoot (ALL of the MEN) in the world, because it is Men who watch porn, right!
So, in essence, you could devise a virus that uploads this objectionable material onto another's computer, produce an accusation against them, and watch their life and reputation float away. It gets interesting when technology jumps so far ahead of the legal system.
That is my concern as well. It is not exactly difficult to plant digital data on someones computer.
Guess what? Someone can stab someone to death and place the evidence in such a way as to FRAME YOU.
Duh.
"Guess what? Someone can stab someone to death and place the evidence in such a way as to FRAME YOU.
Duh."
But in that case they will still have to prove you stabbed them. Here, simply owning the computer would be the crime. If they make it one. The defendent would have to prove who put it on their. It would be more akin to the stabbed body just being in your home, and them trying to convict you. "duh"
Additionally killing someone and framing someone else is far different than simply planting a virus.
What we really need is to criminalize the secret service from using prostitutes, don't worry about pictures worry about the deed of the secret service.
Ok, what about the case where someone inadvertently stumbles across one or more of these images and doesn't have the technical savvy to clear their browser cache? Sounds like the law being proposed would leave them open to criminal charges even if there is no intent to break any laws...
Yes. Some years ago, I was helping my middle school daughter with a school project (creating a travel brochure with Publisher) and needed some scenic pictures of Switzerland. I navigated (with Alta Vista search engine, yes late 90s) to a site that sounded like it was for kids (wish I could remember it!). It was one letter off the site I thought it was going to be, found out it was intentionally set up that way. It was a porn site, that popped up right in front of my 11 year old daughter. I do remember a couple of years later, and a lot of complaints, that that site got fined and shut down for that deceptive little trick. I don't know if any of those thousands of porn sites dare to do that now, but I can easily see how someone could be tricked into going to a sleazy website.
Any good browser will block these types of unintentional pop ups. Viruses may be another matter.
Serously? Any competant,but sleazy web designer knows how to circumvent that. The next revision or patch of the browser will of course fix it. That wont help you if the cops find those images in your browser cache though.
Gee we just get the hacker groups outside the US where law enforcement is lax to email images to all the government officials we don't like. They open the mail and they are immediately guilty.
This issue gets awfully murky as the porn stars near 18 y/o. I'd be against making viewing only a crime. Other factors associated with an event would be needed to press the crime button.
The issues here only gets "Murky" because we, as a society, not only condone this behavior by trying to use the 1st amendment as a reason to allow anyone to have any access to any sort of material. The founding fathers gave us the 1st ammendment to protect the people from Despots and kings, not to allow freedom for the marketing of material that serves to exploit and harm children. Folks, that is the issue here. We look the other way when a Catholic Priest systematically rapes young boys for over 20 years since the Pope holds his office as being not liable to "man's laws".
The World-wide slave trade is not a myth, it is a tragic reality that our politicians look away from for various reasons, namely greed.
Why is it that child porn is not actively and agressively sought after and prosecuted under the penalty of DEATH? DEATH? DEATH?. Not Death Row for 20 years, convict them and kill them. Make the penalty for being a customer of these predators and businessmen so bad that a "normal " person would not be caught going near them. Cross all International Borders to search them out and kill them all.
Does this sound extreme? Imagine what it must be like for a child to be ripped from their homes and have to live in terror until a merciful death comes or worse. Then compare the victim's rights to those that support the illegal industry the thrives off of the suffering of others. Have you ever heard of a presidential candidate say that he would organize a special crime fighting agency to stop this trade? The answer is NO because this skin trade is owned and supported by the very people that get them elected. When Business men go to Vegas or Taiwan where do the businessmen get their jollies? Did the prostitutes wake up the day after they turn 13 and decide I want to become a drug addicted prostitute so I can get that new pair of shoes.
Larry you said it (BUSINESSMEN) or just (MEN) in general, not all but billions of dollars each day is spent on it, so what do we do about us, I mean MEN? I mean Men like sex no matter the age or gender, so how do we stop MEN from want to have Sex with someone?? Well I guess the awnser to you question is the next time you have sex with your wife or girlfriend, and she has a baby boy, just have the Dr. Castrate him at birth, that should solve your and women and children problem, right!
I Agree with the Lawmakers. You are one sick individual if you do it, and paying fines, going to Well Being classes, Psych Evaluation Class (Out of your Own Pocket Expense), community service and/or spending time in jail should make you think twice! Anyone who thinks differently must be looking at child porn. It is Sick! Sick! Sick! Only way to cure the sickness!
Sister, can I ask you a question, why are there LAW'S? What if there were no Laws to protect women like yourself, and children, no police to come to your aid when you call for help, just some dirty old Man lurking in the bushes, what would you do, nobody to come to your rescue. Just some old pervert, who is looking at you like your were a piece of chicken. Or better still what if this sicko was the last Man on earth, with millions of women, and no children. I know Men are just evil, and cannot be trusted, just ask your husband or your boyfriend what they do when there not around you, to agree with everything you spew??
Some how we really need to get every decent person on the globe to come together and create new laws that have real teeth and stop the abuse of Children. The article on the ground up infants in the pills for Stamina that China are exporting to Korea is just a sign of times to come if we do not turn a corner soon. What will be next, Human Veal being sold stir fry?
Some say that the US cannot be the World Police, but if not us then who. The UN has been hiding under our skirt for so long that they could be treated with preparation H. For once though we people that call ourselves civilized from around the world need to put politics, religion, and Ideology aside and think about where we want our world to be in another 20 tears. Barbaric and corrupt is the accepted norm for now.
I agree with you Larry. God Bless the children of our world and let US do something about IT! Where to begin? One step at a time.
larry
my teats are getting sore from letting the rest of the world suck on them. Start with personal responsibility then work up from there... Let the world fend for themselves for just a little while and we can pick up the pieces once we have our own house in order.
This perv is a perfect example of how not only an individual but an institution took action when they discovered a crime. There may have been politics involved in outing this guy but all the same he was outed. By whatever reason a scan discovered the images and the person responsible did the responsible thing and reported it up the chain. The chain for once did the lawful thing and reported it to authorities. More institutions need to follow this example.
Working in the field of forensics and more specifically, ICAC, I can assure you that all of the cases I work on have more than images in the cache file. We go after people who have downloaded, traded, created and distributed images of child sexual exploitation. I'm not talking about 1 image amongst 1000s in the cache file. I'm talking about 1000 videos of child rape in a folder called "pervy suspect\my videos" kind of thing. And based on artifacts in the OS, we can tell if they've been viewed.
Please don't think that someone just visits a page and gets a thumbnail on their computer and goes to jail. We have to have a ton of evidence and in depth artifacts to go after these people. And in most state courts, they'll get a 5 year sentence and will back on your block in 18 months. Would you like to know how many repeat offenders we have? It's nearly impossible to "fix" a pedophile.
As for images of 18 year olds, my threshold for whether I include an image or not, is usually around 12 years old. I don't want anyone on a jury thinking "she could be 18 or 17". Then again, when you are talking baby rape, it's not too hard for juries to tell the age.
I guess the judges are fine with letting all the pedophiles go. Then we can all live with them and never let our kids go outside. I'm glad that none of you will ever have to see what I see on a daily basis.
I was a field worker for a state agency that protects abused children and I personally tried to get law enforcement involved to investigate a Child predator of the worse kind. He trained his own children to hide within churches to bring him new victims with Peer Pressure and drugs. He even went so far as to host parties for his fellow Perpetrators. He had a very elaborate computer set up where a lounge room could be visable from the internet monitors and cameras.
The local police said that unless I brought them solid proof of internet wrondoing, they could not violate his civil rights.
I lived with the knowledge that our legal system cared more for his privacy than the terrible things he had been doing to children for over 20 years. How do I know all of this? I was had gained the trust of two of his children who told me. They would not come forward to the law enforcement because they said he was the "Devil" and was affraid of him.
larry
sad tale that you have... did you have ANY evidence? Not hearsay but actual proof of any sort? I am in no way condoning child anything but there is this thing called the 4th amendment. Police can't just go around kicking in doors or snooping without probable cause. Before you get testy on that, imagine if someone you were investigating and claimed you had taken home work materials for non work reasons... e.g. photos of child abuse for your own viewing pleasure... no evidence just their word saying someone told them that you had done that.
Mr. Big DawgI like what you say, but I have one problem, Why is there no laws on the book when two 12 years old have Sex? Or a 8 year old girl and 15 year old boy, who are minor, and they send these pictures back and forth to each other. So what your saying is that it is ok for children to watch each other having sex but it is wrong for a man to watch the same thing, I am just asking because I am not saying that it is right or wrong, I am just asking.
larry
you know as well as the next person that the laws apply to all ages.. it's only a matter of enforcement. Many teens are not being snared for sexting.
Kiddie porn must be legal in almost every state in the U.S.! It's available on almost all cable basic channels. In case you missed it, it's on every week. It's called "Toddlers and Tiarras". You know, the show where they make 4-7 year olds girls wear false eye lashes, make-up, hair pieces and dress like young prostitutes for a stupid crown. Pedifile heaven!
Bite me, its not the same thing.
That's Lusitania's favorite show, if you know what I mean.
No LeiAnn, it call Mothers pimping there babies, to be street corner workers. And you wonder where people get these images from it is( mother) that sell there kids, to buy bling from target.
Close the damned loophole NYS, and make sure that pedophiles and perverts have no legal comfort-zone to peep or to creep! This piece of proposed legislation is a no-brainer!!
@D-1519975
An internet cache and downloading are completely two things, a cache is a data storage of all your histories that you went through. It doesn't mean you downloaded anything specific like pictures is what the law was stating. If you're going to try and make a point, please Google it or something, you'll find that an internet cache is clearly not downloading. The subject at hands is downloading such as a picture or a video, which isn't the case as I stated, so you just made my point by bringing in the cache argument. Like a few people said, you can simply block or disable the opinion for the cache and in most cases the cache only records the history and keeps a separate download page for something else.
@Bill from Oregon
Great comeback to my argument, if you're going to act like a child at least give a better argument. See above answer to D toward your silly comeback. :)
I would suggest you need to google the phrase "Temporary Internet Files".
From wikipedia, it clearly states:
The cache is all the images, video, etc that a person has viewed in the browser, and thus, D-1519975 is very correct, and viewing is downloading.
I think people need to be careful about laws concerning emotional valence issues like this. Once you make a law about this sort of issue, it will only get more extreme over time, and it will spread to other areas of life. And once you make a law like this, it's permanent, because despite causing harm to innocents, nobody wants to fix the problem for fear of being labeled the "pro-child porn" candidate. Unfortunately, these things tend to spin out of control in the blink of an eye, and by the time it starts causing collateral damage it's already too late. New York needs to tread very carefully on this.
omg intelligent people on this website. Unbelievable.
Yes I would agree with that sentiment. Enacting a law based upon popular opinion has a good chance of doing severe harm. The problem is various laws never get repealed or corrected when they are overstepping their bounds. Take the sex offender laws for example. Initial idea and support were very strong but it has morphed into something that is easily abused by a prosecutor.
A perfect example. Urinating in public landing someone on the sex offender registry because it counts as an indecent exposure. Unfortunately, as Toasty said, these laws are passed due to the extreme emotional nerves they touch. In such cases, those passing such laws are rarely able or willing to consider the unintended consequences later on.
This is also why I despise laws that are passed when popular or due to a catch phrase.... It shows that those voting for individuals that make such laws don't think past the current moment or the one emotional issue.
Ok I am certainly against child pornography. Regardless of this however, it becomes a very slippery slope when laws like this start being implemented. Seems reminiscent in some ways to the days of book burning with the question being where does it stop?
I agree with statements above that speak to shutting down the people doing the postings and in countries that share a minimum age of consent at 18 that can work if all the images were generated within those countries. It does not however alleviate the problem as other countries have different rules for what would be considered the age of consent and therefore not child pornography but pornography in general.
Exactly, remember the parents that got arrested for taking pictures of their tot skinny dipping in a plastic baby pool?
Kiddie porn must be legal in most of the U. S. I see it weekly on a local TV channel while challel surfing. Young girls, from 4 to 7 years old, dressed to kill, complete with false eye lashes, loads of make-up and hair pieces, and bare midriffs. They parade around on camera, looking like little hookers, hoping to win a crown. In case your a pedifile wanting a fix, the show is called "Toddlers and Tiarras".
Dude, just watching a commercial for that creeped me the hell out. If New York wants to ban something, let it be child beauty pageants.
I wonder if these bozo's realize how easy it is to be redirected to a page that depicts child porn?
While taking your chances when clicking links on porno pages this happens all the time and the User has no say in the matter.
Half the country would be in prison if they looked at cached links on people's computers.
EXACTLY!!! People are so stupid. Do you know how many innocent law abiding citizens this puts at risk??
Tryin to justify something are we, I dont seem to have your problem.
Here's the problem: It's very easy to accidentally go to an incorrect website. And we see instances where people are tricked to going to incorrect websites all the time. You could easily be on a legitimate porn site and wind up somewhere you're not suppose to. That doesn't make someone a criminal - but according to their computer it does.
Again, if you end up some place that has "barely legal" porn (which may or may not have some real child porn on the page)....it will be very evident. There will be a few images of younger images sprinkled among thousands of internet images in that location. If you don't have any other images on the computer, file sharing programs and google searches for kid porn, then it's easy to make your case.
However, those cache images with google searches and downloaded and traded image files will usually tell the tale. Trust me when I say that LE has enough fish to shoot in the barrel without making up charges against people. There are idiots out there trading 1000 of images daily. Easily provable. Your scenario probably wouldn't get law enforcement's attention.
Ahh, do you think. Why shouldn't it be illegal. I thought it was!!
I don`t like porn, much less kid porn. I never look up sites, because I`m not interested. I worked in hospitals for nearly 30 years and I`ve seen all the skin I ever want to. But this law seems awfully broad. I`d have to read the text of the measure to form a definite opinion. The subject of a law is not very relevant. What is important is what the law says about the subject. You might want to consider that when you are deciding how to vote on ballot issues
The problem with criminalizing something like this and applying it to someone on a public computer is proving that person was the one that viewed the content. Even computers at a workplace are typically assigned to an individual, there will still be instances where someone else can use them. Then if that person downloads illegal content, how do you prove who downloaded it? Folders can be set up for each individual, but then they still receive an option to save content anywhere they can access on the computer; some of those places happen to be shared with other users. Child pornography is already illegal. Criminalizing it isn't going to stop people, and it doesn't address the problem that arises under either situation; proving that the people your taking to jail is the only individual that had sole access to that computer in order to download that content.
Don't you think that would be considered before someone was even investigated, let alone charged, tried and convicted?
WTF! How is this not a law already? I'll just chalk this up to a "Ooopppsss!? We forgot about that..."