On May 8, 2012, the New York Court of Appeals issued a ruling that merely viewing child pornography on the internet is not a criminal act under the New York Penal Code. The People v. James D. Kent, Index 70, NYLJ 1202552838004, at *1 (Ct. of App., Decided May 8, 2012). The rationale behind the decision of the state's highest court bears discussion on a much broader scale due to its potential bearing on the legal definitions of procurement, possession and control of digital property.
The key question under consideration was the evidentiary significance of temporary internet files (or cache files) that are automatically created and stored on a the hard drive of a computer while the user is browsing the internet. The Appellate Court concluded that the act of viewing a web image alone does not, absent other proof, constitute either possession or procurement.
The context of the decision involves the appeal of a conviction of a professor of public administration for possession of child pornography. In 2007, a student employee of the college's IT department ran a virus scan of Professor James Kent's computer in response to his complaints that it was performing slowly. This scan and the subsequent investigation by the New York State Police resulted in the discovery of numerous images contained in hard drive's temporary internet files, also known as the web cache. The Appellate Court found that there was no evidence that Professor Kent "was aware of the cache function of his computer or that any of these files were stored in the cache."
A web cache contains images or portions of web pages that are automatically stored when a web page is visited by a user. The standard security settings of most internet browsers results in the storing of certain images from a web page in a computer's web cache. The purpose of caching image files is to speed up the time it takes to load a previously visited web page when the user returns by having certain images stored locally, whereas most current versions of the prominent internet browsers have security (or privacy) settings that permit a user to forgo caching of images, the download of cookies or tracking of history.
The relevant code sections for New York child pornography late provide that, "it is illegal to create, possess, distribute, promote or facilitate child pornography." New York Penal Code (263.15-16). While New York courts have held on a consistent basis that digital computer images are the equivalent of photographs within the meaning of the law, the Kent ruling dicates that procurement, possession and control in the digital realm cannot be considered as the transient act of merely viewing a webpage or image. Senior Judge Carmen B. Ciparik, writing for the majority, stated that "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." Going further, the Court stated that a user' awareness of the cache function has no relevance to the issue of control or possession; rather, it can only demonstrate evidence that the images were previously viewed. Merely accessing and displaying a web page does not constitute procurement under the law, which is defined as having "obtained, acquired . . . to get possession of by particular care or effort."
The Court's ruling attempts to distinguish between individuals who see an image of child pornography online versus those who actively download and store such images. The Court cited decisions by a number of federal courts, stating 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." Purposefully making an image appear on the screen — for however long the user elects to view the image – was not held to constitute "knowing control."
Putting the abhorrent circumstances of the Kent case to the side, the need for clear definitions of the legal concepts of procurement, possession and control when it comes to digital files is paramount and not limited to the criminal context. Disputes in the commercial sector, whether over software application development, advertising content creation, or insurance coverage following a cyber-attack, can turn on such issues. The continued expansion of the cloud computing model, where all files are stored remotely and tend to be viewed by users via a web interface, will only increase the potential for these to be critical concepts. Understanding the implications of this ruling should color any discussion of digital assets.
It is worth noting that the Kent ruling only resulted in the dismissal of two counts of Professor Kent's conviction in the lower court. The Court of Appeals found that there was evidence of additional files having been downloaded which constituted a criminal act under this interpretation of the statutes.
On a side note," Judge Victoria Graffeo, who concurred in the result only, commented that " "[t]he purposeful viewing of child pornography on the internet is now legal in New York." While certainly frustrated dicta, such an observation does not portend well.
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