• New York state court of appeals: Viewing kiddie porn online is legal!
    102 replies, posted
Source: [url]http://usnews.msnbc.msn.com/_news/2012/05/08/11602955-viewing-child-porn-on-the-web-is-legal-in-new-york-state-appeals-court-finds?lite[/url] [quote] Viewing child pornography online isn't a crime, the New York Court of Appeals ruled Tuesday in the case of a college professor whose work computer was found to have stored more than a hundred illegal images in its Web cache. The court dismissed one of the two counts of promoting a sexual performance of a child and one of the 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 rests on whether accessing and viewing something on the Internet is the same as possessing it, and whether possessing it means you had to procure it. In essence, the court said no to the first question and yes to the second. "Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law," Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges. "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," Ciparick wrote. "To hold otherwise, would extend the reach of (state law) to conduct — viewing — that our Legislature has not deemed criminal." In other words, "the purposeful viewing of child pornography on the internet is now legal in New York," Judge Victoria A. Graffeo wrote in one of two concurring opinions that agreed with the result but not with the majority's reasoning. Kent's attorney, Nathan Z. Dershowitz, told msnbc.com that he hadn't yet had a chance to talk to his client, so he couldn't discuss what they would do next. But he agreed with Graffeo that the ruling means that "in New York, there is no crime" in simply viewing child pornography. All of the judges agreed that child pornography is an abomination, but they disagreed whether it was necessary to "criminalize all use of child pornography to the maximum extent possible," as Ciparick wrote in the majority opinion. The majority said that was up to the Legislature, not the courts, to decide. The technical details revolve around copies of deleted files that remained in the cache of Kent's Web browser, which were the basis of the two counts that were dismissed. They were discovered, along with other materials, during a virus scan that Kent had requested because his computer was running slowly. To demonstrate possession of the images in the cache, "the defendant's conduct must exceed mere viewing," Ciparick wrote, adding that "the mere existence of an image automatically stored in a cache" isn't enough. Furthermore, the prosecution failed to prove that Kent even knew his Web browser had a cache in the first place, writing, "A defendant cannot knowingly acquire or possess that which he or she does not know exists." Dershowitz said the "real problem here is that legislation is not keeping up with technology," arguing that federal courts also haven't fully addressed the legal standing of images stored only in a browser cache. The federal statute outlawing possession of child pornography — 18 USC 2252A — doesn't mention browser caches. The few cases that have examined the issue at the federal level — notably a 2002 federal appeals case involving a Utah man and a 2006 federal appeals case involving a visitor to Las Vegas — generally conclude that cached images alone can establish possession if the defendant knows about the browser's caching function. Both courts noted that it was hypothetically possible for the defendants to be innocent if they were ignorant of the cache function. "Those statutes are probably not quite as incomprehensible, but they are anything but clear," Dershowitz said. Kent's convictions on the other counts rested on other evidence, including a folder on his machine that stored about 13,000 saved images of girls whom investigators estimated to be 8 or 9 years old and four messages to an unidentified third party discussing a research project into the regulation of child pornography. "I don't even think I can mail the disk to you, or anyone else, without committing a separate crime. So I'll probably just go ahead and wipe them," one of the messages said. [/quote] What the actual fuck, seriously?
this sounds like a fairly sensationalist title and story
and then all the creeps moved to new york.
In case anyone comes in here to say how horrible this is, keep in mind this is setting the difference between viewing child porn and actually possessing it. Basically this is the sort of thing that would have prevented every case were somebody who accidentally came across child porn and reported it ended up getting in trouble with the law anyways.
Creating it and seeing it are two very different things. Seeing it could just mean you came across it one way or another, whereas creating it requires the harming of children and in most cases the intent to distribute.
[QUOTE=MightyMax;35880272]and then all the creeps stayed in new york.[/QUOTE] Fixed that for you. Going to have to agree with this decision, it's too much effort to go after the viewers, and going after them to begin with seems awfully Big Brother-esque. Not that I support CP though, it's disgusting.
[QUOTE=Megafan;35880310]Creating it and seeing it are two very different things. Seeing it could just mean you came across it one way or another, whereas creating it requires the harming of children and in most cases the intent to distribute.[/QUOTE] I'm sure creeps "come across it" all day long.
Excellent....
Accidentally coming across it can happen to anyone, and most folks have the decency to nope out the second they catch a glimpse of little Timmy's unsettling violation. Being arrested for merely seeing it is kind of like being charged for possession of drugs just because you accidentally touched a spliff when your coat brushed against it; you didn't mean to do it and it wasn't strictly speaking an experience you enjoyed. CP's still an abhorrent thing, since there is suffering and bad things involved 9 times out of 10, and should be fought against. However, drawn stuff like lolicon, though still not exactly "kosher", shouldn't be as reviled, and instead be seen as a way to keep potential real-life paedophiles somewhat satiated, preventing them from going on to violate real kids. The drawn kind of stuff doesn't involve any kids getting molested (most of the time), and that's something that old wrinkled Conservatives should have it drilled into their skulls, that it doesn't hurt anyone, other than old wrinkled Conservatives who are well overdue their Teatime with Thanatos. Better to keep a lion fed with meat instead of not feeding it then acting all surprised when it starts hunting living people. Not every being can go cold turkey; it's far easier to wean then off the bad thing with something similar that isn't as bad yet still enough to keep them satiated.
I like this decision. Not because I condone CP but because unintentionally coming across CP should not land you in jail/prison. Now, once you start showing interest (downloading, printing, buying, etc.), then that's an issue.
arent there studies showing that allowing viewing reduces the rates of abuse? not that i condone any kiddy fiddler knocking one off to a child but frankly option a is better than b
[QUOTE=parket;35880659]arent there studies showing that allowing viewing reduces the rates of abuse? not that i condone any kiddy fiddler knocking one off to a child but frankly option a is better than b[/QUOTE] But the kids are still being abused. Shutting down the viewers will shut down the filmers. Supply and demand.
oh /b/ will love this
I think this is a fair decision, and I agree with it. Simply viewing doe snot equal possession, you must actively store it for it to be illegal.
[QUOTE=faze;35880692]But the kids are still being abused. Shutting down the viewers will shut down the filmers. Supply and demand.[/QUOTE] While true, it's not the right way to handle the situation. Cutting off the supply is. You can't prosecute someone for something that could be entirely accidental. I've accidentally clicked a link from some asshole that brought me to CP and I backed the fuck out as fast as I could. Should I be prosecuted and sent to jail for that? Obviously not. The best way to try and stop CP is to find the people who are creating it and lock them up. Punishing the viewers won't do a damn thing. Same thing goes for piracy actually; suing the downloaders accomplishes precisely nothing, while taking down the distributors and uploaders actually gets you somewhere.
[QUOTE=faze;35880692]But the kids are still being abused. Shutting down the viewers will shut down the filmers. Supply and demand.[/QUOTE] This implies that the supply comes from public demand- it doesn't. Children are molested by individuals because individuals want to molest children. It's not like there are places that cater to child porn-interested people (well, there are, but it's almost exclusively softcore. "Modeling".) Most child pornography exists because the person molesting the child wants to have the pornography for themselves- not because others want it. That being said, guy above me is right. Don't cut off those who demand it, cut off the supply.
[QUOTE='[Seed Eater];35880796']This implies that the supply comes from public demand- it doesn't. Children are molested by individuals because individuals want to molest children. It's not like there are places that cater to child porn-interested people (well, there are, but it's almost exclusively softcore. "Modeling".) Most child pornography exists because the person molesting the child wants to have the pornography for themselves- not because others want it. That being said, guy above me is right. Don't cut off those who demand it, cut off the supply.[/QUOTE] So some kid modeling in a thong and a hand bra is totally ok?
snip
Good, i remember the father who was taken away from his daughters for reporting that a virus had placed cp on his comp.
[QUOTE=codemaster85;35880931]Good, i remember the father who was taken away from his daughters for reporting that a virus had placed cp on his comp.[/QUOTE] Was that the guy who downloaded something off Limewire by accident, or am I thinking of something else?
[QUOTE=faze;35880335]I'm sure creeps "come across it" all day long.[/QUOTE] How would you feel if you were arrested for Child porn when all you saw was a spray of it in Tf2? (It saves all sprays you see by the way)
[QUOTE=faze;35880335]I'm sure creeps "come across it" all day long.[/QUOTE] I do come across it occasionally on 4chan, but those tend to get shut down pretty quick
Ok, you are walking down the street. Someone stapled a picture of a naked child to a telephone pole, you glance at it. Should you be arrested? [editline]8th May 2012[/editline] Go after the creators and then the whole problem will go away.
[QUOTE=ironman17;35880534]Accidentally coming across it can happen to anyone, and most folks have the decency to nope out the second they catch a glimpse of little Timmy's unsettling violation. Being arrested for merely seeing it is kind of like being charged for possession of drugs just because you accidentally touched a spliff when your coat brushed against it; you didn't mean to do it and it wasn't strictly speaking an experience you enjoyed. CP's still an abhorrent thing, since there is suffering and bad things involved 9 times out of 10, and should be fought against. However, drawn stuff like lolicon, though still not exactly "kosher", shouldn't be as reviled, and instead be seen as a way to keep potential real-life paedophiles somewhat satiated, preventing them from going on to violate real kids. The drawn kind of stuff doesn't involve any kids getting molested (most of the time), and that's something that old wrinkled Conservatives should have it drilled into their skulls, that it doesn't hurt anyone, other than old wrinkled Conservatives who are well overdue their Teatime with Thanatos. Better to keep a lion fed with meat instead of not feeding it then acting all surprised when it starts hunting living people. Not every being can go cold turkey; it's far easier to wean then off the bad thing with something similar that isn't as bad yet still enough to keep them satiated.[/QUOTE] [QUOTE=Megafan;35880310]Creating it and seeing it are two very different things. Seeing it could just mean you came across it one way or another, whereas creating it requires the harming of children and in most cases the intent to distribute.[/QUOTE] [QUOTE=The golden;35880298]Good. Charging people for viewing it is doing nothing but waste time and money. Buying, saving, creating, download,etc are a different story.[/QUOTE] [QUOTE=Boxbot219;35880292]In case anyone comes in here to say how horrible this is, keep in mind this is setting the difference between viewing child porn and actually possessing it. Basically this is the sort of thing that would have prevented every case were somebody who accidentally came across child porn and reported it ended up getting in trouble with the law anyways.[/QUOTE] this this this this this!
[quote]"Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law," Senior Judge Carmen Beauchamp Ciparick wrote for a majority of four of the six judges. "Rather, some affirmative act is required ([B]printing, saving, downloading, etc.[/B]) to show that defendant in fact exercised dominion and control over the images that were on his screen," Ciparick wrote. "To hold otherwise, would extend the reach of (state law) to conduct — viewing — that our Legislature has not deemed criminal."[/quote] This seems fair, child pornography is still banned but you won't be charged for stumbling across it on b.
[QUOTE=faze;35880692]But the kids are still being abused. Shutting down the viewers will shut down the filmers. Supply and demand.[/QUOTE] "Shutting down" viewers is not feasible though. I remember a long time ago someone used a child porn spray on a gmod server. If simply viewing child porn is illegal then everyone who was on that server with sprays enabled would have been committing a crime.
Viewing or possessing shouldn't be illegal. The act of looking at it or saving it does not constitute direct harm to a child, so long as the person creating it isn't receiving monetary benefit. Being attracted to children isn't a crime, abusing them is. Don't round up people for jerking it in front of their computers, get the people who are actually sexually abusing children.
[QUOTE=J!NX;35881385]this this this this this![/QUOTE] Wow, buddy, I agree with this and all, but you seem a little [I]too [/I]exited about it.
[QUOTE=Mingebox;35881794]Wow, buddy, I agree with this and all, but you seem a little [I]too [/I]exited about it.[/QUOTE] It's just that I'm tired of people getting issues from basically nothing is all
[QUOTE=J!NX;35881821]It's just that I'm tired of people getting issues from basically nothing is all[/QUOTE] Yeah, whatever J!NX. Or should I say,[I] Fondles C. Molestington[/I]?
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