The New York Court of Appeals carved out a rather large exception when it ruled that a man could not be accused of certain child pornography charges because he did not "possess" the images - he'd viewed them online. And in early 2011, the Oregon Supreme Court similarly ruled that viewing images on a website did not equate to "possession."
These cases suggest that in order to show possession of files or images, prosecutors must prove that a defendant downloaded, saved, or printed them. Images or files discovered in a defendant's browser cache will not be enough to show possession of child pornography.
The distinction here sheds light on a problem arising in courts of law across the country, wherein judges are tasked with deciding what it means to actually "possess" a file in the digital age.
Since the Web is as much about browsing as it is about purchasing and downloading, is the idea of "possessing" a file outdated?
Web users now have instant, always-on connections. This, along with the general trend toward mobile and cloud computing, is having a tangible impact on the antiquated practice of downloading files for local storage.
Regarding the cases described above, note the difference between simply browsing versus intentionally downloading. A successful download allows the user to sell or transfer the material on their own - which can lead to charges for possession or distribution of child pornography. (Also: note that state and federal law differs on this topic. Federal law, for instance, prohibits online viewing.)
We're at the beginning of the debate on what's legal and illegal when it comes to computers and pornography. Recent cases suggest that it's only a matter of time before the state legislature in Maryland, as well as lawmakers in other states, are forced to take a closer look at how the law impacts our activities online.
Advocates of a free and unrestricted Internet seem to favor that, within reason, fewer activities fall within the scope of Internet crime as opposed to more. We'll have to wait and see whether lawmakers overreact.
The Maryland criminal lawyer at The Law Offices of James E. Crawford, Jr. & Associates, LLC defends clients against all types of crimes, from misdemeanors like shoplifting, to felonies like drug distribution and sex offenses. Their firm also represents clients in Baltimore divorce and Baltimore accident injury cases. People in Maryland have relied on the Law Offices of James E. Crawford, Jr. & Associates, LLC since 1992.