Grey Area on “Possessing” Vs. Viewing Creates Porn Ambiguity

By James E Crawford Jr.

Published on October 23, 2012

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Since the Web is as much about browsing as it is about purchasing and downloading, is the idea of “possessing” a file outdated?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 Author

James E Crawford Jr. is a criminal defense attorney representing clients in all state and federal courts throughout Maryland.

He can be reached via E-Mail at: Justicejec@comcast.net

The Law Offices of James E. Crawford Jr. has a long history of successfully handling criminal cases. Jim Crawford, founder and principal attorney of the firm knows that if you are being prosecuted, it can be a tremendous burden and unbelievably stressful not just for you, but for your family and loved ones. You need someone in your corner who understands the process and can guide you through it.

The practice of criminal law is an art. There is really no “right way” or “wrong way” to defend someone from criminal charges. The bottom line is how you perform for your clients. Attorney James Crawford’s past performance speaks for itself. He has tried many cases and has the ability and knowledge to help you when you need it most.

Article picture: Pixabay