November 24, 2006 6:00 AM PST

Police blotter: Child porn in Web cache OK

Related Stories

Police blotter: Florida judges target Net sex

November 17, 2006

Police blotter: Prison inmate wants personal ad replies

November 10, 2006

Police blotter: Child porn blamed on computer virus

November 3, 2006

Police blotter: Web cookies become defendant's alibi

October 27, 2006

Police blotter: Flap over nude photos of Cameron Diaz

October 20, 2006

Police blotter: Prosecutors want reporters' hard drives

October 13, 2006

Police blotter: Sex offender demands Playboy on PC

October 6, 2006

Police blotter: When can cops seize your computer?

September 29, 2006

Police blotter: Alleged al-Qaida hacker goes to court

September 22, 2006

Police blotter: Cops raid Usenet provider over porn

September 8, 2006

Police blotter: Judge OKs text message use in drug case

September 1, 2006

Police blotter: Trojan horse leads to porn convictions

August 25, 2006

Police blotter: Mortgage 'spammers' sued by ISP

July 14, 2006

Police blotter: SBC sued over deleted screenplay

July 7, 2006

Police blotter: Student sues over IM-related suspension

June 30, 2006

Police blotter: Husband spies on wife's computer

June 16, 2006

Police blotter: eBay suit over $380,000 Porsche

May 26, 2006

Police blotter: 911 dispatcher misuses database, kills ex-girlfriend

May 19, 2006

Police blotter: Enhanced video used to convict arsonist

May 12, 2006

Police blotter: Wells Fargo not required to encrypt data

April 14, 2006

Police blotter: Porn-dialing firm loses appeal

March 31, 2006

Police blotter: Schools' IT chief loses bribery appeal

March 24, 2006

Police blotter: Judge orders Gmail disclosure

March 17, 2006

Police blotter: Ex-employee faces suit over file deletion

March 10, 2006

Police blotter: Cell phone tracking rejected

March 3, 2006

Police blotter: Dot-com magnate loses fraud appeal

February 24, 2006

Police blotter: Patriot Act e-mail spying approved

February 9, 2006

Verbatim: Search firms surveyed on privacy

February 3, 2006

Police blotter: Sysadmin loses e-intrusion case

January 13, 2006

Police blotter: Alleged eDonkey pirate gets trial

January 6, 2006

Police blotter: Nude 'profile' yields Yahoo suit

December 9, 2005

Police blotter: Legal flap over secret sex video

November 25, 2005

Police blotter: Judge questions Patriot Act bugs

November 4, 2005

Police blotter: Feds' cell phone tracking denied

October 28, 2005
"Police blotter" is a weekly News.com report on the intersection of technology and the law.

What: Pennsylvania man appealed his conviction for knowingly possessing downloaded child pornography, saying he didn't know it was in his Web browser's cache.

When: The Pennsylvania Superior Court ruled on November 2.

Outcome: Court threw out conviction, saying state law criminalized only knowingly possessing child pornography, not simply viewing it.

What happened, according to court documents:
Anthony Diodoro was convicted of 30 counts of child pornography possession and one count of criminal use of a communication facility. He was sentenced to 9 months to 23 months in prison.

His conviction arose out of a slightly unusual situation: Prosecutors successfully proved that Diodoro had viewed child pornography sites and pointed to his Web browser's cache as evidence. (A browser cache is a temporary storage location for Web pages, so that if the same page is visited again, it can be quickly reloaded from the hard drive.)

But prosecutors did not prove that Diodoro actually knew the illegal images were saved to the cache, a common situation for novice users.

That's crucial, because section 6312(d) of Pennsylvania's criminal code says: "Any person who knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such acts commits an offense."

The judges agreed that Diodoro viewed child pornography (some 370 images worth, in fact) but ruled that the wording of the law only criminalized knowingly possessing it. They reversed his conviction.

This is different from other cases that have appeared on Police Blotter in the past. In July, the 9th Circuit upheld a defendant's child porn conviction, in part because the evidence showed he looked at the cached images. In a case involving a Naval officer, he allegedly had saved images in addition to cached images.

In another case, called U.S. v. Tucker, the 10th Circuit upheld a defendant's conviction because he cleared his Web browser's cache to avoid being caught with saved child porn. The logic: Because he knew about the existence of the cache, he had knowingly possessed the images at least temporarily.

This is another odd result of laws written during a time when contraband existed only in physical form. It implies, for instance, that it would be perfectly legal to watch (though not distribute) child porn videos streamed through a site like YouTube, and that it would be legal to browse child porn Web pages if a browser's cache was disabled.

Excerpts from the Pennsylvania court's opinion (click here for PDF):
This is an issue of first impression in Pennsylvania. We have found no case exactly on point in which a conviction for "possession" of child pornography for simply viewing it on a Web site without any evidence that the defendant knew the image was being saved on the computer's hard drive. In cases from other jurisdictions affirming such convictions, there was evidence that the defendant knew the images were being stored, and usually distinguished those cases from the situation where the defendant merely viewed the images without knowing they were being stored. Those cases point out that to establish possession, a defendant must know that the image is being stored, so he or she knows he or she has the ability to save, print, or e-mail the images to others.

We note that it is well within the power of the legislature to criminalize the act of viewing child pornography on a Web site without saving the image. The language used in section 6712(d), however, is simply "possession." Because this is a penal statute with an ambiguous term when it comes to computer technology, it must be construed strictly and in favor of the defendant. A defendant must have fair notice that his conduct is criminal. Because of the ambiguity, sufficient notice was not provided here. For this reason, we are constrained to reverse and leave it to the legislature to clarify the language if it intends to make the mere "viewing" of child pornography a crime.

At trial, the commonwealth's computer forensics expert testified that when a Web site is viewed, the image is automatically saved to an Internet cache file. The purpose is to save time, so that if the site is viewed again, the old file can be quickly uploaded rather than requiring the time to reload the file...

We hold that absent specific statutory language prohibiting the mere viewing of pornographic images or evidence that the defendant knowingly downloaded or saved pornographic images to his hard drive or knew that the Web browser cached the images, he cannot be not criminally liable for viewing images on his computer screen. Therefore, we conclude that the evidence was insufficient to sustain Diodoro's conviction for knowing possession of child pornography under section 6312(d).

See more CNET content tagged:
conviction, Police Blotter, defendant, Pennsylvania, cache

 

Join the conversation

Add your comment

The posting of advertisements, profanity, or personal attacks is prohibited. Click here to review our Terms of Use.

What's Hot

Discussions

Shared

RSS Feeds

Add headlines from CNET News to your homepage or feedreader.