Earlier this month, the Superior Court of Pennsylvania issued a ruling (PDF) in a child pornography case that I read and then decided it was not a landmark decision. The appellant was convicted of "knowing possession" of child porn. The evidence (by all accounts, undisputed) showed that he intentionally sought out child porn (over 370 images), but did not save the images to his hard drive. Unknown to the appellant, the browser automatically saved them to the cache. The Court held that since he did know the images were saved somewhere, he could not be convicted of knowing possession, and the law as written did not criminalize mere viewing. Had he known about the cache, the result would have been different.
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.Then a friend sent me an article about the case, and it got me to thinking. This guy intentionally seeks out kiddie porn, and is saved by his own stupidity. Suppose someone accidentally stumbles upon a single image, immediately leaves the site, and does not intentionally save it- BUT this person also knows about the cache. That guy is guilty because he is not as stupid, despite the far less reprehensible nature of the conduct. What if hypothetical guy number two immediately clears the cache? Is that also evidence tampering? Obstruction of justice?
This case also points out the difficulties inherent in the concept of "possession" itself, particularly when applied to digital files. When one my clients is charged with possession of crack, it is easy enough to understand- it is physical, it exists in the palm of your hand. But when the concept is applied to information, it falls apart. What if you have an encrypted kiddie porn image on your hard drive, but lack the key to unlock it? What if the file is corrupted? What if you have it on your hard drive, know what it is, but it is in a proprietary format and you lack the software to open it? What if you simply never open it?
This is a serious problem for the future, when information is becoming increasingly digital. The Law- that's, capital T, capital L, The Law- was mostly written in a world lit by candlelight and coal fire, when businesses kept their books in actual books. We no longer live in that world, and The Law cannot keep up.