People v Kent - Important Child Pornography decision holds that viewing is not procurement, and "cache files" are not knowing possession

Today's Court of Appeals decision (People v Kent  #70, 5/8/12) has two very important components.

First - proving a defendant has "cache files" on his computer isn't enough to prove that he knew he had such files saved on his computer.
Second - "merely viewing" child pornography is not possession or procurement.

Cache files are created when a user visits a website.  The computer typically stores that page on the computer.  That way it doesn't need to be downloaded it the next time.  This makes web browsing faster.  Caches are typically created of images as well.  The CoA in Kent discussed "the evidentiary significance of 'cache files,' or temporary internet files automatically created and stored on a defendant's hard drive, and the defendant's awareness of the presence of such files.  We conclude that where the evidence fails to show that defendant had such awareness, the People have not met their burden of demonstrating defendant's knowing procurement or possession of those files."

In other words, if the People cannot prove that your client knew how web browsers work, at least to the extent that they store cache files, then they cannot prove their case.  This can be a serious problem - if the defendant knew how to prevent cache files from being generated, he might have prevented prosecution.  So in most cases, the DA needs to prove that defendant knew a little, but not a lot.  Even more importantly, looking at child pornography isn't enough to warrant prosecution under this section.  "We further conclude that merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law."

The facts are these: a professor complained that his computer didn't work.  IT people found kiddie porn on the computer.  The porn was "cached" (i.e. stored automatically) under a screen name matching the defendant's first name.  "There was no evidence that defendant was aware either of the cache function of his computer or that any of these files were stored in the cache."  There was also a subfolder with the defendant's initials and "porndef" containing somewhere between 15,000-30,000 images of underage girls in lingerie. 

Then there were messages which the Court discussed:

"The JK folder held a file labeled "porndef.pb," which contained a document that included the text of four messages dated between June 1999 and July 2000 and directed to the unidentified recipient "P.B." As the Appellate Division noted, it is unclear whether these messages were ever sent.   The messages apparently relate to a potential research project on the regulation of child pornography and include comments such as "sooner or later someone at this college is going to wonder why I keep looking at porno sites."  A final message dated July 11, 2001 states:

“Well, this last batch pretty much tears it. While, as somebody's father, I'm pretty appalled by this stuff, I also don't want to get arrested for having it. So let's do this—if this is a legitimate research project, let's write it up and tell the deans (and preferably also the cops) what we're doing and why. Otherwise, let's drop it in the most pronto possible fashion. “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. You have the URL's if you want to pursue it. “See you sooner or later, no doubt. Kent.”"

A graphic video of children engaging in sex acts would also prove to be something of a problem. 

The Appellate Division had upheld the conviction, although it was concerned with whether the "cache" was enough to prove possession.  The Court of Appeals noted that the"[AD] adopted the view, however, that 'a Web page stored in the cache is evidence of past procurement of the images on that page.'"  In other words, the cache wasn't so much possession in and of itself, it was simply proof that the defendant had accessed the images, and thus 'possessed' them earlier.  The key holding:

"Defendant argues that merely "accessing and displaying" Web images of child pornography does not constitute procurement for purposes of Penal Law § 263.15.  Defendant further contends that his possession convictions are invalid because Penal Law §263.16 criminalizes the possession of tangible items only and that, absent proof that defendant was aware of his computer's cache function, he could not have knowingly possessed any item stored in the cache.  For the reasons that follow, we agree with defendant's first proposition.  We also agree that where a promotion or possession conviction is premised on cached images or files as contraband, the People must prove, at a minimum, that the defendant was aware of the presence of those items in the cache.  We hold, however, that regardless of a defendant's awareness of his computer's cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant's conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving."

The court held: "that such images were simply viewed, and that defendant had the theoretical capacity to exercise control over them during the time they were resident on the screen, is not enough to constitute their procurement or possession."  The court reviewed relevant Federal statutes.  Of course, the defendant didn't benefit much from the decision:

"We agree with the Appellate Division, however, that defendant was properly convicted of promotion and possession of the "Arina" video, and possession of 132 images of child pornography recovered from the unallocated space on his computer.  Investigator Friedman's testimony established that at some point defendant downloaded and/or saved the video and the images, thereby committing them to the allocated space of his computer, prior to deleting them.  Thus, viewing the evidence in the light most favorable to the People, a rational fact finder could conclude that defendant acquired the video and exercised control over it and the images (see People v Contes, 60 NY2d 620, 621 [1983]).  That defendant did so knowingly was conclusively established by, among other things, copious evidence of his persistent pattern of browsing for child pornography sites; his meticulous cataloguing of thumbnail images of young, provocatively dressed girls; his deletion of illegal images and retention of legal ones; and defendant's messages to "P.B." discussing the pornographic content of the images and sites defendant perused."

Judges Graffeo and Pigott dissented from the core holding.  Judge Smith addressed her position in a concurrence:

"Under Judge Graffeo's reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free -- someone who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer -- is subject to up to seven years in prison for a first offense (    see Penal Law § 70.00 [2] [d]).  This is surely a stringent punishment for someone whom many would think more pathetic than evil. Nor can we safely assume that bringing as many consumers as possible within the reach of the law is the most effective way to lessen or eliminate the trade: A policy of draconian enforcement directed at the most minor and peripheral of users is perhaps no more likely to eliminate child pornography than a similar policy would be to eliminate illegal drugs."