Bashman on Child Porn Possession

With the recent 9th Circuit opinion and one in Pennsylvania, there has been a lot of discussion about what constitutes possession of child pornography in our modern Internet era.  Howard Bashman had this to say about the cases:

By failing to recognize that the intentional display of an image consisting of child pornography via a Web browser itself constitutes "possession," both the Superior Court of Pennsylvania and the 9th Circuit have seriously erred. If someone accesses the Internet in search of a desired image, finds the image, and then intentionally displays the image on his computer, that computer user is in possession of the image during the time that the image is on display, and that user can be convicted of having possessed the image if the image constituted child pornography.

It is difficult to understand why one person who uses his computer's Web browser for 30 consecutive days to view a single image consisting of child pornography at a specific location on the Internet should not be criminally liable for possessing that image while another individual who intentionally saved the same image to his computer's hard drive, never viewed the image again, and immediately deleted the image upon ceasing his Internet session would be criminally liable for possession.

While I agree with rationales Bashman offers in opposition to the two recent decisions, I also think he is strained in his readings of the relevant statutes.  I think this another case of statutes drafted and rules conceived without the Internet in mind.  I'm just not as sure as Bashman that the courts should be the one to fix these loopholes.  Possession is a tricky concept when we talk in terms of the Web.  I think Bashman's rule goes too far.  He wants to make every defendant accountable for knowing how the Internet works and/or presume that the existence of files in a computer's cache are sufficient proof to show possession.  That seems to go beyond a normal statutory reading.  But Bashman makes a strong argument, so go read the rest of the article, if you are interested.

Comments

[ProzacNation]

How many who read "Federal case may redefine child porn"
( http://news.com.com/Federal+case+may+redefine+child+porn/2100-1030_3-6139524.html ) and clicked the links to the images are now guilty of possessing child porn, even if they only viewed them for an instant?

[eAdvocate]

Could the newspaper be prosecuted for trafficking in child porn?

What about the Sunday news inserts J.C. Penny, Target, K-Mart, etc...

Depending on the program one uses to clean his system of Internet tracks I guess it would only be viewing.

Wasn't their a case that said viewing was not a crime? Yes, that case about the computer cache. Well, now the new issues arise.

[Daniel]

I like Howard's site but as a thinker he is none too bright. His article is full of faulty logic, ill drawn analogies, and just a plain ignorance of the facts.

In many ways it's kind of sad that he is held up as "all that". Our law schools should be doing better...

[justice]

Your argument failes at this quote-"By failing to recognize that the intentional display of an image consisting of child pornography via a Web browser itself constitutes "possession," both the Superior Court of Pennsylvania and the 9th Circuit have seriously erred.

You said intentional display of the image is "possession" the statute says "knowing possession". If you don't know that the PC stores the image and it is not manipulated in anyway it cannot be possession. They are saying the law has to be re-written to catch up with the times. They could easily do this by saying anything found in temporary files is now fair game and you are liable. I think the decision stands and the law has to be re-written.