Intersting 9th Circuit Child Porn Case

Several people have emailed me about this case and there are posts over at Sentencing Law & Policy and Volokh Conspiracy on a Ninth Circuit opinion concerning possession of child pornography via a web browser cache.  I don't have time to say much now, but it is a very interesting opinion on what constitutes possession in our modern world:

Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.

Orin Kerr remarks that he thinks the opinion is right as a doctrinal matter:

I think this is correct as a matter of doctrine. If you don't know an image is there, you can't possess it. In most cases this isn't an issue: a suspect who seeks out an image and knowingly retrieves it will be guilty of knowing receipt, and there will usually be some evidence of dominion and control other than presence in the browser cache. But it seems to me that mere presence of a file in the browser cache shouldn't be enough to establish possession of the file.

Comments

[eAdvocate]

One thing I thought strange which wasn't addressed in this opinion or the other Pensylvania case I forwarded to Corey is, that how does something get into computer's cache?

Excepting some form of hacking (maybe trojan, virus or something of that nature) of a computer cache is a duplicate of what was once on the screen of the computer. This was never addressed.

Having been involved with computers over 40 years now I know most folks clean their computers either using a specialized program or some do it by hand which is much harder.

In both of --these cases-- there seems to be a legal system lack of knowledge of how computers operate. At some point the courts will get smarter and these cases will be considered bad decisions, but for now they are good.

There also is one additional thought that wasn't considered, sometimes folks buy used computers and the previous owners may not have cleaned or reformatted the hard drive/s using DOD or NSA overwrite standards.

There may have been something left over from a prior owner but there was no mention that this was even thought of.