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Viewing CP but not saving is still posession in Pennsylvania

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(@Anonymous)
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http//www.law.com/jsp/article.jsp?id=1187859734533

The Pennsylvania Superior Court isn't buying the argument that a man who viewed child pornography on his computer, but didn't save the images, couldn't be charged with possession of child pornography.

A 7-2 en banc Superior Court panel in Commonwealth v. Diodoro reversed a prior three-judge panel that found there was not sufficient evidence to show Anthony Diodoro downloaded or saved the images of child pornography he viewed.

In the latest majority opinion, Judge Correale F. Stevens said §6312(d) of the Crimes and Offenses Code, which prohibits the possession of child pornography, clearly states that anyone who "possesses or controls" child pornography is guilty of a third-degree felony.

Diodoro, who freely admits that he viewed at least 30 images of child pornography, argued that he never possessed them.

"[Diodoro's] actions of operating the computer mouse, locating the Web sites, opening the sites, displaying the images on his computer screen, and then closing the sites were affirmative steps and corroborated his interest and intent to exercise influence over, and, thereby, control over the child pornography," Stevens said.

 
Posted : 27/08/2007 10:48 pm
(@toddtvc)
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I had a similar case here in Michigan, although the defendant did not appeal the judges decision. His attorney made a motion prior to trial stating that viewing images on a website is not possession. The judge ruled that it is considered "Electronic Possession" and the defendant was convicted at trial.

 
Posted : 28/08/2007 1:38 am
packys
(@packys)
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Unfortunately, not all of the jurisdictions are in agreement.
I just read the latest KrollOntrack newsletter in which it mentions the Georgia appeals court overturning a conviction for the very same reason!
http//www.krollontrack.com/newsletters/cybercrime/aug07.html

Lawmakers REALLY need to review the wording of their laws in order to close some of these loopholes. Otherwise, the laws are doing nothing to protect the real victims in these cases; the children. If the laws were all written adequately, it would at least be the first step in deterrence.

 
Posted : 29/08/2007 1:30 am
(@wyrmzr)
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One of the big problems here is how you define whether data was "saved".
Web browsers, Usenet readers, etc. save a temporary copy of the image on your hard drive, so even if you didn't intentionally save it, the program you're using may have done that for you.
Now, if someone can actually use the defense "I didn't save it, the program did", then we've got a REAL problem with the law.

 
Posted : 25/09/2007 9:21 am
(@jdement)
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While not trying to play devils advocate, and not knowing the full circumstances of the case, one might also consider the legal concept of 'the reasonable man'.

If the suspect accidentally viewed an image (or was unaware of its nature), but did not save it, then a history of acceptable behavior may be called into light as defense. Consider the recent release of 'racy' pictures of child star Vanessa Hudgens, who is only 18 years old. If you view those images and they happen to have been taken when she was 17, does that mean you were viewing CP? Most laws would indicate yes.

While it is only my opinion, I believe it would be the investigator and prosecutors responsibility to determine the intent based on the evidence.

 
Posted : 08/02/2008 9:55 pm
(@walkabout_fr)
Posts: 67
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One of the big problems here is how you define whether data was "saved".
Web browsers, Usenet readers, etc. save a temporary copy of the image on your hard drive, so even if you didn't intentionally save it, the program you're using may have done that for you.
Now, if someone can actually use the defense "I didn't save it, the program did", then we've got a REAL problem with the law.

Interesting as we had the same situation in France a couple of years ago.

At that time, french law only incriminated CP posession. Some CP viewers were prosecuted for posession, based on the fact that several thousand pictures had been found on their computer, in Temporary Internet Files. However, the offender was acquitted by the court which ruled that posession had to be voluntary, ie the storage of the pictures must have come from the will of the offender to keep and access these pictures. This meant that pictures appearing in the TIF could not be considered as being "posessed" by the offender, they were just a technical consequence of their viewing, without any intent from the offender.

Parliament eventually created a new crime of "consultation habituelle" (regular viewing) which is punished the same way as posession.

French law is very different from common law systems, but I believe our reasoning could be applied to your case. A crime exists only if there is a criminal intent. Most of the time, the viewer will not have the intent to "posess" the material, only to "use" it. If the only existing crime is "posession", I believe it shouldn't be applied for simple viewing.

 
Posted : 08/02/2008 10:31 pm
(@lemmyrocks)
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I found this thread quite interesting. I am aware that the defence has been used a number of times of people "accidently" coming across (bad choice of words I know) CP. When I first got access to the internet given the publicity surrounding the net and its associations with porn I will admit I looked at porn sites out of curiosity (and research, my excuse and I am sticking to it) but never "accidently" or otherwise accessed CP. Maybe thats luck I don't have a definitive answer. Apparently ISP's and search engines now are building in some sort of block to make accessing such material more difficult by sending error codes etc making these sites unviewable. Wasn't there also a sting operated by the FBI who set up a CP site in order to trace offenders through their credit card details, surely they should have been convicted for peddling this muck. Wasn't it they who coined the phrase that everytime an image of a child was accessed that child was abused again?

 
Posted : 23/02/2009 6:17 pm
(@larrydaniel)
Posts: 229
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There are a lot of problems with current and pending legislation regarding child porn. The phrase LemmyRocks is referring is part of the Adam Walsh Child Protection and Safety Act.

There is a big difference between someone who has a couple of CP images in their internet cache and someone who has a collection of hundreds of images.

However, the penalties are about the same.

I think intent should be a big factor in determining guilt. The problem today is that if someone else views child porn on your computer and you cannot prove it wasn't you, you go to prison.

The purpose of the laws should be to stop child pornographers. Not to imprison someone who hits a CP site by accident. But with the current wording of much of the legislation comeing out, that will get you sent to prison just as fast as a dedicated collector.

There has to be some reason in this somewhere.

 
Posted : 01/03/2009 12:13 pm
(@dficsi)
Posts: 283
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The problem today is that if someone else views child porn on your computer and you cannot prove it wasn't you, you go to prison.

This is quite incredible. Surely the burden of proof lies with the prosecutor and not with the defendant. Why should I be a scapegoat for someone else's actions?

We have quite a disturbing law here too with speed cameras. If someone is driving my car and gets tagged by a speed camera I have to divulge who was driving at the time. If I don't recall who it was I get the ticket by default.

In both of these instances I could be punished for something that I didn't do. Apparently this is justice.

 
Posted : 01/03/2009 2:22 pm
(@trewmte)
Posts: 1877
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I thought the issue of possession and control were argued about right in the OP's posting.

It is just my view but I also think that possession and control are incomplete statements. I think the limbs of evidence should be clearly stated.

a) Obtaining
b) Possession
c) Control

 
Posted : 01/03/2009 3:31 pm
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