USA: Court says just viewing child porn is not a crime

What is our world coming to? Why do we make such excuses for appalling behavior? Too many people are getting off the hook for behavior they know is unacceptable. We make the laws too light and give loopholes that are too easy for people to jump through.

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[2 July 2007] - A US court has said the existence of child pornography images in the cache of a man's computer did not mean that man had committed a crime under state law. The Court of Appeals in Georgia has reversed the man's conviction.

A forensic computer analyst for the US Secret Service had testified in court that Edward Ray Barton's laptop computer had been used to view 106 images of child pornography on the internet.

Barton was convicted on 106 counts of the sexual exploitation of children and jailed. Under appeal, though, three judges in the state of Georgia ruled that Barton did not break the law, which says that a person must have knowing possession of the images.

The images were stored on the hard drive of the computer, but only in the cache, a local store of files accessed on the internet designed to speed up browsing. Those images are not readily accessible without special software which he did not have, said the Secret Service expert.

Knowing possession

The court said this could not count as a knowing possession of the files and that there was no evidence that Barton had consciously saved the files for later use.

Judge Yvette Miller said other cases had debated whether or not files had to be consciously saved in order for a crime to be committed.

"None of those decisions, however, found that a defendant may be convicted of possessing child pornography stored in his computer's temporary internet file folders, also known as cache files, absent some evidence that the defendant was aware those files existed," said Judge Miller in the court's opinion. She said in order to convict, the state had to show that a defendant took some action to save or download images, or that the defendant knew that the computer automatically saved files.

"There was no way that Barton could have learned of the cache files in the normal course of using his computer," said Judge Miller. "Nor did the state present any circumstantial evidence that would have allowed the jury to infer Barton's knowledge of these files, i.e. they did not show that Barton was an experienced or sophisticated computer user who would have been aware of this automatic storage process."

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