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The Julie Group shares a professional interest in the area of digital and emerging technology and law. As professionals there is a rich and deep appreciation for the differences of opinion that can appear in this space. You must never assume that opinion, where it is introduced is universally shared and endorsed by all our volunteers. Nor are they necessarily the very best snapshot of a given issue.

Readers are expected to think about the issues, question everything worth discussing, and add value to the conversation by correcting what's here or broadening the understanding of the subject. This is part of the educational process between us all. Our hope is that this exercise results in better law, law enforcement, and citizen participation in forging sophisticated social understandings of the technological forces changing our lives.

Tuesday, July 10, 2007

Recent Decisions of Interest

Recently two court decisions came to the attention of the Julie Group. Both demonstrate an enlightened approach toward ruling on digital porn cases.

The first, from Pennsylvania, is linked from a site called run by an international law firm that we are not in any way affiliated with. The link entitled, Pennsylvania court says viewing child porn 'not illegal' goes on to clarify... "A US court has ruled that viewing child pornography on a website without deliberately saving it to a computer is not a crime. The judge said that the state penal code was ambiguous, so he must rule in favour of the defendant."

Anthony Diodoro, a 26-year-old from Delaware County, Pennsylvania admitted knowingly viewing 370 child-porn images online. He also admitted that he had intentionally visited the websites for the purpose of viewing child porn.

State law says that a person must have "knowing possession" of child pornography in order for it to be a crime. A panel of three judges in the Pennsylvania Superior Court concluded that Diodoro could not be convicted of knowingly possessing the images because there was no evidence that Diodoro knew that his computer was storing the images in its internet cache file.

"Because this is a penal statute with an ambiguous term when it comes to computer technology, it must be construed strictly and in favour of the defendant," wrote Judge Richard Klein.

"A defendant must have fair notice that his conduct is criminal," wrote Klein. "Because of the ambiguity, sufficient notice was not provided here. For this reason, we are constrained to reverse [a previous decision] and leave it to the Legislature to clarify the language if it intends to make the mere 'viewing' of child pornography a crime."

The article further discusses this decision.

The second case is detailed in The entry called, Appeals Panel 'Reluctantly' Tosses Child Porn Case by Alyson M. Palmer, Fulton County Daily Report discusses a case in which "Judges of the Georgia Court of Appeals last week said they must "reluctantly" issue an opinion that may make it more difficult for the state to prosecute people who look at child pornography." It goes on to give us some details.

A three-judge panel on June 21 reversed the conviction of a North Georgia man on 106 counts of sexual exploitation of children because, the judges found, prosecutors didn't prove that the man knew he had pornographic images stored in his computer hard drive.

In what it said was an issue of first impression in Georgia, the panel of Judge M. Yvette Miller, Chief Judge Anne Elizabeth Barnes and Presiding Judge J.D. Smith narrowly construed what it means to "knowingly" possess child pornography under the state's sexual exploitation law. It's not enough, wrote Miller for the panel, to prove a defendant has pornographic images in the inaccessible cache files of his computer.

The district attorney whose office prosecuted the case, Herbert E. Franklin Jr. of Walker County, said the ruling will make his job harder.

"With the computer savvy folks out there ... it's going to limit our ability to prosecute, I would think," he said.

But the lawyer who won the appeal, Daniel J. Ripper, of Luther-Anderson in Chattanooga, Tenn., said the opinion just gives prosecutors a roadmap for handling child pornography cases. "This is a case that says, 'Here are the facts that you need,'" said Ripper, a member of the State Bar of Georgia who said about half of his work is in Georgia.

In fact, the Julie Group is finding a disturbing number of nationwide prosecutions that are based on pornographic images stored on a person's computer. The unlikely suspects are teachers, police, teens, and others who find themselves fighting for their lives and, in some cases, bankrupting their resources to prove that they were unaware of the computer activity.

Courts are wise to require clarity in the law where it may be ambiguous. Imprecise criminal statutes can lead to conviction by opinion rather than conviction under the law and can ensnare the innocent as well as the guilty. Innocent people are routinely subjected to automations whose sole purpose is to control content on that person's machine with benign (blind?) disregard for the consequences. The authorities too often assume the automations are invited or actively engaged or are unaware of the phenomenon altogether. Instead of tracing the pornography to its source, it is raced to its destinations - often unsolicited destinations.

And laws that make no distinction between motive to possess such material and mere coincidental possession, entrap people who happen to use the internet. Everybody and anybody accused then becomes a target of the state to prove their immoral fitness to fit the crime.

Judges, courts, and juries who demand and honor the concept of innocent until proven guilty beyond a reasonable doubt are not promoting child pornography, violence, or immoral behaviors. They simply assert that innocent citizens are not criminals for co-incidental and the unsolicited, automated behaviors of computers in their charge. This is often referred to as justice.

- krasicki/js


Anonymous said...

This is less an "enlightened approach" and more a pair of decisions that hinge on interpretive technical nuances.

Laws need to be drafted with a recognition to reflect specific nuances of technology and to explicitly cover specific issues.

The simple fact of the matter is that the concept of possession, which seems painfully obvious in most cases when involving physical objects, can - and I emphasize can - become a rather grey area with digital media.

This is an area of technology in which both the courts and law enforcement need to realize that locating questionable files on a user's computer is really just the initial step in establishing a case of active possession, not the final result.


Donna Davis said...

While this man admitted to having viewed Child Porn, my son has not, yet he is being prosecuted on 99 counts of child pornography that he had no idea were "supposedly" on his computer. While we do not have any money, we are at the mercy of a public defender, who already believes the case is a lost cause. So, my son, innocent, has never hurt a child and has been a fantastic single father for the past 8 years, is now facing life in prison for crimes he did not committ, How insane is this?

Anonymous said...

My husband is $50,000 in debt defending himself against charges of looking at porn while at school. He's a teacher. He was proved innocent, but now we are trying to re-coup the money we spent. This incident happened in April of 2003. He was finally cleared of all charges in August 2007. Such a nightmare. My thoughts are with you and your son. Don't give up.