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http://www.reuters.com/article/2012/05/09/us-usa-pornography-idUSBRE84801220120509
Viewing child porn not necessarily possession, court rules
By Daniel Weissner
May 8, 2012

(Reuters) - Viewing child pornography on the Internet without taking further action such as printing or saving files does not necessarily constitute possession, New York's top court ruled on Tuesday.

The ruling by the Court of Appeals dismissed two of the 143 counts of possession of child pornography for which James Kent, a former professor at Marist College, was convicted in 2009.

When a Web page is viewed, a copy of the page is stored in a computer's "cache," which allows that page to load more quickly on future visits. The court found that while Kent had saved some of the files in question, he had only viewed others and was not aware of his computer's cache function.

To "possess" cached images, "the defendant's conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving," Judge Carmen Ciparick wrote for the court.

Prosecutors must show, "at a minimum, that the defendant was aware of the presence of those items in the cache," Ciparick said.
 ::snipping2::
Kent was convicted after a non-jury trial of 143 counts of possession and sentenced to one to three years in prison.

Attorney Nathan Dershowitz, who represented Kent on appeal, said Tuesday the issue was a prime example of the inapplicability of laws that predate the digital age to cases involving the use of computers.

Kent's case was sent back to Dutchess County Court for resentencing.

New York Gov. Andrew Cuomo unveils an anti-child pornography initiative while serving as Attorney General (AP/Bebeto …In a controversial decision that is already sparking debate around the country, the New York Court of Appeals ruled on Tuesday that viewing child pornography online is not a crime.
 
"The purposeful viewing of child pornography on the internet is now legal in New York," Senior Judge Carmen Beauchamp Ciparick wrote in a majority decision for the court.
 
The decision came after Marist College professor James D. Kent was sentenced to prison in August 2009 after more than 100 images of child pornography were found on his computer's cache.
Whenever someone views an image online, a copy of the image's data is saved in the computer's memory cache.
 
The ruling attempts to distinguish between individuals who see an image of child pornography online versus those who actively download and store such images, MSNBC reports. And in this case, it was ruled that a computer's image cache is not the same as actively choosing to download and save an image.
 
"Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law," Ciparick wrote in the decision.
 
See a copy of the court's full ruling on the child pornography decision.
 
The court said it must be up to the legislature, not the courts, to determine what the appropriate response should be to those viewing images of child pornography without actually storing them. Currently, New York's legislature has no laws deeming such action criminal.   ::snipping2::

http://news.yahoo.com/blogs/sideshow/viewing-child-pornography-not-crime-according-york-court-165025919.html

There was already a thread started for this.  When I merge them, all posts will go to the thread started first, by default.  MB