Viewing child porn not necessarily possession, court rules

ALBANY, New York Tue May 8, 2012 8:52pm EDT

ALBANY, New York (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.

In 2007, Kent asked information technology staff at Marist to look at his computer because it was not working properly. A college employee discovered numerous photos and videos of young children, some of them nude. The school turned the computer over to police.

A forensic investigator found more than 30,000 additional files in Kent's computer's cache.

In his defense, Kent said he had used the images as part of his research into child pornography. He further argued he had never been in possession of many of the files because they were not saved to his computer.

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.

(Editing by Daniel Trotta and Philip Barbara)

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