New York Court: Viewing Online Child Porn Is Legal
By Alex Fitzpatrick
Viewing pornographic images or video of underage children on the Internet is legal, according to aNew York State appeals court in one part of a decision about the fate of a college professor whoseInternet browser had more than 100 such images stored in its cache.
The court's decision found that looking at child pornography on the Internet without downloading it to a hard drive isn't the same as "possessing" it, which New York State law prohibits.
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"Merely viewing web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law," Senior Judge Carmen Beauchamp Ciparick wrote in his majority opinion. "Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen."
The prosecution in the case, wrote Ciparick, failed to prove that Kent was aware of the existence of a web cache, making it impossible for him to have knowingly downloaded -- and therefore possessed -- the child pornography to his browser's cache.
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Professor James D. Kent, an assistant professor at Marist College in Poughkeepsie, N.Y., was given a one-to-three year sentence for possession of child pornography in 2009.
Kent took his computer to a student IT specialist for a virus scan after complaining that it was running slowly. The scan detected the pornographic material in Kent's web browser. He maintains that somebody else used his computer to view the material.
The court dismissed one of two counts of promoting a sexual performance of a child and two of the 143 counts of possessing child pornography with which Kent was originally charged. It upheld the other counts, which were tied to a folder on Kent's machine filled with thousands of images of child pornography.
Nathan Z. Dershowitz, Kent's lawyer, told msnbc.com that the real problem in the case is "legislation is not keeping up with technology," as the court system serves only as an umpire applying the rules as passed by lawmakers.
All judges in the case expressed intense disapproval of child pornography.
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