HomeFairfax General ForumArrest/Ticket SearchWiki newPictures/VideosChatArticlesLinksAbout
Off-Topic :  Fairfax Underground fairfax underground logo
Welcome to Fairfax Underground, a project site designed to improve communication among residents of Fairfax County, VA. Feel free to post anything Northern Virginia residents would find interesting.
"the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: JBass ()
Date: May 09, 2012 04:53PM

You saw it here first, folks. You can not be in possession of an image hosted on a webpage.

http://usnews.msnbc.msn.com/_news/2012/05/08/11602955-viewing-child-porn-on-the-web-legal-in-new-york-state-appeals-court-finds?lite

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: eesh ()
Date: May 09, 2012 04:56PM

JBass' C: drive just got a little safer from the police today.

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: Vexxxed ()
Date: May 09, 2012 04:58PM

eesh Wrote:
-------------------------------------------------------
> JBass' C: drive just got a little safer from the
> police today.


C: drive?

Wait a minute..........isn't that the "JBass little black book"?

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: JBass ()
Date: May 09, 2012 05:00PM

eesh Wrote:
-------------------------------------------------------
> JBass' C: drive just got a little safer from the
> police today.


I was expecting something, I dont know, better from you about this. When you dont put in the effort, it just cheapens whatever this is we have.

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: eesh ()
Date: May 09, 2012 05:00PM

Vexxxed Wrote:
-------------------------------------------------------

> C: drive?
>
> Wait a minute..........isn't that the "JBass
> little black book"?





It's where he keeps what he calls "the butt tail."

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: makes sense ()
Date: May 09, 2012 05:38PM

I think this ruling makes total sense. Forget the inflammatory subject of the ruling, instead think in more generic terms. Note that the Subject of this message thread does not accurately reflect what the judge ruled.

-------

You click on a link on a message board to a web page, maybe one of those "shortened" links that get you "Rick Rolled" usually, and you end up somewhere you never wanted to go.

Are you "guilty" of going to that web page and "downloading" whatever is on that web page because your browser instantiated the HTML code on that page?

See a recent eesh thread that contains bizarro S&M images right in the first message of the thread. Did you PURPOSEFULLY download and store those images on your computer; I know =I= didn't!

-------

Okay, now think in terms of illegal content - porn, state secrets, whatever.

You are walking down the street and see a magazine laying on the side of the road - looks like someone threw it out of a car window. You pick it up, open it, and it's got illegal porn inside. Are you now guilty of possession of illegal porn?

[this actually happened with one of my fellow students back in high school when "illegal porn" meant anything that displayed naked women's genitals (Playboy Magazine back then did not show, for example, any pubic regions at all)]

-------

Let's take it one step further. You purposefully visit a "legal" porn site (standard sex stuff, notations to the effect that all models were at least 18 years old and records have so been kept, etc etc etc). You click on one of the site's "friends" links. Same thing. You do it again, and again, and again, each time just viewing the resulting page and randomly clicking a link to another site from that site. One of the sites has been hacked. You click on a link and you are now viewing Russian porn that sure looks illegal to you. You close that page or hit "Back" or whatever to get away from it. Are you "guilty" of downloading illegal porn?

-------

The judge said "If you do the above, you cannot be found to have purposefully "downloaded" illegal content. If you PURPOSEFULLY download and EXPLICITLY store illegal content that's another thing."

I can live with that ruling.

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: bad ruling ()
Date: May 09, 2012 06:39PM

makes sense Wrote:
-------------------------------------------------------
> Note that the Subject of this message thread does not accurately reflect
> what the judge ruled.

The subject line of this thread is accurate.

Per Judge Graffeo's concurring opinion (from which the subject line is taken verbatim):

Quote:

The majority holds that it is legal in New York to knowingly access and view child pornography on the internet...

The result of the majority's analysis is that the purposeful viewing of child pornography on the internet is now legal in New York.

A person can view hundreds of these images, or watch hours of real-time videos of children subjected to sexual encounters, and as long as those images are not downloaded, printed or further distributed, such conduct is not proscribed...

[The majority] explicitly legalizes the acquisition and viewing of child pornography over the internet even when that activity is clearly intentional.

End of quote (emphasis in original, which may be found here).


> You click on a link on a message board to a web
> page, maybe one of those "shortened" links that
> get you "Rick Rolled" usually, and you end up
> somewhere you never wanted to go.
>
> Are you "guilty" of going to that web page and
> "downloading" whatever is on that web page because
> your browser instantiated the HTML code on that
> page?
>
> See a recent eesh thread that contains bizarro S&M
> images right in the first message of the thread.
> Did you PURPOSEFULLY download and store those
> images on your computer; I know =I= didn't!

Graffeo's concurrence discusses the issue of accidental or inadvertent accessing of child porn while browsing the web (aka "the eesh trap"):

Quote:

If the majority's concern in adopting the limited scope of 'possession or control' is to prevent the prosecution of individuals who inadvertently or unintentionally access such images on their computers, then it is misplaced.

I certainly share the concern -- and there is no question that the Legislature did not intend that persons who view such material accidentally be prosecuted. [However, it is not] necessary to adopt the majority's ... interpretation ... to ensure that such conduct is not criminalized...

[Evidence] [t]hat images were intentionally [rather than inadvertently or accidently] accessed can be inferred in any number of ways, such as evidence establishing the number of items viewed on certain occasions, the frequency with which such images were viewed, whether other images have been saved and the length of time spent browsing for child pornography.

This analysis regarding the consistency and quantity of viewings will shield the inadvertent viewer of child pornography from prosecution.

The more times a person accesses and views pornographic images of children, the less likely it is that the behavior was innocent or inadvertent.

And, of course, the number of persons who have access to a certain computer and the availability of passwords or other personal information are also relevant inquiries.

End of quote.


> Okay, now think in terms of illegal content -
> porn, state secrets, whatever.
>
> You are walking down the street and see a magazine
> laying on the side of the road - looks like
> someone threw it out of a car window. You pick it
> up, open it, and it's got illegal porn inside. Are
> you now guilty of possession of illegal porn?

This hypothetical has nothing to do with the issues in this case, which turn narrowly and specifically on the viewing of child porn via the internet.


> Let's take it one step further. You purposefully
> visit a "legal" porn site (standard sex stuff,
> notations to the effect that all models were at
> least 18 years old and records have so been kept,
> etc etc etc). You click on one of the site's
> "friends" links. Same thing. You do it again, and
> again, and again, each time just viewing the
> resulting page and randomly clicking a link to
> another site from that site. One of the sites has
> been hacked. You click on a link and you are now
> viewing Russian porn that sure looks illegal to
> you. You close that page or hit "Back" or whatever
> to get away from it. Are you "guilty" of
> downloading illegal porn?

Under a sound reading of the NY statute, as proposed by Judge Graffeo, such inadvertant or accidental viewing would not be criminal -- it would not violate the statute.


> The judge said "If you do the above, you cannot be
> found to have purposefully "downloaded" illegal
> content. If you PURPOSEFULLY download and
> EXPLICITLY store illegal content that's another
> thing."
>
> I can live with that ruling.

Again, as stated by Judge Graffeo, the problem with the majority ruling is that:

Quote:

[P]urposeful viewing of child pornography on the internet is now legal in New York. A person can view hundreds of these images, or watch hours of real-time videos of children subjected to sexual encounters, and as long as those images are not downloaded, printed or further distributed, such conduct is not proscribed...

[The majority] explicitly legalizes the acquisition and viewing of child pornography over the internet even when that activity is clearly intentional.

End quote.


To summarize: It's a bad ruling, which turns on a tortured reading of the NY statute.

The NY legislature is already moving to address it, with plans to introduce a bill "that would prohibit 'knowingly accessing' child pornography 'with intent to view.'" http://www.courant.com/news/politics/sns-rt-us-usa-pornogrpahybre8481cq-20120509,0,1747568.story



eesh trap?? Click to find out: file.php?40,file=48290,filename=milf.jpg

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: Officer Friendly ()
Date: May 09, 2012 07:11PM

makes sense Wrote:
-------------------------------------------------------
> You are walking down the street and see a magazine
> laying on the side of the road - looks like
> someone threw it out of a car window. You pick it
> up, open it, and it's got illegal porn inside. Are
> you now guilty of possession of illegal porn?

Oh, so you just happened to be walking down the street where you just happened to pick up a magazine which just happened to contain illegal porn which you just happened to tuck inside your jacket and just happened to bolt the door to your room as you just happened to study that magazine like no magazine you'd ever seen before and just happened to relieve the peculiar sense of tension the pages of that magazine triggered in you by just happening to - well, you get the picture.

Guilty of possession of illegal porn?

Heaven forfend. You're obviously as innocent as a newborn babe.

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: makes sense ()
Date: May 09, 2012 07:27PM

Officer Friendly Wrote:
-------------------------------------------------------
> ...[not sure what...some sort of bizarre diatribe]...

That was an actual event that took place...uh...back in the 60s I think. A student walking on the way to school literally picked up a magazine that contained full-frontal images of adult females - quite illegal at the time in, at least, that county (not Virginia). Was that student guilty of illegal possession of pornography at that moment?

[unfortunately, I never picked up a magazine with porn images inside while traversing that same road though MORE than once I picked up paperback books with textual porn inside. In hindsight I'd now guess that somewhere along that road (or near to it) was a store selling porn either above or under the counter]

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: makes sense ()
Date: May 09, 2012 07:33PM

bad ruling Wrote:
-------------------------------------------------------
> ...The NY legislature is already moving to address
> it, with plans to introduce a bill "that would
> prohibit 'knowingly accessing' child pornography
> 'with intent to view.'"

Oh, okay, the ruling was, as with many such rulings, specifically addressing the lack of prohibition of "viewing" in the actual law. The judge you cite even goes on to cover inadvertent viewing but fails to acknowledge that THIS ruling can't be activist and make such distinctions.

I can live with the ruling and believe it is correct. I also easily can live with an appropriately-worded new set of words in the law that cover "inadvertent" and "on purpose".

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: bad ruling ()
Date: May 09, 2012 08:53PM

makes sense Wrote:
-------------------------------------------------------
> Oh, okay, the ruling was, as with many such
> rulings, specifically addressing the lack of
> prohibition of "viewing" in the actual law. The
> judge you cite even goes on to cover inadvertent
> viewing but fails to acknowledge that THIS ruling
> can't be activist and make such distinctions.

Both opinions rely on what I think is a good-faith attempt to properly interpret the text of the statute, that is to say, both opinions are within the textualist school of statutory interpretation.

Most of the concurring opinion I cited turns on the meaning of the word "control." In my opinion, Judge Graffeo makes a very strong case that the majority reads that word in an overly narrow fashion (e.g., "the use of the term 'control' in the statute can reasonably be interpreted to cover precisely what the majority says it does not -- consciously acquiring and viewing child pornography on the internet," p. 28).

Graffeo's inadvertance analysis (pp. 28-29) turns on his interpretation of the word "knowing," the mens rea (criminal intent) element of the statute. Again, he offers a common-sense textualist interpretation of the word: innocent or inadvertent behavior is not knowing behavior, and therefore such behavior is outside the scope of criminal activity targeted by the statute.

Even though I disagree with the majority opinion, I don't think either the majority or concurring opinion can fairly be characterized as "activist."

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: makes sense ()
Date: May 09, 2012 09:15PM

bad ruling Wrote:
-------------------------------------------------------
> Even though I disagree with the majority opinion,
> I don't think either the majority or concurring
> opinion can fairly be characterized as "activist."

No, just the opposite - the judge cited is suggesting an activist approach while the majority opinion is saying "According to the law as written..." and the legislature is saying "Oh, yeah, we see the problem. Okay we're going to change the law to include purposeful viewing as opposed to only explicit downloading".

Options: ReplyQuote
Re: "the purposeful viewing of child pornography on the internet is now legal in New York," - Judge Victoria A. Graffeo
Posted by: eesh ()
Date: May 09, 2012 09:19PM

What bizarre S&M picture did I post that seems to have offended chuckhoffmann?

Blessed are the murderous.

Options: ReplyQuote


Your Name: 
Your Email (Optional): 
Subject: 
Attach a file
  • No file can be larger than 75 MB
  • All files together cannot be larger than 300 MB
  • 30 more file(s) can be attached to this message
Spam prevention:
Please, enter the code that you see below in the input field. This is for blocking bots that try to post this form automatically.
 **      **  ********   **        **    **  **     ** 
 **  **  **  **     **  **        **   **    **   **  
 **  **  **  **     **  **        **  **      ** **   
 **  **  **  **     **  **        *****        ***    
 **  **  **  **     **  **        **  **      ** **   
 **  **  **  **     **  **        **   **    **   **  
  ***  ***   ********   ********  **    **  **     ** 
This forum powered by Phorum.