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:
