Viewing Child Pornography on the Internet Is Now Legal in New York [For Real]

January 5, 2015 by David S. Seltzer

As someone who stands accused of violating federal or Florida sex crime laws for viewing or possessing child pornography – or as a friend or family member of someone who stands accused – you may be appalled and terrified by the potential punishments for the alleged offense. Penalties can include massive amounts of jail time as well as destruction of your personal reputation, fines and fees, and inclusion in sex offender registries.

A new ruling out of the New York Court of Appeals offers those accused (at least in New York state) a legal mechanism to avoid these awful punishments. Senior Judge, Carmen Ciparick, writing for majority, declared that: “The purposeful viewing of child pornography on the Internet is now legal in New York.” Judge Ciparick had been weighing in on the case of James D. Kent, a teacher at Marist College arrested in 2009 for possessing 100+ child pornographic images on his computer in the cache of his browser.

Professor Kent denied having intentionally downloaded those images; he brought his computer into a store when it began running slowly, due to what he believed had been “viruses.” Judge Ciparick and her colleagues in majority tried to determine whether the pornographic images downloaded to the browser’s cache indicated intent to “possess” said images. She wrote, “Merely viewing web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our penal law.”

Federal law doesn’t explicitly discuss browser caches. In the past, prosecutors have generally been unable to use just that browser cache evidence to procure convictions. Although it is illegal in New York (and in Florida) to “create, possess, distribute, or promote or facilitate child pornography,” Ciparick noted that “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… to hold otherwise, would extend the reach of [New York law] to areas that our legislature has not deemed criminal."

The general point is this: defendants who are innocent of serious computer crimes may be able to develop stiff and robust defenses. To facilitate your defense, contact the experienced federal sex crime defense attorneys here at Seltzer, PA at 1-888-THE-DEFENSE (1-888-843-3333) for a free consultation.