A forensic computer analyst for the US Secret Service had
testified in court that Edward Ray Barton's laptop computer had
been used to view 106 images of child pornography on the
internet.
Barton was convicted on 106 counts of the sexual exploitation of
children and jailed. Under appeal, though, three judges in the
state of Georgia ruled that Barton did not break the law, which
says that a person must have knowing possession of the images.
The images were stored on the hard drive of the computer, but
only in the cache, a local store of files accessed on the internet
designed to speed up browsing. Those images are not readily
accessible without special software which he did not have, said the
Secret Service expert.
The Court said that this could not count as a knowing possession
of the files and that there was no evidence that Barton had
consciously saved the files for later use.
Judge Yvette Miller said that other cases had debated whether or
not files had to be consciously saved in order for a crime to be
committed.
"None of those decisions, however, found that a defendant may be
convicted of possessing child pornography stored in his computer's
temporary internet file folders, also known as cache files, absent
some evidence that the defendant was aware those files existed,"
said Judge Miller in the Court's opinion.
She said that in order to convict, the state had to show that a
defendant took some action to save or download images, or that the
defendant knew that the computer automatically saved files.
"There was no way that Barton could have learned of the cache
files in the normal course of using his computer," said Judge
Miller. "Nor did the state present any circumstantial evidence that
would have allowed the jury to infer Barton's knowledge of these
files, i.e. they did not show that Barton was an experienced or
sophisticated computer user who would have been aware of this
automatic storage process."
The decision will not set a precedent across the US because it
relates only to Georgia's sexual exploitation laws, although many
state laws on sexual exploitation carry similar requirements that a
prosecution be based on knowing possession.
Last year a Pennsylvania court issued an opinion similar to that
of Judge Miller. Judge Richard Klein said that a man who admitted
viewing 370 images of child pornography had not broken the law
because he had not sought to retain the images. Pennsylvania state
law also criminalises "knowing possession" of images not the
viewing of them.
"We note that it is well within the power of the Legislature to
criminalize the act of viewing child pornography on a web site
without saving the image," Judge Klein said in his opinion. "The
language used, however, is simply 'possession.' Because this is a
penal statute with an ambiguous term when it comes to computer
technology, it must be construed strictly and in favour of the
defendant."
In January of this year, however, the Superior Court of
Pennsylvania withdrew Judge Klein's opinion and said that the case
can receive a full court hearing. Judge Klein had argued that it
was wrong to convict the defendant in the case because a person had
a right to advance notice that an act was illegal and criminal.
In the UK no such ambiguity exists. The Protection of Children
Act makes it a crime to view images of child pornography
irrespective of whether or not images are saved or stored.
