Has anyone prosecuted for possession of child pornography based upon the presence of images in a defendant's temporary internet file? The issue is this: assume a defendant is just looking at child porn on the internet. He is not affirmatively downloading anything. However, as we all know, when you look at anything on the internet, the website you're looking at deposits an image, usually a thumbnail, on your "browser cache"/temporary internet file. In our case, our defendant has specifically "googled" for illegal child porn and has admitted that he knows that when he views an image online, or clicks on it, that the image is stored on his hard drive in his temporary internet file. Again, he is not actually downloading anything. We have recovered numerous clearly illegal images. This issue has been addressed by several federal circuit courts of appeal with the vast majority holding that having these images on your hard drive as a result of viewing the images online and knowing that the images are being deposited on your computer constitutes possession of child porn under the federal statute (United States v. Tucker being the lead case). They have dodged the issue of whether simply viewing the images without anything being downloaded on to your computer or simply not knowing that the images are being downloaded constitutes possession of the images. I have found no Texas cases on this issue, but am continuing to look. Anyone know of any caselaw that says that a defendant can be prosecuted for images in his temporary internet file under the Texas child porn statute? I would appreciate any help.
Our illustrious vice investigator had this to say, and I have to agree with his logic:
"He is in possession of the material when it is displayed on the screen. He has taken control of the method to display data, which makes meaningful possession (care, custody, control). He controls the fact that it's displayed, how long it's displayed, the purposes for which it's displayed, and has demonstrated intent to display that particular type of material (with the search engine stuff they talk about). Doesn't matter whether it EVER goes onto his hard drive; he's in possession of it when he's viewing it."
Good luck on your case!
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
Shane, for our view of that issue, give Robert McCabe a call at our office. We recently did extensive research while trying a case on just that issue. Here's a hint: ended in a negotiated guilty plea.
we recently tried a case with the same issue. It came down to "possession" vs. "viewing." I could not find any Texas cases on the topic. You are correct that the leading federal case is Tucker (one and two). There is a great law journal article written on this topic entitled "Don't Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files" by Ty E. Howard - 2004 Berkeley Technology Law Journal. Our jury got caught-up in whether the defendant exercised any care, custody, control, or management over the images just by viewing thumbnails and clicking on them to enlarge them. We argued that by clicking on 3 of the images, the defendant exercised control. However, the defense had the jury freaked-out that the images could have popped-up on their own (although our expert testified that there was no evidence of this) and that although the defendant was looking for porn, he was not looking for child porn and that there were child porn images intermixed with the adult porn images that popped-up on their own. VERY tough to make this type of case if all you have is "viewing" and no manipulation of the image or retention of it. Feel free to contact me for any help.
Posts: 1 | Location: Georgetown, Texas, USA | Registered: January 05, 2005
quote:Originally posted by AlexLayman: So what if your computer has some sort of spyware / malware that automatically resets your homepage to a pornographic web site?
I'd say no voluntary act of care custody or control, therefore no crime.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Also, in further response to Alex, no crime committed since there would be no proof that the defendant intentionally or knowingly possessed the child pornography.
Posts: 1029 | Location: Fort Worth, TX | Registered: June 25, 2001
Thanks for your response. In my research, I ran across the law review article that you mentioned and found it to be very helpful. Thanks also for sharing your experience in trying one of these. I expect that trying one of these will be more difficult than a case in which the defendant affirmatively downloaded child porn. In our case, however, our guy admits to actually surfing the net for illegal child porn and to clicking on the images in question to better view them. He told the police that he did not download anything because he saw on television that you can be prosecuted for actually downloading the illegal porn as opposed to simply viewing it. My boss and I have somewhat differing opinions on what actuall y constitutes the possession. He has no problem at all with the idea the when you are viewing the image on your computer, having clicked on it, you are in care, custody, control, etc. of the image and so "possess" it. The fact that the image is on your hard drive in your temporary internet file is evidence of your possession. I think this is a valid approach. The law review article you mentioned makes a distinction between "present possession" and "evidence of" cases, meaning that you can prosecute alleging that the viewing itself is the possession or that knowing that the image is being deposited on your hard drive is the possession. The courts that have addressed this issue (Tucker I and II) seem to have no problem with the concept of "present possession" when the defendant has admitted that he knows that when viewing the images that the images are deposited on his computer. We're still looking at the issue but are leaning toward filing on this guy. He has a history of indecent exposure arrests and we believe we are dealing with someone capable of acting on his perversion. Thanks again for the help and let me know if you have any other suggestions.
Sort of like proving possession of a controlled substance through a positive urine test. Pretty good proof that at some point in recent history the defendant had some drugs.
NCMEC in Alexandria, VA. Everything you ever wanted to know about child porn, but were afraid to ask. They have a huge staff who are all up to the minute on every aspect of child porn: technology, caselaw in every state, etc.
1-800-843-5678. Might start by asking for Dan Armagh, Director of Legal Education. Don't know if he is still there; I last spoke with him in 2003.
