An appeals judge has just ruled that it’s legal to view child pornography online in New York, and the internet is blowing up. James D. Kent, an assistant prof at a college in upstate New York, was convicted after his “work computer was found to have stored more than a hundred illegal images its Web cache,” MSNBC reports. Kent claims he didn’t know they were there, someone must have duped him, they were for research, etc. Yet the appeals court found that images sticking around in your cache are different than images you purposefully save or keep in a drawer or otherwise “own.”And that’s the crucial distinction in this case. Senior Judge Carmen Beauchamp Ciparick wrote the majority decision:Merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our Penal Law … Rather, 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," Ciparick wrote. "To hold otherwise, would extend the reach of (state law) to conduct – viewing – that our Legislature has not deemed criminal.Obviously, child pornography is pretty much the worst thing in the world. Anyone who circulates child porn or profits off of it or otherwise propagates its existence should be removed from society, ASAP. But the legal issue is a complex one, and begs some consideration beyond exclaiming the ruling “a singular outrage,” as Patrick Trueman, President of Morality in Media, did. Fox News, too, will undoubtedly have a field day.But this is not singular. Other courts — Georgia, Oregon and Alaska’s — have reached the same conclusion as New York. Why? Because the laws are all calibrated to the pre-internet era, where it was required that one have “possession” of the pornographic materials in order to be punished. That made sense. There were no child porn libraries or exhibits where perverts would go to idly browsing.Today, the vast, vast majority of child porn trafficking happens online, and child porn consumers can find images without ever downloading them to a hard drive or printing them out. (The appellate justices made their ruling according to the law as it stands, not because they want to cut child pornographers a break — the court upheld numerous charges against Kent, it should be noted, and only overturned two.)That’s why, in 2008, Congress (as usual, a decade behind the curve) moved to adapt the pornography laws to better suit the online world. Now, according to federal law, it’s illegal to “knowingly access” child porn online, which makes the cache issue moot. You click, you’re guilty.But this raises other questions. Also around that time, the FBI began using the newly amended law to try to ensnare child porn connoisseurs. They’d troll discussion boards thought to be frequented by child porn purveyors, offer up a link that promised to show underage children in sexual situations, and then kick down the door of anyone who clicked on it. Or rather, they’d track down their IP, get a subpoena, and then kick down the door. Entrapment, anyone? Guess not: the tactic held up in court. Here’s CNET:While it might seem that merely clicking on a link wouldn’t be enough to justify a search warrant, courts have ruled otherwise. On March 6, U.S. District Judge Roger Hunt in Nevada agreed with a magistrate judge that the hyperlink-sting operation constituted sufficient probable cause to justify giving the FBI its search warrant.There have been convictions on charges constructed solely around the act of clicking on a hyperlink. Now, I’d like to see the very concept of child porn wiped off the face of the earth as much as anyone, but these tactics have some disconcerting ramifications. The stings are clearly orchestrated to target serial offenders and serious criminals, and the tactics’ proponents will argue that they wouldn’t target anyone who mistakenly followed such a link-but if clicking once is all it takes to get you indicted, there’s a slippery slope ’round these parts.Yet the internet has allowed child porn to proliferate, and it has become a profitable, pernicious menace. Just a whiff of a thought of the systematic abuse to the victimized kids getting preyed upon makes me want to smash my laptop with my fist. Something must be done. But it must also be done in such a way that avoids the authoritarian tendencies exhibited elsewhere in our efforts to police the internet.After all, it is human nature to want to glance at the incomprehensible; to want to know what occupies the outer limits of depravity, to affirm why we turn away from it. The internet has made it exponentially easier to get a view of the abyss-hence the existence of rotten.com, death gifs, any number of disturbing online artifacts. I have never seen child porn online, I hope I never do, and frankly, at this point, writing this post is making me physically sick. But we’ve got to take care in how we moralize, legislate and litigate around the web’s repulsive underbelly. Because it is always only a click away.
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