I agree with CES and FBM. Technically, if you click on a link and child porn pops up you've "downloaded" that image because it was sent from the server to your computer. Or, if a piece of junk email contains a child porn attachment, merely by downloading your email you are "downloading and saving" the contraband.
This obviously means that innocent persons can technically be charged with possession of child porn even though they didn't even know it was on their computer because they deleted the email but not the saved attachment inadvertently.
The same is true of legal porn surfing on the web. It is incredibly easy to get clickjacked or redirected to illegal child porn while attempting to engage in legal porn surfing.
Any law regarding possession of child porn MUST have a "mens rea" element that requires evidence of knowing acts and deliberation in the acquisition and storage of such contraband. It's not enough that the images are in a cache or in a download directory because some programs automatically save things in such places. And it's particularly egregious that in the case mentioned the contraband was found after what appears to be an illegal search of the deleted files on the computer. While their organization into distinct directories is highly suspicious, the problem is that if one inadvertently downloads, or is sent contraband, and one deletes it right away in a legitimate attempt to obey the law, a search of deleted files might turn the images up and prosecutors could make the case that you were still "in possession" of the contraband despite your attempt to rid yourself of it.
As an aside, this is an excellent reason to always DOD wipe your hard drive's unused space and carefully search your drives for all images of any kind and review them to see if there's anything there that shouldn't be, particularly before taking your computer to a technician for servicing. If you can't do so because of a disk crash, you'd be better off taking the disk out and destroying it if you cannot diagnose and repair it yourself, if you're prone to porn surfing.
Moreover, there should be an evidenciary standard requiring that the prosecutor show that the defendant was the one who actually downloaded the contraband, and rebut the presumption of innocence that claiming someone else used the computer to access the contraband would provide.
Unless the prosecution can show that NO OTHER PERSON had access to the computer, either physically or through the computer being "zombified" by a virus or worm, reasonable doubt would remain as to whether the defendant did the proscribed deed or whether someone else did so either for their own gratification or in a deliberate attempt to implicate the defendant in a crime.
Because it is possible for someone to quite literally take over an unsecured computer attached to the Internet and use it for their own purposes, which might include the downloading and storage of child porn images completely unknown to an unsophisticated computer user who is lax with his security, I would argue that reasonable doubt always remains unless refuted by evidence that the individual charged actually pushed the keys that downloaded and stored the contraband.
A presumption of innocence means that the court must always view such possibilities in the light most favorable to the defendant, and that's what the court in this case did, because inadvertent "viewing" of contraband may be unavoidable while engaged in otherwise legal activities.
An analogy is the case of Traci Lords, who made a number of porn videos while she was a minor, unbeknownst to the producers, distributors or purchasers of the tapes. When it came out, the distributor's stocks were destroyed because they were contraband and some people went to jail even though Lords herself used false ID when applying for the job. Now, privately owned copies of those tapes are contraband as well, and even if someone never heard that the tape they lawfully purchased thinking it was legal porn is actually illegal child porn is technically guilty of possession of child porn. This puts innocent people in danger of criminal prosecution without any intent on their part to violate the law.
Unwanted or "chanced upon" child porn online is a huge problem and the injustice of prosecution someone for "merely viewing" something they expected to be legal materials is obvious and manifest. Some overzealous prosecutors who object to porn of all types, like the ones mentioned in the article, wish to capitalize on this risk to try to destroy the porn industry entirely by scaring customers away from legal porn because they might be prosecuted for inadvertently viewing child porn. That's just wrong.
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