New York Court: Online Child Pornography Doesn't Constitute Possession

The New York State Court of Appeals ruled that simply viewing child pornography online does not constitute criminal possession or procurement, according to reports from the AP and the New York Daily News.

The judges dismissed two counts against James D. Kent, who was convicted on two counts of procuring and 134 counts of possessing images of sexual performance by a child and sentenced to one to three years in state prison in 2009 after a virus scan of his computer in 2007 found pornographic images in his cache files. Kent denied downloading the images himself.

The Appeals Court agreed that Kent was properly convicted because he had downloaded, saved, and deleted 132 images, but the majority ruled that some images in his computer cache were automatically stored from sites he had viewed, and that he cannot be held against him under state law. When images are viewed online, a copy of the image's data is saved in the memory cache.

The panel of five judges ruled that it is still a federal crime to knowingly access material containing child pornography. State law says such browsing can be used to show a guilty intent.

According to the court ruling, emails found in Kent’s computer corroborated that he collected images as part of a potential research project on the regulation of child pornography. Kent was a professor of public administration at Marist College.