Child Pornography, Temporary Files, and Computers
Posted on Mar 7, 2011 4:05pm PST
In a recent blog post, I discussed child pornography stored in unallocated space on your computer. Recent federal case law says that in a federal prosecution such images do not count as being in your "possession," so you cannot be convicted of possessing child pornography on that basis. Although one can infer that you must have possessed the images at some point (and then deleted them), the prosecution will have difficulty showing that you possessed the images within the time frame alleged in the indictment; there is generally no indication when you deleted the files. Arizona law is not crystal clear on this point, but seems to be in agreement. On the other hand, those images are evidence that at some point you looked at the child pornography on your computer, which counts as "receipt" of the images; under federal law this is a more serious offense in any case (which is ridiculous), and under state law it is equally serious. Once again, however, without more the prosecution will have problems establishing the time frame. Furthermore, since the number of images possessed is a crucial factor in determining your sentence, even if you are convicted it still is very much in your interest to show that you did not "possess" all the images the government claims you possessed.
But what about temporary internet files? Do they count? A 2006 case from the Ninth Circuit court of appeals says, "maybe not."
In U.S. v. Kuchinski, 469 F.2d 853, the court explained what these files were. When a person accesses a web page, his web browser will automatically download that page into his Active Temporary Internet Files, so that when the site is revisited the information will come up much more quickly than it would have if it had not been stored on the computer's own hard drive. When the Active Temporary Internet Files get too full, they spill excess saved information into the Deleted Temporary Internet Files. All of this goes on without any action (or even knowledge) of the computer user. A sophisticated user might know all of that, and might even access the files. But, most users, even fairly sophisticated users, don't even know these images are on their computer.
This area of the hard drive, called the "cache," is a 'system-protected' area, which the operating system tries to prevent users from accessing by displaying a warning that access involves an 'unsafe' system-command. A sophisticated user can go forward and get access to the cache files anyway. In the Kuchinski case, though, there was no evidence that Kuchinski was sophisticated, that he tried to get access to the cache files, or that he even knew of the existence of the cache files. Consequently, the Court held that the Government had not proven Kuchinski "possessed" these files. There are older cases in which the defendant had been considered to be "in possession" of cache files, but the Court said those cases were different, because...drumroll...the defendant had confessed; he had admitted that he knew the computer was automatically downloading images to the cache.
Kuchinski was quoted with apparent approval by the Arizona Supreme Court in
State v. Jensen, 217 Ariz. 345 (2008). Arizona law is different from federal law, though, because "receipt" and "possession" are not separate crimes; they are different ways one an be guilty of the same crime. Moreover, temporary internet files have a date on them, so it is not difficult to establish the timeframe in which the website was viewed, i.e. when the images were "received". However, under federal law--and to a lesser extent under state law--it makes a difference at sentencing whether the defendant "possessed" child pornography images on the computer, and if so how many.
Cache files, temporary internet files, deleted temporary internet files, unallocated space...obviously, you need a hard fighting, straight talking Phoenix Criminal Defense Lawyer helping you. And when the police try to talk to you about it, just tell them, "I want a lawyer."