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Looking at Child Porn Is Totally Legal in New York State
The Atlantic Wire ^ | May 09 | Adam Martin

Posted on 05/09/2012 7:38:26 PM PDT by neverdem

Logic takes us strange places sometimes, like when a judge found herself writing this little gem: "The purposeful viewing of child pornography on the internet is now legal in New York." That's a sentence you'd want to wash your hands after committing to paper (heck, or wash your eyes after reading), but it comes at the end of a line of reasoning in an appeals court decision that makes sense even if it appears to provide a loophole for kiddie porn lovers. 

Essentially, the court ruled on Tuesday, you can't be held responsible for things you just see online, even kiddie porn, the viewing of which isn't actually illegal under New York law. As MSNBC.com's M. Alex Johnson reports, the majority opinion by New York Court of Appeals Senior Judge Carmen Ciparik: 

"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."

It's true: Under article 263 of New York's penal code, it's illegal to create, possess, distribute, promote, or facilitate child pornography, but it's not illegal simply to view it...

(Excerpt) Read more at theatlanticwire.com ...


TOPICS: Crime/Corruption; Front Page News; Politics/Elections; US: New York
KEYWORDS: childpornography; moralabsolutes; newyork
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1 posted on 05/09/2012 7:38:30 PM PDT by neverdem
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To: neverdem

Does this mean that, if you were walking down the street, and their was a billboard of this material, you wouldn’t be guilty, because you unknowingly walked by it and saw it?


2 posted on 05/09/2012 7:41:26 PM PDT by nickcarraway
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To: neverdem
it's illegal to create, possess, distribute, promote, or facilitate child pornography, but it's not illegal simply to view it...

Doesn't paying for it, thus enabling the producers to produce more of it from the profits, count as facilitating it?

3 posted on 05/09/2012 7:42:43 PM PDT by TwelveOfTwenty (With choices like Palin, Cain, and Bachmann, what could go wrong? Now we know.)
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To: neverdem

Our country is toast. Hell reigns supreme.


4 posted on 05/09/2012 7:50:56 PM PDT by WXRGina (Further up and further in!)
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To: neverdem

Why wouldn’t it be legal to view it.

It’s illegal to possess it, download it or otherwise store it.

So it’s not necessary to criminalize the viewing, since all of the activities leading up to that viewing are illegal.


5 posted on 05/09/2012 7:52:08 PM PDT by Ouderkirk (Democrats...the party of Slavery, Segregation, Sodomy, and Sedition)
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To: neverdem

Her logic makes sense, given how the internet works. How could it ever be legal to be held liable for pop-ups that are pushed to your web browser without your specific request? I don’t think it’s technically feasible to differentiate, and if it were there would instantly be ways around it.

A case where protecting the rights of the many allows abuse by the few.


6 posted on 05/09/2012 7:53:50 PM PDT by bigbob
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To: neverdem

No its not “totally legal”, even from this ruling. 141 of 143 counts were still upheld.

It should be totally illegal of course.


7 posted on 05/09/2012 7:54:02 PM PDT by GeronL (The Right to Life came before the Right to Pursue Happiness)
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To: bigbob

“Purposeful viewing” means you wanted to see it, you did it on purpose.


8 posted on 05/09/2012 7:57:10 PM PDT by GeronL (The Right to Life came before the Right to Pursue Happiness)
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To: neverdem

I truly hate democrates!

Look at what they’ve done to our great country!


9 posted on 05/09/2012 8:03:00 PM PDT by Randy Larsen (I hate Rinos and Romney is one of the worst Rinos ever!)
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To: neverdem

More detail:

Viewing child pornography online isn’t a crime, the New York Court of Appeals ruled Tuesday in the case of a college professor whose work computer was found to have stored more than a hundred illegal images in its Web cache.

The court dismissed one of the two counts of promoting a sexual performance of a child and one of the dozens of counts of possession of child pornography on which James D. Kent was convicted. The court upheld the other counts against Kent, an assistant professor of public administration at Marist College in Poughkeepsie, N.Y.

Kent — who said at his sentencing that he “abhorred” child pornography and argued that someone else at Marist must have placed the images on his computer — was sentenced to one to three years in state prison in August 2009.

(…)

In other words, “the purposeful viewing of child pornography on the internet is now legal in New York,” Judge Victoria A. Graffeo wrote in one of two concurring opinions that agreed with the result but not with the majority’s reasoning.

(…)

The technical details revolve around copies of deleted files that remained in the cache of Kent’s Web browser, which were the basis of the two counts that were dismissed. They were discovered, along with other materials, during a virus scan that Kent had requested because his computer was running slowly.

To demonstrate possession of the images in the cache, “the defendant’s conduct must exceed mere viewing,” Ciparick wrote, adding that “the mere existence of an image automatically stored in a cache” isn’t enough.

Furthermore, the prosecution failed to prove that Kent even knew his Web browser had a cache in the first place, writing, “A defendant cannot knowingly acquire or possess that which he or she does not know exists.”

(…)

Kent’s convictions on the other counts rested on other evidence, including a folder on his machine that stored about 13,000 saved images of girls whom investigators estimated to be 8 or 9 years old and four messages to an unidentified third party discussing a research project into the regulation of child pornography.

http://usnews.msnbc.msn.com/_news/2012/05/08/11602955-viewing-child-porn-on-the-web-legal-in-new-york-state-appeals-court-finds?lite


10 posted on 05/09/2012 8:08:36 PM PDT by Fitzy_888 ("ownership society")
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To: neverdem
I have no use for pornography or pornographers whatsoever.

But how hard do you really think it is to create a computer virus which would load this stuff onto ANYBODY's computer? Do you really want our government having the power to lock people up for possession of computer files?? I mean, selling the stuff, yeah, lock em up but that's as far as I can see going with it.

11 posted on 05/09/2012 8:09:26 PM PDT by varmintman
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To: neverdem

For once a good law out of New York.

If, for example, the hacker group Anonymous put a kiddie porn pop-up on Free Republic, all New York residents could be prosecuted if they loaded the Free Republic page.

The way it stands now, you could only be prosecuted if you purposely saved it to your computer.


12 posted on 05/09/2012 8:11:54 PM PDT by Snickering Hound
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To: neverdem

And Dan Savage says....”Come my Good Pedophiles, you can emerge into the new dawn of Darkness is now Light and Light is Darkness!”.

Pedophiles...the true children of homosexuality....and the Sodomites want their children to be able to come out and play.

Can even a rational mind doubt the signs of the times?


13 posted on 05/09/2012 8:17:12 PM PDT by Puckster
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To: neverdem
It's true: Under article 263 of New York's penal code, it's illegal to create, possess, distribute, promote, or facilitate child pornography, but it's not illegal simply to view it...

Presuming this story is accurate (huge presumption with the MSM), the judge ruled on the law as it is - not as she or any of us wishes it was. That's what you get when you have judicial restraint.

14 posted on 05/09/2012 8:19:44 PM PDT by KarlInOhio (You only have three billion heartbeats in a lifetime.How many does the government claim as its own?)
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To: neverdem

Strangely I agree with the ruling, there are too many ways for this kind of material to get onto your computer, even if you are not viewing child porn. I’ve read of a few cases were people with infected computers have been sentenced to years in prison, mainly because the prosecutor, judge and jury had no clue how computers work, some substitute teacher in the NE comes to mind but can’t remember her name as a good example.


15 posted on 05/09/2012 8:30:57 PM PDT by trapped_in_LA
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To: neverdem

We should note here that the act of browsing and veiwing child porn is illegal under Federal law.

Which begs the question...would Obama’s federal government bring charges against fine upstanding undoubtedly liberal college professor like Kent...?

So...

Federal charges against a College Grounds Keeper, yes!

But, Federal charges against the Professer Kent of Public Administration...nah, he’d get a pass. Holder would see to it.

FORWARD!!!


16 posted on 05/09/2012 8:37:19 PM PDT by Fitzy_888 ("ownership society")
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To: trapped_in_LA
I agree with you. Are we being “infected” by a Trojan horse as we read?
17 posted on 05/09/2012 8:41:26 PM PDT by Bronzy (No more RINO's)
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To: neverdem; Gilbo_3
RE :””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.

That seems perfectly reasonable. If nothing else it forces the state to have solid evidence that someone did something wrong.

If it was never downloaded or distributed it then how do they prove someone viewed it? Install spyware on our computers that cam-cords users?

Anyone using the internet is aware of redirect links that take the computer to unintended sites.

18 posted on 05/09/2012 8:43:47 PM PDT by sickoflibs (Romney is a liberal. Just watch him closely try to screw us.)
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To: Gabz; All

Our fellow Freepette, Gabz, is herself involved in getting a legislative fix to the technical omission submitted tomorrow morning in the NY Assembly. It is not expected to meet any opposition, which would be political suicide. And then NY law will duly ban web browsing of kiddie porn.

The truth is much duller than the speculation. Would it were all slips in the governance of the US were this minor.


19 posted on 05/09/2012 8:47:37 PM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: neverdem; Gilbo_3

Another popular way to prove someone possessed child porn is when he uses his credit card to buy it, and that focuses on a product made by for-profit pornographers, pretty good evidence.


20 posted on 05/09/2012 8:48:22 PM PDT by sickoflibs (Romney is a liberal. Just watch him closely try to screw us.)
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To: neverdem

Mis-leading headline, if you read the story.


21 posted on 05/09/2012 9:08:19 PM PDT by Clock King (Ellisworth Toohey was right: My head's gonna explode.)
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To: Puckster

There was a thread on here about someone that saved child porn onto another person’s computer, and the one that had the material saved onto the hard drive got jail time until the offender was found.

I don’t know about you, but I think it’s a good law, that protects people from hackers, and not just those that view your keystrokes, or plant a virus on your computer.


22 posted on 05/09/2012 9:16:48 PM PDT by wastedyears (There can be only one.)
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To: HiTech RedNeck; Gabz

Does it provide for an exclusion for those who are victims of a computer hack?


23 posted on 05/09/2012 9:19:05 PM PDT by wastedyears (There can be only one.)
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To: trapped_in_LA; Snickering Hound; Gilbo_3
RE :”Strangely I agree with the ruling, there are too many ways for this kind of material to get onto your computer, even if you are not viewing child porn. I’ve read of a few cases were people with infected computers have been sentenced to years in prison, mainly because the prosecutor, judge and jury had no clue how computers work, some substitute teacher in the NE comes to mind but can’t remember her name as a good example.

It is worse than that. It says it is ALREADY illegal to download it.
The complaint HERE is that it is NOT illegal if your computer goes to a page with that porn on it because then you ‘viewed’ it. Or if someone else shows it to you.

So do they prosecute us based on the cookies that were on our computer? Or put Spyware on our computers that cam-cords us covertly and sends the video out to them like a Cyber virus??

Yes we should trust Obama with that power.

24 posted on 05/09/2012 9:21:31 PM PDT by sickoflibs (Romney is a liberal. Just watch him closely try to screw us.)
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To: wastedyears

“Does it provide for an exclusion for those who are victims of a computer hack?”

Do you mean like what happened to Congressman Anthony Weiner?


25 posted on 05/09/2012 9:31:31 PM PDT by mouske
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To: neverdem

*sigh*

A lot of folks on this thread don’t know what the hell they’re talking about.


26 posted on 05/09/2012 9:39:11 PM PDT by TheZMan (Obama is without a doubt the worst President ever elected to these United States)
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To: Ouderkirk

You can watch it without downloading it.

I used to do my computer stuff at an Internet cafe, and a guy was downloading kiddie porn at one of the computers. The guy next to him saw him doing it and called the cops.

They were there in seconds. Grabbed the guy, secured the computer, left a female cop there to watch the computer so no one messed with it, and went to get the cyber squad or whatever it’s called.


27 posted on 05/09/2012 9:47:20 PM PDT by firebrand
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To: wastedyears
My post has to do with why we have arrived to this present state of desecration of morals.

Yes, but, you say this is what it is.....and I say, It'll get “progressively” worse because there is not an anchor in the Truth anymore.

You see it as good. I see it as incremental backsliding into darkness.

Do we really need to protect all dumb-asses that would allow someone the access to such a wide open playground of darkness that is the internet?

I use the internet....productively.

But, no one gets on my computer, it is a responsibility.

Yeah, we are saving some dumb ass from himself...I get it.

28 posted on 05/09/2012 9:52:20 PM PDT by Puckster
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To: Puckster

The whole point of hacking a computer is to gain access to someone’s machine that doesn’t want you to have access. Stuff like saved financial data on Excel spreadsheets, things like that.

I don’t know about you, but should someone hack my computer and put kiddie porn on it, I’d rather the FBI track down the person that hacked me, over putting me in jail for 10 years, making me register as a sex offender, and destroying my life because I was a victim of a computer hack, and the hacker just happened to put kiddie porn on my hard drive.


29 posted on 05/09/2012 9:56:33 PM PDT by wastedyears (There can be only one.)
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To: wastedyears
I realize the possibilities out there and I'm not down playing the risks.

However, there are several safety guards that common individuals can partake of.

I use Ubuntu on my home computer with other security measures.

My laptop has US gummit grade Norton on it.

I know that this doesn't preclude a dark possibility, however, it does greatly reduce the likely-hood.

But, I doubt the individual that had the friend put porn on his computer really qualifies as “having taken measures” to minimize these possibilities.

30 posted on 05/09/2012 10:20:03 PM PDT by Puckster
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To: cyborg; Clemenza; Cacique; NYCVirago; The Mayor; Darksheare; hellinahandcart; Chode; ...
New York State Schools: 64 Percent Cutting Teaching Positions

FReepmail me if you want on or off my New York ping list.

31 posted on 05/09/2012 10:35:39 PM PDT by neverdem (Xin loi minh oi)
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To: Ouderkirk
Absolutely. It looks really bad this, but its no different from any other "illegal" object, device or activity. Prostitution is not illegal, per se, because it is after all people's own choice what they do with their bodies. How can you legislate on that? Soliciting is illegal, because at that point you are affecting other people.

Similarly its not actually illegal to take drugs, even hefty class A major addictive substances. Its illegal to trade in them, to own them, to distribute them and make them, but not actually to take them.

32 posted on 05/10/2012 3:43:05 AM PDT by Vanders9
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To: neverdem
My problem with prosecuting someone for viewing or downloading Child Porn is that it is so easy for a website to be set up to trick people into such that it makes it a tool to be abused.

Add to that the stigma of being accused of such even though someone could be a victim of such a website and be totally innocent, such is so devastating to one's career and life that I believe caution should used when going after such criminals. However I got no problem whatsoever with someone who is found guilty beyond a reasonable doubt to have their lives snuffed out for good.

33 posted on 05/10/2012 4:10:43 AM PDT by Mad Dawgg (If you're going to deny my 1st Amendment rights then I must proceed to the 2nd one...)
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To: nickcarraway

YEp. This is the typical existential approach to pedophilia: the kid molested me, I had no idea. THis is the way the communist thinks and acts, and it rapes and constricts in sin slavery.

The key test of course is to remove the material and ask people to free the children and pardon those homosexuals who got into the gay marriage scam and turn their lives around to support heterosexual marriage... but, nah... this is a mandate to suicide and starvation.

New York State and Obama are rapists.


34 posted on 05/10/2012 4:34:20 AM PDT by JudgemAll (Democrats Fed. job-security Whorocracy & hate:hypocrites must be gay like us or be tested/crucified)
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To: WXRGina

Oh, we are living in Obama’s Kenya jungle all right, with roaming wolves and “accidental” existential bullies. The Nazies did not know it, right? I mean, it’s not like they were not raping the farms of Europe dry...


35 posted on 05/10/2012 4:36:35 AM PDT by JudgemAll (Democrats Fed. job-security Whorocracy & hate:hypocrites must be gay like us or be tested/crucified)
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To: wastedyears; Gabz

I would hope there is a qualifier to the effect of “purposefully” in the language... this used to be understood in older criminal law but mens rea has fallen by the wayside in many criminal law applications today.


36 posted on 05/10/2012 4:49:44 AM PDT by HiTech RedNeck (Mitt! You're going to have to try harder than that to be "severely conservative" my friend.)
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To: Vanders9
because it is after all people's own choice what they do with their bodies.

except these are children that are being exploited and are under the age of consent...

37 posted on 05/10/2012 4:57:11 AM PDT by Chode (American Hedonist - *DTOM* -ww- NO Pity for the LAZY)
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To: All

not being a proponent nor a user of porn, this is a good decision. There is a way to discern between a purposeful act of downloading and maintaining a collection of child porn for distribution and a person going to one website and through a blind click, going to a misrepresented website and getting images dumped on to browser history/cache.
I remember my dad (NYPD) was doing a sting back in the 80’s right before he retired and they had to get people to ask for and purchase imagery that they wanted to be child porn. Then when it was just pictures of adults instead, they raised hell and got pinched. They used to rent hotel rooms and share the stuff but now they can do it online.
The police could not just hang pictures in a store window and arrest everyone that walked by. The active intent is illegal.

I think it was these types of cases that made my dad pretty much lose hope in humanity and retire.


38 posted on 05/10/2012 4:59:24 AM PDT by newnhdad (Where will you be during the Election Riots of 2012/2013?)
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To: TwelveOfTwenty

Yes, paying for it counts because that’s an “affirmative act.” In this case there was no evidence that that occurred.

Incredibly misleading headline, BTW. (But that’s the headline from the original article, so what can you do)


39 posted on 05/10/2012 5:11:59 AM PDT by I Shall Endure
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To: Puckster

Anyone carelessly surfing the net runs across a great many undesirable images. All that is being said is that you have to prove intent. That a picture in the cache only means that they REACHED a website with child porn, not that they intended to go there. otherwise investigators who have to examine these pictures would be guilt simply for seeing them, as would the jury who has to see the evidence.
Now it obvious this guy wants child porn, but each criminal count must be proved seperately. These counts under discussion only have proof that here reached these pictures, not that here chose to do so. Bare in mind here was convicted on the other counts.


40 posted on 05/10/2012 5:14:04 AM PDT by LevinFan
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To: wastedyears; Gabz

There needs to be clear proof of intent. malicious spy and adware has sent me to all kind of places on the net as punishment for trying to clean it out. Fortunately, never kiddy porn. But more than once, I’ve turned on my computer and received a nasty surprise.
I once searched for a file for a game, found it. next time I opened my browser, Candy was spread eagle on my screen. I got my file, but had to wipe my puter out and reload windows.

My brother did an innocent search for star trek, and then landed on a very sick site featuring star trek characters. Type chistian into your search engine and see what you get. These sick sites are very good at drawing you in. they don’t care about offending anyone.
Anything can happen on the net. Emotional laws are not a good way to legislate. That is what dems do.


41 posted on 05/10/2012 5:32:59 AM PDT by LevinFan
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To: wastedyears; Puckster

It isn’t just hacking. These animals are very good at tricking people in. remember whitehouse.com and what happened with that.
type christian into a search and see what you get. You’ll likely get a really shock.


42 posted on 05/10/2012 5:42:33 AM PDT by LevinFan
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To: Puckster

So is incompetence or carelessness in IT security now a crime in your eyes?
I’m quite careless when doing research for books I write. Why? Because I use Ghost and can restore my computer to proper use in under 10 minutes.
Those of us who know how to fix them don’t crap at the possibility of an infection. And antivirus is far from 100%.

Now, I don’t doubt the man was deliberately seeking kids porn, but you have to prove intent, not simply exposure. If exposure alone is enough, you’d have to arrest the judge, jury, and investigators for viewing the pictures.


43 posted on 05/10/2012 5:54:03 AM PDT by LevinFan
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To: neverdem; sickoflibs; GeronL; GOPsterinMA; fieldmarshaldj; Perdogg; SunkenCiv; NFHale; ...

It’s not illegal at all to make or sell if you call it a nudist family photo and no sex acts are depicted.

Major loophole that I’m sure fellows like Jerry Sandusky appreciate.


44 posted on 05/10/2012 5:54:50 AM PDT by Impy (Don't call me red.)
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To: bigbob; wagglebee; little jeremiah
Her logic makes sense, given how the internet works. How could it ever be legal to be held liable for pop-ups that are pushed to your web browser without your specific request? I don’t think it’s technically feasible to differentiate, and if it were there would instantly be ways around it.

Then that would make it accidental or inadvertent viewing of it.

Purposeful viewing IS intent. It would make more sense logically to say the accidental or inadvertent viewing of child porn is not illegal in NYS. Purposeful viewing is going to include procuring it somehow.

I want out of NY ASAP.....

45 posted on 05/10/2012 5:59:51 AM PDT by metmom ( For freedom Christ has set us free; stand firm therefore & do not submit again to a yoke of slavery)
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To: Vanders9
Prostitution is not illegal, per se, because it is after all people's own choice what they do with their bodies. How can you legislate on that? Soliciting is illegal, because at that point you are affecting other people.

Do you not see the hypocrisy of that position?????

How can you say that prostitution, which is essentially solicitation for sex, doesn't affect others but generic solicitation does?

They're both solicitation. That is simply making one kind of solicitation, for sex, not illegal while other types are.

And yes, prostitution DOES affect others. What about the wife of the man who hires out a prostitute? Her health? Her(their) marriage? Their money? The affect on the kids when the marriage falls apart?

Prostitution is NOT a victimless crime, especially in light of the number of prostitutes who are under the control of pimps.

46 posted on 05/10/2012 6:10:47 AM PDT by metmom ( For freedom Christ has set us free; stand firm therefore & do not submit again to a yoke of slavery)
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To: Impy; ding_dong_daddy_from_dumas; DoughtyOne; Gilbo_3; stephenjohnbanker; Pan_Yans Wife; BufordP; ..
RE :”It’s not illegal at all to make or sell if you call it a nudist family photo and no sex acts are depicted.

Reading the post I couldnt figure out the objection to NYS law,. It makes downloading, saving, printing, possession or distributing it illegal. The objection stated above is that ‘viewing it’ is not illegal.

I always object to laws that leave key interpretations in the hands of judges or juries and that sounds like one. How do you prove that someone who didnt break the current law above only ‘viewed’ it?

No I dont want people procecuted for the cookies that are written to their computer.

47 posted on 05/10/2012 6:12:55 AM PDT by sickoflibs (Romney is a liberal. Just watch him closely try to screw us.)
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To: Impy; All

“It’s not illegal at all to make or sell if you call it a nudist family photo and no sex acts are depicted.”

REALLY?!?!


48 posted on 05/10/2012 7:46:00 AM PDT by GOPsterinMA (The stench of Earth Pimp-age is permeating over the internet...)
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To: nickcarraway

Hopefully yes. But the company that placed it on there and the person who paid for it would be in a heck of alot of trouble.


49 posted on 05/10/2012 7:57:51 AM PDT by Almondjoy
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50 posted on 05/10/2012 9:22:04 AM PDT by RedMDer (https://support.woundedwarriorproject.org/default.aspx?tsid=93)
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