I think the courts took this case in order to cause the legislature to tighten the language of the law. The man was still convicted of other child porn violations so the reversal did not substantially change the man’s sentencing. The court seems to be advising the state legislature to adopt the federal definition of child porn.
From the opinion:
The federal statute regulating conduct related to child pornography, 18 USC § 2252A, provides a useful contrast. Section2252A was amended in 2008 to provide that any person who either”knowingly possesses, or knowingly accesses with intent to view,any book, magazine, periodical, film, videotape, computer disk,or any other material that contains an image of child pornography” is subject to a fine and imprisonment (see 18 USC2252A § [1] [a] [5], as amended by Pub L 110-358, 122 US Stat4002, 4003 [emphasis added]).
Neither provision of the Penal Law at issue here contains comparable language targeted toward the”pull technology” by which one accesses and views Internet images. The words that are employed — “procures” and”possesses” — would not, in ordinary speech, encompass the act of viewing (see State v Barger, 439 Or 553, 563, 247 P3d 309, 314[2011] [”Looking for something on the Internet is like walking into a museum to look at pictures — the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them”]). Here, the “School Backyard” Web page was automatically stored in the cache in allocated space that was accessible to defendant. The People did not demonstrate that defendant knew that the page, or any other, for that matter, had been cached.
While the cached page provided evidence that defendant previously viewed the site, the People presented no evidence that defendant downloaded, saved, printed or otherwise manipulated or controlled the image while it was on his screen. That defendant accessed and displayed the site, without more, is not enough. Thus, the evidence was insufficient to show that defendant knowingly possessed the “School Backyard” Web page, either in the form of the cached file or as an image on his screen. It follows,therefore, that there was not sufficient evidence that defendant procured the “School Backyard” page; defendant did not “get possession of [the page] by particular care or effort” (Keyes, 75NY2d at 348 [internal quotation marks omitted]) as by downloading it. Thus, defendant’s convictions under counts 1 and 142 should be reversed.
So the panic appears to be over virtually nothing? The surfing went afoul of law in other ways, so this is just a redundancy that failed?
Thank you for that.