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A federal appeals court has ruled that border guards may search and seize the contents of laptop computer files without probable cause, even if the contraband material-in this case child pornography-is contained only in the computer’s temporary cache memory. The ruling by the 9th U.S. Circuit Court of Appeals expands the notion of possession and control of computer material, in a boon to prosecutorial power to win convictions in cases of Internet child pornography possession. The ruling also means U.S. citizens may face warrantless searches, without probable cause, at the U.S. border. Computers automatically keep copies of all Web pages viewed by users in an “Internet cache,” or temporary folder, to prevent having to download the same material repeatedly. For the first time, the 9th Circuit has held that child porn contained only in a temporary cache folder constitutes sufficient access and control to uphold a conviction for receipt and possession of child pornography. U.S. v. Romm, No. 04-10648. “It is one thing to search for bombs and drugs at the border and another to go through your computer files. That’s incredibly intrusive,” said Professor Shaun Martin of the University of San Diego School of Law. As for counting cache files as possession, Martin said, “You’re convicting someone for possession of something they have done everything in their power to get rid of; that seems fundamentally unfair,” he said. Stopped at the border Only one other circuit, the 10th, has ruled on the same issue, and reached the same conclusion. U.S. v. Tucker II, 305 F.3d 1199. “What is significant about this case is [Stuart Romm] had full knowledge the images were saved even though he didn’t download them,” said Assistant U.S. Attorney Nancy Koppe, in Las Vegas. “This is the first case in the 9th Circuit that shows that cache images can be possessed and received knowingly even when they are not downloaded,” she said. Romm, 54, a suspended Brockton, Mass., lawyer and former administrative law judge, was stopped by Canadian border authorities in 2004 when he landed in British Columbia on business following a stay in Las Vegas. When Romm checked through customs Canadian authorities found a 1997 Florida conviction for soliciting sex from an undercover agent posing as a 14-year-old on the Internet. Romm was sent back to U.S. officials in Seattle who conducted a search of his computer, finding deleted cache images showing child pornography. Romm admitted he visited porn sites and looked at the pictures during his stay in Las Vegas but then said he deleted them from his computer. But computers automatically retain images in a cache folder. Romm’s Las Vegas federal public defender, Jason Carr, was out of town and could not be reached for comment. “In the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it,” wrote Judge Carlos Bea. Romm exercised dominion and control over the images in the cache file because he had the ability to copy, print or e-mail them to others, according to Bea. Koppe said the ruling does not endanger those who accidentally trip over contraband material with no intent to keep it, even though it is stored in cache files.

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