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Two appellate courts recently ruled that an individual who intentionally visited Web sites to view child pornography, but did not intentionally save those images to his computer’s hard drive, could not be convicted or punished for possessing images that were automatically saved due to the Web browser’s cache functions. These rulings strike me as badly mistaken, for reasons that I shall explain further below. The first of these two rulings occurred on Nov. 2, when the Superior Court of Pennsylvania issued its decision in a case captioned Commonwealth v. Diodoro. The defendant was convicted under a Pennsylvania statute that makes it a crime to “knowingly possess” any photograph, computer depiction, or other material depicting child pornography. According to the Pennsylvania Superior Court’s opinion, the parties to the appeal stipulated to the following facts: “Diodoro admitted that he viewed several hundred photographs that fit within the definition of child pornography. He also admitted that he intentionally visited the websites for the purpose of viewing child pornography.” Yet the appellate court’s opinion also notes that “[t]he Commonwealth presented no evidence that Diodoro ever intentionally downloaded or saved the photographs to his hard drive or to any floppy drive, or that he was aware that the images were automatically being saved to an internet cache file.” The opinion goes on to explain that as a result of Diodoro’s intentional viewing of images depicting child pornography on the Internet, the ordinary operation of Diodoro’s Web browser caused those images to be automatically saved to what is known as a cache file on his computer’s hard drive. The opinion explains the function of Internet cache files as follows: “The purpose is to save time, so that if the site is viewed again, the old file can be quickly uploaded rather than requiring the time to reload the file.” Based on a lack of any evidence that Diodoro knew that the images of child pornography he was viewing over the Internet were being saved to his computer’s Internet cache file, the Superior Court ruled that Diodoro’s conviction for knowing possession of child pornography had to be reversed. The court explained: “We hold that absent specific statutory language prohibiting the mere viewing of pornographic images or evidence that the defendant knowingly downloaded or saved pornographic images to his hard drive or knew that the web browser cached the images, he cannot be held criminally liable for viewing images on his computer screen.” 15,000 IMAGES Even more recently, on Nov. 27, a unanimous three-judge panel of the U.S. Court of Appeals for the 9th Circuit issued a remarkably similar ruling in a case captioned United States v. Kuchinski. In that case, a search of defendant John C. Kuchinski’s computer revealed 16 images of child pornography intentionally saved on the computer’s hard drive, another 94 images in the “recycle bin” to be deleted, and approximately 15,000 to 19,000 images in the temporary Internet files constituting the Web browser’s cache. At issue in the 9th Circuit’s ruling was whether Kuchinski’s sentence for possession of child pornography should be based on the 110 images of child pornography that he intentionally saved to his computer’s hard drive or the tens of thousands of additional images of child pornography that were in the Web browser’s cache files on his hard drive. As in the Pennsylvania state court ruling, the 9th Circuit found no evidence that Kuchinski was aware that his computer’s Web browser automatically saved to his computer’s cache files the images he viewed online. On these facts, the 9th Circuit held, “Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images.” Both the Pennsylvania appellate court and the 9th Circuit cited the 10th Circuit’s earlier ruling in United States v. Tucker (2002). According to the 10th Circuit’s opinion in that case, “Tucker maintains that he did not possess child pornography but merely viewed it on his Web browser. He concedes, however, that he knew that when he visited a Web page, the images on the Web page would be sent to his browser cache file and thus saved on his hard drive. Yet, Tucker contends that he did not desire the images to be saved on his hard drive and deleted the images from his cache file after each computer session.” Even though Tucker deleted the images of child pornography that had been automatically saved to his computer’s Internet cache files after each session, the 10th Circuit rejected Tucker’s assertion that he was unlawfully convicted of possessing child pornography. The 10th Circuit’s decision explains: “Tucker may have wished that his Web browser did not automatically cache viewed images on his computer’s hard drive, but he concedes he knew the Web browser was doing so. Tucker continued to view child pornography knowing that the pornography was being saved, if only temporarily, on his computer. In such circumstances, his possession was voluntary. Since he knew his browser cached the image files, each time he intentionally sought out and viewed child pornography with his Web browser he knowingly acquired and possessed the images.” IN POSSESSION By failing to recognize that the intentional display of an image consisting of child pornography via a Web browser itself constitutes “possession,” both the Superior Court of Pennsylvania and the 9th Circuit have seriously erred. If someone accesses the Internet in search of a desired image, finds the image, and then intentionally displays the image on his computer, that computer user is in possession of the image during the time that the image is on display, and that user can be convicted of having possessed the image if the image constituted child pornography. It is difficult to understand why one person who uses his computer’s Web browser for 30 consecutive days to view a single image consisting of child pornography at a specific location on the Internet should not be criminally liable for possessing that image while another individual who intentionally saved the same image to his computer’s hard drive, never viewed the image again, and immediately deleted the image upon ceasing his Internet session would be criminally liable for possession. Yet under the 10th Circuit’s ruling in Tucker — a decision that both the 9th Circuit and the Pennsylvania Superior Court have cited with approval — the person who knowingly had the image saved to his hard drive but then immediately deleted the image would be liable for possession of child pornography, while the person who accessed the identical image 30 days in a row over the Internet (perhaps accessing the image from the cache file on his computer’s hard drive) would not be liable for possession, despite having displayed (and, in my view, thereby having possessed) the same image for a much longer amount of time. Additional absurdities arise from the recent holdings of the Pennsylvania Superior Court and the 9th Circuit. Would a defendant who intentionally viewed child pornography over the Internet while ignorant of the workings of his Web browser’s cache file be criminally responsible if he later learned how the cache worked but then took no steps to delete those stored child pornography images? And would the same defendant be criminally liable under Tucker if, upon learning how the cache file worked, he then affirmatively tried to delete those pornography images in that cache file? I don’t intend to imply that the mere viewing of child pornography equals possession in every possible situation. For example, if a neighbor tapes an image consisting of child pornography to an outside window of his house, and people intentionally view the image in order to see child pornography, only the person in whose home the image is posted can be considered to possess the image. Similarly, if someone unintentionally accesses child pornography on the Internet, or if somehow child pornography is unintentionally downloaded onto a computer user’s Internet cache file, I would not contend that the computer user should be criminally liable for possession of child pornography. Where I part company with both the 9th Circuit and the Pennsylvania Superior Court is in the case of a criminal defendant who knowingly and intentionally uses his Web browser to view child pornography, while remaining unaware that, as a consequence, the image will be saved to his computer’s cache file. It is the desired display of the image of child pornography itself that constitutes possession and that thereby permissibly subjects the computer user to conviction for knowing possession of child pornography. The existence of the image in the computer’s cache file may evidence the intentional viewing of the image, but nothing more than the intentional viewing of the image itself should be required in these Internet child-porn prosecutions to establish the criminal act of possession. The Commonwealth of Pennsylvania has recently asked for reconsideration in the Diodoro case. And the 9th Circuit’s ruling in Kuchinski — a case of first impression at the federal level — is also subject to further review. As a result, these two rulings may not end up being the last words on this interesting but controversial subject.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. This commentary first appeared on law.com, an ALM Web site.

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