Steven V. Treglia ()
As in the title of Peter Allen’s song, “Everything Old is New Again,” probably best known for its appearance in the Bob Fosse-directed film “All That Jazz,” such is the situation with a couple of recent decisions issued in California and Nebraska. In both cases, the respective courts cited a holding from a 2010 New York Appellate Division case to justify its decision, a holding that was subsequently rejected, with considerable notoriety, by the New York Court of Appeals in 2012.
All four cases deal with difficult issues raised as the result of a common feature of computer technology typically referred to by such terms as “cache,” or “Temporary Internet Files” or “TIFs.” By understanding how this process works, the difficulties caused by it when dealing with digital child pornography cases become more evident.
Remembering that one of the prominent goals of computer technology is to make the user’s experience quicker and more efficient, engineers and programmers developed a methodology to shorten the time it takes for a Web page to appear on the user’s screen. Ever wonder why the first time you visit a Web page that it seems to take forever to become fully visible, but subsequent visits cause the page to load much faster? The reason is because you’re not looking at the same set of data.
The first time you call up a website, you’re seeing the data as it is stored on whatever computer or computers host it somewhere out on the Internet. There is, typically, a ton of data that has to be accessed by the user before the site is visible on the screen, and gathering all that data over the labyrinth known as the Information Superhighway takes time.
What is also simultaneously happening on the user’s computer during this first visit is that a copy of that page is automatically stored for a period of time1 as a Temporary Internet File or TIF in the portion of the memory of the user’s computer called the cache. This area of the hard drive is designated by the computer’s manufacturer for the storage of such files. This simultaneous storage is, however, not visible to the computer user while it is occurring.
Hence, when that same Uniform Resource Locator (URL) is typed into the Internet browser on subsequent occasions, as long as the backup page is still stored in the computer’s cache memory, it is the version of the page stored on the computer user’s cache that appears on the screen and not the one stored on the distant computer or computers hosting the page somewhere out on the Internet.2 The immediacy by which such data is available to the user from his computer’s cache memory significantly improves the efficiency of Web page access.
The location of the hard drive’s cache storage is not readily known to many computer users because its presence is hidden from many computer applications. For example, merely requesting a view of a particular hard drive’s directory tree of computer files and computer file folders by accessing the Windows Explorer program will not display the location of the Internet File Folder or its contents of TIF files. And while this presence of a hard drive’s cache is becoming more and more familiar to the average computer user, that awareness is still illusive to many. Or at least a defendant might be able to claim a lack of knowledge when child pornography is found there.
This process of automatically temporarily storing Web page viewings in the hidden cache of a computer’s hard drive has caused many legal challenges in child pornography prosecutions. Is the mere viewing of such a file on the computer screen a possession or procurement of that depiction unless the defendant takes some active step to knowingly save the data onto the computer’s hard drive? If the depiction has been solely stored only in the cache of the computer’s hard drive as part of the automated process, is that deemed knowing and/or intentional possession or procurement? What if the defendant claims he wasn’t aware of the existence of this process or denies knowing how it works?3
‘State v. Schuller’
The highest court in the state of Nebraska recently weighed in on these issues in State v. Schuller.4 Here, the defendant did not challenge the fact that the visual depictions in question were those of child pornography. He only claimed he never knowingly possessed the depictions since he only viewed them and was not aware that they had been automatically stored in the cache of his hard drive.
The Nebraska Supreme Court acknowledged that its state’s statutes do not define the term “knowingly possess,” so its determination would have to rely on the common sense meaning of the term. Noting that “actual possession” requires physical possession, for Schuller to be lawfully found guilty of possessing intangible digital depictions, it would require a determination that he constructively possessed the child pornography.
The court first evaluated how case law in its state has applied constructive possession in other scenarios and determined there is no one consistent answer, for while narcotics possession can be either actual or constructive under Nebraska law, one could not be convicted of constructive possession of a weapon used in the commission of a felony.
The court in Schuller went on to note that a finding of constructive possession “may be proved by mere ownership, dominion, or control over contraband itself, coupled with the intent to exercise control over the same”5 and ruled that sufficient evidence in the record existed to support such a finding.
Schuller used a file-sharing program freely available on the Internet known as LimeWire. All computers utilizing this program are able to share files over the Internet with other LimeWire users. These shared files can include any kind of file, but LimeWire is one of the file-sharing programs typically used by those trafficking depictions of child pornography to make such exchanges.
In his statement to the arresting officer, Schuller acknowledged knowingly accessing depictions of child pornography on numerous occasions, but claimed he attempted to delete these depictions once he was done viewing them, even going so far as to using a file-wiping program to remove all evidence of the depictions on his hard drive.
The defense argued that Schuller did nothing to copy, store, or save the files onto his hard drive, nor was the defendant aware of the automated process that stored the depictions he viewed in the cache of his hard drive. Demonstrative of his lack of intent, he even utilized a file-wiping program in an attempt to ensure he would not possess or control the depictions for further viewing.
The Supreme Court found the defendant’s position unacceptable. This is not a case of a person accessing a website not knowing it contained child pornography. Nor was this a situation in which one person utilizes a work computer to view child pornography, leaves his desk without removing the depiction from the screen, and an unknowing coworker inadvertently sees the depiction when walking by the computer.
Instead, Schuller admitted repeatedly searching for child pornography, often visiting previously-seen websites or viewing previously-seen depictions. He also admitted to using file-sharing software for the specific purpose of seeking out child pornography. And while he used file-wiping software to avoid retaining the depictions, this was evidence of consciousness of guilt as much as it was an attempt to avoid possession. All of this demonstrated a knowing and constructive possession of child pornography.
‘People v. Petrovic’
Likewise, an intermediate California appellate court recently reached a similar finding of constructive possession in People v. Petrovic.6 Here, the defendant was already on parole for previously committing a lewd act on a child when he was found in violation for loitering in a park.
As a condition of his parole, he had to submit to an inspection of his computer when required by his parole officer, which occurred in this case as a result of the loitering parole violation. During his post-arrest interview, Petrovic told his officer that he was the only one to use the computer and that the officer would find “nothing” on it. He also denied he had the ability to access the Internet. Nevertheless, a forensic examination uncovered the presence of child pornography that had been secured over the Internet.
At trial, both sides stipulated to the admission of a forensic report from a computer expert regarding his analysis of the contents of the defendant’s computer. The report alleged, inter alia, that defendant visited the same website containing child pornography on three occasions, that his computer contained 19 videos of child pornography in the hard drive’s cache, several of which were watched by Petrovic, and that he used sophisticated techniques to hide his activity on the Internet and specific programs to delete and hide files on his computer. Particularly damning was the expert’s conclusion that Petrovic apparently inadvertently left the TIF files behind in his hard drive’s cache while transferring the files to another location.
The defense conceded Petrovic used his computer to visit websites containing child pornography, but claimed there was no evidence that he knowingly possessed or controlled it. Not only was this position unpersuasive at the trial level but with the intermediate appellate court as well.
The appellate court placed considerable weight on the expert’s report as demonstrative of the fact that Petrovic repeatedly used the Internet to visit sites containing child pornography, thus making the defendant’s denial of Internet access to his parole officer a “false statement indicative of his consciousness of guilt.”7 The court also relied heavily on the expert’s conclusion that the TIF files found in the computer’s cache were those inadvertently left behind during a transfer attempt. With Petrovic presenting no evidence that the depictions were acquired accidentally or inadvertently, the appellate court found there was sufficient evidence to support the trial court’s guilty verdict.
‘People v. Kent’
The recent decisions in Petrovic and Schuller both utilized the Appellate Division’s holdings In People v. Kent,8 as precedent for its rulings. There, the Second Department began its decision by acknowledging that if a defendant truly acquired digital depictions of child pornography inadvertently and if the storage of such depictions on the hard drive’s cache were also unknown to the defendant, such would not support a conviction for the possession or procurement of child pornography.
The appellate court was willing, however, to consider evidence other than the cached depictions themselves to decide whether the defendant knowingly and intentionally possessed and procured the hidden files. The discovery of thousands of other such depictions saved in the non-secretive portions of his hard drive as well as online communications with others about the illicit nature of the depictions in the defendant’s possession stored elsewhere on the hard drive contributed to proving a consciousness of guilt.
In citing the appellate division version of Kent, however, both the Nebraska and California courts failed to acknowledge that the part of the New York case critical to their respective rulings had been overturned in the 2012 Court of Appeals decision in Kent.9
There, the New York high court dismissed the counts involving solely cached depictions of child pornography. It agreed with the defense proposition that the mere “accessing and displaying” of web-based depictions is not procurement under New York’s statutes. Also, a conviction for the procurement or possession of digital depictions stored in cache requires the prosecution present proof that the defendant is aware of the fact such depictions are stored in the cache.
The part of the decision causing the greatest public controversy,10 however, was the proposition that even where it can be shown the defendant was aware of the presence of the depictions in cache and even where the defendant is capable of accessing them, “the defendant’s conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving.”11
An attempt to close this gap in New York’s statutes was accomplished by the Legislature and the Governor four months after the issuance of the Court of Appeals’ decision in Kent.12 Only time will tell in the months and years ahead whether these changes in the law will withstand judicial scrutiny.
Stephen Treglia, a former Nassau County prosecutor who headed the office’s computer crime unit, is legal counsel at Absolute Software Corporation.
1. The length of time this backup page is stored varies based on a number of factors not relevant for the purposes of this article.
2. This is a bit of a simplistic explanation of the process. For example, if the original version of the Web page has changed, the version stored in the cache of the user’s computer must be updated with those changes. Even still, this caching process significantly quickens the user’s subsequent access to the page.
3. For more information on this process and some of the early legal analytics of this process, see “Don’t Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files,” 19 Berkeley Tech. L.J. 1227 (2004), available at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1485&context=btlj.
4. 287 Neb. 500 (Feb. 21, 2014).
5. 287 Neb. at 511.
6. 169 Cal.Rptr.3d 648 (Cal.App. 2 Dist. March 26, 2014).
7. 169 Cal.Rptr.3d at 653.
8. 79 A.D.3d 52 (2d Dept. 2010).
9. 19 N.Y.3d 290 (2012).
11. 19 N.Y.3d at 301.