Writings and observations

A crime of inadvertently stopping by?

The case of Oregon v. Barry Lowell Barger, decided today by the Oregon Supreme Court, is worth some review by anyone who … well, visiting this space or any other in the World Wide Web. Be aware that the simple process of following a link or mistyping a url could be a serious criminal violation, in the view of some people in law enforcement, though not on the Oregon Supreme Court.

Barger was being investigated in a report of child sexual abuse; in the course of it, police seized and examined his computer. They did not find any saved pictures, videos or such – the kind of stored material that have formed the basis for similar cases in the past. But criminal charges based on the computer files did ensue:

Eugene police detective Williams, who was certified in computer forensics, took possession of the computer, made a copy of the hard drive, and used certain forensic software to examine that hard drive. Based on Williams’s findings, defendant was charged with eight counts of Encouraging Child Sexual Abuse in the Second Degree, ORS 163.686, by possessing or controlling a visual recording of sexually explicit conduct involving a child. Each charge was based on a separate digital image that Williams found in the computer’s “temporary internet file cache.”

As Williams later explained at defendant’s jury trial, temporary Internet files found in a computer are the product of an automatic function of a computer’s web browser. Whenever a computer user visits a web page, the browser creates a copy of the web page and stores it in a temporary Internet file “cache,” where it remains until the space is used up and written over, or it is erased. If a user calls up the same web page at some later date, the browser simply accesses the copy from the temporary files, rather than going through the slower process of downloading the same information from the web page. Computer users with ordinary skills would not necessarily be aware of that function or know how to go about accessing information stored in the temporary Internet file cache.

Williams testified that, when he received the computer, only one of the three addresses that had triggered Sullivan’s suspicions remained in the web-address registry but that, by examining other Internet activity files, he was able to identify two other suspicious web addresses that someone had accessed in the recent past. Williams stated that he checked all three web sites and that all appeared to contain pornographic images of prepubescent girls and girls in their early teens.

Williams testified that he then searched for similar images that might be stored on the computer’s hard drive, using certain words and phrases commonly used in child pornography. He acknowledged that he did not find any images of that kind that had been purposefully copied and saved in any user’s personal files. He did, however, discover sexually explicit images of prepubescent girls in the computer’s temporary Internet file cache.

The prosecution then presented the specific evidence that it asserts established defendant’s guilt of the eight charges of Encouraging Child Sexual Abuse. The evidence included the eight digital images, all of which Williams had discovered in the temporary Internet file cache of defendant’s computer, and which were the bases of the charges. Williams acknowledged that there was nothing about the images that identified what web site they had come from and that there was no way to know with absolute certainty whether the images had been accessed intentionally by a user or “were the result of pop-up windows or browser redirects.” Williams further explained, however, that pornographic pop-ups and redirects occur almost exclusively when a computer user visits another pornographic web site.

After presenting Williams’s testimony, the state rested …

Now imagine you’re bouncing around the web, following links or typing in, maybe not altogether accurately, urls. Suppose you land on a site like one of those – or something else, non-pornographic but nonetheless legally troublesome – and, appalled, immediately depart for somewhere else. (Remember the former porn site that used an address something like www.whitehouse.com? A lot of people stopped there in the early days of the web before finding out what it was.) That site’s record is in your browser’s cache. And according to the prosecutors, you’ve broken the child porn law (or some other, depending on the subject matter) and should be sent to prison.

The Oregon Supreme Court did not see it that way. It reversed the state court of appeals and circuit court, and said that “we are not persuaded by the state’s theories as to how and why, in the absence of some additional action by a computer user beyond that proved here, the user could be deemed to ‘possess’ or ‘control,’ in any sense that this court heretofore has recognized, a digital image that he or she has called up on a computer screen. Instead, we are satisfied that the statute before us, ORS 163.686(1)(a)(A)(i), when read in the light of its context … embodies a considered legislative choice not to criminalize the mere ‘obtaining’ or ‘viewing’ of child pornography without consideration. Thus, we conclude that the acts at issue here – navigating to a website and bringing the images that the site contains to a computer screen – are not acts that the legislature intended to criminalize.”

The casual web user may have dodged a bullet on this one.

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