INTRODUCTION :: “For years, defense lawyers have argued the ‘young and stupid’ semi-defense for their youthful clients. Now, we can have the ‘I didn’t know it was on the hard drive’ objection for the unsophisticated computer user in child pornography cases-or at least they can in the 9th Circuit.”
This quote, appearing on the website of an East Texas criminal defense law firm, refers to the outcome of United States v. Kuchinski. In Kuchinski, the defendant’s computer contained, in various forms, more than 15,000 images of child pornography. There was no question that Kuchinski’s volitional viewing of the images on the Internet was the sources of those images. No one argued that Kuchinski did not have control over his computer while he searched for the 15,000 images or while he looked at them on his computer screen. However, Kuchinski successfully argued that he lacked knowledge of a computer mechanism that automatically downloads any images viewed while a user surfs the Internet. Ultimately, Kuchinski was convicted for possession of only 110 of the 15,000 images.
The result of Kuchinski is a new defense for willing users of child pornography: lack of knowledge regarding the inner workings of their computers, even though a user does not need any advanced computer knowledge to search, view, and control web images. These volitional searches for child pornography provide a user with access to and control over child pornography images. Courts have struggled with such facts, questioning whether it is sound public policy to allow the user to escape liability for possession of child pornography because the user remains ignorant about computers.
This problem is easily identified but much less easily eliminated. The concept of “possession” seems intuitive when one thinks of a physical object: holding something, touching it, feeling it, having it physically present. Therefore, mere viewing, even window-shopping, does not constitute possession of what is on the other side of the glass because one cannot hold it, touch it, or feel it. Even though the legal definition of possession sets forth constraints that limit this basic idea, the general intuition behind possessing an item does not change. In contrast, the concept of possessing something digital is more elusive. Looking at materials on a computer screen might seem more like window- shopping than physical interaction with the materials. However, surfing the Internet involves significant interaction and exchange of information between a user’s computer and the web servers visited. Furthermore, the user retains a significant level of control over the information on the computer.
This Note examines the concept of electronic possession in the field of child pornography, with the aim of reconciling the basic intuition behind possession with the reality of electronic data. Part II briefly discusses the case and statutory history that placed child pornography outside the bounds of the First Amendment and led to constitutionally valid prohibitions on the possession of child pornography. Part III sets forth the various ways in which individuals can access electronic child pornography, with a focus on the user’s level of interaction. Part IV discusses factors that the courts have considered in defining what constitutes possession of electronic child pornography and critically analyzes two leading court opinions. Part V suggests a test that can be uniformly applied to any situation giving rise to possession of child pornography and discusses how the analysis of previous cases might have been different under the proposed test.
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person