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Canada's Top Court Quashes Child Porn Warrant 363

Posted by Soulskill
from the canuck-cache-case-quash dept.
m.ducharme writes "The CBC is reporting that the Supreme Court of Canada has handed down a decision quashing a search warrant used to obtain the computer of a man accused of possession of child porn. 'Urbain P. Morelli maintained his charter rights were violated when police searched his computer for child pornography after a technician who had visited his home to work on the machine expressed concerns to police.' What the Slashdot community may find notable about this decision is the distinction drawn between 'accessing' and 'possessing' digital images, most particularly the recognition that a user does not 'possess' cached data. From the decision: '[35] When accessing Web pages, most Internet browsers will store on the computer's own hard drive a temporary copy of all or most of the files that comprise the Web page. This is typically known as a "caching function" and the location of the temporary, automatic copies is known as the "cache." While the configuration of the caching function varies and can be modified by the user, cached files typically include images and are generally discarded automatically after a certain number of days, or after the cache grows to a certain size. [36] On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a "place" over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.'"
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Canada's Top Court Quashes Child Porn Warrant

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  • Okay... (Score:5, Interesting)

    by Securityemo (1407943) on Saturday March 20, 2010 @01:53PM (#31550602) Journal
    Will he have his computer back now?
  • Wow, Savvy Judge (Score:5, Insightful)

    by Skarecrow77 (1714214) on Saturday March 20, 2010 @01:57PM (#31550640)

    I didn't know that our legal system understood computers even that well, to distinguish browser cache "oh crap, what the hell did I just see?!" from deliberate "I done saved 3115 photos to my desktop that I probably shouldn't have".

    Of, wait, it's not my legal system, it's Canada's. nevermind. Grats Canadians on having sane judges?

    • by Oxford_Comma_Lover (1679530) on Saturday March 20, 2010 @02:01PM (#31550664)

      The legal system understands anything that someone explains to it. So if you explain something to a judge or a lawyer, he or she is supposed to think about what you've explained and figure out how the law applies to it. A cache isn't something it's hard to explain, so--particularly when it's really important to a case--a judge will understand it.

      • You've never tutored have you? There are people who either refuse or are incapable of understanding certain concepts. Some judges fall into this category in certain areas, and one would hope it wasn't the case, but it happens, especially when judges are elected based on popularity and not appointed on merit.

        • by perlchild (582235)

          Just a note, there's nothing wrong with your post, you just assume the rules in the US happen everywhere else.

          Judges are not elected in Canada, but appointed.

          Popularity does play a role, since a politician does the appointing, but it's not an election.

          • And even though a politician does the appointing, she chooses from a short list of candidates that are vetted by a committee of judges, lawyers, and lay-people. The system works surprisingly well.

      • Re: (Score:3, Insightful)

        by Tassach (137772)
        That's the way it's SUPPOSED to work. Sometimes it does actually work that way, as long as your explanation agrees with the judge's prejudices. If you try and tell at judge something conflicts with his ideology, he'll ignore the facts and rule based on his ignorant superstitions. IF you can afford to, you can appeal, but that is a long expensive fight and sometimes you have to go through multiple appeals to get a panel of judges that can see past their Bibles.
    • Re: (Score:3, Insightful)

      by MikeBabcock (65886)

      I'm proud of being Canadian when judgments like this come down. We've had a number of other salient ones in the last number of years too.

    • by MikeFM (12491) on Saturday March 20, 2010 @02:09PM (#31550744) Homepage Journal
      I think they should stop wasting resources hunting pervs that look at the stuff and spend time hunting the predators that actually produce the stuff. It gets especially silly when they want to arrest someone for looking at cartoon porn - who is the victim? Or my biggest gripes is that they are harassing kids for taking pictures of themselves and sharing them. So they are self-victimizing and we need to give them a felony and register them as a sex offender instead of just telling their parents? I had a girlfriend when I was a teenager and we did more than hold hands and *gasp* there were provocative photos sometimes. Guess I'd better turn myself in.
      • by ScottCooperDotNet (929575) on Saturday March 20, 2010 @02:25PM (#31550862)

        Child porn is the root password to the Constitution.

      • "stop wasting resources hunting pervs that look at the stuff and spend time hunting the predators that actually produce the stuff."

        I fully agree. I mean, even if the perv has thousands of images and hundreds of videos, he's not actually touched one single child while collecting them.

        In my post above, I mentioned the dark net. The predators are proud of their "work". You get full facial views of the predators enjoying their sport. How hard can it be for the police forces to combine their intelligence, an

        • The issue isn't just one of "gateway habit" escalation. Nor is it just one of "abuse by proxy."

          A child is hurt when child abuse happens. Most child porn, not counting teen self- or boyfriend-cell-phone stuff, are photos of child abuse in progress.

          While passing those pictures around may or may not cause that particular child any further harm ("abuse by proxy"),* it generally does create a market for child pornography. In the aggregate, spread over all the people who view child pornography, this increases

          • by tirefire (724526) on Sunday March 21, 2010 @01:45AM (#31555404)
            My blood boils whenever I see this argument.

            Please reply if this is an inaccurate summary of your post: You think that people who view child porn might be "pushed over the edge" by it and abuse children where they previously would not, therefore imposing some responsibility on the CP peddler for subsequent acts of child abuse.

            This is akin to saying that a woman wearing a sexy outfit is responsible for prompting an act of rape unto herself (yes, some people in modern enlightened countries actually believe this). If she is raped and her rapist goes to trial, it may be demonstrated that she increased her likelihood of rape by her provocative dress, but that doesn't mean that her rapist couldn't choose not to rape her. Making it 100% NOT HER FAULT if she gets raped.

            Stop shifting blame. People who abuse children should go to prison. People whose closest tie to child abuse is watching a video of it after the fact should not. It's not that hard.

            In response to your starred item about "additional trauma": Just like everyone else, I've had loads of embarrassing moments in my life (my arrest a few months ago being the latest example). If a given incident is recorded on video and distributed online, I shouldn't have some crybaby trump card to suppress the distributors' human right of free speech just so that I can pretend it didn't happen. We shouldn't prohibit free speech because it might hurt someone's feelings, and CP should be no exception. There are less heavy-handed methods of discouraging the creation and distribution of CP. For further reading, see: Star Wars Kid; Barbra Streisand.
      • by sam0737 (648914)

        It gets especially silly when they want to arrest someone for looking at cartoon porn - who is the victim?

        MAFIAA of course. They would surely claims the rights of the usage of Bart Simpson, with clothes or without.

      • by SpeedyDX (1014595)

        In this particular case, if you RTFA (yeah, yeah, you must be new here, etc.), you will notice that the Morelli, the accused, was also suspected of creating child porn with his 3 yo daughter.

        • Re: (Score:3, Insightful)

          by MikeFM (12491)
          Then they should bust him on that. Being guilty of one thing and busted for another is a bad practice too I think.
    • Re: (Score:3, Insightful)

      Of, wait, it's not my legal system, it's Canada's. nevermind. Grats Canadians on having sane judges?

      Let's hope that even though many of us don't live in Canada and the case doesn't directly set precedent in our legal systems the case is widely reported among legal professionals and they get a better understanding of the technical side of the argument. At the very least this should give lawyers in other countries ideas for a better defense for their clients.

    • Re: (Score:3, Insightful)

      by m.ducharme (1082683)

      I think that this particular decision was even more sophisticated than that -- the judge made a point of saying that if you took advantage of the existence of the cache to store material, you would be in possession. So surfing to a page isn't possession, but knowingly surfing to a page, so that your cache would contain cp that you could go browze to later, might be.

      I was quite surprised at just how well-done that decision was, but if you want to see an example of a Canadian judge getting it wrong, just read

    • by wrecked (681366)
      If you ever get a chance to visit the Supreme Court of Canada in Ottawa, Ontario, you will see just how tech-savvy it really is. All documents must be filed electronically [scc-csc.gc.ca]. Every station in the court (judges, clerks, lawyers and reporting media) has an embedded computer to manage the digital case materials. There are large-screen monitors for the public gallery to follow along.

      The SCC broadcasts select hearings over the web [scc-csc.gc.ca]. The court's decisions [umontreal.ca] are all published and searchable [canlii.org] on the internet.

      Sl
  • court intelligence (Score:5, Insightful)

    by Onymous Coward (97719) on Saturday March 20, 2010 @01:58PM (#31550642) Homepage

    Surprisingly sophisticated and reasonable thinking on behalf of the court. I'm impressed.

    • by MikeFM (12491) on Saturday March 20, 2010 @02:02PM (#31550670) Homepage Journal
      Intelligent law that doesn't give in to "but it's for the children" bullshit. I'm moving to Canada.
    • Re: (Score:3, Insightful)

      by Jailbrekr (73837)

      Surprisingly intelligent, yes, but it completely ignores the fact that a technician found evidence that he was producing child porn, only to find that he disassembled his setup and formatted his hard drive the next day. The ruling really is a mixed blessing. Ruling that cached data does not constitute possession is a good thing, but quashing the search warrant based solely on that point was a horrible thing to do due to the rest of the evidence.

      • by CharlyFoxtrot (1607527) on Saturday March 20, 2010 @02:24PM (#31550858)

        Surprisingly intelligent, yes, but it completely ignores the fact that a technician found evidence that he was producing child porn, only to find that he disassembled his setup and formatted his hard drive the next day. The ruling really is a mixed blessing. Ruling that cached data does not constitute possession is a good thing, but quashing the search warrant based solely on that point was a horrible thing to do due to the rest of the evidence.

        If he formatted his drives then there was no evidence, a technicians testimony is hearsay not evidence. "No evidence = No prosecution" is a good thing even if it allows some criminals off the hook (as it inevitably will.)

        • by gnasher719 (869701) on Saturday March 20, 2010 @02:38PM (#31550964)

          If he formatted his drives then there was no evidence, a technicians testimony is hearsay not evidence.

          A technician can always testify in court to what he saw on the hard drive as a witness, and that would not be hearsay. Hearsay would be a policeman testifying in court "the technician told me..." or the technician testifying "the customer told me..."

          • A technician can always testify in court to what he saw on the hard drive as a witness, and that would not be hearsay. Hearsay would be a policeman testifying in court "the technician told me..." or the technician testifying "the customer told me..."

            You are right of course. I stand corrected, hearsay is the wrong word.

            Still there wasn't any hard evidence of child porn production if I read TFA correctly, just some circumstantial evidence witnessed by the technician from which he developed a suspicion that that was what was going on.

        • by jonbryce (703250)

          If the technician is cross-examined in court as a witness, that is evidence. It is up to the judge to decide how credible he is as a witness.

      • by Hojima (1228978) on Saturday March 20, 2010 @02:24PM (#31550860)

        Um, what was that "evidence" again? Oh yea a camera pointed to his fully clothed three year old daughter with her toys. The technician said he found 2 suspicious links (amongst the plethora of porn he had in his bookmarks). What I'm thinking is that the defendant liked petite LEGAL girls(i.e. he probably had a link that said "tiny teens" in his long list of fetishes). It's not untypical for someone to stumble on illegal porn when searching for legal porn. Sorry but this case was bullshit, and I commemorate the judge and jury on their competent choice.

        • Re: (Score:3, Insightful)

          by redkingca (610398)
          Part of this that was not explained very well in the article is that the tech felt so bad he waited 3 months before he mentioned "the pornography" (2 links in the accused's favorites) to his mother (who is the social worker in question). The tech's mother then reported it to the police, who then waited another month before the search. So everyone was so worried about the child's health that it took 4 months before anything was done. Then the Crown found so much evidence that they decided to give the accused
      • by Kell Bengal (711123) on Saturday March 20, 2010 @02:31PM (#31550906)
        But that's not what the article even says. The judge ruled that the technician's testimony about the nature of the camera setup and the links observed on the computer where ambiguous. As the technician didn't even follow any of the links, it seems strange to me that he should be able to tell at-a-glance what they lead to (unless they were patently advertising what they linked to, which strikes me as unlikely).

        The search warrant was quashed because it was issued under faulty information. "My god, judge - the guy had a camera setup and was filming his kid, and there were links on his computer to pornographic websites!" Well... was he filming his kid playing for Kodak memories in years to come, and were those links to pornography perfectly legitimate adult websites? Even in the article, you get the idea that simply having links to pornography somehow constitutes reasonable suspicion that you might be a kiddy-fiddler, regardless of whether that pornography is perfectly legal and unassociated with it.

        I, for one, am tired of people tacitly assuming that pornography is corrupt and corrupting, regardless of what it contains. It's ignorant moral panic at its finest.
        • >it seems strange to me that he should be able to tell at-a-glance what they lead to Well maybe the technician actually knew what they were from the names as he himself accessed those sites before. So he's a closet pedo too.
        • by MartinSchou (1360093) on Saturday March 20, 2010 @04:42PM (#31551910)

          Even in the article, you get the idea that simply having links to pornography somehow constitutes reasonable suspicion that you might be a kiddy-fiddler, regardless of whether that pornography is perfectly legal and unassociated with it.

          It's actually a fairly easy test:

          1. Do you have a penis?
          2. Do you have even the remotest access to children?

          If you can answer yes to both of those questions, you are automatically suspected of being a kiddie-fiddler.

      • Why does your sig go to one of the low-end placeholder websites?

      • by Xeno man (1614779)
        What evidence? The tech saw nothing. Unless the bookmark was labeled "Totally illegal child porn" the tech never saw anything because he never followed any of the links. Even if it was child porn links, it's not like a lot of adult websites automatically add bookmarks for you with Javascript. Oh wait, that's what those hundreds of pop ups do. Plus there were only 2 suspect links among the dozen or so adult bookmarks so who knows if he even knew what was bookmarked. Also on top of that, bookmarks are not chi
      • by sjames (1099)

        The technician saw evidence that the man was video taping his fully clothed daughter at play and he saw a few bookmarks that he believes are child porn.

        How those links got there, he cannot say. Perhaps the owner put them there, perhaps some rogue javascript or a virus did it. Perhaps the owner reinstalled because CP links and images appeared unwanted on his computer. Who knows?

        If an ad can animate a complete XP desktop going through a simulated virus scan, even on a Linux machine running Firefox, then it's

      • The technician found no such thing. What he found was a camera in a room, where there happened to be a lot of toys. In other words, the technician found reason to believe that the accused was making videos of his kid while the kid was playing. My impression from the rest of the decision is that they never did find any evidence at all that he was making porn of his kid, even though they did ultimately find child porn of other kids after they seized his computer.

        Essentially, the technician found two bookmarks

  • 1. Set cache size to 100 GB.
    2. "accidentally" browse CP
    3. ??
    4. Profit!!
    • Re: (Score:2, Insightful)

      by ddxexex (1664191)
      FTFS: . While the cached file might be in a "place" over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.'"

      No jury/judge will see it as accidently having muliple CP images. So that's 4. Jail Time!
  • Sounds a lot worse as a charge...

    "Yes M'lud, Mr Taco is charged with making these images"

    sounds a lot worse than

    "Yes M'lud, Mr Taco is charged with owning a computer running Microsoft Windows 98 and Internet Explorer 5, which, when Mr Taco visited the website in question, caused cached copies of the images in question to be stored temporarily on the hard disk, in an area of files not used or accessed directly by Mr Taco, but by the Microsoft products aforementioned"

    The latter is also sounding a lot weaker i

  • by HangingChad (677530) on Saturday March 20, 2010 @02:17PM (#31550804) Homepage

    I was wondering if the service personnel browsing dude's computer was routine? I've fixed a lot of PC's without rifling through the users cache and image files, other than if they were infected with a virus. Even backing up user profiles and data, I could tell you which files were infected but not what they were doing with their computer.

    Just wondering why the technician was going through all that stuff? Seems like service people are being a lot more thorough than is required to get the computer working again.

    • by jonbryce (703250)

      Sky News did an undercover investigation of computer repairers in England, and found that all but one of them browsed through the photo collection, and some of them even tried to log in with the fake Natwest Bank login details left on a word file on the disk.

  • The only problem with this ruling is that, after a few incidents like this one occur, there will be a hew and outcry, and harsher and more encompassing laws passed, which will inevitably result in more arrests and convictions of people who oughtn't be bothered.

    • Re: (Score:3, Insightful)

      by Kell Bengal (711123)
      Gasp! Are you saying we shouldn't imprison anyone even for a moment passes a thought we disagree with? Heavens! We must punish swiftly and severely for even the most trifling victimless offense so no one anywhere will be tempted to transgress, regardless of whether they hurt anyone or not. Summary punishment is too important to reserve only for the people who actually hurt people.
  • Say What? (Score:3, Insightful)

    by bmo (77928) on Saturday March 20, 2010 @02:53PM (#31551072)

    mens rea

    What? What the fuck kind of barbarian country is Canada where mens rea is still alive and kicking? Here, in the Civilized United States of America Incorporated, mens rea was abolished in the Nixonian War On Drugs.

    That's it. We're invading next Thursday to stop this Godlessness.

    --
    BMO

  • Did anyone commenting here actually read TFA (specifically, the court ruling)?
    The reasoning for why the conviction was quashed had absolutely nothing to do with cached images. It was quashed because the police were ruled to have conducted an illegal (as per the Canadian Charter of Rights and Freedoms) search, despite having a search warrant to search for possession of child pornography.

    Essentially, this is what happened:
    1) Technician shows up to install an Internet connection on accused computer.
    2) Technic

    • by BitterOak (537666)

      The court essentially ruled that the technician's observations did not legally justify a search. And I find this patently ridiculous.

      Why?

    • by SpeedyDX (1014595) <speedyphoenix@NOspAM.gmail.com> on Saturday March 20, 2010 @04:13PM (#31551682)

      You're right and wrong. The question of whether or not he possessed child porn really had little to do with the decision. HOWEVER, the Court did write exactly what the summary quoted. So it will serve as legal precedent.

      The reason why he was acquitted is because the search warrant itself was quashed. An invalid search warrant means that the subsequent search is illegal. So while you're right that the police had a search warrant, it was improperly obtained and thus rendered invalid. You made it sound like they had a valid search warrant, which is false. To issue a search warrant, police need to provide reasonable grounds to a judge as to why the search warrant is necessary or, you might be able to see this coming, warranted. This is to protect Charter rights.

      The Court found that the police did NOT have reasonable grounds, and that an objective reasonable person would only have a mere suspicion that he might be creating/consuming child porn. Suspicion is NOT enough to issue a search warrant. Furthermore, it wasn't the fault of the issuing judge that the search warrant was issued. The police used misleading language and omitted important exculpatory information in their Information To Obtain (ITO, basically a warrant application). If the police had not been misleading in their ITO, the judge probably would not have issued a search warrant.

      You've conveniently included some of the deceptive claims made by the police. The Court found that the following information was pertinent and exculpatory, and, taken with the situation as a whole, would serve to more than mitigate any reasons to suspect the man:
      1) The technician did not find probable child porn links. He found links that were entitled "lolita". If you've ever seen porn, you know that the term "lolita" is used in PLENTY of legal porn productions. These are POSSIBLE child porn links, at best.
      2) The child showed NO signs of abuse, trauma, or anything other such signs of harm. The child was fully clothed and playing with her toys.
      3) The mother was also in the house.
      4) From the fact that the webcam was pointed at his daughter, you CANNOT then conclude that he might be making child porn. That would make it so that every person who has a video camera and likes to take home videos of their children child porn suspects. This is ludicrous.
      5) The technician saw legal porn. But legal porn is legal, and from Morelli's consumption of legal porn, you can't suddenly conclude that he likes illegal porn. Logically questionable, at best.

      The Court found that all of the above created a situation where you may, kind of, sort of, suspect child porn production. But that would involve an AWFUL LOT of speculation. Search warrants, again, cannot be issued on the basis of suspicion or speculation, but rather reasonable grounds. Since there are no reasonable grounds to issue a search warrant and the issuing judge was misled by the police, the original search warrant was invalidated. This means that the subsequent search and all the evidence obtained cannot be introduced in the Court. Without any evidence from the search, the charges do not hold. Morelli acquitted.

  • Justice (Score:3, Insightful)

    by gmuslera (3436) on Saturday March 20, 2010 @03:19PM (#31551322) Homepage Journal
    Something is not very right when someone that goes drunk in a highway (and be able to cause the death of a lot of people, in fact, it keeps happening frequently) get a far less punishment (few months of jail and a fine at best?) that someone browsing random internet pages and hitting one with images that could be qualified as child porn (years in jail). In fact, maybe someone that physically attacks and do permanent injuries to someone could get less punishment, maybe just kill is the only crime that gets a worse punishment that anything that could be attached remotely the label of child porn, even if there was no minor involved at all.
  • by GNUALMAFUERTE (697061) <.moc.liamg. .ta. .etreufamla.> on Saturday March 20, 2010 @03:50PM (#31551542)

    http://www.youtube.com/watch?v=8APlx9btTn8 [youtube.com]

    "Child Pornography is the only crime that is illegal to look at"

    "If you are a parent, you probably don't want to hear this but [...] statistically, no one wants to fuck your kid. Now or ever! [...]. You want to think your kid is the reason all those pedophiles are there waiting in position [...] if you wanted your kid to get fucked just to prove how ultrafuckable that kid is you probably couldn't make it happen. If you put him up as bait dressed in a catholic school skirt jumping on a pogo stick with no underwear [...] he would still probably graduate a virgin, and you would look like an asshole."

    Best. Comedy. Ever (The great 4: Lenny Bruce, George Carlin, Bill Hicks, Doug Stanhope)

Entropy requires no maintenance. -- Markoff Chaney

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