Canada's Top Court Quashes Child Porn Warrant 363
Posted
by
Soulskill
from the canuck-cache-case-quash dept.
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.'"
Okay... (Score:5, Interesting)
Re:This is total horseshit (Score:3, Interesting)
What makes you so sure he wasn't a victim of spam or the like? In the US, you have to show that the person knowingly and willingly sought out to download the images. If there's just 3, that's gonna be impossible to prove. If there's half a billion, then intent is easy to show. This was recently changed because people were spamming the hell out of other people with sick porn to try and get them in trouble. Distribution, on the other hand, ignores intent completely.
Re:Curious to how this relates to the US. (Score:4, Interesting)
It doesn't, it is Canada.
Constructive possession is a concept where if the drugs are accessible to you, e.g. you are the passenger of a car and drugs are found in the center console, you can be charged with possession without even knowing you are there. This sort of charge routinely fucks people out of gainful employment for decades; imagine this. Your buddy picks you up, and you are pulled over, drugs are found in the center console. Although you had no idea the drugs were there, you can be charged with possession if the driver doesn't admit to owning the drugs, or perhaps even if he does. If you are moderately wealthy, you get a lawyer, he plays buddy-buddy with the judge and prosecutor, and the charge will get dropped or downgraded to a non-drug offense, but if you are poor which is overwhelmingly the case, you wind up with probation and no hopes of finding a job in the next decade.
Re:Child porn laws are out of control. (Score:4, Interesting)
You can do anything as long as you're doing it "for the children". Going after child porn is simply one specific example.
But We DO Know (Score:0, Interesting)
Re:Child porn laws are out of control. (Score:2, Interesting)
Re:The REAL problem with disseminating child porn (Score:4, Interesting)
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.