Pennsylvania court says viewing child porn 'not illegal'

Cache loophole

By OUT-LAW.COM, 10th November 2006

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A US court has ruled that viewing child pornography on a website without deliberately saving it to a computer is not a crime. The judge said that the state penal code was ambiguous, so he must rule in favour of the defendant.

Anthony Diodoro, a 26-year-old from Delaware County, Pennsylvania admitted knowingly viewing 370 child-porn images online. He also admitted that he had intentionally visited the websites for the purpose of viewing child porn.

State law says that a person must have "knowing possession" of child pornography in order for it to be a crime. A panel of three judges in the Pennsylvania Superior Court concluded that Diodoro could not be convicted of knowingly possessing the images because there was no evidence that Diodoro knew that his computer was storing the images in its internet cache file.

"Because this is a penal statute with an ambiguous term when it comes to computer technology, it must be construed strictly and in favour of the defendant," wrote Judge Richard Klein.

"A defendant must have fair notice that his conduct is criminal," wrote Klein. "Because of the ambiguity, sufficient notice was not provided here. For this reason, we are constrained to reverse [a previous decision] and leave it to the Legislature to clarify the language if it intends to make the mere 'viewing' of child pornography a crime."

Klein said that it was well within the power of lawmakers to clarify the law, if that was their intention. "We note that it is well within the power of the Legislature to criminalize the act of viewing child pornography on a Web site without saving the image," he concluded.

In the UK, the Protection of Children Act can be used to convict someone for viewing child porn on the internet, regardless of whether or not they understood a computer's cache function. "In the UK simply viewing images classes as a download because your computer makes images of them on your screen," said Tony Fagelman of the Internet Watch Foundation, a body which works to minimise the availability of images of child abuse. "The decision is quite unusual, usually US law follows the same legal framework that we do in the UK."