New York v. Kent: using temporary Internet files to prove possession of child pornography.

• Author: Pendle, David

IN A CASE OF FIRST IMPRESSION in New York, the Second Department of the Appellate Division held that temporary Internet files that show a defendant intentionally viewed child pornography on the Internet could support convictions for possession and promotion of child pornography, even though the images were not downloaded or otherwise manipulated by the defendant. (2) The case appears to be representative of a trend in a growing number of state courts, which are accepting evidence automatically stored in temporary Internet files as sufficient to support possession charges, so long as there is some indication that the images were not inadvertently accessed.

Temporary Internet files, or cache files, essentially represent an Internet browser's Web history. When an Internet browser accesses a Web site, any images, text, and even sounds produced by the site will be automatically stored in the cache on the user's hard drive. If the user later returns to the Web site, the browser will display the cached file rather than again retrieve it from the Internet, which is a slower process.

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Using computer forensic software, a forensic examiner can retrieve images stored in the cache. Even where a cached image is "deleted" by the user, it may remain on the user's hard drive and be retrievable by a forensic examiner. Deleted images are merely moved from a hard drive's "allocated space" to "unallocated space." The computer makes files stored in unallocated space available to be overwritten by new files, but newly saved files are not necessarily saved in the same space on the hard drive as the old. Until this occurs, a forensic examiner may retrieve the "deleted" files.

Recovered cache files only represent what the user actually saw on the computer screen. When viewed in isolation, the files do not indicate whether the user intentionally accessed the host Web site or how long the images were displayed on the computer screen.

In New York v. Kent, the defendant, after a nonjury trial, was convicted of two counts of promoting a sexual performance by a child and 134 counts of possessing a sexual performance by a child. (3) Under New York Penal Law [section] 263.15, a person is guilty of promotion when, "knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age." The definition of "promote" includes to "procure," (4) or simply "to get possession of: obtain, acquire." (5) Under New York Penal Law [section] 263.16, a person is guilty of possession when, "knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age." For both statutes, the definition of "performance" encompasses any "motion picture" or "photograph," which includes any "digital computer image." (6,7)

Two of the defendant's 136 total convictions--one for promotion and the other for possession--were based on a single Web page found only in the cache and not otherwise saved by the user. (8) This Web page, titled "School Backyard," depicted children engaging in...