Passive browser history may not be possession of child ...

Widespread use of electronic media and technology has changed nearly every element of life in Maryland and across the nation. Even the law has had to adapt and morph to account for the influence of electronic media across the board. Most recently, the New York Court of Appeals has helped to redefine the concept of "possession" of electronic files as the term pertains to sex offenses.

Specifically, the court held that a man had not affirmatively possessed child pornographic images that were found in the hidden browser cache on his computer. Though downloading, printing or otherwise saving the images would have constituted clear possession of them, the passive history record of someone having viewed the images on the computer was not considered possession for legal purposes.

The central question examined by the court involved the threshold by which electronic files are considered to be in the possession of the viewer. Courts across the nation are grappling with this issue, and until a clear and bright line is drawn, criminal prosecutors, defenders and judges will be inconsistent in their interpretation of this question.

Similar questions are being asked within the legal system concerning issues of intellectual property. Indeed, the criminal justice system may soon draw ever-increasing lines between how intellectual property, like music downloads, are considered illegally possessed versus legally streamed.

Until the legal inconsistencies have been resolved and the law has fully adapted to the ways in which Americans share technology, the concepts of possession and distribution will likely continue to evolve. The New York case clearly illustrates the current fluidity of the law and the complex questions which surround cases like it.

Source: PopSci.com, "Do You "Possess" What You View Online?," Dan Nosowitz, May 9, 2012

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