The New York Court of Appeals has ruled that viewing child pornography online is not a crime. This decision was rendered in a hearing for a 2007 case wherein a virus scan of James D. Kent’s computer revealed child porn.
A former Marist College professor of public administration, Kent was convicted of two counts of procuring child pornography and 134 counts of possession of child pornography, however two counts of possession were dismissed because it was maintained that he only viewed the materials.
The court rationalized that Kent would have had to actively solicit the material by an “affirmative act” such as downloading or printing in order to have taken possession of the material, and viewing alone was not found to constitute such an act.
Working for the defense, the computer forensic engineers at Kessler International were able to provide supporting forensic evidence directly from Kent’s computer that the materials constituting the dismissed counts were only viewed, and not actively engaged via saving, downloading or printing.
Digital forensics can be critical in providing evidentiary support for both the defense and the prosecution, as seen in this recent decision.
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