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Is accidentally looking at child pornography online a crime?

Sacramento, CA |

Is accidentally looking at child pornography online a crime? What if the viewer was looking at adult pornography and accidentally viewed pornography with participants who were labeled as teens but these participants' age is not apparent? Doesn't law enforcement care about these sorts of incidents?

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Attorney answers 3

Posted

Looking at child pornography is not a crime. Knowingly possessing child pornography is a crime. Just because someone is labeled a "teen" does not mean that they are under the age of 18. In order to be convicted of possessing child pornography, you have to knowingly possess pornography involving a person whom you know to be under 18.

Asker

Posted

Isn't "accessing" a crime under 18 U.S.C. Section 2252? Wouldn't that be viewing online? Doesn't a computer save all of the websites viewed thereby automatically making the viewer possessing such images?

David Jon Pullman

David Jon Pullman

Posted

No. "Accessing" is not listed as a crime under section 2252, but "knowing" "receipt" is and so is possession. To possess, you have to have exerted dominion and control over an image, so if you went into your cache and accessed the image from there, you would be guilty of possession, assuming you knew it depicted someone under 18. To knowingly receive something you don't have to exert dominion or control over it, but you do have to have the ability to do so, so you have to know that you have it in your cache. It is arguable that if you have knowledge of your computer's automatic caching function and don't erase the cache, then you are in knowing receipt of the image. Your initial question said "accidentally," which is by definition, not "knowing." Also, if the fact that they are under 18 is "not apparent," then it is also not "knowing."

Posted

By viewing child pornography, that person would be in possession of it. Just because it's sitting on a screen instead of downloaded, they are still potentially in possession.

I'm not sure what your question is - whether it's a priority for law enforcement to crack down on websites that have questionable images? I'm sure law enforcement would care and do what they could to crack down on the site.

Are you asking about somebody who looks at pornography sites that has child erotica or legal aged girls that appear younger? Those sites are legal.

Posted

Both state and federal case law say that merely viewing child pornography is not possession. See, for example, Tecklenburg v. Appellate Div. of Superior Court (2009) 169 Cal.App.4th 1402, 1416-1419.

Joseph Briscoe Dane

Joseph Briscoe Dane

Posted

I'm familiar with the case, thus my answer of "potentially in possession". Whether or not a person is in possession under California law depends on their actions that lead to how the image ends up on their screen. A true pop-up ad that contains child pornography? No, it's not knowingly possessed. An image that's pulled up as the result of a search for those images? Then because it's contained on the computer's drive and then 'possessed' - another story... potentially, depending on all the facts.

David Jon Pullman

David Jon Pullman

Posted

Agreed. In this hypothetical, since it was "accidental," I don't think possession is satisfied.

Asker

Posted

Has federal case law cut out the "access" part of Section 2252? As I read that section, knowingly access with intent to view is listed under that section.

David Jon Pullman

David Jon Pullman

Posted

You're right, the federal law does say that knowingly accessing with intent to view is prohibited. That does not apply to accidentally looking at child pornography that comes up on the internet. You have to intentionally seek it out and thereby exercise control over it.

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