Yesterday's Supreme Court of Canada decision dealing with child pornography considered in detail the difference between possessing child pornography and accessing it.
The distinction has some relevance because the legislation creates two different crimes -- possession and accessing.
The majority decision in the Supreme Court is based, at least in part, on the view that viewing child pornography online is accessing as opposed to possessing. The Court said that to possess one has to actually have the underlying data file whereas just looking at, say, a photo online does not amount to possession.
Of course, to look at a photo online requires the underlying data file be downloaded and held in your cache directory.
When you view a file (or anything)on a remote server is that the image or text is downloaded to your computer as a series of internet-format information packets which your computer then reassembles into a copy of the file, that copy is then decoded by your computer (assuming your computer knows how to do that) and displayed.
The file must be downloaded to be viewed. This is why you must have things like adobe acrobat installed on your computer - without software capable of interpreting a PDF file on the receiving computer you will only be able to download the file, not preview it. The same thing applies to all file types, though web browsers usually have built-in support for common image file types such as .jpg and .gif.
The majority decision briefly references the automatically downloaded files in passing but says few users would be aware of the cache directory and in any event it gets overwritten.
I have no statistics but casual discussion suggests almost all computer users (maybe not Supreme Court judges?) know about the cache directory. More to the point, the technological basis for much of the majority's ruling is wrong headed. And that matters because judges are making decisions based on technology they don't really understand.
5 comments:
Agreed that the having of an image in a cache directory amounts to possessing it.
But surely there is a difference in intent, isn't there, between:
- having images in cache, as a result of viewing them
- having images in a directory, as a result of downloading them from a website or uploading from a camera or other media
And shouldn't the definition of 'possession' refer to intent, and not mere happenstance? Should you not intend to keep the photos and preserve them in some way in order to be convicted of possession?
Interesting analysis, James. Thanks.
Downes, I agree -- and to possess something you have to know you have it. My point isn't that the decision is "wrong"" but rather the judges didn't have the technical background to appreciate the issues fully (I probably didn't express the point well). In drug cases, for example, a judge's understanding of the effect of the drug (or it's potential danger) can be an issue. Not sure what to do to fix the problem but it's real.
james
As well, all sorts of routers, switches, gateways, etc. along the way maintain various cache stores. Wouldn't a precedent that cache storage is possession affect all sorts of intellectual property issues too? I think caches and cache-like technology (e.g. remote dictionary-based network compression) are too important to ignore. That being said, I expect skilled hackers may find new and exciting exploits for cache-like things.
Do the Supreme court justices have an option to solicit expert advice (e.g. technology experts in this case, or pharmacists in the case of drugs) before creating such decisions? I would expect they would. In this case, is it known whether they did access such experts?
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