Child Porn in cache - no offence (in Georgia at least)

From OUT-LAW News, 29/06/2007:

“A US court has said that the existence of child pornography images in the cache of a man's computer did not mean that that man had committed a crime under state law.

A forensic computer analyst for the US Secret Service had testified in court that Edward Ray Barton's laptop computer had been used to view 106 images of child pornography on the internet.

Barton was convicted on 106 counts of the sexual exploitation of children and jailed. Under appeal, though, three judges in the state of Georgia ruled that Barton did not break the law, which says that a person must have knowing possession of the images.

Judge Miller said that that in order to convict, the state had to show that a defendant took some action to save or download images, or that the defendant knew that the computer automatically saved files.”

This is very interesting, not least because I was discussing the legal aspects of pornography at work earlier with a colleague – don’t ask. I considered myself well positioned to participate in this discussion because I had a whole week of work dedicated to pornography on my computer law module back in December. Anyway, I have to say that this decision seems to be well grounded in logic which, for an American court, could be considered a pretty rare thing nowadays. If the computer user had no idea of the cache on his computer and was just viewing, not purposefully saving the images, clearly he falls outside of the ambit of ‘having knowing possession of the images’. It doesn’t, of course, detract from the seriousness of child pornography and associated issues, nor does it make the computer user any less sick. You could argue, though, that by simply viewing the images, the user was fuelling the demand of child porn, thereby exacerbating the problem. In that sense, is the computer user any less guilty of sexual exploitation of children just because he didn’t save the images to disk?

Just to clarify, the position is different in England and Wales. S160 of the Criminal Justice Act of 1988 makes it an offence to merely possess indecent photographs of children.  Further, by virtue of the Protection of Children Act 1978 as amended by the Criminal Justice and Public Order Act 1994 it is an offence to view images of child pornography on the internet regardless of whether they are consciously saved or not. The cases of R v Bowden 1999 and R v Smith and R v Jayson [2002] EWCA Crim 683, clearly confirmed that viewing child pornography on the internet constituted a criminal offence because voluntarily downloading an indecent image from the internet to a computer constituted an act of making a photograph or pseudo-photograph for the purposes of s1(1)(a) Protection of Children Act 1978.  In other words, by voluntarily downloading such an image, the user had caused the image to exist on the computer and was so caught by the Act.  Conversely, viewing an email attachment which contained child pornography does not constitute such an offence, providing the user did not know or believe it likely that the attachment would contain an indecent image. Perhaps this is one of the few instances of where England & Wales lead by example.

The Michael has déjà vu

Earlier this year, I blogged about the possibility of super-hacker Gary McKinnon being extradited to the US for trial. As I was causally thumbing (well scrolling actually – this magazine was an e-zine) through the magazine I was hit by a déjà vu moment as I spied an article all about McKinnon’s plight. The magazine was from August 2006 but still made good reading. I haven’t checked what the latest status is on this story recently and will have to get round to that when time and energy allow me.

Finally, the postal strike looks inevitable now, meaning chaos for millions and more pertinently, extended agony for thousands of students who are eagerly awaiting their exam results. Following Sod’s law of the jam-side-down theory, the strike coincides exactly with the scheduled release of the exam results. Naturally.

Another Tuesday – another Times Law Supplement

Oh joy. No matter how many editions of the times law supplement that I read, either hard-copy from the paper or the email version, I 'never seem to tire of it'. (Cue the big sponsorship fee from 'The Times' for plugging them. Sigh.... if only).
Actually, if the out-and-out truth be told, my attention has waned considerably over the last few years to the point where I often neglect reading it all together. Often, in the case of the email edition, it might take me a few weeks before I get round to reading it. By that time, of course, the content is far from fresh and generally useless (a bit like the mouldy loaf of bread I found the other day lurking out of sight behind the breadbin – and yes, it had developed its own eco system since April).

Anyway, I remember my A-level law lecturer advising that all her students read this supplement with a view to enhancing their knowledge and ‘reading around the subject area’. BTW: I’ve never really understood that phrase; if you’re meant to be studying a subject, isn’t it best to read THAT subject rather than AROUND IT? Just kidding.

My point here is the varying degree of quality of this supplement; it used to be good and substantial. Nowadays, more often than not, it’s filled with more off-center and obscure 'poppycock' and is a mere shadow of its former self. Not even sure why I bother with it anymore.

Nostalgic moment of the week

Today the Michael was reminded of the joys of studying criminal law (both at A-level and during my degree) via an incident on the shop floor. One charming and delightful child (well, I’m sure the said child’s parents considered him charming and delightful, at least during one point in his short life) had tried the age-old trick of switching price labels of goods. His objective, of course, was to avoid paying the full price. The item was a toy and inexpensive but that’s hardly the point. Critically, of course, such an act constitutes theft under Theft Act 1968 based on the case of R v Morris [1983] 3 All ER 288.

It was actually my colleague who served the kid and she twigged immediately. We now have barcode scanners so the price label is purely for the customer’s benefit but even in the days before we went ‘high-tech’, the staff were too savvy to be caught with their trousers down and be taken in by a switched-label-scenario. Sadly this speaks to the rather one-dimensional nature of the staff’s lives, that they have committed to memory the price of more or less every item we sell, but that’s beside the point.

Anyway, while the child ended up paying the full, correct price for the item, and went off disgruntled and dissatisfied that his attempted scam went belly-up, I was somewhat relieved that some criminal law had at least been retained in my brain. Considering the fact we had not covered theft on my degree – the lecturer ran out of time before we had covered even half of the allotted syllabus – and therefore my knowledge was coming back from A levels in 2002, my satisfaction levels were doubly high. I knew the name of the case, of course, well, the fact it began with M but the full citation eluded me. Therefore I played the old ace, the one all law students are forced to use on occasions re. that elusive authority that they just can’t freaking-well remember and referred to the principle being established in ‘a decided case’.

The Michael discusses Google and the law

Today at work, during one of the many interludes to hardcore grafting, I chatted cordially with my boss about the various legal skirmishes that Google are wont to get into. Last week, we discussed the falling-out between eBay and Google whereby the former had withdrawn all sponsored links from the latter’s listings. Something to do with eBay being pi*sed that Google were rivaling paypal with their own payment gateway, Google checkout. That same day I read up on the background of the story on... Google News, coincidentally enough but haven’t checked since. Quite frankly, I’ve neither the enthusiasm nor interest to check again. Not today at least.

Also, I touched briefly on the topic of one of my (very few) posts on this blog: about the lawsuit over Google adwords due to various trademark infringements committed by Google at the expense of American Blind Co. Well, having checked again, this lawsuit is still rumbling on.

This topic should appeal to me: I studied intellectual property a couple of years ago and certainly enjoyed the trademarks section of the module. Somewhat worryingly, perhaps, I’m past giving a flying hoo-hah as to the outcome – or the nitty-gritty of whether Google have actually committed a trademark violation in respect of American Blind’s registered phrases. Shame.

One in four web merchants do not know web shopping laws

From Outlaw.com:

"While 56% of internet shoppers surveyed did not know about their right to cancel under the Distance Selling Regulations, 29% did not know where to turn to get advice on their rights.

The OFT estimates that by searching more effectively, shoppers could save £150 million to £240 million each year. The report also suggests that shoppers are hindered by "unexpected additional charges which are sometimes added in the latter stages of a purchase." It reckons that shoppers pay £60 million to £100 million a year in unexpected additional charges.

Two-thirds of UK-based traders had never sought advice on internet shopping laws, according to the OFT's research. More than one-fifth of sites examined by the OFT failed to provide an email address, a requirement of the E-commerce Regulations.

One fifth of online electrical retailers did not think that buyers had a right to cancel, and more than half wrongly thought that they could withhold the cost of outward delivery when refunding shoppers."

Holy Cow. This topic interests me (slightly, anyway) for two key reasons. One: I took a module in computer law last year and two, I was involved in the creation of an online shop last summer. Whatever way you slice it though, it’s readily apparent that there’s a lot of ignorance and naivety out there. And I don’t see that changing anytime soon.

O’Halloran and Francis v. United Kingdom (nos. 15809/02 and 25624/02)

Two drivers, both having failed to successfully appeal against their convictions on a national level, have brought their cases to the ECHR.

"[E]ach applicant was subsequently informed that the police intended to prosecute the driver of the vehicle. He was asked for the full name and address of the driver of the vehicle on the relevant occasion or to supply other information that was in his power to give and which would lead to the driver’s identification. Each applicant was further informed that failing to provide information was a criminal offence under section 172 of the Road Traffic Act 1988.

O’Halloran answered his letter confirming that he was the driver at the relevant time. Mr Francis, however, wrote to the police invoking his right to silence and privilege against self-incrimination.

Francis was fined GBP 750 for failing to comply with s172(3) Road Traffic Act 1988. He maintains that the fine was substantially heavier than that which would have been imposed had he pleaded guilty to the speeding offence.

O’Halloran complains that he was convicted solely or mainly on account of the statement he was compelled to provide under threat of a penalty similar to the offence itself. Mr Francis complains that being compelled to provide evidence of the offence he was suspected of committing infringed his right not to incriminate himself. Both applicants rely on Article 6 ss1 (right to a fair trial) and 2 (presumption of innocence)."

Interesting. Still, I don't hold out much hope for them as to allow their arguments to succeed would set a dangerous precedent, not to mention the good ol' 'floodgates' effect.

Court in the Act

So the Michael has settled back into work with a worrying degree of ease. Still, working locally for this, the final summer, was a smart move, I feel. I hope so, anyway. That said, I am actively researching work experience opportunities, you know, just to ‘bolster’ my CV on that front. And quite frankly, the said CV could use a bit of bolstering.

Legal stories amusing me recently: not many, really. Besides of course from the flashing judge, did he?--didn’t he?—oh, apparently-he-‘didn’t’ Yeah, you know the one. Ahem.
Good ol’ ‘justice’ prevailed then. Well, I certainly didn’t see that one coming.

Anyway, in a new twist, it seems the investigation has been reopened, despite Lord Justice Stephen Richards’ acquittal as two more witnesses have come forward. Bound to be an interesting ride.
Not quite sure what I mean by that.

Welcome back

Sweet Mother of Pearl – it’s nearly a month since my last posting here and it’s been a busy few weeks to say the least. Having finished my degree I’ve returned home for the summer before starting my LPC. God help me. I started work a couple of days after arriving home and have been slogging away, getting in the hours. Believe me, the bank balance is crying out for it.

I’ve not done much blogging at all but have some seriously important issues to post about re. Kimi Raikkonen’s current slump/dilemma/early-mid-life-crisis on my other blog, F1 central. I’ve always said that blogging about legal issues rarely ‘lights my fire’. So – I won’t. What’s the point? Nobody reads this garbage anyway. Same could be said for F1 central, but at least I derive a little pleasure from posting there.

Anyway, in line with my renewed promise to keep this blog legally related, I noticed a mug at work earlier with the slogan “I have PMS. Therefore I can legally kill you” on it. As a law student, I recognised that this was not strictly true at all. Ah, the beauty of the second year Criminal Law – best module in the whole degree in my opinion. Nothing like the good-old days, eh?