“Cached” Web Files May Serve as Evidence in Child Pornography Case

In a prosecution for promoting and possessing computer images of child pornography, a Brooklyn appellate panel upheld the conviction of defendant and determined that temporary files automatically “cached” by an internet browser may serve as evidence of promoting and possessing child pornography. People v. Kent, ___ A.D.3d ___, 2010 N.Y. Slip. Op. 7364, 2010 N.Y. App. Div. LEXIS 7405 (App. Div. 2d Dept. Oct. 12, 2010). The defendant, a professor of public administration at a Dutchess County college, was found guilty of 134 counts of possession of a sexual performance and 2 counts of promotion related to his use of an office computer.

Defendant’s improper use of his office computer came to light after he complained about his computer. An employee of the college’s IT department ran a virus scan and discovered a “work” folder containing a large number of images of young girls. The employee removed the hard drive, and the college turned it over to the Police Department of the Town of Poughkeepsie. An investigator on behalf of the Town of Poughkeepsie found that defendant was the only active account user associated with the hard drive, and that there was no evidence that any other user had logged onto the computer, other than IT personnel through an “administrator” account.

The investigation further revealed that defendant had created an alternate profile named “Jim” to access the internet via Mozilla Firefox, and that he had used this alternate profile to access child pornography. Under the “Jim” profile, there was a temporary internet file known as the Web “cache,” an automatic storage mechanism designed to quickly display previously visited web pages. Defendant’s hard drive also contained a trail related to the preferences for the “Jim” profile, which automatically placed any downloaded material into the “work” folder and links to video files that had been played via the Real Player program.

Justice Daniel D. Angiolillo, writing for the unanimous panel, explained that “the mere existence of an image automatically stored in the cache, standing alone, is legally insufficient to prove either procurement or knowing possession of child pornography.” However, in light of the evidence obtained from the defendant’s hard drive, particularly the pattern of internet browsing established under the “Jim” profile, the Court found that “[t]he evidence in totality was legally sufficient to establish that the defendant, ‘knowing the character and content’ of the material, knowingly procured the [cached] Web page for his personal consumption.”

Scott J. Etish is an Associate on the Gibbons E-Discovery Task Force.
Print