The IT Nerd

I know I’m likely about to start a firestorm by posting this, but I feel that I have to say something about this as I’m really bothered by this.

The CBC is reporting that The Supreme Court Of Canada has quashed the search warrant that was used to seize the computer of a man who was accused of possessing child porn after a computer tech installing high speed Internet found some things that he thought were troubling to him. What were those things? Let me list them for you:

• A webcam was plugged into a VCR and pointed toward the man’s three-year-old daughter
• Several links to both adult and child pornography sites in the taskbar’s “favourites” list
• When the tech returned the next day to finish the work, the webcam was pointed towards a different location and the computer had been reformatted.
• When the cops searched the computer after obtaining a warrant, they found child porn in the cache of the web browser

The tech reported this to a social worker, who in turn reported it to the RCMP, who got the search warrant.

However, The Supreme Court said two things in the 4 – 3 decision to kill the warrant. The first thing they said was:

“While the reviewing judge found no deliberate attempt to mislead, it is nonetheless evident that the police officer’s selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time,” said Justice Morris Fish, writing for the majority.

“It seems much more plausible that the accused was simply using the VCR and webcam to videotape his young daughter at play for posterity’s sake, rather than for any purpose connected to child pornography.”

Uh, Okay. Here’s the second thing they said:

The court ruled that two suspiciously labelled links in the “Favourites” are not sufficient enough to “characterize a person as an habitual child pornography offender of the type that seeks out and hoards illegal images.”

“The fact that the bulk of the pornographic material that the technician observed at the accused’s house was legal adult pornography suggests that the accused did not have a “pronounced” interest in child pornography,” Fish wrote.

Okay, lets review the facts again:

• A webcam was plugged into a VCR and pointed toward the man’s three-year-old daughter
• Several links to both adult and child pornography sites in the taskbar’s “favourites” list
• When the tech returned the next day to finish the work, the webcam was pointed towards a different location and the computer had been reformatted.
• When the cops searched the computer after obtaining a warrant, they found child porn in the cache of the web browser

With everything I’ve described above, it defies logic to assert that there is some other plausible explanation. But the worst thing about this decision is this. If you read the full text of the decision, you’ll see this:

‘[35] When accessing Web pages, most Internet browsers will store on the computer’s own hard drive a temporary copy of all or most of the files that comprise the Web page. This is typically known as a “caching function” and the location of the temporary, automatic copies is known as the “cache.” While the configuration of the caching function varies and can be modified by the user, cached files typically include images and are generally discarded automatically after a certain number of days, or after the cache grows to a certain size. [36] On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a “place” over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.'”

So what it’s saying is that he may have been surfing for child porn, but because he didn’t knowingly save any of it to his hard drive he didn’t violate Canadian law. Sadly, the way the Canadian child porn law is written supports this view as the current law prohibits possession. Section 163 of the Canadian Criminal Code covers this and specially says that it is illegal to:

• Possess any child pornography (section 163.1(4))
• make, print, publish or possess for the purpose of publication any child pornography (section 163.1(2))
• import, distribute, sell or possess for the purpose of distribution of sale any child pornography (section 163.1(3))

That’s quite frankly is wrong, and it has to change. Canadians should be firing e-mails to their local MP’s telling them that this loophole has to close. Otherwise, children will be in danger from perverts who want to play at the margins of the law.

This entry was posted on March 21, 2010 at 2:52 pm and is filed under Commentary with tags Canada, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.