Internet Child Porn Search Is 'Knowing Possession' in PA

Searching for child pornography on the Internet and following links to make such images appear on a computer screen constitutes knowing possession or control of that material, the Pennsylvania Supreme Court has ruled.

The decision comes in the case of Anthony Diodoro, a Delaware County, PA, man who argued that although he admitted to searching the Internet for pornographic images of underage girls, the presence of the images in his Web browser's cache file did not support his conviction of possession of child pornography.

The opinion in Commonwealth v. Diodoro , 932 A.2d 172 (Pa. Super. 2007), follows a pair of decisions in which the Superior Court initially threw out Diodoro's conviction on the strength of the defendant's argument that he had not intentionally downloaded any of the images. On reargument, an en banc panel of the Superior Court reinstated Diodoro's conviction of 30 counts of sexual abuse of children, finding that Diodoro's physical operation of the computer constituted control and supported his conviction.

What Is 'Control?'

In his opinion for the state Supreme Court, Chief Justice Ronald D. Castille wrote that the question before the court is one of statutory interpretation. Because the law under which Diodoro was charged, '6312(d) of the Crimes and Offenses Code, does not include a definition of the term “control,” Castille turned to Black's Law Dictionary for its meaning: “[t]o exercise power or influence over[.]“

“An individual manifests such knowing control of child pornography when he purposefully searches it out on the [I]nternet and intentionally views it on his computer. As the testimony in this case showed, in such a situation, the viewer has affirmatively clicked on images of child pornography from different [Web sites] and the images are therefore purposefully on the computer screen before the viewer,” Castille said. “Such conduct is clearly exercising power and/or influence over the separate images of child pornography because the viewer may, inter alia, manipulate, download, copy, print, save or e-mail the images.”

Whether an individual actually saves or otherwise manipulates the images or intends to do so is irrelevant because the act of searching for and making such material appear on a computer screen constitutes knowing control.

“The use and operation of computers are not the novelty they once were. Control via a computer is little different from the control one exercises by viewing a book or a magazine ' whether one purchases the tangible image or not,” Castille said, alluding to the oral argument in the case where the justices considered whether a person looking at a book in a library is analogous to a person downloading files from the Internet.

Castille said the law cannot and should not be read to allow intentional viewing of child pornography on the Internet without consequence. He noted that the parties appeared to agree that if Diodoro had saved or printed an image of child pornography from the Internet or knew of the existence of such images on his computer's hard drive, those actions would constitute knowing possession.

The statute, however, allows the commonwealth to prove a violation of '6312 by proving knowing control by use of the disjunctive clause “knowingly possesses or controls.”

“It would be nonsensical to assume that it was the intention of the General Assembly to have utilized two terms ' 'possession' and 'control' ' interchangeably. A contrary interpretation would be absurd and lead to unreasonable results ' a gigantic loophole in the statute, never intended by the General Assembly, that would allow individuals to intentionally access and view child pornography via the [I]nternet with impunity, which would make the statute toothless,” Castille said.

“Such a reading would also allow the purpose of this anti-child pornography legislation to be circumvented and the child pornography market to grow,” Castille said.

Curtailing the market for such illegal material and preventing the abuse and exploitation of children is the goal of '6312, Castille said.

Delaware County Assistant District Attorney Michelle P. Hutton said her office was pleased with the decision and that it would help stop and prosecute sexual abuse of children. Mark Phillip Much, of the Law Offices of Mark P. Much in Media, PA, was not available for comment.

The state Supreme Court heard arguments in the case May 14, 2008.

Much argued that the statute was too vague because it could not account for a person's intent.

“If it pops up and you look at it and realize it's child pornography and you 'x' out of it, under the statute, you've controlled it,” Much said. “You can't criminalize viewing without intent.”

Hutton argued there was evidence that Diodoro had specifically sought out Web sites where he could find child pornography and had 370 images of suspected child pornography on his computer.

“The court did not specifically discuss the vague claim ' but they did specifically find that there is nothing vague about the knowing control of child pornography,” Hutton said.

With regard to Diodoro's claim he never affirmatively saved the images to his hard drive or a disk ' that his computer's Web browser automatically saved them in a cache file ' Hutton said she argued that it was not necessary to show that he knowingly possessed the images but that he controlled the image.

Earlier Rulings

In the first Superior Court decision, Judge Richard B. Klein, writing for a three-judge panel, concluded in November 2006 that merely looking at child pornography on the Internet ' without intentionally saving or downloading any images viewed ' does not amount to knowing possession of child pornography as proscribed in Pennsylvania's Crimes and Offenses Code.

The Delaware County District Attorney's Office petitioned for reargument, and, in September 2007, the majority of an en banc Superior Court panel reinstated Diodoro's conviction. The majority focused its analysis of '6312(d) of the crimes code and Diodoro's actions on the term “control” as used in the statute.

“[Diodoro's] actions of operating the computer mouse, locating the Web sites, opening the sites, displaying the images on his computer screen, and then closing the sites were affirmative steps and corroborated his interest and intent to exercise influence over, and, thereby, control over the child pornography,” Judge Correale F. Stevens said in the majority opinion.

Stevens noted that when the images were displayed on screen, he had the ability to save, print, copy or e-mail them. The panel also found additional evidence of Diodoro's control of the images in the testimony of the state trooper who analyzed Diodoro's computer after it was seized. The trooper testified that given the sheer volume of illegal material in the cache file, someone “had to click the 'next' button on the screen to view successive images.”

The totality of the circumstances, the majority concluded, was sufficient to support the jury's finding that Diodoro had knowing control or possession of the images.

Impact on 'Sexting'

Hutton said the impact of the decision for her office, which leads the state in the prosecution of child predators, is limited.

“This affects only a small number of our cases. In the majority of our [child pornography] cases, people do tend to hoard and trade images and are actually very proud of their collections,” Hutton said.

Vic Walczak, legal director of the American Civil Liberties Union (“ACLU”) of Pennsylvania, agreed that the opinion is limited to a narrow set of facts. However, he said that the decision may have an impact in a high-profile case in which the ACLU has opposed the criminal prosecution of teenagers under the anti-child pornography law for “sexting” ' the term given to the phenomenon of teenagers taking nude or semi-nude photographs of themselves with mobile phone cameras and sharing them via picture messaging services.

In Wyoming County, PA, District Attorney George Skumanick threatened to criminally prosecute a number of minors after officials at Tunkhannock Area High School confiscated a number of students' cell phones that contained semi-nude images of other students. Skumanick offered to forgo prosecution if the students agreed to partake in a “re-education” program.

In Miller v. Skumanick, the ACLU obtained a temporary restraining order in the U.S. District Court for the Middle District of Pennsylvania on behalf of a group of minors and their parents alleging violations of the First Amendment. The matter is now on appeal to the Third U.S. Circuit Court of Appeals, Walczak says.

“It would seem that this opinion would help those kids who are being prosecuted after receiving unsolicited naked pictures, assuming they haven't forwarded them on,” Walczak says of the Diodoro opinion.

Walczak says the ACLU's Wyoming County sexting case is intended to highlight for prosecutors that the simple nudity involved in most instances of sexting does not constitute child pornography and that the consensual exchange of such pictures doesn't involve exploitation.

“What [Diodoro] says if you go looking for and access child pornography on your computer, that's detectable and it's prosecutable,” Walczak says. “There's no First Amendment protection for that because it involves the abuse and exploitation of minors.”