New York high court finds that cache of CP alone is insufficient to support possession charge

In People v. Kent, 2012 NY Slip Op 3572 (N.Y. 2012), the Court of Appeals of New York held that possession of files in a browser's cache is not sufficiently proven when it is not also shown that the defendant was aware that the files were being cached. Additionally, "merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement."

During a virus scan of the defendant's work computer, an employee found images of "scantily clad, prepubescent girls in provocative poses." The defendant denied knowledge of them, and a further search revealed Internet cache detailing that child pornography websites had been visited from the computer. Additionally, thousands of images of prepubescent girls "dressed in lingerie or bathing suits" were discovered, as was this message:

Well, this last batch pretty much tears it. While, as somebody's father, I'm pretty appalled by this stuff, I also don't want to get arrested for having it. So let's do this—if this is a legitimate research project, let's write it up and tell the deans (and preferably also the cops) what we're doing and why. Otherwise, let's drop it in the most pronto possible fashion.
I don't even think I can mail the disk to you, or anyone else, without committing a separate crime. So I'll probably just go ahead and wipe them. You have the URL's if you want to pursue it.
See you sooner or later, no doubt. Kent.

No evidence showed that the defendant had paid for child pornography or that he knew the images had been saved in the computer's cache. He was convicted of two counts of Promoting a Sexual Performance by a Child and 141 counts of Possessing a Sexual Performance by a Child.

The Court of Appeals of New York held that "cached images can serve as evidence of defendant's prior viewing of images," but the fact that the images were "simply viewed ... is not enough to constitute their procurement or possession." The court continued, "Rather, some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen."

Because no evidence was presented that the defendant knew the website cache was on the computer nor that he "downloaded, saved, printed, or otherwise manipulated or controlled the image while it was on his screen," the court reversed. Other files, however, were manually saved and later deleted, and they sufficiently prove possession.

Here are links from non-legal sources:

Gizmodo - "Kiddie Porn Is Now Legal in New York"

Mashable - "New York Court: Viewing Online Child Porn Is Legal"
Threat Level - "New York High Court OKs Child-Porn Web Surfing"