You are on page 1of 72

Convicting for Computer Child Pornography

Which computer activities lead to liability in the U.S. and the Netherlands

Date:

April 2011

Subject:

Master Thesis Law and Technology

Faculty:

Tilburg Institute of Law, Technology and Society

Author:

A.W.J. Dubach

Student number:

425099

University Supervisor:

Prof. Dr. E.J. Koops

Convicting for Computer Child Pornography
Which computer activities lead to liability in the U.S. and the Netherlands

Preface
In front of you is the Master Thesis that has researched how certain actions with use of a computer can
constitute the criminal offense of having possession of – and obtaining access to – child pornography. I
have written this Master Thesis to complete my master study of Law & Technology at the Tilburg
Institute for Law and Technology.
Criminal law and technology have always fascinated me and have been very lucky that I have found a
research topic in which I could combine both aspects of law. Working on this thesis has given me much
joy and it was a personal challenge for me to overcome any obstacle that I would encounter when
writing this thesis. At times I struggled to make sense of, and had troubles with structuring, the huge
amount of data that I had collected. I hope you enjoy reading it as much as I have enjoyed writing it.
Here I would like express my thanks to prof. dr. E.J. Koops, or Bert-Jaap Koops as I have come to know
him. He has been of great help guiding me through the writing experience of my master thesis with his
excellent and timely feed-back and advice on all my questions, and for steering me on the right track
when I was unsure which route to follow. I also want to express my gratitude to Mr. Koops for the way
he communicated with me, he was very open and honest and always approachable when I needed
guidance, but more over I really enjoyed are conversations and have gained a lot of respect for Bert-Jaap
as a person and I have enjoyed having had the chance to work with him.
I also want to express my gratitude to my former girlfriend Monique Jochijms. During the writing of my
thesis she has helped me with her love, support and guidance. She was there for me when I needed to
someone to talk to and supported me throughout the writing process.
Furthermore, I express my thanks to Menno de Vries who was a real buddy of mine during all the
sessions we made in Montesquieu building when working on our master theses. I treasure all the
meaningless conversations and free coffees that have distracted me from my thesis.
Also, I would like to express my thanks to Karen Geelhoed for helping me translate the Dutch legislation
into proper English terminology. And of course a special thanks to all my friends for all the lovely
weekends with tennis and going out and so on, which kept my mind balanced, and my social life very
much alive during the writing of my thesis.
Needless to say, a big thanks to my parents who have always believed in me and have helped me to
strive for the highest possible education. When I graduate it is also for a big part thanks to your help,
guidance, and love.

Page | 2

Convicting for Computer Child Pornography
Which computer activities lead to liability in the U.S. and the Netherlands

Summary
I have written this Master Thesis Law and Technology to complete my Master Law, Technology and
Society at Tilburg University. The goal of this Master Thesis was to research what standards are applied
to judge how the caching of files, files found in the trashcan/recycle bin, the deleting of files and the
saving of files constitute the criminal offense of knowing possession of child pornography in the United
States, and intentional possession of child pornography in the Netherlands. Furthermore I have
researched which standards are applied to judge the online viewing of child pornography as a the
criminal offense of obtaining access to child pornography with intent to view in the United States, and
the offense of obtaining access to child pornography in the Netherlands.
A similar research has not yet been conducted so the results that this research has yielded can be used
for follow up research on this theme, or as scientific data for whoever is interested in this field of
research. Furthermore, the translations that I have provided for the Dutch case-law can be used in other
comparative studies with regard to the possession of – and obtaining access to child pornography. Due
to the lack of native Dutch speakers around the world this master thesis will add to the current
knowledge available in this field.
For my research I have used a desk research concentrating on all relevant literature and case-law that
was available. I have also used the comparative legal research method to determine the similarities and
differences of possessing and obtaining access to child pornography between the Netherlands and the
United States.
I started out by researching each nation’s legal history with regard to the drafting of their respective
anti-child pornography legislation to obtain an insight into which behavior relating to child pornography
particularly is deemed to be criminal. These results have enabled me to formulate the rationale behind
each nation’s anti-child pornography legislation, which I have used to compare the case-law to.
The United States apply different standards to determine whether a person knowingly possessed child
pornography depending on where the child pornography is found, and depending on what actions have
been performed with the child pornography. In the United States the caching of files is criminal, and so
is child pornography found in the trashcan/recycle bin and the deleting of child pornography. The saving
of child pornography files is evidently criminal when seen in the light of the standards that are applied in
the United States. These standards are extensively discussed in the conclusion of this master thesis.
With regard to the criminalization of acquiring access to child pornography with intent to view it is
unclear if this is supposed to be seen as a separate criminal offense or that it is used as additional
evidence on other offenses relating to child pornography.
The Netherlands also apply different standards to determine whether a person intentionally, or at least
conditionally intended to, (have)possess(ed) child pornography depending on where the child
Page | 3

Page | 4 . child pornography found in the trashcan/recycle bin as well as the deleting and saving of child pornography are criminal. These exemptions are also explained in the conclusion. I cannot provide a conclusive answer as there is no case-law to support a widely accepted conclusion.S.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. and the Netherlands pornography was found. In the Netherlands the caching of files. With regard to the question what standards are applied to judge whether obtaining access to child pornography is criminal. with certain exemptions that are applied. and what actions were performed with the child pornography.

.5...................................... v..................28 § 3. CHALLENGES TO THE CPPA ON GROUNDS OF THE FREEDOM OF SPEECH ...........................................1..................................................................................3................ 5 CHAPTER 1.......... THE LANZAROTE CONVENTION ...........................................................................13 § 2.............18 § 2...2................................. A WHOLE NEW PLAYING FIELD ...................S................................................................................S....................... FROM FERBER TO THE CHILD PROTECTION ACT OF 1984 AND FURTHER ..2........... CONSTRUCTIVE POSSESSION AS A MINIMUM THRESHOLD LEVEL FOR KNOWING POSSESSION ...........................3.........................29 § 3..............7.... CHILD PORNOGRAPHY LEGISLATION IN THE 1960’S AND 1970’S ............................................................................ 10 § 2....... KNOWINGLY POSSESSING CHILD PORNOGRAPHY .........5.2..............2 Ashcroft Attorney General et al.................... 34 § 4................. THE CRIMINALIZATION OF PORNOGRAPHY IN THE DUTCH CRIMINAL CODE IN 1886 ..............................23 § 3................................................................................................14 § 2............................. THE FIRST AMENDMENT AND THE OBSCENITY LIMITATION TO THE FREEDOM OF SPEECH ...........................................2 Goodbye Miller...... THE CONVENTION ON CYBERCRIME ....................6.........1........................................3......1.........................8.....................4.3............................. THE RATIONALE BEHIND THE ANTI-CHILD PORNOGRAPHY LEGISLATION IN THE U......... CONCLUSION ...... Free Speech Coalition v........ THE PROTECT ACT 2003 ......31 § 3........... 3 TABLE OF CONTENTS...30 § 3.............................16 §2...........38 §5...........................................1...... CONCLUSION .................... AND THE NETHERLANDS .... Deleted files as evidence of knowing possession of child pornography .....................................................1 The obscenity qualification through the Miller case ........................ 23 § 3.................................................................................9.......................11 2......................24 § 3....................................7.....44 Page | 5 ..........................................8.............................7...1.....................................................2............................................. Files found in the trashcan/recycle bin as evidence of knowingly possessing child pornography ...... THE RATIONALE OF THE DUTCH ANTI-CHILD PORNOGRAPHY LEGISLATION ............. Free Speech Coalition et al .............................................................................................................1..................................................1..... CASE-LAW REVIEW OF THE U.............................................. KEEPING UP WITH TECHNOLOGY: THE CHILD PORNOGRAPHY PREVENTION ACT 1996 (“CPPA”) ........37 CHAPTER 5........................................1.................................................. CONCLUSION ......34 § 4...Convicting for Computer Child Pornography Which computer activities lead to liability in the U..................................... THE CHANGES PROPOSED BY THE “ADVIESCOMISSIE HERZIENING ZEDELIJKHEIDSWETGEVING” AND ITS AFTERMATH............................................................. The implementation of the Cybercrime Convention into the Dutch legislation ... INTRODUCTION ..........................................................................12 § 2...................................... 7 CHAPTER 2: ANTI-CHILD PORNOGRAPHY LEGISLATION OF THE UNITED STATES OF AMERICA..............................2...5..........................20 § 2... THE INTRODUCTION OF THE FIRST REAL ANTI-CHILD PORNOGRAPHY ARTICLE .....................43 §5............................... Reno .........................................12 § 2.2.................. .....27 § 3..............26 § 3.............1....................16 §2...........................................25 § 3....4...........................................................................S.........................................5................35 § 4.. A BRIEF HISTORY .....32 CHAPTER 4.........2....................................................................................... ANTI-CHILD PORNOGRAPHY LEGISLATION.................. MAKING THE PUNISHMENT FIT THE CRIME.............................. THE RATIONALE OF THE U................................................................................... and the Netherlands Table of contents SUMMARY ......1...................... 38 § 5..........................................S..............................22 CHAPTER 3: ANTI-CHILD PORNOGRAPHY LEGISLATION OF THE NETHERLANDS................6.......................................................................... welcome Ferber! ....38 § 5....................10 2.............................................................................2..................... TOWARDS CRIMINALIZING POSSESSION OF CHILD PORNOGRAPHY ........................32 § 3............ A BRIEF HISTORY . When is caching of files considered to be knowing possession of child pornography? ......38 § 5.............. The implementation of the Lanzarote Convention into the Dutch legislation...........................................................

...................... IS OBTAINING ACCESS TO CHILD PORNOGRAPHY CRIMINAL? .........70 BIBLIOGRAPHY .....3........................................ 71 Page | 6 ................2.56 § 6.............................. KNOWINGLY ACCESSING CHILD PORNOGRAPHY WITH INTENT TO VIEW ...................................... When is child pornography found in the cache /temporary Internet files considered possession of child pornography?..................................................................51 § 6....................... STANDARDS FOR POSSESSING CHILD PORNOGRAPHY FOUND IN THE TRASHCAN/RECYCLE BIN ....... STANDARDS FOR POSSESSING CHILD PORNOGRAPHY FOUND IN THE UNALLOCATED CLUSTERS.................3.............................................................................................................................. CONDITIONAL INTENT AS A MINIMAL THRESHOLD LEVEL FOR INTENT ..1...........................................63 § 7.57 § 6.........4....................... Saved files as evidence of knowing possession of child pornography ...........................................................61 CHAPTER 7.......................................................................................................4..................Convicting for Computer Child Pornography Which computer activities lead to liability in the U...................63 § 7.......... RATIONALE OF BOTH NATIONS ANTI-CHILD PORNOGRAPHY LEGISLATION .......1....................................................3..................................................................S....................................................................................61 § 6.............................. How files retrieved from the unallocated cluster can serve as evidence for possession of child pornography .. 63 § 7.................................................67 § 7...............4...........................2................... and the Netherlands §5..5...47 CHAPTER 6........................50 § 6.................2............ CONCLUSION .........3....65 § 7...........................................................................................2..........................................6..... CASE-LAW REVIEW OF THE NETHERLANDS .................................................. OBTAINING ACCESS TO CHILD PORNOGRAPHY ...............................................................51 § 6.................................... Saved files as evidence of possession . AND THE NETHERLANDS .................................2...................................................................................................47 § 5.........1...................S........... DIFFERENCES BETWEEN THE U...... STANDARDS FOR POSSESSING CHILD PORNOGRAPHY FOUND IN THE CACHE FILE ......................2...2........................2.................69 § 7...................... Files put in the trashcan/recycle bin evidence of possession of child pornography . 50 § 6................. POSSESSING CHILD PORNOGRAPHY ....

dissemination and collection of child pornographic material is acknowledged by a number of authors. 2005 3 J. have it delivered to their house. the child pornography landscape has changed considerably. and accessibility of sexually abusive imagery.205 4 T. a computer. DVD’s. because now one only needed to connect them to. the law also changed considerably to keep its anti-child pornography content in line with these developments. Also. Home Office and Scottish Executive. or insert them into. A typology of online child pornography offending. Where originally the distribution of child pornography took place through. deleted or too vague for a successful prosecution of such a suspect. Internet has made it possible to view movies and pictures of children in sexually explicit conduct from behind your computer without the need to store any of such material. Now you see it. Before the upcoming of the Internet individuals.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.3Not to mention the high risk of discovery that was involved in obtaining the material. Introduction Child pornography has probably existed for as long as the written word. 19. would need to seek it out. but in which the proof of such action is hard to find. CD-ROM’s.” 4However. methods are developed to delete and encrypt files on your computer as to give the impression that it was never stored on that computer.1However. Courts in the United States of America and the Netherlands are struggling with cases wherein there is a clear suspicion that a person has perhaps acted against anti-child pornography legislation. not only have the ways in which child pornography is produced and spread changed considerably. and is still playing. A. the production of the material was hampered by the need to have the film processed and the equipment for such actions was relatively costly and difficult to use. including child pornography. 5.431. easy to use. Whereas previously the production was expensive because it had to be processed onto a film. and according to T. Also. 279. physical images in print media as described above. real. and the format of the child pornography were mostly magazines. it now had become very inexpensive as new. the upcoming of these new data carriers made it far easier to spread pornographic material. Krone. 2 Page | 7 . in Criminal Law Forum (2008) No. external hard disk drives and USB sticks. The impact and role that the Internet has played. who wished to view this kind of material. 1 Gillespie. Consulation: On the Possession of Extreme Pornographic Material. since the upcoming of the Internet era and the development of new technologies. Child abuse review 2003. Vol. in Trends and Issues in Crime and Criminal Justice 2004.S. videos and photographs. in the production. now you don’t: Digital images and the meaning of “possession”. Indecent images of children: The ever changing law. Alisdair. p. p.2 Such material was difficult to transport without detection. and the Netherlands Chapter 1. as such material was often sent to a home address or postal box that belonged to a real person which could be identified and prosecuted. volume. p. Krone: “The Internet has increased the range. 14. Clough. upload the material and then spread the content using the Internet in relative anonymity. in the present day computers and Internet play a predominate role in the distribution of such material. It was now possible to upload the materials onto data mediums such as videotapes. and inexpensive data mediums were developed to store the materials onto.

As I am very capable in both languages. Next. and the Netherlands apply in such cases. the Dutch legislation and case-law on child pornography are not available in English. This is to give an indication of which acts and behavior with regard to child pornography are considered to be illegal. and in the Netherlands. Are there differences in each nation’s approach? 4. The main research question that this thesis aims to answer is. I will also be using the comparative legal research method to determine the similarities and differences. “Which activities with respect to child pornography constitute the offenses of possessing and gaining access to child pornography with use of a computer. Also. relevant academic literature and case-law.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. I will do so by delving into each country’s anti-child pornography legislation. “My sub research questions are: 1. What are the main standards that are applied? 3. this thesis will be able to answer the main research question of how the above mentioned actions constitute the criminal offenses of possessing and/or accessing child pornography and which standards the U. and why they should be prohibited and made criminal under law.S. and the Netherlands I have chosen the United States of America and the Netherlands as the focus nations of my comparative study because both nations have an extensive case-law database on the subject matter and both have adapted their laws to deal with the subject matter. this thesis will start with introducing the legal history behind the enactment of the anti-child pornography legislation in each country in chapter 2 and 3. between the Netherlands and the United States. the deleting of files and the saving of child pornographic files with use of a computer constitute the offenses of possessing and/or gaining access to child pornography under current anti-child pornography legislation in the United States and the Netherlands? 2. this thesis will translate all relevant Dutch material into English so that researcher and/or scholars outside the Netherlands can use this material for follow up research. with regard to possessing and obtaining access to child pornography. Finally. saving and deleting of files with use of a computer are deemed to fall under the scope of the anti-child pornography legislation. this study will discuss the rationale(s) for criminalizing child pornography legislation. and how obtaining access to child pornography or the viewing of child pornography are criminal based on the current anti-child pornography law and by relevant case-law. on the bases of these insights. which provides me with the insight into the rationales of the anti-child pornography legislation . will be consulted. of possessing and obtaining access to child pornography. this investigation will also uncover what reasoning led to the drafting of new laws and the amending of existing ones by the legislatures in the U.S. How can the caching of files. Page | 8 .S. Then this thesis will answer the question how the specific acts of caching. My main sources of information for my desk research are the current legislation and legislative history behind the anti-child pornography laws. Also. this section will then define what is to be understood as child pornography as such. Furthermore. I aim to answer these questions through a desk research. How can a defendant be acquitted of the charges? In order to be able to answer this question I will first research what is to be understood as child pornography as such in each country separately. Also. As explained above. This will provide insight into the rationale(s) for criminalizing child pornography.

and will indicate which are the legal requirements for such an act to be covered by the anti-child pornography legislation and to be judged as such by Court. “toegang kinderporno”. “cache bezit kinderporno”. This search yielded numerous results. Key words for this search are: “temporary internet files bezit kinderporno”.nl and Jure.S. Knowingly also requires intent on behalf of the defendant. “unallocated clusters bezit kinderporno”. A similar term is found in the Netherlands and is called “opzet” or “voorwaardelijke opzet” which requires that the defendant had intentionally sought out child pornographic material. “temporary internet files possession child pornography”. These ratio’s will then be used as a frame of reference to interpret case-law dealing with both topics of interest. “unallocated clusters possession child pornography”. “knowing possession child pornography”. “accessing child pornography”. this thesis will then investigate the ratio’s behind each nation’s anti-child pornography legislation in chapter 4.S. For the Netherlands this thesis will use Rechtspraak. “Trashcan possession child pornography”. which will be discussed in chapter 5. and the Netherlands Based upon the answers provided by the chapters 1 and 2. Case-law published in the U. and many similar key words. The conclusion will summarize my findings and will briefly discuss these findings topic wise in chapter 7. “Caching possession child pornography”. so when referring to similar cases this thesis will suffice with referring to that case number only and will not discuss similar cases in detail.nl as databases for case-law research. research.S. This research yielded numerous results. which will be used to analyze what acts done by a person are to be seen as a criminal offense under current anti-child pornography legislation. “recycle bin bezit kinderporno”. “toegang verschaffen kinderporno”. It will be interesting to see if there are any differences in interpretation between “knowingly” and “opzettelijk” in the case-law. “obtaining access child pornography”.S. “Prullenbak bezit kinderporno”.and many more similar key words. “lost files bezit kinderporno”. the possession and acquiring access to child pornography. “voorwaardelijke opzet bezit kinderporno”. that needs to be fulfilled. after 20-11-2010 and case-law published in the Netherlands after 15-02-2011 will not be used in this research due to time constraints. so when referring to similar cases this thesis will suffice with referring to that case number only and will not discuss similar cases in detail. I have used “knowingly” as a key word in my search as it is an element of the penal clause in the U. Key words in this search are “knowingly possessing child pornography”. Page | 9 . “recycle bin possession child pornography”. Here I will also share my point of view on the differences between each nation’s approach to convict defendants for possessing child pornography.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. This thesis will use Westlaw as the case-law database for the U. “deleting possession child pornography”. these cases will be discussed in chapter 6.

Congress has actively and repeatedly enacted legislation banning the sexual exploitation of children.S. This chapter additionally provides the changes in interpretation that have been made to the CPPA by appeal judgments made against this Act and how the outcomes of these appeals were incorporated in the drafting of The Protect Act of 2003. and to petition the Government for a redress of grievances.”5 5 U. Const. It was this First Amendment that provided the protection against governmental interference with regard to the possession and spreading of pornographic material depicting children in sexual activity. or abridging the freedom of speech. Constitution and it is of great importance when starting to investigate the U. as in the Netherlands. constitution states that: “Congress shall make no law respecting an establishment of religion.S. Am. The First Amendment and the obscenity limitation to the freedom of speech The First Amendment is a primary part of the U. while also paying attention to all other legislation drafted by Congress until then. This chapter will identify by reference to several subsequent appeal judgments which changes have been made to the extent of the freedom of speech and how they led to the drafting of the Child Pornography Prevention Act (CPPA) of 1996. This section will show how the First Amendment’s reach was to be limited to exclude obscene material.1. which could be of use when interpreting new technological developments in the current legislation. The Supreme Court introduced several amendments to the extent of the freedom of speech which can be seen as a first attempt of fighting child pornography in all its facets. it had to be overcome. or the right of the people peaceably to assemble. § 2. However. or of the press. or prohibiting the free exercise thereof.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. The First Amendment of the U. a brief history Child pornography has been a serious concern in the United States.S. and the Netherlands Chapter 2: Anti-child pornography legislation of the United States of America. It will also show the reasoning behind why certain amendments were enacted.S.S. 1 Page | 10 . and it will show the aftermath of such a limitation. child pornography was originally constitutionally protected by the “freedom of speech” principle laid down in the First Amendment until it was challenged at the Supreme Court level. For anti-child pornography laws to be drafted. anti-child pornography legislation.

Supreme Court Addresses the Child pornography Prevention Act and Child Online Protection Act in Ashcroft v. taken as a whole. which will be discussed in the next section. As a reaction to this ruling.C. regardless of the medium used. and (c) whether the work.10 This depiction needed to be qualified as obscene with use of the Miller standard for it to be able to be prohibited. Congress passed the Protection of Children Against Sexual Exploitation Act in 19778. (b) whether the work depicts or describes. This test read as follows: “(a) whether ‘the average person. Does this mean that child pornographic material is also governed by this amendment? Well. Also.S. in a patently offensive way.11 This Act was a good first attempt by Congress to deal with the problems relating to child pornography. but because it incorporated the Miller standard as a strict qualification method. Then what material is deemed to be understood as obscene? What material constitutes obscene material was determined in the case of Miller v. California. to qualify a material as obscene in which all three parts must be satisfied. appeals to the prurient interest. Federal communications law journal 2002. §§2251-2252 (2000) 11 S. it was soon hereafter deemed inadequate to fight child pornography successfully by a New York court ruling which will be discussed in the next section. Congress enacted this legislation on the findings that child pornography was both highly organized and profitable and exploited children. p. Vol. with regard to the first the First Amendment provides protection. . political. §§2251-2253 (2000).Convicting for Computer Child Pornography Which computer activities lead to liability in the U.1. 55. receive and impart information and ideas. American Civil Liberties Union. applying contemporary community standards' would find that the work. it is also to be understood as the freedom to seek. First Amendment case-law differentiates between normal and obscene material. the trafficking of such materials was now prohibited.Rep. lacks serious literary. 2.C. the Protection of Children Against Sexual Exploitation Act of 1977 has been incorporated in this text and cannot be found as a loose text anymore 9 S. . California 413 U. 87 7 Page | 11 .9The scope of this Act covered the criminalization of knowingly using a minor younger than the age of sixteen to engage in sexually explicit conduct to produce a visual depiction. A. The U.S.S. artistic. often referred to as the “Miller standard”.”7 If a material was qualified as obscene through the Miller standard it enjoyed no First Amendment protection and granted the government the right to restrict its availability. Moreover. 6 Miller v. 95-438 at 5 (1977) 10 18 U.6This case introduced a three part test.S. that depends on how you qualify child pornographic material. . No. 15 (1973) Idem note 6 at 39 8 18 U. Free Speech Coalition and Ashcroft v. or scientific value. taken as a whole.S. Mota.1 The obscenity qualification through the Miller case So the First Amendment is not to be understood as a freedom to receive and seek obscene material. and the Netherlands The “freedom of speech” is basically understood to be the freedom to speak without censorship or limitation. sexual conduct specifically defined by the applicable state law. with regard to the latter it does not according to the Miller case.

In its judgment the Court stated five reasons why the material had to be qualified as obscene per se: 1. but instead.13Main difference is that the material discussed in Ferber is to be determined as obscene per se whereas the material discussed in Miller is not. The Supreme Court ruled that the value of speech in content involving child pornography was outweighed by other significant considerations. qualified the record of the harm done to the child as being obscene in itself. selling and distribution of child pornography. as will be shown in the next section.2 Goodbye Miller.S.1. if not de minimis. § 2.18 The relevant measure in determining whether any material constitutes child pornography now had become whether a child was physically or psychologically harmed in the creation of the material and so abandoned the need for the material to be obscene in order to constitute child pornography.2.15 3. Ferber 458 U. Using children as subjects of pornography could be harmful to their physical and psychological well-being and child-pornography does not fall within the protection of the First Amendment.14 2. University of Leeds. Internet child pornography and the law: national and international responses.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. As a result of the Ferber case. p. 747 (1982) Idem note 12 at 759 14 Idem note 12 at 762 15 Idem note 12 at 759 16 Idem note 12 at 761 17 Idem note 12 at 762 18 Idem note 12 at 759 19 Y. and the Netherlands 2. The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials.17 5. Ferber12 extended the obscenity exception to include child pornographic material and abandoned the Miller standard as a qualification method for obscene material as it was not a satisfactory solution to the problem of child pornography. U. including the prevention of sexual exploitation and abuse of children. Akdeniz. and was soon hereafter expanded upon.: Ashgate. The application of the Miller standard for obscenity is not a satisfactory solution to the problem of child pornography.16 4.K. an activity illegal throughout the Nation. From Ferber to the Child Protection Act of 1984 and further 12 New York v.19 The Ferber case thus provided courts with a solid legal basis to fight the advertising.95 13 Page | 12 . welcome Ferber! The case of New York v. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to sexual abuse of children and is therefore within the state’s interest and power to prohibit.S. 2008. the freedom of speech principle as laid down in the First Amendment should from hereon be understood as not to cover speech relating to child pornography. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest.

Georgia24 will serve as a starting point for discussing whether possession of obscene material is criminal or not.S. Vol. and soon hereafter the Child Protection and Obscenity Enforcement Act was drafted as a response. 98TH Cong. 98-536. REP. p. This Act first mentioned the use of computers in transporting. A. 492.C. Federal communications law journal 2002. distributing and receiving child pornography and made these acts with use of a computer unlawful.S..C. This Act abandoned the Miller standard and expanded upon the Protection of Children Against Sexual Exploitation Act of 1977.23Also. Mota. and so the Child Protection Act of 198420 was drafted. Congress had to respond to these changes. regardless of their social worth. Obviously. This Act banned the production and use of advertisements for child pornography and created civil liability for personal injuries to children from the production of child pornography. 394 U.22 This Act was then amended in 1986 by the Child Sexual Abuse and Pornography Act. in the context of this case . Moreover. 1983 WL 25391 at *494 22 Idem note 21 23 S. The next amendment that took place was with the enactment of the Child Protection and Obscenity Enforcement Act of 1988. Georgia.C.S. 1983. probably not to eighteen years of age. H.3.R. Supreme Court Addresses the Child pornography Prevention Act and Child Online Protection Act in Ashcroft v.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. This Act raised the minimum age requirement for a minor from sixteen to eighteen years. Towards criminalizing possession of child pornography The case of Stanley v. is fundamental to our free society. In Stanley the regional court decided that mere private possession of obscene matter cannot constitutionally be made a crime. but perhaps to sixteen. § 2. 87 24 Stanley v.21Raising the age to eighteen would facilitate the prosecution of child pornography cases and raise the effective age of protection of children from these practices.R. 55. This right to receive information and ideas. 1984 U. This freedom (of speech and press) necessarily protects the right to receive. No.N. During the 1980’s the first household computers were being developed and brought onto the market and transformed the child pornography market in a big way.A.25The court argued that: “It is now well established that the Constitution protects the right to receive information and ideas. 536. The U. Free Speech Coalition and Ashcroft v. American Civil Liberties Union. and the Netherlands The Ferber ruling set the stage for federal legislative action against child pornography. 577 (1969) 25 Idem note 24 21 Page | 13 . it defines the term visual depiction to now also include undeveloped film and videotape.a prosecution for mere possession of printed or filmed matter in the privacy of a person's own 20 18 U. §§2251-2253 H. Rep.S. 1ST Sess. The Committee appointed to draft this legislation had found that it was extremely difficult for the prosecution to show that the child is under the age of sixteen once the child hit puberty.

30 As a response to these findings the anti-child pornography law was amended again.C: U.S. from unwanted governmental intrusions into one's privacy. 2005 27 Page | 14 . July 1986 (The Meese Commission) 31 18 U.”26 However. evidence suggests that people with an interest in child pornography use this method of grooming. 103 (1990) 28 Idem note 27 29 Often existing obscene materials with regard to the victims resurface after time. with use of modern day technology.2. 70 FR 29619.28 As a result of this. Government Printing Office.that right takes on an added dimension. 2765–2005. if not impossible. Keeping up with technology: The Child Pornography Prevention Act 1996 (“CPPA”) 26 Idem note 24 Osborne v.C.29 Secondly. 495 U. Being confronted with these materials or the possibility hereof. Ohio27 disagreed with this view and ruled in line with the Ferber approach. except in very limited circumstances. Penalizing possession also had other benefits. by encouraging the destruction of the materials people with an interest in child pornography cannot use these materials to seduce other children into sexual activity. 31 Congress then again amended the law in 1994 with the Violent Crime Control and Law Enforcement Act to allow restitution to victims of child pornography. are now used to fulfill the possession of child pornography penal clause in the U. the court in Osborne v.S. to solve the problem of child pornography by solely fighting the production and distribution chains. it was now more difficult..S. this court notes that since the decision in Ferber much of the child pornography market has been driven underground. Destroying the material means that the risk of the material resurfacing is diminished and this directly positively influences the harm felt by the victim. They found that penalizing possession of child pornography would be an effective method to dry up the child pornography market. In order to do this it is imperative to take away the economic motive to produce such materials. The Child Protection Restoration and Penalties Enhancement Act of 1990 now prohibited the knowing possession of visual depictions of a minor in sexually explicit conduct. For also fundamental is the right to be free.4. Order No.S. first of all it would encourage possessors to destroy the material and so would diminish the continuing harm of the victims. 30 See Attorney General’s Commission on Pornography: Final Report. Washington D. The focus will now shift to the drafting of the Child Pornography Prevention Act of 1996 which was the next step to keep the law in pace with technological developments. contribute to the harm of the victim. In Osborne the court stressed again the necessity to safeguard the physical and psychological well-being of a minor by protecting them from falling victim to child pornography. Vol. § 2. further on in this thesis.S. May 24. Ohio. This section has shown how case law established principles for criminalizing possession of pornographic content with regard to children before the technological revolution that started in the late 80’s. This thesis will expand upon the question what acts exactly. However. §2257. and the Netherlands home .Convicting for Computer Child Pornography Which computer activities lead to liability in the U. other methods were necessary to combat these changes in the child pornography scene.

Statements of Introduced Bills and Joint Resolutions. that under current Federal law. Judiciary Committee found that there was no difference between using computer-generated images and photographic images for such activities: “The effect of computer-generated pornography on a child molester or pedophile using the material to whet his sexual appetites or on a child shown such material as a means of seducing the child into sexual activity. at (8). 2008. 13 September 1995 (104th Congres. Senator Hatch said this about the need to reformulate the law to include computer-generated images when the CPPA was being introduced: “Even more shocking than the occurrence of this type of repulsive conduct is the fact.: Ashgate. Senate Committee Report 104-538. those pictures.K.S. or viewing of visual depictions of children engaging in sexually explicit conduct. distribution. The use of real children was a requirement at that time to qualify the material as child pornographic in nature. Akdeniz.S.32 It was foremost introduced due to the inability of prior legislation to keep up with new technological developments that purveyors of child pornography were now using to fulfill their need for child pornography. and the Netherlands The CPPA was intentionally drafted to criminalize material that depicts children engaging in sexually explicit conduct whether or not the content in question involved real children. U.S.97 33 The Child Pornography Prevention Act 1995. University of Leeds. including both photographic images of actual children engaging in such conduct and depictions produced by computer or other means which are virtually indistinguishable to the unsuspecting viewer from photographic images of actual children engaging in such conduct. possession.”34 This emphasizes the need that was felt at the time to update the law as to include computer-generated images (also referred to as virtual child pornography) of child-pornography so that pedophiles will not have a substitute form of ammunition to fulfill their sexual desires and their planned schemes of luring other children into sexual activity. would not be prosecutable as child pornography”. 35 Idem note 34 at (13) Page | 15 . Another problem that surfaced through the use of imaging technology was that it was now even harder for law-enforcement agencies and prosecutors to prove that certain pictures were in fact produced with use of actual children.33 As said before. 2nd session) 34 See U. expanding the definition of child pornography to include computer-generated images made the job of the prosecutors somewhat easier. adults and even animals. depicting naked children involved in sex with other children.Child Pornography Prevention Act of 1996. sale. The U.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Congressional Findings. pedophiles use images of children engaged in sexual activity to seduce other children into such action.”35 32 Y. Senate. Internet child pornography and the law: national and international responses. Congress saw eliminating child pornography and the protection of minors against sexual exploitation as a: “Compelling governmental interest for prohibiting the production.S. is the same whether the material is photographic or computer-generated depictions of child sexual activity. U. p.

Also. and was now to be understood as: “Any visual depiction. v. Their main argument was that the CPPA impermissibly suppresses material that is protected under the First Amendment by defining child pornography as including visual depictions of adults that appear to be minors.”37 The definition of child pornography in this form would not stand the test of time however. works like books for the education and expression of nudity and artworks including nudity such as paintings and drawings. It was soon felt that the definitions over this article were too broad and therefore unconstitutional. (3) such visual depiction has been created. found the CPPA to be overbroad and challenged it as being in conflict with the First Amendment. nonobscene material that has literary. The next section will show how case-law influenced the changes made to the definition of what is to be prohibited under the banner of child pornography. Reno.5.S.39 and the case of Ashcroft Attorney General et al.5. of sexually explicit conduct. artistic. Most notable cases in this matter were the case of Free Speech Coalition v. §2251(2000) 18 U.S. certain citizens of the U. drawing or computer or computergenerated image or picture.40 The District Court held that 36 18 U.36 This illustrates the severity with which child pornography was now to be fought. Reno The Free Speech Coalition in this case argued that the CPPA was too broad and vague and interfered with producing works that were protected by the First Amendment.38However.C. § 2. §2256 (8)(D)(2000) 39 th The Free Speech Coalition v. picture. Both cases and their impact on the CPPA will be discussed in this section. including any photograph. adapted or modified to appear that an identifiable minor” is engaging in sexually explicit conduct.S. political and scientific value”.3d 1083.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. video. repeat offenders convicted of sexual abuse of a minor could now even risk life imprisonment.1. (2) such visual depiction is. Free Speech Coalition et al. and how it was seen as a problem that needed to be dealt with adequately. §2.S. film. §2256(2000) 38 The promotion of child pornographic material was criminalized in 18 U.S. 1999) 40 Idem note 39 37 Page | 16 . Challenges to the CPPA on grounds of the freedom of speech The enactment of this law was a good first effort in defining the anti-child pornography legislation in such a way that it now also covered new technological methods for creating and distributing child pornography. In the plaintiffs view this would lead to the banning of “a wide array of sexually explicit. where: (1) its production involved the use of a minor engaging in sexually explicit conduct. which is produced by electronic. mechanical or other means. or. 1097 (9 Cir. Reno. the definition of child pornography was once again amended. Free Speech Coalition v.C. 198 F.C. and the Netherlands As a result of this compelling governmental interest high prison sentences were introduced for producing child pornography as well as for the possession of such material. of a minor engaging in sexually explicit conduct. or appears to be.

Vol. but that reality does not create a constitutional power in 41 Idem note 39 Idem note 39 at 2309-10 43 th The Free Speech Coalition v.3d 1083. but quite the opposite as it clearly and specifically defines the prohibited conduct and even gives sufficient guidance to a person of reasonable intelligence as to what it prohibits.S. Additionally the Court stated that “many innocent things can entice children into immoral or offensive behavior. and “conveys the impression”45 as mentioned in the CPPA were unconstitutional and overbroad and not clear and specific as the District Court reasoned. 198 F.47They went on to say that although such images are immoral and repulsive. Senate Committee Report has shown already. In the new law. 1097 (9 Cir. July 1986 (The Meese Commission) 42 Page | 17 . Government Printing Office. This of course was a marked change in the criminal regulatory scheme. in the view of the District Court. Congress had always acted to prevent harm to real children.S. §2256(8)(B)(2000) 45 Idem note 44 at §2256(8)(D)(2000) 46 th The Free Speech Coalition v. a majority of the Court of Appeals for the Ninth Circuit disagreed in part with the arguments made by the District Court and stated that the First Amendment prohibits Congress from enacting a statute which criminalizes the generation of images of children engaged in explicit sexual conduct.3d 1083. And as there is no such correlation the law does not withstand constitutional scrutiny.C.2.42 However. 1097 (9 Cir. reno. 1999) 47 See Attorney General’s Commission on Pornography: Final Report. reno. 198 F. of a minor engaging in sexual explicit conduct”43 The appeals court held that the terms “appears to be (a minor)”44. Washington D. The Ninth Circuit held the CPPA to be substantially overbroad as it banned materials that were not obscene under Miller nor found to be produced by exploitation of real children as was the case in Ferber. or appears to be. in line with the reasoning behind the drafting of the CPPA as the U.S. According to the Court the CPPA: “sought to stifle the use of technology for evil purposes. and the Netherlands the CPPA was not an improper prior restraint of speech because it is content neutral and clearly advances important compelling governmental interests.41This ruling was.S.46The Appeals Court did mention that when these two sentences were to be removed the balance of the CPPA was in line with the Constitution.C: U. Furthermore the Court held that the CPPA was not too broad. they do not involve actual children and furthermore there is no basis to link computer-generated images with harm to real children as the use of sexual explicit material of actual children to lure others into sexual activity only played a small part in the overall problem of harm done to children. The Appeals Court held that there was no link between the dissemination of fabricated child pornography and additional acts of real sexual abuse of children although such a link was indicated by The Meese Commission.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Furthermore it found the terms vague as the CPPA lacked any clear definitions for these key phrases and feared that its vagueness could permit enforcement in an arbitrary and discriminatory fashion. Congress shifted the paradigm from the illegality of child pornography that involved the use of real children in its creation to forbid a ‘visual depiction’ that ‘is. 1999) 44 18 U.

49 In which the attorney general Ashcroft filed suit against the ruling of the Ninth Circuit. 747 (1982) at 759 52 Idem note 51 at 760 – 764. Free Speech Coalition et al The CPPA was challenged again. Free Speech Coalition. Second. Ferber did not hold that child pornography is by definition without value. According to the Supreme Court virtual or computer-generated child pornography did not qualify as being intrinsically related to the sexual abuse of children and the harm did not necessarily follow from the speech. and the Netherlands the Congress to regulate otherwise innocent behavior. 198 F. 198 F.3d 1083. Ferber 458 U. Second. and that of the CPPA was that the CPPA was now prohibiting speech that recorded no crime at all and did not create any real victims during its production. It recognized some works in this category might have significant value. First. With regard to the prohibitions allowed under the Ferber ruling these were to be limited to the distribution and sale of child pornography and also the production thereof. v.5. 50In this case the Supreme Court upheld that the prohibitions provided in sections 2256(8)(B) and 2256(8)(D) were overbroad and unconstitutional.S. 1999) citing A-G Report at 649-50 Ashcroft v. it provides no support for a statute that eliminate the distinction and makes alternative mode criminal as well” 49 Page | 18 . This case in combination with the case that will be discussed in the next subsection led to the drafting of The Protect Act of 2003 that amended the issues that were addressed by these cases.” The main difference in which kind of speech was protected between the Ferber case. §2.”48 Although this might seem like naïve reasoning on behalf of the Court it does accurately stipulate the way in which the CPPA was prohibiting certain behavior in the hope of stopping some of the direct consequences. 1999). These actions are all “intrinsically related” to the sexual abuse of children in two ways:51 “First. virtual or computergenerated speech could qualify as valuable speech under Ferber and should therefore deserve the protection granted by the First Amendment.52 48 th The Free Speech Coalition v. in which speech was prohibited that itself was the record of sexual abuse. This ruling severely questioned the necessity and relevance of certain parts of the CPPA. it does not fall outside the First Amendment’s protection. The case reaffirmed that where the speech is neither obscene nor the product of sexual abuse. the continued circulation itself would harm the child who had participated. (cited from the original text) “Here is stipulated how the Ferber standard which states that child pornography cannot be seen as valuable speech suffers from two flaws. reno.S. a permanent record of a child’s abuse. not what it communicated. Because Ferber relied on the distinction between actual and virtual child pornography as supporting its holding. and showed how these parts were in fact unconstitutional. 1097 (9 Cir. 234 (2002) 50 th The Free Speech Coalition v. reno. namely the computer-generated or virtual images.2 Ashcroft Attorney General et al. the State had an interest in closing the distribution network. this time in 2002 with the appeals case of the previously mentioned case of Ashcroft Attorney general v. 51 New York v. because the traffic in child pornography was an economic motive for its production. Also.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. 1097 (9 Cir. Free Speech Coalition 535 U.3d 1083.S. Ferber’s judgment was based upon how it was made. but relied on virtual images – the very images protected by the CPPA – as an alternative and permissible means of expression.

Supreme Court ruling threatens our children. 53 Stanley v. 444 (1969). 535 U.S. In a world in which virtual images are increasingly indistinguishable from reality. U. v.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. They felt that the availability of such material does not necessarily encourage pedophiles to engage in illegal conduct. 2008. an extremely difficult task in today’s worldwide Internet child pornography market. Free Speech Coalition et al. University of Leeds. Seen as a whole.S. The Protect Act 2003 will be discussed in the next section. 16 april 2002. This Act was formulated to rewrite certain passages of the CPPA to conform to the changes brought about by the Ashcroft et al v. 566 and Brandenburg v. and the absence of evidence of such a direct connection between speech and imminent illegal conduct does not justify such a broad measure. Internet child pornography and the law: national and international responses. This way they would avoid prosecution unless the prosecution could content otherwise.S. prosecutors are now forced to prove that sexually explicit images involving children were in fact produced through the abuse of children. The Attorney General’s office foresaw great problems for the protection of children and for the prosecution of pedophiles with this interpretation of the First Amendment because: “The protection of virtual child pornography by the Supreme Court threatens the de facto protection of all child pornography.55Quite the opposite of the better safe than sorry approach that the CPPA had in mind. p. both kinds of images must be prohibited. Akdeniz. 557 (1969). Jeff Miller. Ohio. Common procedure was that they would contend that the material was not that of real children but rather computer generated and thus was constitutionally protected. Georgia. No. 198 F3d 1083. 234 (U.53 Finally. 00-795 56 Mr. H1384 54 Page | 19 . 2002). p.K. 394 U. The Supreme Court stated that the First Amendment was turned “upside down” by the argument that. Ashcroft et al v Free Speech Coalition et al now provided an escape for defendants caught with child pornographic material in their possession.S. Free Speech Coalition et al Supreme Court ruling.S. Supreme Court.: Ashgate. 17 april 2002. House of Representatives. the CPPA had certain flaws incorporated in its statutes and an update was necessary to keep the anti-child pornography legislation in line with the First Amendment so that it can more effectively combat child pornography in all its forms. 107 55 Ashcroft. Attorney et al.”56 Due to the arising of these foreseen and probably unwanted problems when fighting child pornography a reaction was needed and was drafted with The Protect Act 2003. and the Netherlands The Supreme Court also rejected the proposition that pedophiles may use virtual child pornography as a method of seducing children into sexual activity as they found that the speech in question should not be silenced completely in an attempt to shield children from it. 395 U.54The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. 447 Y. because it was difficult to distinguish between images made using real children and those produced by computer imaging.

and so they did. v. U. LEXIS 24271 (5 Cir. In the past. This threatens to render child pornography laws that protect real children unenforceable. Internet child pornography and the law: national and international responses.”59 It was time for Congress to step up and face these new challenges head on.S. Since the Ashcroft v. juries were deemed to be capable of distinguishing between real and virtual images. even those created with technology. 1142 (10 Cir. incite abuse. giving prosecutors an important new tool. 335 F3d 1132. Free Speech Coalition decision it was common practice for defendants to raise the defense that the images in question were not those of real children as seen in the previous section. and the Netherlands § 2. legal system no one may be convicted when there is a reasonable doubt that the defendant has not done the crime he was being tried for.: Ashgate. will now be illegal. The new Protect Act 2003 was signed by the House and Senate on the 10th of April 2003 and the President signed the bill into law on the 30th of April 2003. Slania. 118. it was the question whether such interpretation methods could withstand the reasonable doubt criteria. Tex. prosecutors have been hindered by not having the tools needed to prosecute criminals who create child pornography.. as was also stated: “In the absence of congressional action. v. The mere prospect that the technology exists to create composite or computer-generated depictions that are indistinguishable from depictions of real children will allow defendants who possess images of real children to escape prosecution. 2008.S. raise the dangers to children and will not be tolerated in America. 2002. no matter how they are made. we’ve seen images of children. U. As it is the task of the prosecution to provide evidence that the child in question is real. which was hard to establish.S. for it threatens to create a reasonable doubt in every case of computer images even when a real child was abused. App. Obscene images of children.S.”60 57 th U. the old link described there is not working anymore 58 Page | 20 .6. p. University of Leeds. Kilmer. 2002) 59 Idem note 58 §13.S. In the U. Free Speech Coalition et al. Under the Protect Act. 60 Y.58 Although these proceedings lowered the burden of proof. 57 Also. In the case of whether a child pornographic image was that of a real or virtual child. the difficulties in enforcing the child pornography laws will continue to grow increasingly worse. Akdeniz. 2003) th U. The Protect Act 2003 The enactment of The Protect Act 2003 was in part a reaction to the Supreme Court decision in the case of Ashcroft et al v. The President went on to declare that: “The new law confronts an evil that is too often the cause of child abuse and abduction in America – the evil of child pornography.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.K. the prosecution was not required to provide any additional evidence or expert testimony for its burden of proof to be met to in showing whether the images downloaded by the defendant depicted real children and not virtual children. This proof did not have to be delivered by experts only. the prosecution now faces an immense workload in these cases. technology had evolved in such a way that it was almost impossible to distinguish between images made with use of real children or with use of computer technology. 313 F3d 891. as they had to find proof in each individual case that the child in the image was a real minor.

and the Netherlands So the Protect Act of 2003 now also made the possession and production (amongst other offences) of virtual child pornography illegal.S. where such visual depiction is. shipped. or ``(C) which distribution. that the material or purported material is. 13 January 2003. law up to st date to 1 of February 2010. or ``(B) advertises. (4). whether made or produced by electronic. including any photograph. including by computer. Hatch. or in interstate or foreign commerce by any means. or in interstate or foreign commerce by any means. can be found at: http://www. Last visited at 10-10-2010. is amended-- (1) in subsection (a)— (A) by striking paragraph (3) and inserting the following: ``(3) knowingly-``(A) reproduces any child pornography for distribution through the mails. or solicits through the mails. promotes. presents. any material or purported material in a manner that reflects the belief. including by computer. (C) in paragraph (5). at Section 502. the Protect Act strikes a balance between the First Amendment and the Nation’s interest in protecting children. Includes more offences than possession and production of virtual child pornography 62 Protect Act of 2003.''. and (D) by adding after paragraph (5) the following: ``(6) knowingly distributes.gpo. (2). by striking the comma at the end and inserting ``. anti-child pornography legislation as this was the first time that defendants could now successfully be prosecuted for child pornographic materials other than those made with use of real children. (3).S. can be visited at http://www. or (6)''. sending. or that is intended to cause another to believe. ``(B) that was produced using materials that have been mailed.cornell. or''. or other means. mechanical.law. or transported in interstate or foreign commerce by any means.gov/fdsys/pkg/PLAW108publ21/html/PLAW-108publ21.S. distributes. offers. or ``(ii) a visual depiction of an actual minor engaging in sexually explicit conduct. CR S236-237 at: http://thomas. video. including by computer.htm.S. offer. sends.loc.edu/uscode/18/usc_sup_01_18_10_I_20_110. visited at 10-10-2010 Page | 21 . or transported in interstate or foreign commerce by any means. or provides to a minor any visual depiction.gov/cgi-bin/query/R?r108:FLD001:S00237>. (2). the Chairman of the Judiciary Committee.”62 This was a major change in the U. shipped. or computer generated image or picture. (B) in paragraph (4). chapter 110 sexual exploitation and other 61 All changes made by the Protect Act of 2003 are amended in the U. of a minor engaging in sexually explicit conduct-``(A) that has been mailed. and (2) in subsection (b)(1). last visited at 18-01-2011 63 th Mr. or appears to be.61 Section 502 of the Protect Act of 2003 amended the law as follows: “Section 2252A of title 18. including by computer.C.html. According to Congressman Orrin Hatch. or provision is accomplished using the mails or by transmitting or causing to be transmitted any wire communication in interstate or foreign commerce. (3).18 §§ 2251 -2260A. picture. or (4)'' and inserting ``paragraph (1).''. by striking ``paragraphs (1). United States Code. Code. part 1.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. including by computer. or contains-``(i) an obscene visual depiction of a minor engaging in sexually explicit conduct. film. for purposes of inducing or persuading a minor to participate in any activity that is illegal.63 This Act also amended U. by striking ``or'' at the end.

At other times the legislation was adapted to provide the prosecution the means with which it could effectively fight the ever developing market of child pornography.18 §§ 2251 -2260A. and the Netherlands abuse of children with these new interpretations.S. The next chapter will focus on the legislative history of the Dutch anti-child pornography legislation.C. This chapter has provided a historical overview of the U.C. and it remains the same to this day. It is clear that Congress has always valued the interests of the health and wellbeing of children over the interests of people who have an interest in child pornography. and has shown the amendments that have been made to the extent of the freedom of speech over the years. I found it irrelevant to sum up all of the articles of U.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.64 § 2. I will discuss in detail some parts of these articles further on in this thesis. 18 §§ 2251 -2260A as it consumes a great deal of text. anti-child pornography legislation.S. 64 U.S. to keep the developing legislation in line with the constitutionally protected right of the freedom of speech granted by First Amendment. and enforced by Supreme Court rulings. which was now finding new methods of fulfilling pedophiles and sex offenders’ appetites. Conclusion This chapter has shown how the anti-child pornography legislation in the U.S. Although some Acts were too ambitious and overbroad.S. and will clarify those chosen parts with relevant case-law Page | 22 . and finalized this chapter. has changed and adapted with new developments over the years. sometimes these changes were necessary.7. they always valued the protection of children falling victim to sexual abuse most.

Convicting for Computer Child Pornography
Which computer activities lead to liability in the U.S. and the Netherlands

Chapter 3: Anti-child pornography
legislation of the Netherlands; A brief
history
Child pornography has been, and still is, a problem that is of great concern to the people in the
Netherlands. The invention of photography in 1839 made it possible the portray reality as it is, and not
soon hereafter it was already being used for child pornography purposes.65 The Netherlands has always
been a very liberal country in which the freedom of expression and freedom of sexuality are seen as
rights of the people that need to be held in high regard. These freedoms however do have their
boundaries, and one of those boundaries concerns the possession and spreading of child pornography.
This chapter will give an overview of the anti-child pornography legislation that has been enacted and
amended in the Netherlands since the introduction of the Dutch Criminal Code in 1886 (Wetboek van
Strafrecht) with reference to parliamentary papers and case-law where possible. It will also show the
reasoning behind why certain amendments were desirable. This chapter will also address the latest
legislative changes brought forth by the Convention on Cybercrime and the Lanzarote Convention.
Translations of the Dutch penal clauses into English are unofficial and done by me personally.

§ 3.1. The criminalization of pornography in the Dutch Criminal Code in
1886
When the Dutch Criminal Code was introduced in 1886 the Netherlands it contained one article that
dealt with the possession, dissemination and publicly displaying pornography specifically66. Such an
article was now desired as the public’s view of what was considered to be decent had changed and now
excluded pornography, and as there was a general consensus that such a common view was to be held
in high regard the legislature decided to shape public sexual morale with the introduction of, what can
be seen as, the first anti-pornography article, which should be interpreted as a negative freedom
concept.67 Thus article 240 of the Dutch Criminal Code was enacted, stating at that time:
“He who spreads, publicly displays, fabricates or has in stock, any picture or loose paper for
dissemination, which assaults one’s dignity and is objectionable in nature, and of which content he is

65

J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.10 with reference to Ferraro &
Casey 2005, p.20
66
st
The Dutch Penal Code was introduced on the 1 of September 1886, can be found in the “Staatsblad” in the
Netherlands: Stb. 1886, 6
67
R.S.B. Kool, De strafwaardigheid van seksueel misbruik, 1999 p.338.

Page | 23

Convicting for Computer Child Pornography
Which computer activities lead to liability in the U.S. and the Netherlands

aware, will be punished with a maximum prison sentence of three months or a monetary fine of three
hundred guilders at the most.”
At this time it was not the intention of the legislature to control public sexual morale, but rather to
protect the common sense of decency and the vulnerabilities of certain individuals that came with it,
against the few persons who would intrusively act against it.68 As a result of the industrialization in the
Netherlands a large part of the working-class level citizens fell into poverty and at that time it was
feared that the level of decency in this layer would be lowered because of it.69Article 240 was amended
to cover not only pictures and leaflets, but also writings and objects. Furthermore, it made it illegal to
manufacture such material(s). The reason behind these amendments was to recover the personal
decency level to a more acceptable level.70
In 1911 more amendments were done to the law. These amendments included the introduction of two
new articles namely Article 240bis and Article 451bis of the Dutch Criminal Code71. Article 240bis made
it illegal to offer or provide writing, pictures or objects, which were objectionable in nature, to persons
under the age of eighteen.72 Article 451bis forbids any material which was suitable to stimulate the
sensuality of the youth.73
The law remained the same for a long period of time until it was being amended in the 1960’s and
1970’s, these amendments will be discussed in the next section.

§ 3.2. Child pornography legislation in the 1960’s and 1970’s
As said before, The Netherlands is known for its liberal politics concerning all kinds of topics. So was the
Netherlands in the 1960’s. In the 1960’s people started to embrace their freedoms more and more and
found that the law was suffocating them in their urge for freedom. These were the years in which the
first birth control medicines were becoming available to the public and in which there was a unknown
openness to sexual freedom and expression. This sexual revolution, as one could name it, led to an
increase in demand of pornographic material and naturally this material became more readily available
than before.74
As a consequence of this liberalism that swept the nation there was a calling for less governmental
interference regarding child pornography.75 In the late 1960’s the first amendment to the
“zedelijkheidswetgeving” (decency law) was a fact, it was now no longer prohibited to buy anti
68

Adviescommisie zedelijkheidswetgeving, Eindrapport, Den Haag, Staatsuitgeverij 1980, p.9
J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.11
70
Commissie de Melai 1980, p.9
71
These articles are disposed of in the current Dutch Penal Code but are incorporated into the new art. 240b
72
.J.J. Oerlemans, Kinderpornografie op Internet: Dweilen met de kraan open, p.11
73
Idem note 72
74
Idem note 72. p.12
75
R.S.B. Kool, De strafwaardigheid van seksueel misbruik, 1999, p. 86
69

Page | 24

Convicting for Computer Child Pornography
Which computer activities lead to liability in the U.S. and the Netherlands

conception products and committing adultery was no longer criminalized.76 It was also no longer
forbidden for homosexuals to engage in sexual activity with minors.77 The emphasis had now changed
from a negative to a positive concept of freedom, meaning that the government no longer set
boundaries to limit or forbid certain behavior but now formulated criteria in which certain behavior was
governmentally allowed. The changes in the law that are described above exemplify this transformation.
In 1978 Article 240 was being challenged by the Deep Throat case78. In this case the Hoge Raad (Dutch
equivalent of the Supreme Court) was challenged with the questions whether this movie went against
one’s honorability and whether it was objectionable in nature. Both claims where dismissed. With
regard to the question whether the movie was objectionable in nature the Hoge Raad ruled that of such
a thing could hardly be spoken when it concerns adults who totally voluntarily watch a movie with a
“exceptional character” when “it may be taken for granted that these persons wanted to see this movie
despite its exceptional character and if that is the case these persons are unlikely to experience such a
movie and the content thereof as objectionable”79The implication of the Deep Throat case was that it
almost made it impossible to successfully invoke Article 240 to prevent a unwanted confrontation with
pornography.80
On the 1st of May 1970 an advisory committee was established, named the” Adviescommissie herziening
zedelijkheidswetgeving”. This advisory committee’s task was to investigate whether the articles 240 till
249 of the Dutch Criminal Code were still up to date. They finished their report in 1980; the changes
brought forth by this committee will be discussed throughout the next section.

§ 3.3. The changes proposed by the “Adviescomissie herziening
zedelijkheidswetgeving” and its aftermath
In this section I will go into the changes brought forth by the advisory committee which submitted its
final report in 1980. As a vantage point for their considerations the committee chose the proposition
that interference by the legislature regarding sexual offenses was only desirable if the sexual freedom of
subjects would lead to undesirable expressions and consequences for fellow subjects.81 Seen in general,
the rapport’s primary focus was wide and primarily inspired by the changing societal urge that had
arisen regarding the need to amend the penal clauses of rape and sexual assault in relations between
adults and minors.82

76

Idem note 72, p.12 with reference to the Law of May 6 1971, Stb. 1971, 291
Idem note 72, with reference to the Law of April 8 1971, Stb. 1971, 212.
78
Deep Throat, NJ 1979, 93 (1978)
79
Idem note 78
80
J.L. van der Neut, Kinderpornografie. De situatie in Nederland, Delinkt en Delinkwent, 2000 Vol. 2. p.p.109-110
81
H. van der Neut, Het eindrapport van de Adviescommissie Zedelijkheidswetgeving, Delinkt en Delinkwent, 1980,
Vol. 11, p.520
82
Idem note 81
77

Page | 25

but also that pornography is insulting.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. The introduction of the first real anti-child pornography article 83 Tweede Kamer 1979-1980.88 § 3. 2000 Vol.S. 293. 15 836. but quite suddenly the discussion about the bill stagnated. Delinkt en Delinkwent. and the article should now be read as: “With a prison sentence of up to 3 months or a monetary fine of six hundred guilders at most will be punished. P. 6. 111. 86 Idem note 85 87 Idem note 85. 1-3 Memorie van Antwoord 15 836. van der Neut. Kinderpornografie. p. In parliament his statement led to little resistance at first.87 At about the same time that the actions in Amsterdam were taking place. especially because the police in Amsterdam was now raiding sexshops whereby the found child pornography was confiscated. He felt that the article was good enough as it was and that the legislature should not have to go as far as to ban pornography or child pornography as a whole. and thus was ineffective at dealing with the matter. De situatie in Nederland. the American Congress commission was . At that time it was clear however that the proposed changes were so liberal in character that it in any case would not lead to far stretching criminalization of pornography let alone child pornography. Due to the tumult brought forth by the proposal a new amendment to the law seemed inevitable. 3. 8 85 J. whereby the harm is expressed in different ways. The Minister of Justice’s opinion at that time was that “the legislature should not let a common judgment about the contents of expressions prevail above the respectable conceptions of those who would like to take note of the contents of such material”. p. p. and publicly displays or offers this image or object on or at a space designed for public transport.4.2 84 Page | 26 .86 These are arguments that are still being used by anti-child pornography fighters to this day. discriminatory and offensive.”83 The proposed amendments to Article 240 of the Dutch Criminal Code led to a lot of discussion in the Netherlands about the effectiveness of the law in dealing with pornography. mainly due to criticism of women. depicting the Netherlands as a paradise for child pornography lovers and a producers. 2. he who knows or has severe reasons to suspect that an image or object is objectionable to one’s dignity. 112 88 Idem note 85. and the Netherlands As a reaction to the Deep Throat case and the rapport written by the advisory committee the legislature decided to propose an amendment of Article 240 of the Dutch Criminal Code.alerted by a Dutch female confidante. p.84 In saying this he clearly was an advocate of the current legislation regarding pornography. Some feared that “this country would be known as the land of pornography” all over the world.85 Suddenly more critics of the proposal came forth and they addressed their problems with the bill with solid arguments like the fact that pornography is harmful.112 referring to another note: Handelingen Tweede Kamer 1908-1999.L.

As a result a new Article 240b of the Dutch Criminal Code was formulated and accepted in the bill of 1985. With regard to other forms of pornography the old liberal article remained the guideline. Enacted later on the 1 of February 1996 92 J . publicly displays. P. 113 91 th st Ratified on the 13 of February 1995.91The main purpose behind this law was to intensify the fight against the production of child pornography actively. And the preventive effect of this article will not have been very high due to the relatively low penalty maximum. De situatie in Nederland. is involved. either disseminates or publicly displays. produces. which was in line with developments at the time like the invention of the first personal computers and the video recorder. are being criminalized. De situatie in Nederland. exports or has in stock an image or data carrier containing a depiction of sexual conduct. and these changes will be discussed in the next section.L.L. 1995. It did incorporate the term data-carrier now. As was said in the deliberations leading to the enactment of this law: “Fighting child pornography crimes is impossible unless all links in the chain of child pornography. or has in stock with the intention to disseminate or to publicly display. Stb.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. van der Neut. imports or carries through. in which a person who apparently has not reached the age of sixteen years 2. 2. with which the means of storing data changes considerably.” Although this was a memorable first attempt to criminalize the possession and spreading of child pornography it was not flawless.90 The next changes with regard to anti-child pornography legislation were made in 1994. 114 th referring to another note: Handelingen Tweede Kamer. 575. which on the one hand depend on the production thereof. and on the other hand contribute to it. it was then ratified in 1995. 2000 Vol. Making the punishment fit the crime A new bill addressing the child pornography issue was proposed in 1994. in which a person who apparently has not reached the age of sixteen years. disseminates. 385 J.”92The text of the new Article 240b of the Dutch Criminal Code was now: “1. who has such an image in stock of which it is established that it is being used for scientific. van der Neut. 89 Ratified on the 3d of July 1985. It lacked a clear age limitations as it incorporated the vague term “apparently has not reached the age of sixteen”. imports or carries through or exports such material.S. educational or therapeutic purposes. P. Stb. That means that the having in stock of child pornography should be criminalized as such. With a prison sentence of four years at most or a monetary fine of the fifth category will be punished the person who. is involved.5. Kinderpornografie. 1985. Kinderpornografie. Delinkt en Delinkwent. 2. and the Netherlands Due to the sustained pressure of both the societal unrest in the Netherlands and the criticism of the United States the legislature felt it was necessary to amend the law to meet the demands of the opposition. produces. Not punishable is the person.89 The new penal clause was formulated as follows: “With a prison sentence of three months at most or a monetary fine of the third category will be punished the person who has an image or data carrier containing a depiction of sexual conduct. 23 682 April 6 1995 90 Page | 27 . Delinkt en Delinkwent. 2000 Vol. § 3.

S. 2001 96 Idem note 95 Page | 28 .J.” As stated in the previous section. the Internet also lends itself for online abuse of children. Child pornography was now available to everyone with an Internet connection. and could be transferred from one country to another at the click of a button. Where previously possessors of child pornography had a collection of for example tens and sometimes hundreds of pictures.161 95 M. For example. a group of pedophiles. p. p.95And to make things even worse. 93 J. was arrested in the United States.80 94 Taylor and Quayle 2003.94 A byproduct of the Internet is that users of child pornography of the Internet can quickly become the producers themselves. A whole new playing field The development of the Internet in the 1990’s opened up a whole new array of possibilities in ways to produce and disseminate child pornography. This maximum could now be increased to six years if the violation was habitual. which enhanced the scope of the article considerably because now such violations can be more easily established. Oerlemans. in 1996. The other members could then request certain sexual actions to be performed on the child and could thus direct the abuse.93 The preventive effect problem of the previous Article 240b of the Dutch Criminal Code was adequately dealt with. instead of a facing a maximum of three months in prison it was raised to a maximum of 4 years. This new law changed the penalty maximum considerably. defined in the first paragraph. the United States and Australia. With a prison sentence of six years at most or a monetary fine of the fifth category will be punished he who habitually commits one of the crimes.a. this soon grew to collections of thousands to tens of thousands images containing child pornography. This group of pedophiles used to sexually abuse children in real-time. Kinderpornografie op Internet: Dweilen met de kraan open.96 Their members lived in the Europe. Child Pornography. the penalty maximum was so low that it would hardly have any preventive function at all. In the years to come this legislation was faced with the emergence of the Internet and this opened up a whole new world of possibilities for the production and dissemination of child pornography. Taylor et al. Habitual behavior was to be determined when the suspect had images in stock during an extensive period of time and these images depict minors that are involved in sexual conduct. Their modus operandi was to have one member transmit real-time images of a child being sexually assaulted to other members of the club using a digital camera.14 referring to another note by Lunnemann e.6. p. the Internet and offending. § 3. and was consequently added weight to with the higher sentence clause. 2006. and the Netherlands 3. This new article also deleted the intentionality element with regard to the dissemination and making publicly available from the penal clause.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. The next section will discuss how the Internet changed the anti-child pornography playing field. joined together under the name of the Orchid Club.

2010 2010 Page | 29 . This treaty was called the Convention on Cybercrime. Criminals are increasingly located in places other than where their acts produce their effects. 2010 98 Idem note 97 99 In the introduction of the Explanatory Report of the Convention on Cybercrime more detailed information can be found on how technology changed society. necessitating the adoption of adequate international 97 rd Convention on Cybercrime. The Convention on Cybercrime The Council of Europe and some nations outside of the Council of Europe joined together in a treaty called the Convention on Cybercrime which was a treaty that was specifically designed to combat crimes committed via the Internet or other computer networks.htm. This information can be found at: http://conventions.98The Netherlands was one of the nations that ratified this treaty and thus obligated itself to be bound to its contents.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Thus solutions to the problems posed must be addressed by international law. In the words of The Explanatory Report: “Information and communications flow more easily around the world. New types of crimes emerged and traditional crimes could now be committed with the use of new technologies.int/Treaty/EN/Treaties/Html/185. As child pornography transcended national borders the members of the Council of Europe decided to close the ranks and join together in the form of a treaty that specifically dealt with the issue of child pornography and other computer related crimes. with certain limitations installed in the treaty itself.coe. 23 of November 2001.S. If was felt that the Convention on Cybercrime was needed as the revolution in information technologies had changed society fundamentally and would probably continue to do so in the near future.htm last visited on October 26.int/Treaty/en/Reports/Html/185. the consequences of criminal behavior could now be more far-reaching than ever before because geographical location was no longer a restriction for committing a crime across borders. One of the main principles of this treaty was to pursue a common criminal policy aimed at the protection of society against cybercrime by adopting appropriate legislation and fostering international co-operation. Budapest. it also had a dark side.7. 99Although these new technological revolution had given rise to unprecedented economic and social changes. As such. and the Netherlands The examples above illustrate how the Internet changed the playing field of child pornography and made it a whole new ballgame. can be found at: http://conventions. last visited on October 29. § 3. A legislative response to these new forms of child pornography was needed. domestic laws are generally confined to a specific territory. these new technologies challenged the existing legal concepts.97The next section will discuss how the Council of Europe and their partners tried to fight these new changes through the Convention on Cybercrime. Even more important. Borders are no longer boundaries to this flow.coe. However.

104 The treaty however reserved the right for Parties to the treaty to incorporate in domestic law. with due respect to human rights in the new Information Society. These actions will be summed up in short here. 388 107 Idem note 106. paragraphs 1.6.107 Virtual child pornography was added because the new technological developments made it possible to create life like images of children without the involvement of real children.1. The implementation of the Cybercrime Convention into the Dutch legislation On basis of this Treaty the Netherlands made an amendment to the legislation in 2002. p. Under Article 9 paragraph 1 sub-paragraph d and e 105 Idem note 101. needed to be adopted as an international legal instrument to combat these dangers. At the time most States already had criminalized the traditional methods of producing and distributing child pornography. possession and distribution of child pornographic material.102This article specifically criminalizes several aspects of the electronic production. or not at all.”100 Title 3 of the Convention on Cybercrime dealt with content-related offences. at number 6 Convention on Cybercrime. offering or making available. Article 240b of the Dutch Criminal Code was expanded upon to now also include virtual child pornography. meaning that with regard to the procuring and possession of child pornography each country was free to incorporate these statutes as they deemed fit. Under Article 9 paragraph 1sub-paragraph a to c 104 Idem note 101.6.103 It also criminalized procuring child pornography for oneself or someone else and criminalized the possession of child pornography in a computer system or on a computer-data storage medium.7. p. but will be discussed as to what is to be understood under these actions. producing for distribution. and article 9 of this title dealt with the issue of child pornography specifically. for an effective approach in 100 Idem note 99. in whole or in part.S.101 This article was formulated to strengthen protective measures for children.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. the element of having such material in stock was abandoned and replaced by the element of having in its possession. at number 91 103 Idem note 101.6 102 Idem note 97. The present Convention aims to meet this challenge. it was strongly felt that new provision.7. and distributing or transmitting child pornography through a computer system. by modernizing criminal law provisions to more effectively circumscribe the use of computer systems in the commission of sexual offences against children.105 § 3. at Artikel 1 C 101 Page | 30 . Stb. p. Actions now criminalized included actions like producing. including their protection against sexual exploitation. where the rationale behind each nation’s anti-child pornography legislation is discussed. and the Netherlands legal instruments. Furthermore. p. Under Article 9 paragraph 4 106 th Law of July 23 . dealing specifically with these new forms of sexual exploitation and endangerment of children. but due to the increasing use of Internet as medium for trading these materials. The scope of Article 9 of the Convention on Cybercrime was to establish certain actions regarding child pornography as criminal offenses under domestic law. sub-paragraphs d and e. 2002. and why they were formulated as such in chapter 4.106The amendment of 2002 concerns multiple revisions and modernizations.

109Also the exception in Article 240b paragraph 2. § 3. recommended that States develop an effective system of reporting and investigation. the lack of a clearly defined minimum age for consenting sexual relations and lack of protection for children against abuse on the Internet. can be found at: http://conventions. In particular the Committee underlines the lack of exhaustive national criminal legislation in this field in the State Parties. in order to ensure better protection of child victims. Also known as the Lanzarote Convention. appropriately named the Lanzarote Convention. “sex tourism” and child pornography. 2010. This thesis will discuss this convention and its consequences in the next section.p. 21 -22 110 Idem note 108.108 The age limit for all conducts named in Article 240b of the Dutch Criminal Code was raised from sixteen to eighteen years.110 In this section all changes brought forth by the implementation of the Convention on Cybercrime are mentioned. last visited at November 29. p. avoiding repeated interviews of child victims.22 111 Preamble of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.htm. Soon hereafter in 2007 another convention was agreed upon in Lanzarote. for example. in particular as regards the increased use by both children and perpetrators of information and communication technologies. p. and that preventing and combating such sexual exploitation and sexual abuse of children requires international co-operation. for scientific. This unity was needed as the sexual exploitation of and sexual abuse of children had grown to worrying proportions at both national and international level. The Lanzarote Convention Following up on the Convention on Cybercrime the Council of Europe and several other nations met again in Lanzarote in 2007.”112 108 Lunnemann et al.int/Treaty/EN/Reports/Html/201. hence the name the Lanzarote Convention.S. including the protection of their right to privacy.coe. can be found at http://conventions.int/Treaty/Commun/QueVoulezVous. with the aim to achieve a greater unity between its members. and the Netherlands fighting child pornography. Lanzarote 25-10-2007. It has. mei 2006. especially on the Internet. Page | 31 .coe. educational and therapeutic purposes. was abandoned.111 According to the Explanatory Report of the Lanzarote Convention amendments to the law was needed because: “Children in Europe are not sufficiently protected against sexual exploitation and abuse. within a child-sensitive inquiry and judicial procedure. especially as concerns trafficking of children. Kinderen beschermd tegen seksueel misbruik: Evaluatie van de partiële wijziging in de zedelijkheidswetgeving.asp?NT=201&CM=1&DF=&CL=ENG last visited on th October 26 2010.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. it might be needed to act against seemingly real child pornography. 112 Explanatory Report of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.21 109 Idem note 108.8. at point 7. p.

minor servant or inferior entrusted to him for his care. The implementation of the Lanzarote Convention into the Dutch legislation The Netherlands has incorporated the articles of the Lanzarote Convention into the Dutch Criminal Code by law of November 26 th 2009. This amendment raised the maximum length of the prison sentence for habitual offenders from six to eight years. publicly displays. 544 th Law of June 12 2009. or obtains access thereto with use of an automated work or with use of a communication service. carries through. 245 115 th Law of November 26 . carries through. acquires.9. and the Netherlands The Lanzarote convention expanded upon the current anti-child pornography legislation by introducing a new penal clause. 116or if the perpetrator has committed the act against his own child. education or watchfulness. § 3. offers. § 3. Artikel 1 at A 116 Idem note 115. exports or has in its possession”.113 However on the 12th of June 2009 there was another amendment that needs to be mentioned first. 2009. offers. Under Article 20 paragraph 1 sub-paragraph f of the treaty it was now criminal to “knowingly obtain access. exports.117These alterations have not yet been incorporated into the Dutch Penal Code article 240b. exports. through information and communication technologies. With a prison sentence of four years at most or a monetary fine of the fifth category will be punished the person who disseminates.8. 2009. Stb. the Lanzarote Convention proposed some alterations such as that the maximum prison sentence can be raised with a third if the act is committed by two or more joint persons.” Also in Article 23 of this treaty “grooming” was now made criminal. a child over who he has custody. acquires. Stb.”115 Also.1. imports. produces. 2009. 2009.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. his pupil. 544. a child who he nurtures or raises as belonging to his family. in which a person who apparently has not reached the age of eighteen years. publicly displays. 2009. imports. was replaced by: “disseminates. carries through. Stb. Conclusion So on basis of all amendments till now the current text of Article 240b of the Dutch Criminal Code is as follows:118 “1. possesses an image or data carrier containing a depiction of sexual conduct. at Artikel 1 Aa 1 117 Idem note 115 at Artikel 1 Aa 2 118 Article 240b of the Dutch Criminal Code 2011 114 Page | 32 . is involved or seemingly is involved. The sentence: “disseminates. possesses or obtains access through information and communication technologies. or a minor. to child pornography. imports. produces. has 113 th Law of November 26 .114 The incorporation of the Lanzarote Convention made some changes to Article 240b of the Dutch Criminal Code.S.

” This chapter has provided an overview of all the amendments that have been made to the Dutch antichild pornography legislation and why the legislator has chosen to do so. to a tightly formulated and strict penal clause with adequate punishments set in foresight. With this chapter an end has come to the legal history of both countries anti-child pornography legislation. But as the child pornography scene is ever developing the Dutch legislator will have to keep up with future changes and has shown the intent to do so by ratifying and incorporating treaties like the Convention on Cybercrime and the Lanzarote Convention. With a prison sentence of eight years at most or a monetary fine of the fifth category will be punished he who habitually or as a profession commits one of the crimes. defined in the first paragraph.S. It went from the early liberal. and the Netherlands 2. and therefore criticized viewpoint and legislation. The Dutch legislation has come a long way to develop an elaborate anti-child pornography penal clause.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Page | 33 .

movies. The risk of that happening is unacceptable and is also part of the first reason behind the drafting of the anti-child pornography legislation.S. first there is the immediate harm when making child pornographic material such as the actual abuse and the traumas following that abuse. since images that are created showing a child’s face or other identifiable feature on a body engaging in sexually explicit conduct can haunt the minor for years to come”. Secondly there is a form of continuing harm that I will now explain.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. Harm can manifest itself in two ways. anti-child pornography legislation After researching the U. the abuser will often send pictures or other material to the unforthcoming child depicting other children engaging in sexual activity. and the Netherlands Chapter 4. All arguments can be found in the Child Pornography Prevention Act of 1996. This harm must be prevented at all costs and is one of the principal reasons behind the legislation. anti-child pornography legislation I have discovered that three arguments are used as the foundation on which the anti-child pornography legislation is built. The rationale of the U. This chapter will first address the rationales of the U. These will be discussed in this section. and after that the rationales of the Netherlands. When a child is not as forthcoming as the abuser would like.1. § 4. This information provides insight into what behavioral aspects with regard to child pornography are deemed to be criminal and why this is so. Often the sending of such material will 119 Child Pornography Prevention Act of 1996 Page | 34 . Children that are being used in the production of child pornography such as photographs.S.119 The second argument is that it must be prevented that children are being seduced into sexual activity by confronting them with material of other children engaged in sexual activity. and the Netherlands This chapter will provide insight into the rationales behind the drafting of the anti-child pornography legislation in both nations. Congress puts it in these words: “the creation and distribution of child pornography which includes an image of a recognizable minor invades the child’s privacy and reputational interests. for the victims of that material it means that they are at risk of having to relive that experience and accompanying harm again when confronted with the recording of their abuse. computer images etcetera are being exposed to the chance that they will experience physical or psychological harm. Child pornography is often a permanent record of the victim’s abuse that continues to exist and that can resurface after time. in which those depicted children are having fun in doing the activity.S. The first argument is that it must be prevented that children are psychologically or physically being harmed by sexual abuse. or posing for pictures.S. The rationale behind the antichild pornography legislation in the U.

2. This creates an unwholesome environment for children which will affect their psychological. mental and emotional development and such an environment will also undermine the attempts of parents and other family to encourage the sound mental.121 § 4.S. He or she can even get so desensitized that the behavior portrayed in child pornography becomes acceptable and even preferred by that person. moral and emotional development of children. and the Netherlands persuade the child to also take part in such activity. but not a separate argument for such legislation. Congress therefore enacted several statutes in the anti-child pornography legislation of the U.S. and as a model for sexually acting out with children. In light of these decisions the government thus has a compelling interest in ensuring that the criminal prohibitions against child pornography remain enforceable and effective. The third argument relates to the users of child pornographic material. 103 1990 Page | 35 . This will help to protect the victims of child pornography and will help to eliminate the market that thrives on the sexual exploitation of children. In 1886 it was the intention of the legislator to 120 121 New York v.S. to put an end to such behavior by people interested in child pornography. An additional benefit of the anti-child pornography legislation. anti-child pornography legislation are mainly the same rationales that are applied in the Netherlands. The rationale of the Dutch anti-child pornography legislation After exploring the Dutch rationales I have discovered that the rationales underlying the U.S. 747. 495 U. In the Ferber case it was decided that the prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. is the fact that by prohibiting the possession and viewing of child pornography it will encourage the possessors of that material to get rid of it. 1982 Osborne v.120 The Osborne case went on to state that this governmental interest extends to stamping out the vice of child pornography at all levels in the distribution chain. The historic overview has shown us how the rationale of the Dutch legislator has changed over the years with regard to the criminalization of child pornography. Ohio. This method of seducing children into sexual abuse is a grave danger to the children and needs to be stopped. Such sexualization and eroticization of children through any form of child pornography will lead to encouraging a shift in the societal perception of children. The above mentioned rationales when drafting the CPPA were based on court rulings that preceded the drafting of the CPPA. A person that uses child pornography for those reasons can get desensitized that person to the pathology of sexual abuse of children. This section will now discuss the rationales that state the importance of the Dutch anti-child pornography legislation.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.S. Children will then be seen as sexual objects and such a view of children will probably lead to further abuse and exploitation of children. Ferber 485 U. People with interest in child pornography often use that material to whet their own sexual appetites. for the most part with referral to the above mentioned rationales.

122 The western civilization experienced a period of sexual freedom in which sexual interaction between adults and children was not bluntly rejected. 1-5-2007. In the years hereafter the law was amended multiple times based on the idea that protection of people and children should supersede the right of sexual freedom. which is ratified by the Netherlands and incorporated into its legislation. against behavior that can be used to encourage or seduce children to take part in sexual behavior and against behavior that can be seen as taking part in a subculture that stimulates children into sexual abuse. but are addressed in the original text of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse128. Lanzarote 25-10-2007.S. last visited on the 30 of March 2011 127 Idem note 126 128 Preamble of the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. Also known as the Lanzarote Convention.127 These are the exact same three rationales that are also used in the U.om. sexual freedom was now to be held in high regard and as a consequence of such a view. and the Netherlands protect the common sense of decency that had shifted and thus moved the legislator to amend to law.125 This new understanding led to the changes brought forth by the changes in the decency law.nl/organisatie/beleidsregels/overzicht/zeden/@155181/aanwijzing/. can be found at http://conventions. 1-1-2011. but which certainly fall within the principle of the protect worthiness of children. and besides the material that is without a doubt child pornographic in nature.om. According to the Council of Europe.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. which have been addressed earlier on in this thesis.123Even the question arose whether the penal action after sexual interaction between adults and children was not more harmful than the interaction in itself.126 With this principle it is meant that children must be protected against images that suggest sexual abuse. can be found at th http://www. These three rationales are not explained further in documents found in the Netherlands. can be found at th http://www. In the 1960’s and 1970’s there was another shift in the rationale.S.asp?NT=201&CM=1&DF=&CL=ENG last visited on th October 26 2010 Page | 36 . especially women and children. and all other forms of sexual abuse of children. the sexual exploitation of children and in particular referring to child pornography. The ways in which children can fall victim to child pornography is diverse because the way in which children are being used for child-pornographic purposes knows many forms. legal actions should only be undertaken when it was absolutely necessary for the protection of the physical and spiritual integrity. last visited on the 30 March 2011 123 Idem note 122 124 Idem note 122 125 Idem note 122 126 Aanwijzing Kinderpornografie. there exist other form of so called “child erotica” which are not covered by the scope of the penal clause of 240b of the Dutch Penal Code.nl/organisatie/beleidsregels/overzicht/zeden/@155136/richtlijn/.124 Gradually the apprehension crept in that the sexual freedom of one could lead to sexual oppression and even to an infringement of the physical integrity for others.int/Treaty/Commun/QueVoulezVous. are destructive to the health of children 122 Richtlijn Kinderpornografie.coe.

3. Conclusion This chapter has shown that the rationales for criminalizing child pornography offenses are similar in both nations.S. The next chapters will explore the case-law in the U. Both nations apply the same three rationales for criminalizing child pornography.S.S. With the investigation and prosecution of child pornography the focus needs to be aimed primarily at the identification of the victims.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. and the Netherlands and their psychological and social development. 130Possession of child pornography (and child erotica) can serve as an indicator for an investigation of possible abuse and production § 4. perpetrators of sexual abuse and the production of child-pornographic imagery. A subculture in which sexual abuse of children is accepted must be prevented. 129 130 Idem note 128 Idem note 126 Page | 37 .129 This is the same rationale as is discussed as the first rationale of the U. 1. psychological or emotional harm done to children by sexual exploitation needs to be forbidden. and viewing (U.3. Physical.)/ gaining access to (the Netherlands). of child pornography through certain acts performed with a computer.S. and the Netherlands with regard to the possession. It must be prevented that children are seduced into sexual exploitation by using material that depicts other children engaged in sexual activity or posing for pictures. 2. This chapter has provided the main reasons for criminalizing acts relating to child pornography and certain aspects of these rationales will be used by the courts as a foundation upon which to build a conviction. It is only logical that preventing harm to children done by the child pornography industry would be the leading rationale in the Netherlands too.

and the Netherlands Chapter 5.2.blogspot.S. To understand how one can be convicted on basis of what is in your cache file it important to understand what a cache file is exactly.S.C. When is caching of files considered to be knowing possession of child pornography? These days knowing possession of child pornography can be assumed by looking through one’s cache file on a person’s computer. So what is this cache file exactly? A cache file 131 U. Possession can be actual possession which means that a person has direct physical control of something on or around his person.html.S.2. The first is simple possession. but who has both the power and the intention to exercise control over something is in constructive possession of it. Constructive possession as a minimum threshold level for knowing possession Possession can be established in two ways. such as an intention to sell or supply.C. §2252(3) and §2252A (4) 133 Definition acquired from http://cyb3rcrim3.1. files found in the trashcan/recycle bin and the saving and deleting of images and online viewing of child pornography and constitute to knowingly possessing child pornography and knowingly obtaining access to child pornography.131 The second is possession accompanied by an additional intent. This thesis will first explain how constructive possession is being used as a minimal threshold level for establishing knowing possession.133 A person who is not in actual possession.S.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.1.com/2008/12/constructive-possession. The main focus of this chapter is to investigate how the caching of websites. Next this thesis will explore how the definition of knowingly is being defined and construed in the case-law in the U. last visited at 31-03-2011 134 Idem note 133 132 Page | 38 . case-law based on the older versions of these articles will be left out of this search and analysis. §2252(4) and §2252A (5) U.S. Furthermore. This chapter will discuss the case-law of the U. and will distill what the main standards are for establishing knowing possession of child pornography.134 § 5.S. § 5. this is a form of possession where the possession alone is sufficient to constitute an offence. Knowingly possessing child pornography § 5.S. Case-law review of the U. Possession of child pornography is an offence that in essence takes two forms. dealing with the knowing possession of – and knowingly obtaining access to.132This chapter will use case-law based on the current meaning of the articles §2252 and §2252A of the U.child pornography.C. case-law after 20-11-2010 will not be taken into account due to time constraints.

136 So when you or I view a webpage the web browser stores a copy of the page you are visiting on your computer’s hard drive in a folder or directory. and each individual file within that cache is known as a temporary Internet file. The Supreme Court in the United States v. Tucker 305 F.S. He states that an individual could access an image in a cache file and could then do numerous acts with it such as send it by e-mail.140 This district court also rejected Tucker’s argument that he did not voluntarily possessed the child pornographic material on the grounds that Tucker visited the Web sites for the purpose of viewing child pornography and that the images would not have been stored in his cache file if he had not voluntarily sought out this material.S.142 The fact that Tucker did have control over the material is exemplified by the testimony of Customs Agent Daufenbach which can be found in the Supreme Court decision. found at: http://en. the images on the web page would be sent to his browser cache file and thus saved on his hard drive.wikipedia. Supreme Court ruled on this issue. post it on a newsgroup. That specific folder or directory is designated as the cache. and the Netherlands is a storage mechanism that improves performance by transparently storing data such that future requests for that data can be served faster.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.138 However. He does concede that he knew that when he visited the web page. place it on a Web site.org/wiki/Caching. v. Tucker states that he had no desire to save the images onto his hard drive and deleted the images from his hard drive after each session. Tucker in 2002 can be considered to be the leading case as it is the only case in which the U. The Supreme Court followed the District’s Court ruling that Tucker did have control over the material because he made a habit of manually deleting the images from the cache files which thus established that he exercised control over the material. there are numerous cases in which defendants are convicted for knowingly possessing child pornography on the basis of finding child pornography in their cache file. Tucker’s counter argument against having control over the child pornographic material was that he did not personally save or download the images to his hard drive and therefore had no control over them.137 In this case Tucker states that he did not possess the child pornography but only viewed it on his web browser. last visited at 22-11-2010 Idem note 135 137 U.3d 1193 C.139 The Supreme Court interprets the definition of possession as the holding or having something (material or immaterial) as one’s own. or print a hard copy of it.135 The data that is stored within a cache might be values that have been computed earlier or can be duplicates of original values that are stored elsewhere. the district court concluded that his possession was knowingly because he purposefully visited web sites which portray child pornography knowing that the images would be stored on the hard drive of his computer. In the U.143 This testimony conclusively 135 Definition acquired from Wikipedia. or in one’s control. 2002 138 Idem note 137 139 Idem note 137 140 Idem note 137 141 Idem note 137 142 Idem note 137 143 Idem note 137 136 Page | 39 .S.S.A. 141Furthermore.10.

Furthermore. and the Netherlands demonstrated Tucker’s control over the images stored in his cache file. he continued viewing child pornography even when he knew that the pornography was being saved.S.3d 1198. 2005 Idem note 144 Page | 40 . if only temporarily. So how did the district court construe knowing possession of child pornography? In this case the criterion formulated by the Tucker decision were applied successfully again. A case quite similar to the Tucker case was the case of U. He claimed that a computer virus caused his browser to save child pornography. The case above mentioned one way in which knowing possession of child pornography in the cache file on a computer can be established. and material is saved in temporary internet files… the court’s leap from viewing child pornography to knowingly possessing it based solely on a computer default operation without any proof the defendant knew about such operations establishes a precedent that mere negligence suffices for criminal liability.”145 144 145 U. v.S. he knowingly acquired and possessed the images.S.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Bass. These circumstances made it so that his possession was voluntary. and thus each time he intentionally sought out and viewed child pornography with his Web browser. to remove the child pornography from the computer. In a dissenting opinion in the Bass case of Judge Kelly she shows why proving knowledge of the existence of the cache directory is needed as it would otherwise lead to unwanted consequences: “Knowing possession of pornography cannot be established merely by demonstrating that Mr. The first standard that can be established is that if one intentionally views child pornography when knowing that images of what he is viewing are being stored on his computer one knowingly possesses child pornography. These attempts to remove the images were sufficient evidence to conclude that Bass did know that when he was viewing child pornography these images were being stored onto his computer. History Kill and Window Washer. v. The Supreme Court also followed the reasoning of the district court with regard to the assumption that Tucker knowingly possessed child pornography. Bass.144 In this case Bass also viewed child pornography online but argued that he did not know that the images he viewed online were automatically being saved to the cache file on his computer. Therefore. The main difference with the Tucker case is that where Tucker admitted to know that the images were being saved onto his computer in the cache directory and thus was convicted upon this prior knowledge Bass did not admit to know this. and this was done by interpreting his attempts to remove the images from the cache directory as his knowledge of the fact that the images were indeed being stored onto his computer. Bass was ignorant. 411 F. on his computer. his knowledge of this fact needed to be proven. and thus how he possessed them according to the Supreme Court. The Supreme Court repeated the reasoning of the district court that Tucker intentionally sought out and viewed child pornography knowing that the images he viewed would be saved on his computer. negligent or foolish not to have known that downloading files is easy. Bass used two software programs.

In the case of State v Mobley the court stated how knowing possession in the context of computer images needs to be interpreted.146When Romm was visiting Las Vegas he was watching child pornography websites in his hotel room on his computer. This case illustrates that the criteria for knowingly possessing images portraying actual minors and images portraying computer images of minors engaged in sexual explicit conduct are the same.S. This reasoning is in line with the control criterion that was established in the Tucker case and according to the detective that investigated the case.147 The district court disagreed with Romm’s argument and stated that in the electronic context a person can possess child pornography without downloading it if this person seeks it out and exercises dominion and control over it. Romm did perform these actions and thus knowingly possessed the child pornographic material. 151The standard here again is that the defendant: “reached out for and exercised dominion and control” over the images. Romm contends that he was merely knowingly viewing child pornography but did not knowingly possess it.S. This reasoning is upheld in the cases shown above.148 In this case the district court assumed that:” To possess the images in the cache.3d 413. he had the ability to copy.150 Also.3d 990. but 146 U.”149 In this case Romm’s control over the child pornographic material in his cache was established by him enlarging the images on his screen. Romm 455 F. v. the defendant must. copying and enlarging and deleting images from this cache directory demonstrate that one has such knowledge and thus knowingly possesses these images. v. and saving them there for five minutes before deleting them. Mobley. In conclusion the standards for knowingly possessing child pornographic material in the cache directory on a computer are 1. 2006 Idem note 146 148 Idem note 146 149 Idem note 146 150 Idem note 146 151 State v.S. That the defendant intentionally seeks out this material and 2. That the defendant exercises dominion or control over the material. Romm. 118 P. the requirements are that one intentionally seeks out such materials and exercises control over it. while the images were displayed on his screen and simultaneously saved onto his computer’s hard drive.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Another case where the question arose whether a defendant can be convicted of knowing possessing of child pornography in the cache file was in the case of U. Actions such as viewing. at a minimum. know that the unlawful images are stored on a disk or other tangible material in his possession. 2005 147 Page | 41 . and the Netherlands This opinion illustrates the Tucker criteria that knowledge of the storing in the cache directory of the child pornographic images is required. print or email the images to others and then delete the images from his cache directory.

v. Kent. 469 F. In the case of U. 2d.E. 2010 158 Amongst others: Com v. 2007 156 State v. this was sufficient to prove dominion and control over the material. Whereas Romm had knowledge and access to the material this is disputed in this case. S. 2009. People v. Important in this ruling was the perception of the cache directory as system-protected area and that it takes a sophisticated user to know that such a cache directory exists. 3d.3d 922. WL 4008735. Lindgren153. In this case however.W. State155.S. 308F. v.3d 293. Diodoro. and the Netherlands also in the cases of Com v.161 The appeals court in this case ruled that Kuchinski did not knowingly possess images found in his computer’s cache directory.2d.160 The difference with Tucker is thus that Stulock wasn’t aware of the fact that the child pornography he was viewing was being stored in his browsers cache whereas Tucker was aware of this and regardless of this kept on viewing child pornography.2d 172 . 2004 154 Kromer v. 2003 State v.E. Mercer. thereby causing the image to be automatically stored in the browser’s cache.2d 293.S. it is not proper to charge him with possession and control of the child pornography images located in those files.162The appeals court states that: “In the case at hand.S. v. Wis 2d 506.159 In this case Stulock was charged with knowingly possessing child pornography amongst other charges. Simone. 2d 871. 2003 WL 22994245. and concomitantly lacks access to and control over those files. 932 A. 2009 WL1416759. there was no evidence that Kuchinski was sophisticated. Mercer156. State v. State v. Commonwealth.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. let alone be able to access it. v. 394 Ill. 2d 85. In this case the possession charge was also based on images found in Stulock’s browser cache like in the Tucker case. Kuchinski a similar verdict was given. Commonwealth154. People v. that he tries to gain access to the cache files. and many more 159 U.S. Josephitis. State. In the Romm case the evidence demonstrated that Romm knew about the cache file and took steps to access the material herein and tried to delete them. Simone152. N.3d 853. Stulock was acquitted from the knowingly possession of child pornography charge. 613 S. Ward v. 2002 160 Idem note 159 161 U. Stulock. In this case they refer to the Romm case as comparison material. The district court explained that: “One cannot be guilty of possession for simply having viewed an image on a website. 2009.App. Lindgren Wis.”163Under number 18 in the document. State. Kuchinski. or that he even knew of the existence of the cache files. Assousa v.Y. 2005 155 Ward v. Kromer v.S.158 So what if someone knowingly views child pornography but is unaware that images of what he is viewing are being stored onto the hard drive of his computer? This question is answered in the case of U. the appeals court went on to state that: “Where a defendant lacks knowledge about the cache files. 2006 162 Idem note 161 163 Idem note 161 153 Page | 42 . Not Reported in S. without having purposely saved or downloaded the image”. 2010 157 People v. Kent157and many other cases.S. 994 So. without some other indication of dominion and control over 152 Com v. Stulock. 2007.

The defendant was convicted on the grounds that he knew that the child pornography was on his computer and that he had the ability to access and possess these material. v. In conclusion the standards for knowingly possessing child pornographic material in the cache directory on a computer are 1. Girard case.W. 3. State. 648 S.2. 269 Mich.”164 Another case in which the evidence was insufficient for a conviction on the basis of knowingly possessing child pornography was in the case of Barton v. App. This question is partially answered in the case of U. 2011 165 Page | 43 . To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control. This lack of knowledge of the existence of the cache directory as mentioned above is not assumed easily according to the case-law. State.S. v. 2005 168 U. 709 N. Clark. WL 259256. F.2. 2d. 15. Girard. This reasoning of the court seems to be in line with the standards formulated for having knowing possession of child pornography found in the cache directory/temporary Internet 164 Idem note 161 at 18 Barton v. and the Netherlands the images. §5. the prosecution has to show more than just the presence of child sexually abusive material in a temporary Internet file or a computer recycle bin to prove that defendant knowingly possessed the material.E. Files found in the trashcan/recycle bin as evidence of knowingly possessing child pornography This section will discuss how files put in the trashcan/recycle bin can be used as evidence in child pornography possession cases. Barton was not deemed to be a user who was sophisticated enough to know that a cache directory existed.S. 2d 660. According to the People v.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.very easily and without any specialized computer software or specific computer knowledge –made accessible again to the computer user. 49.Supp.S. 286 Ga. Clark.166 In other words. That the defendant exercises dominion or control over the material.167 The question arises what is meant with “to show more” to fulfill the knowingly possession requirement. and thus had no knowledge of how to use it which leads to him being unable to exercise dominion or control over the material.165 In this case it was argued that Barton did not know that a cache directory existed or that he knew that images were stored there automatically according to the testimony of agent Murray. 2d 229.App. This section will discuss case-law dealing with child pornography found in the trashcan/recycle bin found in the U. 2007 166 Idem note 165 at 52 167 People v. more specifically child pornography found in the recycle bin on his computer. Although child pornography put in the trashcan/recycle bin is removed it still remains on the hard drive of a computer and can be . The defendant must be aware of the existence of the cache directory.168 In this case Clark was convicted for knowingly possessing child pornography in the allocated files on his computer. That the defendant intentionally seeks out this material and 2.S. Most of the time knowledge is easily established as is shown in the previous section.

2008 WL 5689422. Coleman.S.2. This thesis will discuss in this section how the courts established knowing possession on the basis of deleted material and what the main criteria are to establish that the defendant in fact knowingly possessed child pornography. and that the defendant admitted to the police that he had child pornography on his computer and that he used Kazaa to seek out and download child pornography. Coleman. but instead it notifies the file allocation table that the space previously used by the deleted file can now be used by another file. can be recovered.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. or at least those portions that not have been overwritten. those files or file. 2008.S. Tactics for defending computer pornography charges. Therefore judges seldomly answer the question whether child pornography found in the recycle bin can constitute knowing possession of child pornography on its own but rather focus on the overall question of whether there is knowing possession of child pornography based on all available evidence.2d. Here too Clark was aware of the fact that he had child pornography on his computer albeit in the recycle bin. Deleting does not actually remove the desired material for all eternity.169 In this case Coleman was convicted for knowing possession of child pornography that was found in his recycle bin. and he was able to access it and thus exercise control or dominion over that material. This case illustrates that the court used the standard of intentionally seeking out child pornography to come to a conviction on the knowing possession charge. 2006 WL 3246261. The defendant was able to exercise control or dominion over this material due to the ease of accessibility of the recycle bin. In most cases relating to child pornography found in the recycle bin there is usually more child pornography found in either the unallocated clusters or in the temporary Internet files on that computer. Another case in which child pornography was found in the recycle bin of the defendant was the case of People v. The defendant intentionally sought out the material. 2006 Aspatore. 171 Idem note 170 170 Page | 44 . The standards that I have derived from these cases are the following: 1. 2. In this case evidence for his conviction was found in the fact that his neighbor saw him downloading child pornography onto his computer and that Coleman joked about this to him.W. The question of whether child pornography found in the recycle bin can constitute that offense on its own is therefore hardly ever answered. the time period of 169 People v. But first of all it is necessary to understand what deleting actually is so that you can understand why in certain cases it can be used to establish knowing possession.3. there have been cases in which a defendant had deleted child pornographic material but was still found guilty of knowingly possessing child pornography. N. §5. 3. The cases mentioned above do refer to possession of child pornography found in the recycle bin as an individual charge of knowing possession. and the Netherlands files. Deleted files as evidence of knowing possession of child pornography In the U. The defendant must be aware of the fact that child pornography is located in his recycle bin.170 Until another file overwrites the space used by the deleted file.171Furthermore.

Convicting for Computer Child Pornography Which computer activities lead to liability in the U. decodes the deleted information (here images) in order to render it viewable to the naked eye. The import of this theory being that Angle possessed. In the Romm case the deleting of child pornographic material was also mentioned and established. v.10 (Utah). the government claims that the pornographic images always existed on the confiscated diskettes and zip disks. 1234 at 22 173 U. Angle testified (rather convincingly) about his familiarity with computers such that the court (here. 19 Berkely Tech Law Journal 1227. The specialized utility program. While admitting that the diskettes once contained child pornography. The possibility to recover the data is seen as a form of ability to control or show dominion over the material. Howard.S. 173The decisive factor is whether the defendant has knowledge of how to recover the deleted material. In the Tucker case the deleting of images from the cache directory was also discussed. Tucker. but since it were only two images in that case (whereas the minimum requirement is three images for someone to be convicted) it was not enough to support a conviction. and not the sole factor for such an assumption. v. When queried by the court.”174 The knowledge of how to recover the deleted files in combination with the ability to still be able to recover the data (thus the data is not overwritten)are the requirements to establish knowing possession of child pornography when the data is deleted. Angle insists that he had no knowledge on how to recover the deleted files or images. Don’t Cache Out Your Case: Prosecuting Child Pornography Laws Based on Images Located in Temporary Internet Files. it is unnecessary to reach the question of whether this evidence standing alone (or in combination with the confiscated child pornography videotape) is sufficient to support the conviction. v. at 340 174 Idem note 173 175 U. the court reasoned that Tucker’s habit of manually deleting images from the cache directory established that he exercised control over them. that a computer utilities program can recover deleted information on a diskette that has not been overwritten with new information.175The court in Tucker goes on to state that logically one cannot destroy 172 E.172 The case of U. 234 F. Angle states why deleted material can still constitute the offense of knowing possession of child pornography. albeit in a different format. and is in line with the reasoning seen in the cases dealing with knowing possession of child pornography in the cache directory. as is shown by the following passage of the ruling of the appeals court in which they briefly commented on the evidence relating to the deleted child pornography files: “The government put forth testimony. 2002 Page | 45 .3d 1193 C. 2004. In this sense. 2000.S. This form of possession is also knows as possession ex nunc. and the Netherlands possession does not end when a user deletes the image because the image is only marked for deletion – it still physically exists on the computer. In the circumstances of this case.A. the fact finder) could have disbelieved his assertion that he did not know how to recover the deleted files on the diskettes and zip disks found at his residence. pornography (though deleted but recoverable) on the confiscated diskettes and zip disks. 305 F.S. with the requisite knowledge. In most cases the deleting of child pornographic material is one of the factors that establish knowing possession. in effect. through McDonnell.S. however. however. Angle.3d 326. the government asserted a plausible theory that Angle merely deleted the files in order to “safe harbor” his collection of child pornography. That said.

The way in which control is established is different however. and was thus left unanswered. The standards that are applied to establish knowing possession of child pornography in your cache directory are also applied here.182 As Carter was able to exercise control over the images. however he saved another child pornographic image to his My Documents folder on his computer. control or management over these images because he deleted the files immediately when he realized they contained pornographic images of children. possession ex tunc. 2006 WL3628889. the ability to destroy is definitive evidence of control. and the Netherlands what one does not possess and control. The Angle case states that when a person is able to recover the material and has knowledge of how to do this. However.S.178 In this case Carter was convicted by a district court of possessing child pornography on four counts.176Indeed. 181 The state asserted that Carter had control over the images because he had renamed them and chose to save them in his My Documents directory before he deleted them. When reviewing the case-law dealing with the question whether the deleting of material from your computer can lead to knowing possession of child pornography it has become clear that the answer to this question is evidently yes. was discussed in Carter v. In the appeal case Carter asserted that the evidence is legally and factually insufficient to establish appellant knowingly or intentionally possessed the images.179 He asserted that the State failed to prove he had actual care.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. 2006 179 Idem note 178 180 Idem note 178 181 Idem note 178 182 Idem note 178 177 Page | 46 . which would show his control over the material. The forensic expert in this case found evidence that the three images he opened simultaneously were first saved to his My Documents folder and were then deleted that same date and were not retrievable without special software. State. custody. one of them was first renamed from “Suck Dad with Sis Watching” to “Dc20”. the time period during which he had the images on his computer had become irrelevant. State. these 176 Idem note 175 Idem note 175 178 Carter v.180 In his oral argumentation he also contended that the evidence was insufficient to prove knowing possession of the images because the State did not offer any evidence of the amount of time that the images were on his computer before they were deleted. Having control over the material seems to be the decider in these cases.177 The issue of having had control over the deleted images. shown by him saving the images in his My Documents directory. With regard to his argument that the State had to prove the length of time the images were stored on his computer to establish knowing possession the appeals court stated that “possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to terminate his control”. In his case before the district court Carter testified that upon opening three pictures simultaneously he deleted these images when he realized they contained child pornography.

185In this case Cruikshank paid for online access to child pornography on the computer he used during his work.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Deleting can be seen as destroying of what one possesses and.” 184 On McNealy’s computer more than 9000 images of child pornography were found.or image names of the material before deleting the material as is illustrated by the Carter case. v. McNealy. v. Also acts done with the material during this time period which show his ability to exercise control or dominion are indications that possession was intended. 2009 184 Page | 47 . 667 F. McNealy was convicted for knowingly possessing child pornography on these grounds.S. v. The Tucker case states that one cannot destroy what one does not possess. it is possible to gain access to child pornography when visiting sites that demand payment to gain access to child pornography. §5.S. by using webcams to see “live” abuse etc.S. In short.Supp. and so possession ex nunc is established. and thus that there was possession ex tunc.3d 858.” that the defendant accessed multiple commercial child-pornography websites and viewed and saved images from them. knowing possession of child pornographic material. Cruikshank. can be seen as an act of control over the material and thus a knowing act of possession. The fact that the defendant saved the material onto his computer and thus knowingly possessed the child pornography is not explained in detail in the conviction. the standards for judgments based on deleted images is whether one had control over the material. Evidently it is seen as a known fact that when one saves child pornographic material onto a computer he or she knowingly possesses that material. or was.4.2. McNealy this reasoning is upheld. Knowingly accessing child pornography with intent to view This section will discuss if and how the online viewing of child pornography can constitute the offence of knowingly accessing child pornography with intent to view. Once control is established the outcome is that there is. and the Netherlands actions satisfy the control standard.S. The case of U. v. Control can also be established from altering the file. 625 F. when one knowingly saves child pornographic material onto one’s computer this criterion of control or dominion over the material is met.95 183 U. § 5.3. Cruikshank is one of the few cases in which the defendant was convicted for knowingly accessing with intent to view child pornography. the standard of control over the material is also the decisive factor in cases where the material is deleted. Saved files as evidence of knowing possession of child pornography As is seen above. There are many ways to access child pornography through information and communication technologies. On one occasion he paid $49.2d 697.183In this case the defendant was convicted for knowing receipt and possession of child pornography based on the evidence that he “searched online using terms that included “pre-teen girls” and “preteen girls Russian” and created bookmarks to save the addresses of favorite websites including one whose name contained “LOLITA young preteen. as is the case with caching. which is a reasoning that is upheld in the case-law discussed above although not in those precise words. The case of U. 2010 Idem note 183 185 U.S. Evidently.

Indeed. and by rewarding those who create them. According to the court it is a serious offense. Notably. 2010 191 Idem note 190 192 Idem note 190 187 Page | 48 . or otherwise show them to anyone else. Mr. 487 Mich. Cruikshank did not save these images to the hard drive of his computer.192 The court states that: “It is undisputed that each defendant purposely operated his computer to locate websites containing child sexually abusive material and voluntarily used his credit card to purchase access to websites with depictions of such material. If a defendant was able at any time to exercise control or dominion over the material then that is seen as constructive possession.W. in its verdict.187 He did not email them. because by paying for images of child pornography. however. is incorrect. 790.188 The court. Flick.2d 295. trade them. Flick case the court reasoned why a defendant’s claim that viewing child pornography through buying access to that material does not constitute possession but rather constitutes the criminal offence of knowingly obtaining access to child pornography with intent to view. defendant’s arguments that he only viewed. The images he viewed depicted very young children.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. the many intentional affirmative steps taken 186 Idem note 185 Idem note 185 188 Idem note 185185 189 Idem note 185 190 People v. When possession is viewed in this light. here the court saw the viewing as a constructive method of having possession over the material. some even under ten years of age. N. upload them. rather than knowingly possessed child pornography are untenable. and the Netherlands for 30 days access and on another he paid $94. Defendants' insistence that they merely viewed child sexually abusive material is a chimerical distinction that ignores defendants' intention and power to exercise control or dominion over the depictions of child sexually abusive material displayed on their computer screens-material that defendants sought and paid for the right to access.186He also viewed child pornography by using a free online search engine. Upon subscribing to these websites and intentionally accessing the depictions of child sexually abusive material contained there.S. a ruling by a different court in a similar case led to a different outcome.191For constructive possession the same reasoning is applied that is used to come to possession ex tunc. However. For these reasons Cruikshank was found guilty of accessing child pornography with intent to view. and they conclude that a defendant constructively possesses “any child sexual abusive material” when that person knowingly has the power and intention at any given time to exercise dominion and control over the contraband either directly or through another person or persons. distribute them via peer-to-peer software.189 This reasoning is in accordance with the rationale discussed in chapter four and therefore a valid argument for this judgment. Cruikshank supported the creation and distribution of images depicting sexual abuse of children by driving up the demand for such material.95. defendants knowingly had the power and the intention at a given time to exercise control or dominion over the contraband depictions of child sexually abusive material that appeared as either “electronic visual images” or “computer images” on their computer screens. explains why paying for access needs to be punished. In the People v.1. namely that such behavior constitutes possession of child pornography instead of knowingly obtaining access. 190 According to the court possession includes both actual and constructive possession.

If accessing child pornography with intent to view is to be seen as having control over or dominion over that material.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. 193 Idem note 190 State v. accessing child pornography with intent to view is easily accepted as that person having and wanting to exercise control or dominion over that material.S.”193 In most cases intentionally accessing child pornography with intent to view demonstrates control or dominion over the material and consequently constitutes constructive possession of child pornography. This court ruled on the same subject matter as the Flick case. which access caused images to be displayed on his computer. and so chose to not criminalize the act of viewing child pornography unless that act was accompanied by paying. without more was insufficient to establish that defendant possessed or controlled digital images. or giving anything of value. 195The Oregon Supreme Court held that there was no constructive possession. 2011 WL 31786. In my view this criminal offence is created to convict persons on possession charges in which there is a lack of evidence to support the conviction on the initial findings. but came to a different outcome. Barger. In almost all cases discussed in the section about knowing possession of child pornography the accessing and viewing of child pornography were used as an indication of the intent of the defendant to possess child pornographic material. receiving and other violations of Section 2252A of title 18 of the United States Code. 194In this case the Oregon Supreme Court held that the defendant’s act of accessing Internet websites that contained digital images of child sexual abuse. than the accessing with intent to view itself has no real worth as a separate criminal offence. 2011 195 Idem note 194 196 Idem note 194 194 Page | 49 . This reasoning is upheld in a ruling of the Oregon Supreme Court. exchanging.196 The case-law regarding accessing child pornography with intent to view suggests that this criminal act since its introduction in 2008 is mostly used as additional evidence to support convictions for possession. The main standard for establishing constructive possession of child pornography seems to be that the person who is viewing the child pornography online needs to have gained access to the material through payment. The accessing with intent to view child pornography can then be used to construe constructive possession so that the defendant can still be convicted for the possession charge. As seen above. so that the claim falls within the scope of the criminal charge of knowingly possessing child pornography. and the Netherlands by defendants to gain access and control over child sexually abusive material belie their claims that they merely viewed the depictions.

This chapter will expand upon that knowledge by introducing relevant new case-law that was not available at that time. on a computer can be used to construe criminal possession of child pornography. After having completed the research questions above. This thesis aims to find the answer to the question whether it is being used as a violation on its own. Secondly. or as additional evidence in possession cases.child pornography with use of information and communication technologies. Case-law after 15-02-2011 will not be used in this research due to time constraints. Case-law review of the Netherlands This chapter will discuss the case-law of the Netherlands dealing with the knowing possession of – and knowingly obtaining access with intent to view . Next this chapter will research how the deleting of files. § 6. This chapter will first explore what kind of intent is required for an action to be criminal. The research regarding the knowing possession of child pornography will be based on the work “Opzet op de harde schijf: criteria voor opzettelijk bezit van kinderporno” (“Intent on the hard disk: standards for intentional possession of child pornography”) written by L. the perpetrator knew or could have known what Page | 50 . who have explored the case-law in the Netherlands regarding this topic in great detail. With regard to the knowing possession of child pornography the final research topic will concern how saving child pornographic material onto a computer or other data carrier can lead to knowing possession of child pornography.J. First of all it needs to be proven that the perpetrator wanted to commit his action. Next this thesis will explore how a person can knowingly possess child pornography when having child pornography in the cache file of a computer. Koops. Conditional intent is established when three criteria are met. Conditional intent as a minimal threshold level for intent In the Netherlands conditional intent is used as a minimal threshold level for establishing intent of a defendant on a certain criminal offense. Here too this thesis aims to find certain criteria that the courts in the Netherlands apply to establish knowing possession of child pornography.S. the focus will then shift to research questions relating to knowingly obtaining access to child pornography with intent to view child pornographic material. Stevens and B.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. The case law regarding this topic will be discussed and the criteria for establishing knowing possession will be distilled out of these cases. Normal intent is established when a person knowingly and willingly accepts the consequences of his action. and the Netherlands Chapter 6. This thesis will now explain what is meant with conditional intent and will show how it is established with help of some examples. The doctrine of conditional intent was developed out of the necessity to formulate a new standard for establishing intent for certain severe criminal acts in which normal intent could not be proven. or researching the deleted files.1.

last visited at 22-11-2010 200 Gerechtshof Leeuwarden. this section will explore how files found in the cache file of a computer can constitute criminal possession of child pornography. § 6. LJN AT6636. 23-01-2001 199 Definition acquired from Wikipedia.1.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.1. W 9203. 22-03-2005 201 Idem note 200 198 Page | 51 .S. by whom child pornography was found in his temporary Internet files. and after that the other methods of constructing criminal possession of child pornography will be discussed. NJ 2001. As mentioned before. found at: http://en.wikipedia. A second case in which conditional intent was established was the case “Enkhuizer manslaughter” case198 In his attempt to escape from the police the drunk driver in this case drove at a high speed without his lights on in a populated area of Enkhuizen killing two cyclists and wounding a third. One example in which conditional intent was established was the so called “Hoornse pie” case.2. Here again the defendant accepted the substantial chance that by driving drunk and without lighting at a high speed he could kill people. a cache file is a storage mechanism that improves performance by transparently storing data that such that future requests for that data can be served faster. And the third requirement is that the perpetrator accepted the substantial chance that these consequences would actually manifest themselves. and the Netherlands the consequences of his actions would be. 19-06-1911 Hoge Raad.200 The court stated that in order to come to a judicial finding of fact of “having in possession” of the concerned images it must be determined that the defendant was aware of the presence of these images on his computer. had knowing possession of the material. Conditional intent is also applied to establish possession of child pornography in cases in which normal intent is difficult to prove as will be shown throughout this chapter.1.1. § 6.197 In this case someone had poisoned a pie with rat poison and had send this pie to its chosen victim in Hoorn. The wife of the chosen victim had eaten from the pie and died as a result of the poisoning. And what are the main standards for knowing possession in such a case? In a ruling by the appeals court (Gerechtshof) of Leeuwarden in 2005 the question arose whether the defendant. The question that needs to be answered is when is child pornographic material found in the temporary Internet files considered to be knowing possession of child pornography?. each in a separate sub section.199 See §5. Possessing child pornography As stated above. the Internet browser automatically 197 Hoge Raad.org/wiki/Caching.201 The child pornographic images in this case were found in the defendant’s temporary Internet files. for the explanation of how the cache works. The court ruled that the defendant had accepted the substantial chance that the wife would also eat from the pie and thus had conditional intent on the death of the women.1.2. 327. When is child pornography found in the cache /temporary Internet files considered possession of child pornography? As was said in §5.

LJN BL6580.202 The advocate general of the Supreme Court (Hoge Raad) also ruled on this question in his conclusion in 2006. The court stressed that the mere viewing of an image that is child pornographic in nature cannot be deemed to possession thereof in the meaning of Art. no special act from the computer user is required to perform this data storage.S. Furthermore.207 The court then repeats the reasoning of the Gerechtshof that for judicial finding of fact of “having in possession” of the concerned images it must be determined that the defendant was aware of the presence of these images 202 Idem note 200 Hoge Raad. The person who has knowledge of computers will also know. The court in this case agreed with the reasoning of the court in the case brought before the Gerechtshof Leeuwarden that has been previously discussed. sooner than the average user that folders are being generated automatically in which unwantedly and unintentionally data is being stored. but claimed that he was unaware that the images were being saved in his temporary Internet files while he was viewing these images on the websites. 16-12-2009 206 Idem note 205 207 Idem note 205 203 Page | 52 . and viewed. certainly when it is related to proving “possession”. Intention on the presence of child pornographic material in automatically generated files may not be easily assumed regarding the average computer user. not to be seen separately.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.203 He stated that: “The ability to exercise control and the requirement that the act is intentional are. 28-02-2006 204 Idem note 203 at 16 205 Rechtbank Middelburg.206 In order for it to be possession this image must be stored onto the computer in a particular way. The opposite is also true. pornographic material of girls under the age of 18.205 Here the defendant acknowledged that he sought out. The defendant also stated that he was not aware of the fact that the computer stored images he viewed on websites in his temporary Internet files. LJN AU9104. it appeared that the defendant had no special knowledge of software technical aspects of Internet programs in general. The person who has knowledge of computers can make more files visible than an uninitiated user. the intent on the presence of child pornographic material in the hidden files of such a person will be easier assumed than if it were an average user. The court did state that somewhere in the future the judgment regarding the knowledge of how the temporary Internet files work might be interpreted as general knowledge for regular Internet users. In the light of these findings the court ruled that the defendant was not guilty of knowing possession of child pornography.”204 In a 2009 case brought before the district court (Rechtbank) of Middelburg the defendant was acquitted of the charge of having possession of child pornography in his temporary Internet file. and of the application of temporary Internet files specifically. and that an Internet user must have been aware of the circumstance that the searched after images of child pornography on websites by him will be automatically stored onto his computer and temporarily remain there. The ability to control in the digital world is especially knowledge. and the Netherlands saves images viewed via Internet in the temporary Internet files. not even when this image is deliberately brought onto the computer screen through the Internet. Therefore. 240b of the Dutch Criminal Code.

What this “something more” is. it was not proven that the defendant was aware of the fact that the images were being stored. 208 Idem note 205 Rechtbank Utrecht. So what if a defendant has the knowledge that child pornographic images are being stored in his temporary Internet files but tries to remove them immediately. intention on the presence of child pornographic material in automatically generated files may not be easily assumed regarding the average computer user. 31-05-2010210. LJN BN1466. It seems that something more is needed to prove that the possession was wanted. 22-02-2006 214 Idem note 213 209 Page | 53 . 31-05-2010 211 Rechtbank Utrecht. The key element in these rulings is that the defendant had no specialized knowledge of the software technical aspects of Internet programs in general. in this case. Where the Gerechtshof stated that in future cases this method of automatically storing images in the temporary Internet files might be seen as general knowledge. and of the application of Temporary Internet Files especially. LJN BO1677. and after having viewed them he immediately erased them.208 With regard to this topic it cannot presumed to be as a fact of common knowledge.214 He downloaded the images so that he could view them. LJN BM9249.213 The defendant. or has specialized software to remove child pornography from his temporary Internet files and uses this. stated at trial that he viewed child pornographic images on websites but that he never saved them. and according to the Hoge Raad. shares the view of the Hoge Raad ruling of 2006 on this topic. in my view. LJN BO2816. meaning that the images were never stored longer than 24 hours on his computer. in their view. and the Netherlands on his computer and that the defendant must have had knowledge of the fact that the child pornographic material was being stored onto his computer. 12-05-2010 210 Rechtbank Utrecht. The defendant is thus to be seen as an average computer user. LJN AV2996. Will that constitute the offence of knowing possession of child pornography? This question is partially answered in the case brought before the Rechtbank Breda in 2006. 24-09-2010 213 Rechtbank Breda. 07-10-2010 212 Rechtbank Utrecht. The same reasoning is upheld in the cases of Rechtbank Utrecht from 12-05-2010209. the defendant also stated that the history settings of the temporary Internet files were standardly set at 0 days. and thus were present. The defendant also regularly cleaned the temporary Internet files manually. the court in this case disagrees with that assumption. and. The court acquitted the defendant of the charge of knowing possession of child pornography because.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.212 According to the case-law in the Netherlands it seems hard to prove that a person possessed child pornography based on solely finding child pornographic material in the temporary Internet files. in his temporary Internet files.S. Clearly the court in its ruling upheld this reasoning of the Hoge Raad. The Rechtbank states that: Although the fact that computer usage today is fully integrated in our society as well as in education it may not be expected that this technical knowledge is to be judged as present day common knowledge amongst internet users. 0710-2010211 and 24-09-2010. that is needed to construe criminal possession will be addressed in the case-law below.

Convicting for Computer Child Pornography Which computer activities lead to liability in the U. It is at least required that the person who committed the crime is the owner or possessor. so that that same movie could be more easily accessed for future use by clicking on that snapshot/image. 15-04-2008 Page | 54 . 240b of the Dutch Criminal Code criminalized possession a similar requirement applies. The Hoge Raad ruling of 2006 expands upon these elements by introducing a new element: the ability to exercise control over the material. or in the form of assistance available to him. It is also required that the defendant has control over his computer in such a way that he is able to make the. Windows Media Player then made an automatic snapshot/image of the movie. It was argued by an expert witness brought before the court that the defendant had used a cleanup program called BC-Wipe to remove the child pornography because the child pornography was not found on his computer’s hard drive. The previously mentioned ruling of the Hoge Raad in 2006 also addressed the question what elements constitute the possession of child pornography in digital context in point 15. The Court therefore concluded that the defendant was guilty of possession of child pornography. 215 216 Hoge Raad.216 The difference with the previously discussed case was that here not the Internet browser but the Windows Media Player automatically stored the data in a cache file. that it needs to be recorded data and that the defendant at least had conditional intent on the possession of child pornographic material. LJN BD2286.S. was brought before court in Amsterdam. The using of clean-up software to cover his tracks was evidence of this knowledge. Because the defendant has the ability to dispose of the subject he can be blamed for having the subject in his presence. and the Netherlands From this the court reasoned that it had never been the intention of the defendant to save the images and thus possess those images. This reasoning of the court is in line with the standards of the Hoge Raad. The defendant in this case viewed child pornographic movies with use of Windows Media Player. If it concerns hidden files. or factually has that computer at his disposal. but the snapshot/images were still visible in the Windows Media Player. But that is not all.”215 In 2008 a similar case as that of the Rechtbank Breda in 2006. visible. LJN AU9104. For the penal clause of Art. 28-02-2006 Rechtbank Amsterdam. which can only be accessed and made visible again by experts (such as forensic investigators) with use of specialized software.240b of the Dutch Criminal Code at that time. For the simple fact that one knows that the neighbor has recorded child pornography. In general: obviously not excluding the possibility that the defendant possesses the required specialized knowledge. and should be seen as the mere viewing of child pornography which was not covered by Art. in files or documents recorded child pornography. either in person. called the Art Cache under the sub map Local MLS. “The ability to exercise control forms the basis of the intentionality claim. does not bring forth that one possesses that child pornography himself. The action performed by the defendant to erase the child pornographic material were an indication that the defendant had knowledge of the fact that child pornographic material was automatically being saved onto his computer. The time period in which the images were “saved” on the defendants computer was deemed too short to be considered possession of child pornography. The first two elements are. then in a general rule there is no “possession” of child pornography.

219 In this case the court ruled that there was no evidence of possession of child pornography during a period of time due to the lack of additional evidence.217 Here the defendant admitted that he intentionally searched the Internet for child pornography and looked at images in the process. LJN AX9921.222 According to the case-law mentioned above. What was important in this case was that the defendant testified that he knew that the child pornographic images he was viewing would be stored in the temporary Internet files. which meant that the defendant could clean his computer when he deemed necessary. The decisive factors were however that the defendant had two computer programs. the standards for establishing . to support a conviction. LJN BI0763. on his computer that he used to encrypt files and that he used to clean his computer. the so called Kremlin program and Eusing Window Washer. LJN BO0534. Paying for access is also used as additional evidence for establishing intent on possession with regard to child pornography found in the unallocated clusters of a computer 218 Page | 55 . 07-07-2006. The cleaning program was set on manual. 28-10-2009 Idem note 217 219 Rechtbank Assen. 15-10-2010 220 Rechtbank Utrecht.220 Additional evidence of possessing child pornography in the Temporary Internet files can be that the defendant viewed websites with child pornographic webcam material of persons between twelve and sixteen years of age. from the moment he viewed the images until the moment he ordered his computer to clean-up the hard drive. and the Netherlands The usage of specialized software to remove child pornography from the temporary files on the computer was also addressed in the case brought before the Rechtbank Zwolle in 2009.possession of child pornography found in the temporary Internet files are that the defendant: 1. LJN BO3818. 10-04-2009 222 Rechtbank Roermond. This exact same reasoning was also upheld in a case brought before the Rechtbank Utrecht in 2010. 217 Rechtbank Zwolle. Has a more than average knowledge of the fact that the child pornography was being stored in the temporary Internet files and 2. The court considered that.240b of the Dutch Criminal Code. in the light of the above mentioned arguments. 09-11-2010 221 Rechtbank Roermond. the defendant had.218 The standard of having possession over the material during a definable period of time was also addressed in the ruling of Rechtbank Assen.at least conditional intent of . he also stated that he did not download child pornography.S. in such a way that it fulfilled the requirements of possession as is required by Art. LJN BK7258. Had control over the material during a period of time.221 Also paying for access to child pornography websites can figure as additional evidence. and indeed is used as such. such as more than average knowledge of computers or that there was control over the material.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. control over the files concerned. Had control over the material stored there by deleting it or by performing other actions which showed his control over the material 3. This testimony convinced the court that defendant possessed a more than average knowledge of computer knowhow and thus that his possession was probably intentional.

This reasoning of the court is strengthened by the arguments that the defendant did not have the intention to use the recycle bin as storage area for child pornography. 01-09-2005 225 Rechtbank Maastricht.225 In this case two files of child pornography were found in the trashcan on defendant’s computer. and the Netherlands § 6. LJN AU1861. The court in the case brought before the Rechtbank Arnhem in 2004 ruled on the question whether the defendant had possession of one image of child pornography through a file he placed in the recycle bin on his computer. Although child pornography put in the trashcan/recycle bin is removed it still remains on the hard drive of a computer and can be .very easily and without any specialized computer software or specific computer knowledge –made accessible again to the computer user. The court also attached much value to the fact that the defendant had notified his parents and neighbors immediately upon discovering the child pornography.S. and will investigate what the main criteria are that the courts use to convict a defendant or to find him innocent on basis of finding child pornography in the trashcan/recycle bin. LJN AR3696. The defendant declared that had worked as a system manager at the Tax Authorities and that he was into finding out how computer programs work and how data are protected. it was no problem for the defendant to re-access or retrieve files that were located in the trashcan of the computer. Files put in the trashcan/recycle bin evidence of possession of child pornography This section will discuss how files put in the trashcan/recycle bin can used as evidence in child pornography possession cases. This meant that the defendant had a 223 Rechtbank Arnhem.2.2.224 Not re-opening or re-accessing the files in the trashcan or recycle bin are indicators of intent of a defendant. there cannot be knowing criminal possession of child pornography. which indicated that he had no intention to possess the material. 23-05-2008 224 Page | 56 .223 The court stated that there were no indications that the defendant had placed the file in the recycle bin with no other intention than to remove these so that it was plausible that the defendant did not want to have child pornography in his possession.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. as such. in cases where there is no evidence of this there is no intent of the defendant on having possession of the child pornography and. So when do files found in the trashcan or recycle bin lead to knowing possession of child pornography? And what are the criteria that judges apply to construct presumed intent on possession? The first case in which a defendant was successfully prosecuted for possessing child pornography through files found in his trashcan was the case brought before the Rechtbank Maastricht in 2008.2004 Rechtbank Zwolle. the main indicator for this assumption was the fact that defendant had not opened the files again after he had placed them in the recycle bin. In light of the defendant’s employment history and his knowledge of computers. The same reasoning is upheld and applied in the case brought before the Rechtbank Zwolle in 2005. 13-10. LJN BD4797. This section will focus on how courts in the Netherlands construe intentional possession of child pornography when it is found in the trashcan/recycle bin on a person’s computer. It is clear that the court in this case ruled that the defendant had no intention to possess child pornography as he did not view the material after having deleted it.

the child pornography is found in the “unallocated clusters” on the hard drive (or similar places. the accessibility of the child pornography files in the trashcan/recycle bin opens up the possibility to exercise control over the material and thus constitutes conditional intent on the possession of that material unless it is proven otherwise. the accessibility of the trashcan is coupled to the possibility that the defendant can exercise control over the material stored therein. it needed to be established to what degree intent on the possession of the files could be determined form the acts performed by the defendant.227 One might wonder why the Rechtbank Arnhem in its ruling in 2004 ruled differently. 24-12-2008 Rechtbank Assen.1.S. Stevens. Again. How files retrieved from the unallocated cluster can serve as evidence for possession of child pornography In most cases in the Netherlands where intentional possession of child pornography is being contested.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. the ease of accessibility is associated with his ability to exercise control over the material. which was being associated with his ability to exercise control over the material. LJN BG9125.3. Rechtbank Assen. the courts in Zwolle and Arnhem employed such exceptions to the rule.2. This construction for establishing the intent on the possession of child pornography when it is put in the trashcan is also applied in other case-law. such as “lost folders”). 29-09-2009. Koops. Secondly. The courts imply that when the files are easily accessible there is a factor of control over the materials because they can still access and look at it when they like. it was necessary to ascertain if the defendant could exercise control over the material. as is illustrated by the case brought before the Rechtbank ‘s-Hertogenbosch in 2008. B. When putting these standards for criminal possession of child pornography together it can be determined that. it is possible to retrieve the data 226 Rechtbank ’s-Hertogenbosch. The same construction is upheld in other cases. mentioned what these unallocated clusters are and how they come to be.228 § 5. While the computer itself cannot find the files independently anymore. The main standard that is used in this case is that the material was “easily accessible” for the defendant.3.226 When answering the question whether the defendant was or was not in possession of child pornographic material that he had deleted. The exemption that the possession was unintentional can be assumed if it is shown that the defendant had not accepted the substantial chance that the child pornography would remain on the hard drive of the computer. According to the courts.2010 228 L. p 4 227 Page | 57 . In its guilty verdict the court attached particular value to the fact that the files were located in the “Recycler” and were easily accessible for the hard disk user. this supposition leads to the fact that conditional intent on the possession of child pornography can be established. and the Netherlands certain amount of control over those files and thus had possession over the child pornography that those files contained. this is perhaps due to the change in viewpoint regarding the possession of child pornography or due to the fact that the defendant only possessed one image of child pornography where in most cases more material is found.15-10. § 6. this combination leads to conditional intent on the possession of child pornography.J. criteria voor opzettelijk bezit van kinderporno”. LJN BO0534. LJN BJ8750. In general it can be concluded that putting files in the trashcan/recycle bin constitutes conditional intent on the possession of child pornography. “Opzet op de harde schijf. Delikt & Delinkwent 39.

Rechtbank ‘s-Gravenhage. 16-04-2010. 27-01-2009 230 Page | 58 . and what criteria the courts use to determine that the possession was. According to the official statement of an investigative officer in this case the contents of these folders consists of deleted files and is only accessible with use of specialized software. The first case that deserves our attention is the case brought before the Rechtbank Groningen in 2008. at least conditional intent of. Numerous cases illustrate this view. On the basis of these considerations the court ruled that it was not shown that defendant had intentional possession of the images. Therefore there must be at least: conditional intent on the possession. after a forensic investigation has taken place. LJN BH0895. Gerechtshof ‘s-Hertogenbosch LJN BM6289. control over the material is a point that is essential in some cases. Rechtbank Leeuwarden. LJN BC3529. criminal possession of child pornography are also valid in these cases. This fact raises the question whether defendants in such cases actually had intentional possession over the child pornography before it was deleted. Rechtbank ‘s-Gravenhage. and thus the defendant was found innocent of the possession charge relating to the child pornography found in the unallocated clusters. It is a general consensus amongst courts in the Netherlands that if a defendant does not have specialized software in his possession to recover the child pornography from the unallocated clusters there is no ground to convict him for possessing child pornography. First will be discussed the cases in which the defendant was found innocent of possession of child pornography found in the unallocated clusters. LJN BK2796. Next. why they were found innocent and what the decisive factor was in those cases. 23-02-2006. Those standards are also applied to the case-law discussed here as a check list to determine whether or not the possession was intentional and thus criminal. 26-11-2010. intentional. 02-04-2010. or could have had. 26-11-2010 231 Rechtbank ’s-Hertogenbosch. LJN BL9892. 28-01-2008 Gerechtshof ‘s-Gravenhage. The pictures were found in the folders “lost files” and “unallocated clusters”. in fact. thus possession ex tunc. possession ex nunc. but also consider it to reach as far as to having had possession over child pornographic material. LJN BO5184. 10-11-2009. the cases in which the defendant was found guilty will be discussed and why this was the case and what in those cases the decisive factors were. which defendant did not have in his possession. child pornography can still be found on a person’s hard drive while that person was sure that those materials were permanently removed.229 On the computer of the defendant films and pictures containing child pornographic material were found.S. because it lacked the requirement of intentional documentation. The courts do not only look at possession as having it in possession at this moment. Rechtbank Arnhem. Possession ex tunc can be established if it is proven that the defendant at one time had access to the files containing child pornography and that those files were on his hard drive 229 Rechtbank Groningen. and the Netherlands with specialized forensic software. A first quick scan of the case-law regarding the question whether possession of child pornography can be established when it is found in the unallocated clusters shows that the ruling of the Hoge Raad of 2006 and the standards that were determined to establish. In most cases.231 The time period in which a defendant had. if control is not established it can lead to acquittal.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. LJN AV2588. the data needs to be recorded and the defendant must be able or had to be able to exercise control over the material. This section aims to investigate when that is the case. LJN BO5163.230 The element of having control over the material is also a necessity in determining whether the possession was intentional.

If a defendant has been making a habit of collecting child pornography over a substantial period of time. and that the defendant immediately after discovering the child pornography had deleted the material. Most courts determine whether there was possession on the basis of two standards: 1. LJN AU9104. during a certain period of time. 28-02-2006 236 Rechtbank Roermond. LJN AZ8027. LJN AV2184. 04-08-2006. according to this court a defendant that is lacking this knowledge than can be acquitted of having had possession of child pornography 235 Hoge Raad. which made those files end up in the unallocated files. If there ever was intentional recording (so not by accident) of child pornography or. 25-01-2007 238 Rechtbank Breda.234 Other factors can be relevant in assuming that the recording was intentional. In this case neither exemption seemed to apply to the defendant.233 In this case the appeal court ruled that defendant had. LJN BL7418. LJN BH0895. If the defendant did everything he could to remove the child pornography from his computer as soon as possible upon discovering it. Gerechtshof ‘s-Hertogenbosch. In its judgment the appeal court states that it would be different if the defendant. Rechtbank Assen.S. 22-02-2006 233 Gerechtshof ’s-Hertogenbosch. LJN AU1918. LJN AX9921. Some courts easily establish possession ex tunc. The first standard that is established is that the recording needs to be intentional. Gerechtshof Arnhem. subsequently put them in the trashcan and then deleted them. had accidently downloaded the material onto his computer or placed it there in another way. this reasoning is upheld by the appeal court in the same case.232 However. Rechtbank Arnhem. or a third party.235 If it is evident that a defendant has used a pay-site to gain access to child pornography or. 15-03-2010 Page | 59 . such as the altering of child pornographic images with a computer program. The Gerechtshof ‘s-Hertogenbosch also found a defendant guilty of having had possession of child pornography found in his unallocated clusters in 2007. 27-01-2009. That could be the case if the defendant had downloaded those files onto the hard drive of his computer. 02-09-2005. 07-07-2006 237 Gerechtshof ’s-Hertogenbosch. Rechtbank ’s-Hertogenbosch. LJN AY5686. LJN AZ8027. this reasoning is more the exception than the rule.the child pornography was being automatically saved onto his computer. 2. and the Netherlands before they ended up in the unallocated clusters.236 if a defendant has shown that he possesses certain computer skills. 25-01-2007. 25-01-2007 234 For example.237then that are strong indications that the recording was intentional. 25-11-2008. by stating that files containing child pornography found in the unallocated clusters were once in the allocated clusters and thus accessible. For the recording to be intentional it is required that the defendant intentionally saved -or was aware of the fact that . If the defendant has a more than average knowledge of computers this assumption is more likely to be established. LJN AZ8027. possession of child pornographic material.238 If at other accessible areas of the hard disk child pornography has also been saved then the courts will also assume possession of the child pornography found in inaccessible areas of that hard 232 Rechtbank Zutphen.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. LJN BG9649. than that is also an indication that he had knowledge of the fact that he was obtaining child pornography.

239An indication for not having wanted possession of child pornography can be that the defendant did not have an own folder structure in which he stored child pornography.”242 A special effort done by the defendant is not required to fulfill the most effective method requirement.244 The opposite is also possible. LJN AY5686. 06-01-2011 248 Rechtbank Assen. Rechtbank Arnhem.248 That a defendant accepted this chance can be assumed if a defendant has intentionally sought out child and found child pornography before with certain search keywords and that the defendant had not altered these search keywords. 25-11-2008 249 Idem note 248 Page | 60 .240 The second standard that is used is the question whether the defendant had removed the child pornography from his computer as soon as possible upon discovering said material. Rechtbank ’s-Gravenhage. 23-02-2006 245 Gerechtshof ‘s-Hertogenbosch. 25-01-2007 246 Idem note 245 247 Rechtbank ’s-Hertogenbosch. Gerechtshof ’sHertogenbosch.249 239 Rechtbank Breda. LJN BL6800. However the standard is relevant in those cases in which it is decided that the defendant was not intentionally recording child pornography241. LJN BL6800. 04-08-2006. 10-03-2010. LJN AV2996. LJN BP1920. 19-01-2006 241 Idem note 234 242 Idem note 234 243 Rechtbank Breda. Rechtbank Roermond. Rechtbank ’s-Hertogenbosch. If it is already decided that the defendant had intentionally recorded child pornography then this standard will not be applied. LJN BG9649. then that is an indication that the defendant wanted to effectively remove the material. LJN BL7418. 10-03-2010. 22-02-2006 244 Gerechtshof ’s-Gravenhage. 15-03-2010 240 Rechtbank Dordrecht.246 Other courts make a similar assumption. If the defendant immediately after discovering that he had obtained child pornography removed this material from his computer.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.247 Removing the child pornography on the same day can be a reason to assume that there was possession of child pornography if it is shown that the defendant had accepted the chance that he would gain possession of child pornographic material.S. The standard is formulated in the case brought before the Gerechtshof Arnhem in 2005: “The material had passed him by at a certain moment and he rid himself of the material in the most effective method available to a average computer user. 07-07-2006. LJN AV2588. as is shown by the case brought before the Gerechtshof ‘s-Hertogenbosch in 2007245. and the Netherlands drive. LJN AV0150. or in those cases in which the question whether the defendant had intentionally recorded child pornography is not being addressed. An element that is associated with determining whether or not a defendant had removed child pornography from his computer is time. at least not if he is an average computer user. LJN AX9921. It can be negatively explained if the defendant states that he had not immediately removed the material when a time period is being addressed that is sufficient enough to speak of possession and in which the defendant had committed acts (such as making new folders and altering images) that show an active relationship with child pornography. LJN BI9150.243 If it is unclear how much time had passed between the recording and the deleting of the child pornography that can be explained in the benefit of the defendant. 23-06-2009. LJN AZ8027. Removing the child pornography from the trashcan is deemed sufficient by the courts in the Netherlands.

Obtaining access to child pornography Obtaining access to child pornography has been criminalized in the Netherlands since the first of January 2010. If a defendant has performed actions such as paying for access to child pornography sites. and thus make the claim that he intended to have possession over that material more plausible. § 6. Unfortunately. The decisive factor is then whether or not the defendant had the intent on acquiring child pornography at that time. altering images. constantly. possession assumes intent.4. if so. an image that is child pornographic in nature. LJN BO1713. If a defendant lacks the intent on acquiring and has showed that he immediately and effectively tried to remove child pornography upon discovering that material.250 An essential element of possession is seen in the ability to exercise control over the material. what standards are applied to determine that a defendant accessed child pornography. Saved files as evidence of possession The advocate general in his conclusion in the Hoge Raad ruling of 2010 specified the criteria for determining whether or not a person possessed child pornography.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.3. Child pornography can also be in a person’s possession ex tunc. sufficient. 3.2. Knowledge of the existence of the data carrier and the file. 26-10-2010 Page | 61 . and the Netherlands In general it can be concluded that child pornography found in the unallocated clusters can lead to possession ex nunc if the defendant has used specialized software to retrieve the material. In case that file is recorded on a data carrier. no case-law dealing solely with the legal question whether a defendant obtained access to child pornography is currently available in the Netherlands.S. or actively sought out child pornography. Having in possession of an electronic file that contains. In light of the above mentioned standard it is evident that when a person intentionally saves child pornography onto the hard drive of his computer he intentionally possesses that material. assumes the possibility to determine where the file is located and with that the possibility to dispose of that file. is an intentional exposure to the substantial chance that one obtains child pornographic material. which in this case means: 1. The downloading of files that contain images of which the name of that image says a great deal about the character of that image. Gaining access to child pornography via 250 Hoge Raad. Knowledge of the ability to exercise control over that material. those actions show his intent on acquiring child pornography. This section will investigate whether there are any court rulings on this subject matter since and. His intent is distilled out of his active relationship with child pornography. or is. § 6. Conditional intent is. the ability to exercise control over that data carrier includes/implies the ability to exercise control over the data recorded onto it. 2. Knowledge of the child pornographic nature of the specific image. Moreover. then that shows that the defendant had no intention to possess child pornography and that defendant will be acquitted of having had possession of child pornography.

S.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.251 In this case the defendant was acquitted of the charge of possessing child pornography. 251 Rechtbank ‘s-Gravenhage. 26-11-2010 Page | 62 . and the Netherlands pay-sites that offer child pornography is used in case-law in the Netherlands as additional evidence for (conditional) intent on possession on behalf of a defendant. but the court most probably refers to the fact that the defendant admitted that he visited websites containing child pornography and that defendant viewed images on those websites. but the court stressed that the dossier in this case contained “important indications that defendant had obtained access to child pornography”. A case that is remarkable is the case brought before the Rechtbank ‘s-Gravenhage in 2010. LJN BO5184. What the courts consider to be “important indications” is unclear.

2. The first is that the use of children in the production of child pornography is a form of sexual abuse which can result in physical or psychological harm or both to the children involved. In the U. § 7. Three factors stand out as the main rationales for criminalizing the possession of and obtaining access to child pornography.S. and the online viewing of child pornography can constitute the offenses of possessing and obtaining access to child pornography in both the U.S. Conclusion This thesis has researched how the caching. This chapter will answer the main research questions and will explain the differences and similarities that exist between both nations model for criminalizing possessing and obtaining access to child pornography. Rationale of both nations anti-child pornography legislation When looking at the rationale behind both nations anti-child pornography legislation it is evident that similar effects of the child pornography market are used as a reason for drafting the legislation and its amendments. the deleting of files and the downloading of child pornographic material lead will to a conviction based on similar standards in both nations. The third rationale is found in the view of the legislators that exposing oneself to child pornography may desensitize the viewer for child pornography. Page | 63 . it will be interesting to see if the acts of the caching of files. My research has given insight into the relationship between the rationales behind the anti-child pornography legislation of both nations and their standards to judge whether possession or obtaining access to child pornography was intended. and the Dutch courts apply similar standards. the deleting. This can go so far that it child pornography becomes acceptable and desirable which could lead to a subculture in which the sexual exploitation of children is accepted and encouraged. The second rationale for criminalizing child pornography in both nations is that child pornographic material is being used to encourage or seduce unforthcoming children into sexual exploitation. images and videos. it is required that a defendant meets three requirements for the possession to be knowing and thus criminal. Standards for possessing child pornography found in the cache file With regard to the question whether the caching of files/files found in the temporary Internet files can constitute possession of child pornography the U.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. and the Netherlands Chapter 7. and thus can assume that the same behavior is criminalized.S. Now that we know that the same rationales are applied. and the downloading of files. The forming of such a subculture needs to be prevented and was one of the main reasons for widening the scope of the anti-child pornography legislation in both nations. This harm needs to be prevented at all costs and is the main reason for criminalizing offenses relating to child pornography.1. and the Netherlands.S. § 7.

for example. Intentionally seeking out child pornographic material is often distilled out of the search behavior of defendants. there must be at least conditional intent on the possession of that material. in this case that he had consciously accepted the significant chance that he would possess child pornography. it is obvious that that person was intentionally seeking out material containing child pornography.S. enlarged or deleted the material or performed other actions which showed his ability to exercise control over the material. because deleting child pornography from the cache directory/temporary Internet files implies knowledge of the existence of that cache directory/temporary Internet files. Conditional intent is established when a defendant has consciously accepted a significant chance that a certain consequence of his actions would follow. the defendant needs to have intentionally sought out the child pornographic material. for the possession of child pornography to be criminal. A more than average knowledge of computers can be established if a defendant. This awareness of often derived from the fact that the defendant had exercised control over the material.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Secondly it must be proven that the defendant could exercise dominion or control over the child pornographic material. This second standard is closely related to the first standard in such a way that control over the material in the cache directory/temporary Internet files is used to Page | 64 . Dominion or control will be established if the defendant copied.. If a defendant uses key words such as “preteen” or “Lolita” in search engines in combination with other key words such as “sex”. Control can be established if a defendant has deleted material from the cache directory/temporary Internet files or when the defendant has used specialized software to rid himself of child pornographic material. A first standard that is applied in judging whether there was at least conditional intent on the possession of child pornography found in the cache directory/temporary Internet files.S. If a defendant is unaware of the existence of the cache file/temporary Internet files and can prove this than that is often reason enough to acquit the defendant from all charges. In the Netherlands other standards are applied in judging whether a person intentionally possessed child pornography through files found in his cache directory/temporary Internet files. has admitted that he knew that child pornography would be automatically stored in the cache file/temporary Internet files or that he deleted material from the cache directory/temporary Internet files showing that he knew that the cache directory/temporary Internet files existed. The third requirement is that the defendant must have been aware of the existence of the cache directory/temporary Internet files. Courts in the Netherlands have decided that. is establishing whether the defendant had a more than average knowledge of computers and thus of the fact that the child pornography was being stored in the cache directory/temporary Internet files. and the Netherlands First. The second standard that is applied is standard that is similar to the second standard applied in the U. namely that the defendant had control over the child pornography found in the cache directory/temporary Internet files. A defendant who is not aware of the existence of the cache directory/temporary Internet files shall not be convicted of knowingly possessing child pornography.

Also.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. If the time period in which the files were saved in the cache directory/temporary Internet files was deemed to be too short. if a defendant in the Netherlands immediately after discovering the child pornography on his computer deleted that material. The immediate removal of the child pornography shows that he had had no intention to possess the child pornography. then there was no possession of child pornography and it is seen as mere viewing of child pornography which is not criminal. § 7. control over the files concerned than that is deemed to be possession of child pornography. This is seen as having had possession ex tunc over the files in the cache directory/temporary Internet files. In most cases child pornography that is found in the trashcan/recycle bin is part of the other evidence that is found. most acquittals are based on the fact that the defendant was an unsophisticated computer user and thus lacked the knowledge of the existence of the cache directory/temporary Internet files which made his possession not knowingly. in combination with his ability to exercise control over said material. In the U. such as child pornography found in the unallocated clusters or cache directory/temporary Internet files.S. namely that the defendant must have a more than average computer knowledge for the defendant to have knowledge of the existence of the cache directory/temporary Internet files. than the time period in which he had that material on his computer is considered to be too short for it to be intentional possession of child pornography ex tunc. The few Page | 65 . Using special software to delete the child pornography from the cache directory/temporary Internet files are an indication of his intent to at least possess the material until he decided to use the specialized software to delete the material.S.S. and is therefore used as additional evidence to establish knowing possession of child pornography. In case-law dealing with child pornography found in the cache directory/temporary Internet files. there are not many cases that deal solely with the question whether files found in the trashcan/recycle bin can constitute knowing possession of child pornography. there are some factors that may acquit a defendant from the possession charge.S. In the U.3. However. In the Netherlands a similar construction is upheld. in both the U. the standards for at least conditional intent on the possession of child pornography are established. The third standard that is applied is that the defendant must have had possession over the child pornography located in the cache directory/temporary Internet files during a definable period of time. if a defendant had. If such knowledge is not established then there is no intent on the possession of child pornography. and the Netherlands construe a more than average knowledge of computers and thus also knowledge of the existence of the cache directory/temporary Internet files on behalf of the defendant. When that knowledge is construed. Standards for possessing child pornography found in the trashcan/recycle bin The next research question was how files found in the trashcan/recycle bin of a defendant can constitute the criminal possession of child pornography. and the Netherlands. from the moment he viewed the material until the moment he ordered his computer to clean up the hard drive.

If the material is still easily accessible. In the U. Whereas in the U. A third possible standard seems to be that the defendant must have intentionally sought out the child pornography in order for the possession to be knowingly. are that. first of all. The second standard is that the defendant must be able to access the material and thus exercise dominion or control over the material. The ease of accessibility and the ability to exercise control over the child pornography are. According to the courts. Not re-opening or re-accessing the material are indications for the defendant not having wanted possession over the material. This was brought up in the Coleman case as evidence.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Knowledge of the presence of child pornography is thus required. Also notifying others of the fact that you have downloaded child pornography can weigh in the court’s decision to find the possession to be unintentional. Secondly. and the Netherlands cases that do deal with the topic of how child pornography in the trashcan/recycle bin can be criminal possession offer a few standards to deem that possession knowingly. The standards that are applied in the U. there is little case-law to be found on the matter of possession of child pornography found in the trashcan/recycle bin. in both nations. The last standard is that the defendant must have actively sought out child pornography. As long as the material is still easily accessible control or dominion over that material is assumed. the accessibility of the child pornography files in the trashcan/recycle bin opens up the possibility to exercise control over the material and thus constitutes conditional intent on the possession of that material unless it is proven otherwise. this is much different in the Netherlands.S.S. it seems that Page | 66 . essential standards in determining whether possession was intended when it is found in the trashcan/recycle bin. The main standard that is being applied in the Netherlands is whether the child pornography was still easily accessible. I think that I will be mostly used as additional evidence to show the mindset of the defendant on acquiring the child pornography and thus on his intent to possess said material. With proven otherwise it is meant that if a defendant can show that he or she did not accept the substantial chance that he or she would possess child pornography then there is no criminal possession of child pornography. the defendant must at least be aware of the fact that he had child pornography on his computer although that it was located in the trashcan/recycle bin. The first standard is that the defendant must be aware of the fact that child pornography is located in the trashcan/recycle bin.S. because the child pornography is located in the trashcan/recycle bin it is still easily accessible which means that the defendant can still exercise control or dominion over the child pornography located there.S. The difference between both nations is that in the Netherlands. although I am not quite sure that it therefore should be seen as a separate standard. In the Netherlands numerous cases deal with this research question which have led to the drafting of clear standards that are applied in deciding whether or not the child pornography found in the trashcan/recycle bin was at least conditionally intended. then that is coupled to the ability of the defendant to exercise control over the child pornographic material. this is not so much the case.

or if the defendant admits to have that knowledge. Again at least conditional intent is required for the possession to be criminal.4. As the Carter case has explained: possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to terminate his control. Besides the required standard of having intentionally sought out the material the standard of having had control over the material is the decider in case when it needs to be proven that at one time the defendant had possession of child pornography.S. The ability to still be able to recover the data is seen as a form of ability to exercise control or show dominion over the material. Time is a factor in these cases. It is also required that the defendant is still able to recover the data. maybe alters the file names or does any other act that shows that he is aware that the material concerned is child pornography. First of all the standards that are applied to construe knowing possession of child pornography found in the cache directory are also applied in these cases. Standards for possessing child pornography found in the unallocated clusters Child pornography found in the unallocated clusters on a computer is a theme that is frequently investigated in both nations’ case-law. and then after that time deletes them. For the recording to be intentional it is required that the defendant purposely saved. His acts during the time that the child pornography was on his computer show his control over that material. So if a person keeps the child pornography on his computer for a period of time.S. possession ex nunc.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. § 7. the child pornography was Page | 67 . and still being able to have access to child pornography. What is important in these cases is that the defendant must have knowledge of how to recover the deleted files. In the Netherlands the standards for possession ex nunc of child pornography in the unallocated clusters are as follows. then that behavior is deemed to be knowing possession of child pornography ex tunc.S. In cases dealing with child pornography found in the unallocated clusters the possession is divided into having had possession of child pornography. the standards for possession ex nunc are the following. it is mostly used as additional evidence in possession cases and not so much as an individual violation. the data needs to be intentionally recorded and the defendant must be able to exercise control over the material. In the U. This knowledge is assumed if the defendant has specialized software to retrieve the files from the unallocated clusters. or was aware of the fact that. and the Netherlands individual prosecutions for having possession in the trashcan/recycle bin are more frequently employed. In the U. The first standard is that the recording needs to be intentional. Having control over the child pornography is often the deciding standard in these cases. possession ex tunc. which is then the decisive standard for assuming knowing possession of child pornography. With regard to possession ex tunc of child pornography found in the unallocated clusters similar standards are applicable.

and are accepted as knowing possession in case-law without any further explanation as to why this is so. It indicates that one intentionally sought out such materials and had control over that material. Both nations immediately deem this as criminal possession of child pornography. before it was deleted are important. The usage of specialized software indicates that the defendant can still exercise control over the material which is sufficient to establish at least conditional intent on the possession of that child pornographic material. If a defendant has shown that he has an active relationship with child pornography then that is a strong indication that the recording was intentional.S. can be established if the defendant has used specialized software to retrieve the child pornography from the unallocated clusters. and the Netherlands being automatically saved onto his computer. as is required for possession ex nunc.S. The ability to exercise control. altering images. If in that time period the defendant had exercised control over the material by storing it in new folders or by altering images. Similar exemptions are also applied in the Netherlands. then that shows that at that time he had intended to possess that material. or actively sought out child pornography. The lack of any specialized software on the defendant’s computer that can be used to retrieve the child pornography from the unallocated clusters is an indication that the defendant had no intention to possess that child pornography and is a ground that is often successfully used to be acquitted of the possession of child pornography charge. With regard to the possession ex tunc. then intentional possession ex tunc can easily be established. if the defendant does not have any knowledge of how to retrieve the child pornography from the unallocated clusters and if one does not have any specialized software installed on his computer to retrieve the child pornography from the unallocated clusters. Page | 68 . the above mentioned standards also apply. In the U. and thus make the claim that he intended to have possession over that material more plausible. If the former is the case. Also. Again. If so. the time period in which the material still remained on the computer. those actions show his intent on acquiring child pornography. When answering the research question whether the saving of child pornography onto one’s computer will constitute the offense of knowing possession in the U. It is generally seen as a known fact that when one saves child pornography onto his computer’s hard drive that person knowingly possesses that child pornography. and the actions performed with the material in that time period. However. Another factor that can be decisive in the possession ex tunc cases is the fact whether or not the defendant had immediately after discovering the child pornography deleted that material. A defendant can be acquitted from knowingly possessing child pornography found in the unallocated clusters of a computer in the U. the decisive factor is then whether or not the defendant had the intent on acquiring child pornography at that time. or intentional possession of child pornography in the Netherlands. the saving of child pornography meets all the standards.S. If a defendant has performed actions such as paying for access to child pornography sites.S. Possession in cases where a person deliberately saves child pornography onto his computer are seen as knowing possession per se.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. the active relationship with child pornography is important. that is a strong indication that defendant had no intention to possess child pornography.

In this case the defendant had paid for access to child pornography and viewed the child pornography online without saving any of it. The intentional downloading and saving shows that the defendant had knowledge of the existence of the data carrier and the file.S. then the accessing with intent to view itself has no real worth as a separate criminal offence. knowledge of the ability to exercise control over that material and knowledge of the child pornographic nature of that material. It thus meets all the requirement set forth by the A-G of the Hoge Raad in 2010. The accessing with intent to view child pornography can then be used to construe constructive possession of child pornography. it is not a standard for finding that behavior to be criminal. This is not a complete surprise as it has only been introduced in the United States Code since 2008. In my view.S.S. Is obtaining access to child pornography criminal? With regard to the question whether obtaining access to child pornography with intent to view in the U. Accessing child pornography with intent to view is easily accepted as that person having and wanting to exercise control or dominion over that material. That is naturally a worthy reason for criminalizing accessing child pornography with intent to view. so that the claim falls within the scope of the criminal charge of knowingly possessing child pornography. Page | 69 . and therefore it is evident that when a person intentionally saves child pornography onto the hard drive of his computer he intentionally possesses that material. In almost all cases discussed in the section about knowing possession of child pornography the accessing and viewing of child pornography were used as an indication for the intent of the defendant on possessing child pornography material. anti-child pornography legislation harm done to the children as a result of sexual exploitation of those children needs to be prevented. one case in which a defendant was successfully convicted on the ground of a rationale is insufficient to speak of a general standard that can be applied. and the Netherlands The Dutch courts also assumes that when a defendant intentionally saves child pornography onto the hard drive of his computer then that is considered to be intentional possession of child pornography. and due to the lack of any other case-law on this subject matter I think it is premature to speak of a standard. I have found one case in which a defendant was convicted solely for accessing child pornography with intent to view. § 7. receiving and other violations relating to child pornography. it is clear that is mostly used as additional evidence to support a conviction on the basis of knowing possession. although the court in that case did convict the defendant on the above mentioned rationale.5. In my view this criminal offence is created to convict persons on possession charges in which there is a lack of evidence to support the conviction on the initial findings. According to the rationales behind the U. and so this person contributes to the harm done to the children that fall victim to the child pornography industry. A standard that can be derived from this case is that the defendant actively sought out child pornography and thus helped maintain the child pornography industry. By paying money to view child pornography one stimulates the child pornography industry into producing more material. However. For it to be a standard more case-law should incorporate this reasoning. If accessing child pornography with intent to view is to be seen as having control over or dominion over that material. However.Convicting for Computer Child Pornography Which computer activities lead to liability in the U.

In the Netherlands possession of child pornography is also easily established. In the Netherlands this is not so much the case. Gaining access to child pornography is used as additional evidence in a lot of cases relating to the possession of child pornography on the hard disk prior to the introduction of the new penal clause.S. aim for the highest possible sentence when dealing with charges relating to child pornography. possession of child pornography is more easily established due to the way in which the courts construe the evidence to fit the possession of child pornography charge. It occurs to me that courts in the U. Differences between the approach of the U.S. I have noticed in numerous cases that the courts in the U. Another difference that struck me is the fact that possession of child pornography is more easily assumed in the U.S. seem to prefer to convict a defendant on the possession charge rather than on other grounds such as accessing child pornography with intent to view.6. Unfortunately I was unable to find any case-law dealing with the legal question whether obtaining access to child pornography was criminal or not. since the first of January 2010.S. § 7. but for instance the possession of one image of child pornography is insufficient to come to a successful conviction. In the U. I do feel that there are some differences in each nation’s approach to come to a successful conviction. If such developments would occur then the penal clause of gaining access to child pornography will have more weight as a penal clause on its own on which to base convictions rather than being used as additional evidence in possession cases which is the current trend. I have seen numerous cases in which there was sufficient evidence that the defendant had accessed child pornography with intent to view that material. is to come to a successful conviction for possessing child pornography.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. but in which this evidence was used to construe criminal possession of child pornography. and the Netherlands In the Netherlands obtaining access to child pornography has only recently.S. or scrambled connections. Gaining access to child pornography via pay-sites is then used to construe intent on the possession of child pornography on behalf of the defendant.S. and the Netherlands apply similar standards for convicting defendants for possessing child pornography with the specific acts done with a computer mentioned above.S. and the Netherlands Although the U. because the main focus is to successfully prosecute each defendant that is charged with a violation of the anti-child pornography legislation. been adopted in the Dutch Criminal Code. This is for the most part due to the above mentioned approach that the main focus of the courts in the U.S.S. Page | 70 . therefore they usually interpret all available evidence to fit the possession charge in order to get the highest possible sentence. In the future there will probably be more case-law dealing with convictions based on gaining access to child pornography as the legislation is changing to deal with the new technological developments in the child pornography scene. In the U. New technical developments will probably focus on avoiding having child pornography in one’s possession to view it and will probably shift to more online viewing in closed circuits. in such a case they will probably seek out additional evidence to support a conviction on the basis of possessing one image of child pornography.

K.S. Kool. U. Howard. Krone. 2003 - Howard E. 2008 - Aspatore Aspatore.S. Don’t Cache Out Your Case: Prosecuting Child Pornography Laws Based on Images Located in Temporary Internet Files. 16. 1999 - Lunneman Lunnemann et al.2006 Page | 71 . in Trends and Issues in Crime and Criminal Justice. 2004 - Jefferson J. Jefferson. Koops. 2004 - Kool R. and the Netherlands Bibliography - Akdeniz Y. 2010 - Krone T. Gouda. Clough.B. De strafwaardigheid van seksueel misbruik. 2008 WL 5689422. 19 Berkely Tech Law Journal 1227. University of Leeds. now you don’t: Digital images and the meaning of “possession”. Indecent images of children: The ever changing law. Alisdair. 14. Quint. 2008 - Gillespie Gillespie.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses. A typology of online child pornography offending. Richmond Journal of Law & Technology. Child abuse review Vol. 2008 - Clough J. Tactics for defending computer pornography charges. Internet child pornography and the law: national and international responses. Vol. Akdeniz. 1234. Issue 3. Kinderen beschermd tegen seksueel misbruik: Evaluatie van de partiële wijziging in de zedelijkheidswetgeving. Now you see it. 19. A. in Criminal Law Forum No.: Ashgate.

American Civil Liberties Union. van der Neut. 2005 - Stevens L. Quale. 55. Supreme Court Addresses the Child pornography Prevention Act and Child Online Protection Act in Ashcroft v.J. van der Neut. 2000 - Oerlemans J. Taylor et al.Convicting for Computer Child Pornography Which computer activities lead to liability in the U. Child Pornography. 1980 - Neut J.S. Delinkt en Delinkwent. Mota. Vol. De situatie in Nederland. Het eindrapport van de Adviescommissie Zedelijkheidswetgeving. Stevens. Vol. the Internet and offending. Koops.S. Brunner-Routledge. Delikt & Delinkwent 39. B. A. Child Pornography: an Internet crime.L. The U. 2003 Page | 72 .J. Oerlemans. Kinderpornografie. Federal communications law journal. Free Speech Coalition and Ashcroft v. criteria voor opzettelijk bezit van kinderporno”. “Opzet op de harde schijf. 2008 - Taylor M. and the Netherlands - Mota S. 2002 - Neut H. Vol. 2. Delinkt en Delinkwent. 11. 2001 - Taylor M. Kinderpornografie op Internet: Dweilen met de kraan open. Taylor and E.