CA Court of Appeals provides guidelines for “knowing posession”.

In People v. Michael James Tecklenburg, (2009, 169 Cal. App.4th 1402) the California Court of Appeals considered the relevance and applicability of involuntary "pop-ups" and temporary Internet files (TIF or "cache") to the applicable statute. California's Penal Code section 311.11(a) makes it illegal to "knowingly posses or control" depictions defined as child pornography according to state law (P.C. 314, subd. d). The court specifically considered the variables required to establish "control".

In Tecklenburg, the court denied appeal based on the State's discovery having established the cumulative applicability of the following variables:

1. the user actively searched for child porn;
2. the user visited child porn web sites;
3. the user explored beyond the first page of said web sites;
4. the user clicked on images on, at least, one web site;
5. the images appeared and were accessed multiple times;
6. the user enlarged thumbnail images;
7. the images were “part of a series or collection”;
8. the size and format did not match that of a pop-up;
9. similar, and sometimes identical, images were found on both the user’s home and work computers.

While I don't agree with the entirety of the court's findings, nor am I comfortable that the court fully appreciates the non-standardized and ever-evolving nature of the Web, or the limitations of computer forensics, I do think that the decision itself serves as a good minimum benchmark, or litmus test, for both prosecution and defense in similar cases.

The items above serve to establish a means or mechanism more than motive, opportunity, identity, or proclivity. A complete prosecution should consider these elements as well as those above. The State would be well served to measure their discovery against these variables, and/or strive to meet them. At the same time, defendants would be well advised to measure their chances at trial against the established pre-conceptions of the court.

CA v. Tecklenburg, (2009) 169 Cal. App.4th 1402 (CA 311.11) "Knowing possession": The CA Court of Appeals outlines variables necessary to determine “control” of child pornography, as opposed a lesser-defined "possession" within an electric storage device. size: 2.16MB added: 29/08/2009 popularity: 4

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About Jeff M. Fischbach

Jeff Michael Fischbach is founder and President of SecondWave Information Systems (SecondWave.com), a consulting firm specializing in Forensic Technology. Since 1994, he has served as a board member and technology adviser to numerous professional organizations and corporations. Mr. Fischbach has been engaged as a litigation consultant and Forensic Examiner, offering expert advice and oversight on matters involving intellectual property, computers, information systems, satellite, tracking and wireless communications technologies. He has advised law enforcement, foreign government representatives, judges, lawyers and the press.