The CBC reports that the Supreme Court of Canada has handed down a decision quashing a search warrant and overturning the conviction of a Saskatchewan man charged with possessing child pornography. A justice of the peace had insufficient evidence to issue a search warrant in 2003 against Urbain P. Morelli. Morelli ‘s charter rights were violated when police searched his computer for child porn after a technician who had visited his home expressed concerns to police. Notable about this decision is the distinction between “accessing” and “possessing” digital images, particularly the recognition that a user does not possess data that has been cached.
From the decision: “When accessing Web pages, most Internet browsers will store on the computer’s own hard drive a temporary copy of all or most of the files that comprise the Web page. This is typically known as a “caching function” and the location of the temporary, automatic copies is known as the “cache.” While the configuration of the caching function varies and can be modified by the user, cached files typically include images and are generally discarded automatically after a certain number of days, or after the cache grows to a certain size. On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a “place” over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.'”
This case tears me up, I am seriously conflicted. On the one hand, I really do not like pedophiles, don’t know anyone that does. On the other hand, what evidence is there to support the accusations leveled at this person? The accused appears to have an interest in porn, but the evidence presented that he is a consumer of child porn is all hearsay. The technician seeing links to what he percieves to be childporn sites (did he visit the sites, is he familiar with these sites, or is the naming of a link sufficient to support the claim?) and the presence of pictures of children in the internet cache are totally non-evidentiary in my educated layman’s opinion. I cannot count the number of times that one site or another, including Google searches, have presented misleading and erroneous results to my own surfing requests. Who has NOT seen a disgusting pop-up, or at least an unexpected one, while wandering the internet? There are people whose livelihoods depend on presenting you with various marketing materials, some good, some bad, some illegal, and they do not care how they get those materials in front of you as you surf.
What if he is innocent? The fact that this guy was pulled in, embarassed, humiliated, castigated and convicted on what seems to be very lossely investigated and circumstantial evidence is terribly frightening. This man will be persecuted and stygmatized for the rest of his life, all based on the questionable observations and opinion of some visiting technician. Imagine the impact this will have on him, his career, his family, his used-to-be friends.