Crying Over the Cache: Why Technology Has Compromised the Uniform Application of Child Pornography Laws

September 26, 2012

As thousands of individuals surf the internet daily, every image on every web page is saved automatically to their computer’s cache, absent user direction. Sections 2252(a)(2) and 2252(a)(4)(B) of Title 18 of the U.S. Code criminalize knowing possession and knowing receipt of child pornography images. For the defendant who intentionally saves illicit images to his computer, the cache simply verifies already-proven knowing possession or receipt. However, for the defendant who only views child pornography online, the presence of images in the cache may not be enough to prove knowledge beyond a reasonable doubt. How can the prosecution prove a defendant knowingly received an image he has potentially never seen? How can a prosecutor prove a defendant knowingly possessed an image that may have been a pop-up? Questions like these have split circuit courts over the application of § 2252(a)(2).

Several circuit courts have confronted cases with defendants who undoubtedly viewed child pornography images online, but who only left one clue as to their “knowing” receipt—the presence of images in the cache. The Tenth Circuit found that absent direct proof that a defendant viewed the image, the presence of a file in the cache is not enough to meet the “knowing receipt” standard. The Eleventh and Fifth Circuits disagreed, holding that a pattern of seeking out images satisfies the knowledge requirement. This Note analyzes the split and concludes that the presence of images in the cache proves a defendant’s knowing receipt. The Tenth Circuit’s demand of “direct proof of viewership of the image in question” imposes impossible evidentiary requirements. Defendants who view child pornography online have satisfied § 2252(a)(2)’s mens rea requirement even without direct proof of viewership of the image in question.

October 2012

No. 1