Law.com Practice Center – Article: “Pa. Justices Hear Arguments Over ‘Control’ of Images in Child Porn Case

Authorities found the images in the cache file of man’s Web browser

Peter Hall, The Legal Intelligencer, 05-19-2008

Pennsylvania’s Supreme Court justices considered whether a person looking at a book in a library is analogous to a person downloading files from the Internet and whether, in either circumstance, the person is in ‘control’ of the material.

The comparison came during arguments in Commonwealth v. Diodoro, in which a Delaware County man is challenging his conviction of sexual abuse of children by possession and control of child pornography. The arguments were held in Harrisburg on Wednesday.

Anthony Diodoro admitted viewing at least 30 images of child pornography but argued that since he didn’t knowingly save them to his computer’s hard drive, he wasn’t in control or possession of the images. Authorities found the images in his Web browser’s cache file, where a computer automatically saves files so they can quickly be viewed again.

‘In order to determine whether there is possession or control, we have to determine the corpus delicti of the crime,’ said Diodoro’s attorney, Mark P. Much of Media, Pa.

Much noted that the state statute on child pornography provides for prosecution if an individual produces, distributes, possesses or controls sexually explicit images of children. The law does not contain definitions of ‘possess’ or ‘control.’

Assistant Delaware County District Attorney Michelle P. Hutton argued there was evidence that Diodoro had specifically sought out Web sites where he could find child pornography and had 370 images of suspected child pornography on his computer.

She said that when he clicked on the links to the images and had them on his screen, he was in control. Applying the library analogy, Hutton said Diodoro’s actions were the same as asking a librarian to bring him material of a specific genre.

‘When he’s in that room all alone, he’s in control,’ Hutton said.

Diodoro was the subject of two published opinions in the Superior Court.

In the first, a three-judge panel concluded that merely looking at child pornography on the Internet — without intentionally saving or downloading any images viewed — does not amount to ‘knowing possession’ of child pornography.

An en banc panel, in a 7-2 decision last year, reversed the first panel, finding that §6312(d) of the Crimes and Offenses Code clearly states that anyone who ‘possesses or controls’ child pornography is guilty of a third-degree felony.

‘[Diodoro’s] actions of operating the computer mouse, locating the Web sites, opening the sites, displaying the images on his computer screen, and then closing the sites were affirmative steps and corroborated his interest and intent to exercise influence over, and, thereby, control over the child pornography,’ Judge Correale F. Stevens said.

He added that while Diodoro was viewing the pornography, he had the ability to download, print, copy or e-mail the images.

Judge Richard B. Klein, who authored the opinion of the first unanimous panel, wrote a dissenting opinion for the en banc panel. Judge John T. Bender joined him.

Klein said the fact that the images were automatically saved to an Internet cache file on Diodoro’s computer is not enough to show that he did anything but view them, considering there was no evidence that he knew they were automatically saved.

During arguments before the Supreme Court, Justice Max Baer sought to remove the question from the electronic age, positing a scenario in which a person visits an adult bookstore and pages through a magazine. He asked whether that could be considered control.

Baer then put forth a scenario in which a person orders similar materials to be sent to his home. He asked whether that would be control.

Much said the statute is void for vagueness because the term control does not give a person enough notice of what is considered criminal intent.

Justice J. Michael Eakin asked whether making a picture larger on the computer screen could be considered control.

‘Do you not physically change what you’re observing?’ he asked.

Much said the statute doesn’t account for intent.

‘If it pops up and you look at it and realize it’s child pornography and you ‘x’ out of it, under the statute, you’ve controlled it,’ Much said. ‘You can’t criminalize viewing without intent.'”