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There's frequently stories about pornographic websites removing images from underaged users. The users of these sites use them with the belief that all material is of legal adults, but in the past people have been arrested for having images stored in a cache. In the case where the user not only didn't know it the person was underaged, but was using a website where there was some reason to believe that the content was moderated - could they be held responsible?

Similarly, videos are uploaded to adult sites from places like Twitter, Instagram, Webcam sites, etc. These videos often remain available if they pass the "eye test," but are users potentially responsible for viewing them?

  • Child porn is a strict liability offense. That means that, with very few exceptions, all that is needed to prove guilt is the fact that the images were accessed, whether or not you were fooled into viewing them. – forest Aug 28 at 8:55
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It is not illegal to view pornography. It is illegal to possess or receive certain kinds of pornography, namely child porn, under 18 USC 2252 and 18 USC 2252a (there is a subtle legal difference between "child pornography" and "visual depiction (which) involves the use of a minor engaging in sexually explicit conduct"). In order to view anything on the internet, you have to first receive it, so there is potential criminal liability. These sections allows one affirmative defense, if one

knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer;

but also

(1) possessed less than three images of child pornography; and

(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof—

(A) took reasonable steps to destroy each such image; or

(B) reported the matter to a law enforcement agency and afforded that agency access to each such image.

A person's belief that the website was moderated is not a defense.

There are also state statutes, typically stronger, which outlaw possession of child porn. Crabtree v. Kentucky is an example of such a (successful) conviction. The court addresses the question of whether "merely viewing" can constitute actual possession: the court found that it did:

Crabtree urges us to consider that his merely viewing child pornography images before deleting them should not be deemed to constitute actual possession. After reviewing the facts of this case, we are not persuaded that this is a valid argument in light of the Ninth Circuit's definition of possession in Romm, supra: that the act of seeking out child pornography and exercising control over it constitutes criminal possession—regardless of whether it is downloaded. Crabtree admitted to seeking out the material and to having it on his computer.

It would be impractical to try to review 50 states' worth of child porn laws plus the federal statute, but there is also a “Temporary innocent possession” defense, which is conceivably applicable to the situation where you click a link and surprise! In the above case, defendant had to click a link that indicated the nature of the contents, and had to confirm file-saving of a file whose name was indicative of its content. Such circumstances overrule the presumption of temporary innocent possession.

A question raised in the comments is whether a porn-ambush could lead to a conviction. Suppose that a web page has a number of embedded child-porn images which are saved to a user's computer without his knowledge. As pointed out in this report of the US Sentencing Commission,

A conviction for receipt, however, requires proof beyond a reasonable doubt that a defendant knowingly came into possession of child pornography at the time that the image or video was received

with case law citations. The case of US v. Kuchinski, 469 F. 3d 853 is instructive, because defendant did knowingly seek out and download a number of child porn images, and was convicted. In 94 of those cases, he knew he was receiving child pornography; in over 10,000 other cases, such images were found in his system cache (this is relevant to sentencing). The court found that it matters that "Kuchinski had no knowledge of the images that were simply in the cache files", and the court concluded, in K's favor, that

Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.

Do you know about the system cache, and do you know how to control it? If not, you might avoid the charge. In other words, it depends on the circumstances surrounding the possession and the evidence of a knowing act, as well as the jurisdiction.

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    This is a great answer. In the cases you've linked there's no indication of the suspected age of the individuals being filmed (presumably intentionally), but it appears to be very young. For example, in the Crabtree case it's compared to other "shocking" content. In the case of minors (16, 17) that upload to these sites and pass themselves off as adults, is there a distinction made? Does the court have to prove that the "model" is of a certain age, or does that fall to the accused? – Alphabet Aug 28 at 1:07
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    The prosecution would have to prove that ("the court" is basically the judge and jury, and they don't do any proving). That is part of the "guilty beyond reasonable doubt" burden that the prosecution must bear. – user6726 Aug 28 at 1:16
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    Am I reading correctly that if I visit a shock site (or, say, get redirected to one by a malicious ad) that, unknown to me, contains three or more images of child pornography and a random cop decides to check my browser cache, I'm going to jail? – John Dvorak Aug 28 at 13:59
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    @user6726 it's quite possible to hide images in web pages. 1% opacity, behind other things, just above the web page, or just load them in Javascript and not put them into the page. All the web page then has to do is to appear harmless or to hope that I'm not aware that a web page has the power to put me in jail. Now, let's say that the probable cause is an anonymous tip from the creator of the website, who knows me personally... – John Dvorak Aug 28 at 15:10
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    Ambushing an innocent person with crypto-porn would probably not satisfy the prosecution's burden w.r.t. "knowingly possess". It's hard to say since this is a fact question to be decided by the jury. – user6726 Aug 28 at 15:25

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