The court explained, as he affirmed Hill’s conviction that:

Given the intricacies of computer and Internet technology, we think it helpful to present an analogy, viewing a simpler scenario in which an individual obtains a magazine containing photographs of children engaging in sexual acts from another person or source. Receipt and retention of the magazine would merely reflect evidence of possession, which would give rise to a four-year felony under MCL 750.145c(4). In this scenario, the amount of child pornography in our society is not increased by transfer of the magazine to another and by the purchaser’s mere possession of the magazine. If, however, the person in possession of the magazine makes copies and reproductions of the pornographic material, the person has increased the amount of existing child pornography, or stated differently, has engaged in acts leading to the proliferation of child pornography in our society.

Today, an Israeli Court convicted and sentenced Vladimir Mil (C 5174/06 State v. Mil, hebrew) for `possession` of child pornography. Unlike publication of pornography, possession requires only the saving of the files on a person’s hard drive, and though clause 214(c) of the Israeli Penal code does requires the district attorney’s consent in prosecuting the offender, there is still one major problem with the conviction of felons over this clause.

Let’s assume, for a second, that a second Julie Amero comes up. Julie goes to her PC and some kind of trojan pops up child pornography automatically; will the second Amero be charged with possession of child pornography? as far as i know, the mere existence of the files on the cache folder will suffice as evidence, as Amero’s conviction was based largely on the ISP’s logs, these logs could be used for automated conviction – once you prompt your computer to access a website, you are guilty.

The Automation of Justice may be inevitable in this case, though the mere caching of files without actually requesting them may result in more problems. If we inspect every piece of machine code, still, we will have to admit that merely caching the files cannot count as possession. Caching is a temporary action, which deletes the files when not in use, most users don’t even know how to access their cached files and seem to lack the ability to erase them.

However, the constitutional costs of persecuting child pornography possessors is a major one, in the fight against virtual pornography (hebrew, also more in english) we need to find the actual original publicators and rapists who commit the crimes, and not the persons holding them. Monitoring every person’s internet connection just in order to know whether he is committing a crime is a larger felony than just caching child pornography.

It is difficult to understand from the sentence whether Mil’s internet connection was tapped or whether the evidence was found in a different way, as his counsel explained that his right for privacy was tempered in order to obtain the evidence, but did not specify whether such tapping existed. However, if his line was tapped, it is a great loss for freedom.