FULTON COUNTY, Ga. - Those who've accidentally clicked on links to child porn but did not save the images can rest a little easier ... if they live in Georgia.
A three-judge panel of the Georgia Court of Appeals has ruled that Edward Ray Barton, who had been convicted of 106 counts of sexual exploitation of children, should be freed because the images that formed the basis of the accusations against him were found only in the temporary cache files on his laptop.
According to an article on law.com, "a U.S. Secret Service forensic computer analyst" had testified at Barton's trial that "each of the pornographic images on Barton's computer was stored on the hard drive of his computer in temporary Internet file folders," and that "Barton had viewed the images on the Internet but hadn't taken any additional steps to save them on his computer - and couldn't retrieve the images again without special software he didn't have."
At his trial before Walker County Superior Court Judge Kristina C. Connelly, the jury acquitted Barton of the child molestation and sodomy charges of which he had been accused by his wife, but brought in guilty verdicts on the child porn charges, which were added later after the local sheriff's department had examined Barton's laptop. Barton had been sentenced to serve 20 years in prison for the alleged sexual exploitation.
While it's unclear whether Barton had affirmatively sought out the child porn images, or whether they appeared on his screen as the result of unwanted pop-ups, according to the Secret Service agent, it didn't make a difference: The images would have been saved automatically in the computer's cache file and remained there until space was needed or until Barton emptied the cache himself.
In fact, Barton appealed on the basis that the state had failed to prove that he knowingly possessed the images because he hadn't taken any steps to save the files - and Barton's knowledge that he possessed the images would have been necessary to maintain a conviction under the sexual exploitation statute.
"Reluctantly, we must agree," wrote Judge M. Yvette Miller for the three-judge panel.
While noting that other state and federal courts had differed as to whether possession of child pornography required the defendant to have taken some affirmative action to download or save the images, "None of those decisions, however," wrote Miller, "found that a defendant may be convicted of possessing child pornography stored in his computer's temporary Internet file folders, also known as cache files, absent some evidence that the defendant was aware those files existed."
For images found in cache files to be enough to show possession, wrote Miller, the state has to prove that the defendant "either: (1) took some affirmative act to save or download those images to his computer; or (2) had knowledge that the computer automatically saved those files."
The case was Barton v. State, No. A07A0486.
