A Wisconsin appeals court ruled viewing child pornography online is the same as possession, marking the end of a two-year battle for a former Fond du Lac human resources worker.
Circuit Court Judge Dale English ordered Benjamin Mercer, 60, to report to county jail within 30 days Friday. Mercer had appealed an earlier decision on whether viewing child pornography online is tantamount to possession, despite the fact that he never downloaded any files.
Mercer was fired from his human resources job and arrested after viewing child pornography on his computer at work.
Mercer was convicted of 14 counts of child pornography in 2007 and sentenced to eight years probation as well as one year of jail time in 2008, although he was also granted work release privileges.
Mercer argued in appeal that files needed to be downloaded onto the hard drive of his computer to count as possession, and since he only viewed the streaming files online, he never in fact possessed the porn. After two years of appeals, English disagreed, adapting previous child pornography possession laws to fit changing technology.
The Supreme Court refused to hear the case in August, kicking it back to appeals court.
The ruling focuses on the issue of exercising control over an image, rather than an unexpected pop-up advertisement.
In general, the idea of pop-up ads is separate from possession and as long as an individual does not pursue an ad related to child porn that comes up unexpectedly, it would not be subject to these laws, David Schulz, professor of law at University of Wisconsin, said.
In general, files or documents stored on a hard drive are considered proof of wrongdoing in child pornography cases, but evidence against Mercer was collected using tracking software on his office computer, according to the appeals court ruling.
“The issue in this case is whether individuals who purposely view digital images of child pornography on the Internet, even though the images are not found in the person’s computer hard drive, nonetheless knowingly possess those images,” the original court ruling found.
The appeals court agreed, since monitoring software found Mercer navigating through and entering sites to an extent that he knowingly possessed child pornography, at least temporarily while online.
Changing laws over online child pornography could point to a need for students specifically to exercise care over what they search for online.
“Technology is going so fast, for you younger people are on the one hand much more comfortable, and maybe that means you’re less cautious about it,” Schulz said.
The area of law related to online child pornography possession compared to physical possession is evolving as technology evolves, comparable to other areas such as downloading music, Schulz said. Schulz said at one time, not many people thought it was wrong to download music off the internet, but after a few UW students were made examples of, practices changed.
Searching for adult pornography is not subject to these rules, Schulz said.
