united-states pornography
Every few days specific websites remove explicit images uploaded by minors. Is having viewed this content illegal?
<p>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?</p>

<p>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?</p>

<p>It is not illegal to view pornography. It <em>is</em> illegal to possess or receive certain kinds of pornography, namely child porn, under <a href="https://www.law.cornell.edu/uscode/text/18/2252" rel="nofollow noreferrer">18 USC 2252</a> and <a href="https://www.law.cornell.edu/uscode/text/18/2252A" rel="nofollow noreferrer">18 USC 2252a</a> (there is a subtle legal difference between "<a href="https://www.law.cornell.edu/uscode/text/18/2256#8" rel="nofollow noreferrer">child pornography</a>" 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</p>

<blockquote>
  <p>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;</p>
</blockquote>

<p>but also</p>

<blockquote>
  <p>(1) possessed less than three images of child pornography; and</p>
  
  <p>(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—</p>
  
  <p>(A) took reasonable steps to destroy each such image; or</p>
  
  <p>(B) reported the matter to a law enforcement agency and afforded that
  agency access to each such image.</p>
</blockquote>

<p>A person's belief that the website was moderated is not a defense.</p>

<p>There are also state statutes, typically stronger, which outlaw possession of child porn. <a href="https://caselaw.findlaw.com/ky-court-of-appeals/1609602.html" rel="nofollow noreferrer">Crabtree v. Kentucky</a> 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:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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.</p>

<p>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 <a href="https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_02.pdf" rel="nofollow noreferrer">this report</a> of the US Sentencing Commission,</p>

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

<p>with case law citations. The case of <a href="https://openjurist.org/469/f3d/853/united-states-v-kuchinski" rel="nofollow noreferrer">US v. Kuchinski</a>, 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</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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 <em>knowing</em> act, as well as the jurisdiction.</p>
