Ga. Appeals Court: Items in Browser Cache Not in Users’ ‘Possession’

Q Boyer
ATLANTA — A three-judge panel from the Georgia Court of Appeals this month reversed the conviction of a resident of Lafayette, Georgia on 106 counts of sexual exploitation of children, holding that the presence of child pornography images in the man’s Internet cache did not indicate that the man “knowingly” possessed the images.

According to court documents from the case, Edward Ray Barton was indicted on sexual exploitation counts based on photos discovered on his laptop computer. Barton’s wife provided law enforcement authorities with the laptop after the Walker County Sheriff's Department began investigating allegations of child molestation.

Barton was acquitted by a jury on sodomy and child molestation charges, allegations that Barton’s attorney Daniel J. Ripper said came out during the Barton’s bitter divorce proceedings, but he was convicted of the sexual exploitation charges based on the photos on his laptop, and sentenced to serve a jail term of 20 years.

At the jury trial, a forensic computer analyst from the U.S. Secret Service testified that each of the child porn images on Barton’s computer was stored on the laptop’s hard drive within temporary Internet file folders. The agent said that the existence of the files indicated that Barton had viewed the images via the Internet, but hadn’t taken any further action to save them to his computer, and Barton could not have retrieved the images without using special recovery software that he did not possess.

According to court documents, the Secret Service agent testified that Barton had looked at each of the 106 images over the course of two separate sessions that totaled less than four hours on Dec. 2 and 3, 2003.

The agent also testified that even those images that display on unwanted pop-up ads are stored on a computer’s hard drive, but did not say whether any of the images on Barton’s laptop came from pop-up ads.

Barton appealed his conviction, asserting that the state had not demonstrated that he “knowingly possessed” the images, as he had not taken any affirmative action to save the images to his computer, and that he was unaware that the computer had automatically saved the images, and that he had no means to access the images on his laptop.

The panel of appellate judges concurred with Barton, although they expressed clear displeasure in doing so.

“Reluctantly, we must agree,” wrote Judge M. Yvette Miller for the appellate panel.

As determined by the court, the ruling was strictly a matter of statutory interpretation, and hinged on the term “knowingly to possess.”

As noted by Miller in the appellate panel’s ruling, while other state and federal courts have considered meaning of similar terms, “(n)one of those decisions…. 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.”

Herbert E. Franklin Jr. of Walker County, the district attorney who prosecuted the Barton case, said that the court’s ruling could make life more difficult for law enforcement and prosecutors in future Internet-based child porn cases.

“With the computer-savvy folks out there … it’s going to limit our ability to prosecute, I would think,” Franklin said, according to

Adult industry attorney Rob Apgood told XBIZ that while the court’s decision may not sit well with many observers, the decision was the “proper ruling” under the law, and was consistent with the rulings of other courts in cases with similar circumstances.

“You can end up with material in your cache that you never actually viewed, after all,” Apgood said. “We’ve all had situations where you go to a site and only see the top of the page before you decide ‘this isn’t what I wanted to see.’ You then click the back button and go about your merry way — but the rest of that page is recorded into the cache, whether or not you actually viewed it yourself.”