Cloud storage possession of data.

Panther

Hi,

I've searched high and low for an answer to this and no-one not even my lecturers seem have an answer to my question so I'm hoping someone here can help.

Basically it is a question with regards to data stored in cloud storage in a foreign non-EU country. If I set up an account with a storage provider in Russia for example and store data on it in the data centre in Russia, am I in possession of the data in Ireland or Russia? If the data is stored in Russia and I view from Ireland without downloading it onto my hard drive then am I in the clear?

This all stems from a project that I was doing for my Criminal Psychology course and I put forward a possible loophole in Irish Law with relation to possession of child pornography. Basically if you download an image onto your computers hard drive then you can be charged under the CHILD TRAFFICKING AND PORNOGRAPHY ACT, 1998. However in Russia where possession is not illegal you can't be charged. Viewing CP is not an offence in Ireland, you can be standing there watching it on TV but so long as you are not in possession of it you are not committing an offence.

So in a scenario where the Gardai raid a house, find nothing on the physical hard drive of a suspects computer but find that the suspect has access to gigabytes of data on an "offshore" cloud drive, can the suspect be charged with possession?

Any help would be appreciated or if you have any advice on journal articles or resources that I could use it would be also a great help.

Paulw

Just about every time you view a page on the web, a local cache of such page, plus images, is stored on your PC. This cache is frequently cleared out (by the browser), but there are still traces.

So, in that way, you view a web page with images, your PC would have a small copy of such images, so you would be in posession of those images.

Panther

Thanks Paulw I considered this as well and was told that what is kept in your browser cache can not be used in a prosecution as you have not directly and intentionally downloaded it. This is to protect people that might come across illegal material on the Internet by accident and do not realize that there is a record of such activity on their PC. There is also the problem of of a suspect sweeping their browser cache every time they shut down, so unless they are actually caught in the act it is almost impossible to charge them. This is why I am trying to see if there is indeed a loophole that needs to be closed.

I would have thought that having control over the material even though it is stored outside the state might be taken as possession but I'm not a 100% sure about that.

BrianD

Just wondering that if this is the case, why do people today download this type of material knowing that it is an offence? Surely you could just look at it online and have nothing on your computer other than the traces of looking at it mentioned by the other poster?

I know the more sophisticated user would have a way around it but most files (normal docs and stuff!!) that I would store in the cloud are uploaded from my own computer. Os it would have been on your computer even temporarily.

I would agree that as cloud computing grows that the legislation is going to have to evolve.

Panther

That's the point that I am trying to make BrianD. The Act was brought in in 1998 before cloud storage had gotten off the ground and if you wanted to store any of this type of material you had to download it onto your computer because real time streaming was too slow due to crap broadband speeds.

Some storage services offer FTP transfer so that the files are transferred to the cloud drive without ever having to go through the offenders drive. The problem is not so much the sophisticated user as they will as you say have a way around it. Where the problem is, is that someone with very little techno savvy can use these ways around the law. These type of offenders readily exchange info on forums so I'm not too keen to put out too much info up in the public domain. If there was a way to enact legislation that made it an offence to have control over or view illegal material even if it is stored in the cloud then this would go a long way to solving the problem.

evercloserunion

Paulw wrote: »

Just about every time you view a page on the web, a local cache of such page, plus images, is stored on your PC. This cache is frequently cleared out (by the browser), but there are still traces.

So, in that way, you view a web page with images, your PC would have a small copy of such images, so you would be in posession of those images.

Is this definitely the law here? I remember hearing about a case in the US a while back, where a guy had viewed some dodgy stuff in his web browser but was held not to have possession of it, even though there were traces of it stored on his PC, because he didn't know about those traces and didn't exercise any dominion or control over them. Although Googling around it does seem that other states take the opposite view, ie that browser caches do constitute possession. It's not a clear cut case though.

Do you have an authority for the Irish position?

Panther

It does depend on the state but from what I am told if you view something on the web without actively downloading it then you are not guilty of an offence. It's a bit like lets say watching porn on TV and you are just standing there viewing it. You are not guilty of anything but if you recorded it onto digital media then you are in trouble.

MagicSean

I think the big question here is why is it not illegal to posess child porn in Russia.

dermot_sheehan

If you have an image of child pornography on your computer screen, you are in possession of it. The law doesnt care whether the data instructing the computer to display that information is on the hard drive or in the ram or what caching your browser does.

It might be difficult for the prosecution to prove the offence beyond a reasonable doubt if there are no images they can find by a forensic examination of your hard drive, but the offence is still complete.

So in your example if an irish user accesses those images stored in russia, he has completed the offence regardless of the fact of whether or not his computer keeps a copy of the information he looked at on the internet. Unless the prosecution have some way of proving he was in possession at that point it would be difficult to bring home a conviction.

of interest in the English Court of Appeal decision in R v. Porter held that where an image could not be accessed by a defendant, it was not in their possession.

This was a case where the prosecution were asserting possession based on certain files having been found on the computer by forensic examination. If the prosecution could have by someway proved the defendant had the images open on his screen at some point, he'd still be guilty of possession even if he didnt save it to his hard disk.

Panther

Magic Sean. To answer your question there are a huge amount of countries in Interpol that have no adequate laws regarding child porn http://www.icmec.org/en_X1/icmec_publications/English__6th_Edition_FINAL_.pdf about half of them are at fault with some of them having nothing at all!

Dermot, thanks for that. It leads to my way of thinking on the matter that unless you catch someone in the act then they would get away with it. It will be interesting to see how I get marked on it in my project as it's a tricky one to get your head around.