Court hears whether browsing to a website alone can amount to "knowing possession" of an image

The court heard competing interpretations of Washington's possession and viewing statutes in State v. Lane, case no. 597551, during oral argument on the sufficiency of evidence for a "knowing possession" count.

Edward Wicksler of the Washington Appellate Project told the panel that "Does going to a website without more establish the knowing possession of any image contained on that website simply because a user's computer automatically stores those images into a cache?" He argued the answer should be no, saying the state must prove both that an image was actually stored on a hard drive in the defendant's possession and that the defendant knew it was stored there. Wicksler emphasized that Exhibit 39 was introduced as a cached image and said the record lacks evidence that Mr. Lane knew how cache files worked, opened or modified Exhibit 39, or intentionally stored it.

For the State, Colin Hayes urged the court to uphold the convictions, arguing the totality of circumstances demonstrated intentional viewing and dominion over the files. "Viewing these images on your computer gives you dominion control over that image," Hayes told the court, adding that a user can zoom, delete or copy an image displayed on a machine and that juries can infer that control from context including use of anonymity tools and the presence of other devices with illicit materials.

Both sides cited precedent and legislative history in support of their views. Hayes pointed to statutory language and intent indicating that the creation of a separate online-viewing offense was not meant to restrict existing possession laws; Wicksler warned that construing possession to include passive browsing would render the separate viewing statute superfluous. The court did not rule from the bench and took the case under advisement.