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Comments
People v. Flick: Modernizing Michigans
Child-Pornography Statute to
Criminalize Viewing in Response to
Evolving Internet Technology

JULIANNE C. FITZPATRICK*
ABSTRACT

There is an undeniable connection between the development of the

Internet and the proliferation of child pornography in the twenty-first
century. Presently, many states punish knowing possession of such
materials; however, this statutory language becomes increasingly difficult
to apply as the growth of Internet technology draws into question the
meaning of possess. People are now able to access, view, and edit child-
pornographic materials without physical, tactile control.
In People v. Flick, the 2010 Michigan Supreme Court held that merely
viewing child pornography constituted knowing possession as defined
in the statute. While the Flick court ultimately made a policy decision to
protect children from the harms of child pornography, the decision
highlights two recurring risks: inconsistent judicial decisions and statutory
vagueness in violation of a defendants constitutional due process right to
notice. This Comment calls upon the Michigan legislature to serve as an
example for other states by amending its child-pornography statute to
include viewing as an independent offense separate from knowing
possession. This change would effectively curb the pattern of judicial
activism in child-pornography cases, uphold the constitutional guarantees

* Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Mathematics and

French, College of the Holy Cross (2009). I would like to thank the staff of the New England
Law Review for their dedication and diligence throughout the development and editing of this
Comment. I would also like to thank my mentor, Professor Lawrence Friedman, for his
surefooted and continuous guidance in my academics and beyond. Finally, I would like to
thank my family for their unending love and support of everything I do.

909
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of due process of law, and prevent child pornographers from slipping

through gaps in state child-pornography statutes.

Child pornography harms and debases the most defenseless of our

citizens. Both the State and Federal Governments have sought to
suppress it for many years, only to find it proliferating through the new
medium of the Internet.1

INTRODUCTION

E
volving Internet technology presents a new obstacle to maintaining
statutory clarity and applicability.2 While technology does not
equally affect all crimes, child pornography lends itself especially
well to the Internet medium.3 In response, many states, including
Michigan, have amended their child-pornography statutes to impose
harsher minimum sentences on offenders.4 But where Michigan has failed
to define the specific conduct the statute seeks to punish, it has created a
gap through which such perpetrators can escape liabilityultimately
rendering the statutory imposition of harsher sentences moot.5
Michigan statutory law makes it a crime to knowingly possess[] any
child sexually abusive material.6 In People v. Flick, the Michigan Supreme
Court interpreted knowingly possess to include viewing of child
pornography on a computer screen and remanded two defendants cases
for trial.7 There is no doubt that the decision reflected a legitimate policy
objectiveto punish those who view child pornographyhowever, the
Michigan court did not have the tools to logically effectuate that goal under

1 United States v. Williams, 553 U.S. 285, 307 (2008).

2 See generally Francis S. Monterosso, Note, Protecting the Children: Challenges that Result in,
and Consequences Resulting from, Inconsistent Prosecution of Child Pornography Cases in a Technical
World, RICH. J. L. & TECH., Spring 2012, at 1, 1-3.
3 See generally id. at 2-3.
4 Compare MICH. COMP. LAWS ANN. 750.145c(4) (1994) (classifying the knowing
possession of child sexually abusive materials as a misdemeanor, punishable for up to one year
in prison or a fine of no more than $10,000.00), with 2002 Mich. Pub. Acts 2288 (classifying the
knowing possession of child pornography as a felony, punishable for up to four years in
prison, or a fine of no more than $10,000.00), and MICH. COMP. LAWS ANN. 750.145c(4) (West
2011).
5 See, e.g., United States v. Kuchinski, 469 F.3d 853, 862-63 (9th Cir. 2006) (overturning a

defendants conviction for knowing possession of child pornography where the defendant
was unaware his computer automatically saved copies of images he viewed online as
temporary Internet files).
6 MICH. COMP. LAWS ANN. 750.145c(4).
7 See People v. Flick, 790 N.W.2d 295, 304-05, 307 (Mich. 2010).
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2012 People v. Flick and Evolving Internet Technology 911

the statutory language.8 Left with no other option and risking letting the
defendants go free, the court applied the doctrine of constructive
possession to encompass the defendants viewing because they did not
actually physically possess the computer images.9 The result was a
confusing decision in which the court conflated the elements of
constructive possession, glossed over inconsistencies between the two
defendants, and ultimately ignored the glaring reality that the Michigan
statute is simply outdated.10
The Michigan courts decision also highlights a conflict between state
policy to broadly and strictly punish those who access child pornography
and defendants constitutional due process right to notice of criminalized
conduct.11 The problem is one for both the court and future defendants.12
First, courts will reach inconsistent results if they continue to apply
outdated statutory language to new technology that was never
contemplated by the enacting legislature.13 The courts case-by-case use of
constructive possession to bridge this gap leads to inconsistent
interpretations of the statute, and it allows many defendants to escape
liability even when they have clearly viewed child pornography.14 Second,
for defendants, there are now issues of statutory vagueness and lack of
notice where viewing is not expressly criminalized under the statute.15
There is a simple solution to this problem: Michigan need only amend
the statute to expressly punish viewing child pornography separate and
apart from knowing possession.16 This would acknowledge the reality that
evolving Internet technology frustrates our traditional definition of
possession such that viewing has become the only common thread in all

8 See 750.145c(4) (punishing those who knowingly possess child pornography, but

making no mention of viewing). Strangely enough, the legislative history expressly

contemplates the increasing relevance of the Internet medium, stating that the term child
sexually abusive materials would include any depiction, made or produced by electronic
and even computer technology; however, the statutory language did not acknowledge new
offenses that might result therefrom. See Michigan Senate Fiscal Agency Bill Analysis, H.B.
5296 (2002).
9 See Flick, 790 N.W.2d at 305.
10 See infra Part III.
11 Compare Flick, 790 N.W.2d at 307 (It strains credibility to think that the Legislature
intended the provision at issuedesigned to protect children from sexual abuseto preclude
the prosecution of individuals who intentionally access and purposely view depictions of
child sexually abusive material on the Internet.), with infra Part IV.B.
12 See infra text accompanying notes 13-15.
13 See infra Part IV.A.
14 See infra Part I.A.2.
15 See infra Part IV.B.
16 See infra Part IV.C.
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child-pornography crimes.17 The amendment would also create a way for

the court to use the presence of temporary internet files (TIFs) as proof of
crime because TIFs are circumstantial evidence that a defendant viewed
child pornography.18 The court would no longer need to perform a
complicated constructive-possession analysis, and the statute would cast a
broader net in capturing perpetrators of varying types of child-
pornography offenses.19
This Comment will analyze Michigans interpretation of its possession-
only child-pornography statute and the increased impracticality of such
language in the face of evolving Internet technology. Part I explains the
technological context in which these crimes arise, and specifically, how
TIFs distort our traditional interpretation of the term possession. In
addition, Part I defines possession under Michigan case law. Part II
presents an overview of the People v. Flick opinion. Part III analyzes the
gaps in the courts reasoning when it applied the doctrine of constructive
possession. Finally, Part IV proposes a solution to modernize the statute
using the analogous federal child-pornography statute as a template.

I. Background

A. The Proliferation of Internet Child Pornography

Before the invention and accessibility of the Internet, child

pornographers used film, print materials, and the postal service to
distribute their goods.20 By the end of the twentieth century, there was a
marked shift from the use of tangible print media to digital images and
films, and the Internet became pornographers new medium of

17 Giannina Marin explains that:

[T]he concept of possessing something digital is more elusive. Looking at
materials on a computer screen might seem more like window-shopping
than physical interaction with the materials. However, surfing the
Internet involves significant interaction and exchange of information
between a users computer and the web servers visited. Furthermore, the
user retains a significant level of control over the information on the
computer.
Giannina Marin, Note, Possession of Child Pornography: Should You Be Convicted When the
Computer Cache Does the Saving for You?, 60 FLA. L. REV. 1205, 1207 (2008) (footnote omitted);
see also infra note 150 and accompanying text.
18 See infra Part I.A.1.
19 Compare infra Part III, with infra Part IV.C.
20
Rebecca Michaels, Note, Criminal LawThe Influence of Possession in Prohibition of Child
Pornography Statutes: Why Viewing a Crime Scene Should Be Criminal, 30 W. NEW ENG. L. REV.
817, 824 (2008).
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communication and distribution.21 As a result, the number of child-

pornography materials in circulation increased exponentially, and
improvements in Internet technology only seem to aid in their
dissemination.22
While there is no doubt that this ugly community is vast and
continuously growing, it remains fairly concealed; above all else, child
pornographers are concerned with maintaining their secrecy.23 They bury
their product and force customers to go to great lengths to uncover it.24 As
a result, child pornographers have become tech savvy, and child-
pornography crimes are increasingly harder to regulate.25 Law enforcement
urges that they can keep up with the perpetrators by discovering these
materials through the use of computer forensics, and thus the more
challenging and difficult issue is whether the prosecutor can show that the
perpetrator had the requisite mens rea to convict him under the governing
state or federal statute.26

1. Computer Technology for Lawyers 101: A Cache Course

on Temporary Internet Files27

Typically, child-pornography viewers either download images from

the Internet or view them within their Internet browsers without
downloading them.28 However, even when one merely views the images
without downloading them, the computer automatically saves a copy of

21 Ty E. Howard, Dont Cache Out Your Case: Prosecuting Child Pornography Possession Laws

Based on Images Located in Temporary Internet Files, 19 BERKELEY TECH. L.J. 1227, 1228 (2004).
22 Id. (Child pornography has gone high technology, and there is no sign of the trend

abating.); Oversight Hearing on the Federal Bureau of Investigation: Hearing Before the H. Comm.
on the Judiciary, 110th Cong. 7 (2007) (statement of Robert S. Mueller III, Director, Federal
Bureau of Investigation), available at http://judiciary.house.gov/hearings/july2007/Mueller
070726.pdf (testifying before Congress that in 1996, the FBI investigated only 113 cases
involving online child pornography, whereas in the first six months of 2007 the FBI
investigated over 5000 such cases).
23 See Susan S. Kreston, Emerging Issues in Internet Child Pornography Cases: Balancing Acts, J.
INTERNET L., June 2006, at 22, 26 (For the same reason that drug dealers do not stand on street
corners shouting out their wares for the general public to hear, child pornographers do not
make their sites readily available to the general public for fear of being detected by the
police.).
24 Id. (explaining that to access child pornography, an individual must consciously
choos[e] a dozen times, or more, to click on icons and hyperlinks that assist and direct them in
the active search for child pornography).
25 Howard, supra note 21, at 1228.
26 See id. at 1228-29.
27 Id. at 1229 (clarifying that cache is pronounced cash).
28 Marin, supra note 17, at 1212.
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the website on its hard drive in what is called a cache.29 A cache is a

mechanism intended to increase how quickly Internet displays load.30 The
first time a user accesses a webpage, the computer opens the website and
displays it on the screen while the cache simultaneously saves a copy of the
page as a TIF.31 When the user returns to the same website, the computer
may retrieve the previously-saved TIFinstead of reloading the website
off the Internetas long as the website remained unchanged.32
The actual caching process occurs automatically anytime the computer
user visits any website.33 It is possible for the user to customize his
computers cache,34 but that would imply that the user knows that the
cache process is occurring, and the average computer user usually does not
comprehend the workings of the cache.35 Nevertheless, once TIFs are in the
computers hard drive, TIFs are, for all intents and purposes, real files that
the user can manage and manipulate as he would any other file.36

2. Distinguishing Possession and Viewing and the Role

of TIFs as Proof of Crime

The federal government and many states criminalize the possession of

child pornography.37 In Osborne v. Ohio, the U.S. Supreme Court held that
states have a legitimate interest in criminalizing both possession and
viewing of child pornography.38 Prior to Osborne, child-pornography
statutes proscribed merely the production, sale, or distribution of images.39
While many states reacted to Osborne by amending their respective

29 Howard, supra note 21, at 1229-30.

30 Id. at 1229.
31 Marin, supra note 17, at 1213.
32 Id. at 1213.
33 Id.
34 See Howard, supra note 21, at 1230-31. For example, a user may purchase software to
increase or decrease the size of the cache or to delete the files in the cache. Id. A user may also
delete the contents of the cache manually. Id.
35 Marin, supra note 17, at 1213-14; see also Commonwealth v. Simone, No. 03-0986, 2003

WL 22994238, at *29 (Va. Cir. Ct. Nov. 12, 2003) (*T+here is no mechanism on the computer
screen that notifies a user . . . .), revd, No. 0551-04-1, 2005 WL 588257 (Va. Ct. App. Mar. 15,
2005).
36 See United States v. Tucker, 305 F.3d 1193, 1204-05 (10th Cir. 2002) (Anything *a user+

could do with any other file he could do with *the pornographic+ files. (quoting witness
testimony)).
37 See Howard, supra note 21, at 1237 & n.31, for a list of state statutes that prohibit
possession of child pornography. Usually the statutes require that the defendant have acted
knowingly. Id. at 1237.
38 Osborne v. Ohio, 495 U.S. 103, 111 (1990).
39 Michaels, supra note 20, at 830.
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statutes, most states only went as far as to criminalize knowing

possession, without making any explicit reference to viewing.40
Though seemingly trivial, the existence of TIFs creates a need to
distinguish between possession and viewing.41 In many cases, the
defendant admits to viewing child-pornographic images online through his
Internet browser but argues that he did not possess the images because he
did not download them to his computer.42 In these situations, prosecutors
often turn to the presence of TIFs on the defendants computer to show that
by viewing the images, the defendant came to possess them because the
computer generated the TIF.43 However, the presence of TIFs frustrates the
courts evaluation of the defendants mens rea, that is, whether he had
knowledge that he possessed child-pornographic materials.44 When TIFs
are the only evidence of a defendants contact with child pornography, the
resulting inquiry is whether the defendant knew his computer
automatically stored the TIFs.45 Thus far, all federal courts addressing the
issue have found that the defendant must know the cache exists in order to
knowingly possess the TIFs on his computer.46 Thus, in many cases the
defendants lack of knowledge on how a cache operates has been enough
for him to escape conviction altogether.47

40 Id. at 830-31. Only three states expressly criminalize viewing of child pornography

within their statutes: Arkansas, New Jersey, and Ohio. Id. at 831; see also ARK. CODE ANN. 5-
27-304(a)(2) (2006); N.J. STAT. ANN. 2C:24-4(5)(b) (West 2005); OHIO REV. CODE ANN.
2907.323(A)(3) (West 2006).
41 Michaels, supra note 20, at 832.
42 Id.
43 Id.
44
See, e.g., United States v. Kuchinski, 469 F.3d 853, 862 (9th Cir. 2006) (What is in
question is whether it makes a difference that, as far as this record shows, Kuchinski had no
knowledge of the images that were simply in the cache files. It does.).
45 See, e.g., United States v. Tucker, 305 F.3d 1193, 1205 (10th Cir. 2002). The court reasoned:
Tucker may have wished that his Web browser did not automatically
cache viewed images on his computers hard drive, but he concedes he
knew the Web browser was doing so. . . . Since he knew his browser
cached the image files, each time he intentionally sought out and viewed
child pornography with his Web browser he knowingly acquired and
possessed the images.
Id.
46 See, e.g., Kuchinski, 469 F.3d at 861; United States v. Romm, 455 F.3d 990, 1000 (9th Cir.

2006); United States v. Bass, 411 F.3d 1198, 1201 (10th Cir. 2005); United States v. Stulock, 308
F.3d 922, 925 (8th Cir. 2002).
47 See Kuchinski, 469 F.3d at 862-63 (holding that defendants who merely view child

pornography and unknowingly have such files in their Internet cache cannot be convicted of
possession of child pornography); see also Romm, 455 F.3d at 1000 (We agree generally with
Tuckers analysis. . . . Therefore, to possess the images in the cache, the defendant must, at a
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In states that have possession-only statutes, courts often employ the

doctrine of constructive possession to additionally criminalize viewing.48
The key issue under this analysis is whether the defendant had the ability
to control the images on his computer while he was looking at them.49 The
defendants knowledge becomes easier to prove because the defendant
knows he viewed the images on the screen, and thus, there is no need to
delve into the presence of TIFs.50 While some legal scholars have classified
the constructive possession approach as an insightful application of
traditional concepts to a new situation,51 the analysis runs the risk of
becoming too attenuated.52

B. The Language of the Michigan Child-Pornography Statute: A

Person Who Knowingly Possesses53

Like most statutory schemes, Michigans penal code provides a

standard of statutory construction when statutory language is otherwise
unclear.54 The Michigan rule of construction prescribes that courts should
interpret statutes according to the fair import of their terms, to promote
justice and to effect the objects of the law.55 In People v. Hill, the Michigan
Supreme Court elaborated on this provision, stating that [w]hen
construing a statute, the Courts primary obligation is to ascertain the
legislative intent that may be reasonably inferred from the words
expressed in the statute. . . . If the language of the statute is unambiguous,
the Legislature is presumed to have intended the meaning expressed.56

minimum, know that the unlawful images are stored on a disk or other tangible material in
his possession.).
48 Michaels, supra note 20, at 837-38. Courts employ a similar approach to that which they

use for drug- and gun-possession cases. See, e.g., United States v. Riccardi, 258 F. Supp. 2d
1212, 1223 (D. Kan. 2003) (The court believes that the government may prove knowing
possession of child pornography, just as in the case of illegal possession of weapons, by
establishing that a defendant constructively possessed the contraband.).
49 See Michaels, supra note 20, at 835.
50 Contra Marin, supra note 17, at 1216 (explaining how the constructive-possession
analysis is an insightful application of traditional concepts to a new situation but that it
depends largely on evidence of control).
51 Id.
52 See generally People v. Flick, 790 N.W.2d 295 (Mich. 2010). This Comment limits its
analysis to Michigans definitions and applications of constructive possession.
53 MICH. COMP. LAWS ANN. 750.145c(4) (West 2011).
54 Id. 750.2.
55 Id.
56 786 N.W.2d 601, 606 (Mich. 2010) (quoting G.C. Timmis & Co. v. Guardian Alarm Co.,
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2012 People v. Flick and Evolving Internet Technology 917

Thus, it is more probative for Michigan courts to turn to state case law to
define possession.57
Defining possession has been a relatively recent undertaking in
Michigan.58 It was not until the 1980s that the Michigan Supreme Court
explicitly and consistently defined possession to include both actual and
constructive possession, and it was in the context of firearms.59 With
respect to actual possession, Michigan has adopted the Blacks Law
Dictionary definition of: [p]hysical occupancy or control over property.60
As for constructive possession, Michigan has borrowed its definition from
federal courts, defining constructive possession as the power and the
intention at a given time to exercise dominion or control over a thing,
either directly or through another person or persons . . . .61 In addition, the
Michigan Supreme Court recognizes the Michigan Appellate Courts
definition, which states: a person has constructive possession if there is
proximity to the article together with indicia of control.62 Synthesizing
federal and state appellate rules, Michigans composite definition of
constructive possession has three distinct elements. The defendant must
have (1) knowledge of the location of the object; (2) the ability (power) to
exercise control over the object; and (3) the intent to exercise that control
over the object.63

II. The Michigan Supreme Courts Opinion in People v. Flick

A. Facts and Procedural History

In People v. Flick, the Michigan Supreme Court consolidated two similar

cases that asked the court to define the scope of knowingly possess
within the states child-pornography statute.64 Both defendants
intentionally accessed child-pornography websites; however, after seizing
and inspecting their computers, authorities only found child-pornographic
images in the form of TIFs, which the computers cache mechanisms had
stored automatically.65 The government charged the defendants with

662 N.W.2d 710, 713 (Mich. 2003) (citation omitted)).

57 See Flick, 790 N.W.2d at 301-03.
58 See id. at 303.
59 See, e.g., People v. Wolfe, 489 N.W.2d 748, 753 (Mich. 1992); People v. Hill, 446 N.W.2d
140, 143 (Mich. 1989); People v. Davis, 300 N.W.2d 497, 499 (Mich. Ct. App. 1980).
60 BLACKS LAW DICTIONARY 1281 (7th ed. 1999); see Flick, 790 N.W.2d at 302 (citing BLACKS

LAW DICTIONARY (7th ed. 1999)).

61 Hill, 446 N.W.2d at 143 (quoting United States v. Burch, 313 F.2d 628, 629 (6th Cir. 1963)).
62 Id. (citing Davis, 300 N.W.2d at 499).
63 See Burch, 313 F.2d at 629; Hill, 446 N.W.2d at 143.
64 790 N.W.2d at 297; see MICH. COMP. LAWS ANN. 750.145c(4) (West 2011).
65 Flick, 790 N.W.2d at 297 & n.1. Authorities did find, however, that Flick had
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possession of child sexually abusive material, a felony under Michigan

law.66
In the first case, the defendant Flick moved to dismiss the charges
arguing that he had not possessed the child sexually abusive materials as
required under the statute.67 The district court denied Flicks motion,
stating that it stretches the imagination somewhat to argue that a person
does not possess child pornography where he admits he purchased it and
downloaded it no matter where it appears on his computer system.68 Flick
then moved to quash the information in the county circuit court, arguing
that he merely viewed child pornography and never knowingly possessed
the images.69 The circuit court denied Flicks motion to quash and refused
to dismiss the case.70 Flick then appealed.71
The court of appeals consolidated Flicks appeal with the prosecutions
appeal in People v. Lazarus.72 Together, the defendants argued that the
statute only punished knowing possession of child pornography, but
nowhere did it criminalize mere viewing.73 The defendants also argued
that the presence of TIFs did not amount to knowing possession where the
defendants were unaware their computers automatically saved the TIFs.74
The court of appeals held that because the defendants sought, paid for,
received and viewed the child-pornographic images, and that the images
continued to reside within their computers, it permitted the inference that
the defendants knowingly possessed the pornographic images.75 Flick and
Lazarus subsequently appealed to the Michigan Supreme Court.76
On appeal, the Michigan Supreme Court stated it would address the
following issues:
(1) whether intentionally accessing and viewing child sexually
abusive material on the Internet constitutes knowing
possession of such material under [Mich. Comp. Laws ]
750.145c(4); and (2) whether the presence of automatically created
temporary internet files on a computer hard drive may amount

downloaded child-pornography files but later deleted them. Id. at 298. There was no such
evidence with respect to Lazarus. See infra note 120.
66 Flick, 790 N.W.2d at 297; MICH. COMP. LAWS ANN. 750.145c(4).
67 Flick, 790 N.W.2d at 298.
68 Id. (quoting the district courts denial of the defendants motion to dismiss).
69 Id.
70 Id.
71 Id. at 298-99.
72 Nos. 277925, 278531, 2008 WL 5382645, at *1 (Mich. Ct. App. Dec. 23, 2008).
73 Id. at *4.
74 Id. at *5.
75 Id.
76 People v. Flick, 765 N.W.2d 340, 340 (Mich. 2009).
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to knowing possession of child sexually abusive material or

may be circumstantial evidence that defendant knowingly
possessed such material in the past.77

The court held that the defendants did more than just passively view the
images on their computer screens; rather, they constructively possessed the
images, which is punishable under the statute.78

B. The Majority Opinion: Viewing + Control = Knowing Possession

The majority opinion focused its analysis on interpreting the term

possession such that it encompassed viewing of child-pornographic
materials.79 The court began by reiterating that the goal of statutory
interpretation is to determine and give effect to the legislatures intent.80
Generally, the court must interpret undefined statutory words or phrases
according to their plain, ordinary meaning, unless they are terms of art
with a unique legal meaning.81 Accordingly, the court cited to the legal-
dictionary definition of possession, and the court highlighted that the
legislature used knowingly to modify possess to require a certain mens
rea element for establishing criminal culpability.82 The court concluded that
knowingly possess must mean that one either knowingly has actual
physical control (i.e., actual possession) or one knowingly has the power
and the intention at a given time to exercise dominion or control (i.e.,
constructive possession) over child-pornography materials.83
The court dismissed the defendants argument that they merely
viewed the images and thus did not knowingly possess them because the
court believed the argument ignore[d] [the] defendants intention and
power to exercise control or dominion over the depictions . . . displayed on

77 Id.
78 People v. Flick, 790 N.W.2d 295, 298 (Mich. 2010).
79 See generally id. at 300-06.
80 Id. at 301 (The words of a statute provide the most reliable indicator of the Legislatures
intent and should be interpreted on the basis of their ordinary meaning and the overall
context in which they are used. (citing People v. Lowe, 773 N.W.2d 1, 2 (Mich. 2009))).
81 Id. Courts consult a lay dictionary because the term is more likely to appear there than

in a legal dictionary. People v. Thompson, 730 N.W.2d 708, 711 (Mich. 2007). However,
Michigan statutory law provides that technical words and phrases, and such as may have
acquired a peculiar and appropriate meaning in the law, shall be construed and understood
according to such peculiar and appropriate meaning. MICH. COMP. LAWS ANN. 8.3a (West
2011).
82 Flick, 790 N.W.2d at 302; BLACKS LAW DICTIONARY 1281 (7th ed. 1999) (defining the verb

possess as *t+o have in ones actual control; to have possession of, and defining the noun
possession as *t+he fact of having or holding property in ones power; the exercise of
dominion over property).
83 Flick, 790 N.W.2d at 302-03; see supra Part I.B.
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their computer screens.84 The court reasoned that the fact that the
defendants took affirmative steps to gain access and control over such
images contradicted their assertion that they merely viewed the images.85
In response to defendant Flicks argument that he deleted the images and
thus did not possess them, the court reasoned that the defendants could
not have deleted the images without first having actual or constructive
possession over them.86 The court concluded that it was not the viewing
alone that amounted to knowing possession, but rather it was the
affirmative steps the defendants took to view the images that proved their
constructive possession over the images at the moment they viewed
them.87 The court ultimately remanded the case and held that knowingly
possess in the Michigan statute included intentional viewing.88

C. Additional Opinions: Struggling with the Implications of TIFs

In addressing the second issue on appeal,89 the concurrence found that

the presence of TIFs may be circumstantial evidence that a defendant
knowingly possessed the images on the screen at one point in the past.90
However, the concurrence agreed with the defendants in finding that the
mere presence of TIFs was not conclusive evidence of knowing possession
without other direct or circumstantial evidence establishing that the
defendants knowingly had the power and the intent to control the images
that appeared on their computer screens.91
In his dissent, Justice Cavanagh argued that the majority improperly
used the defendants power to exercise control and dominion over the
images in order to infer that the defendants had the intent to control the
images.92 He reasoned that it is a giant, and clearly erroneous, logical
leap to assume that each time an individual views images on a website
that person intends to interact with the images in such a way (by saving,
printing, e-mailing, etc.) that he exercises control or dominion over those
images.93 Furthermore, Justice Cavanagh noted that federal courts of
appeals generally have not held that the viewing and the presence of TIFs
constitutes knowing possession except where there is other evidence that

84 Flick, 790 N.W.2d at 304.

85 Id.
86 Id.
87 Id.
88 Id. at 307.
89 Id. at 307-08 (Corrigan, J., concurring).
90 Flick, 790 N.W.2d at 308.
91 Id.
92 Id. at 312-13 (Cavanagh, J., concurring in part and dissenting in part).
93 Id. at 313.
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2012 People v. Flick and Evolving Internet Technology 921

the defendant actually exercised dominion or control over the images, such
as saving or deleting them.94 In this situation, there was no such evidence:
the defendants were not even aware that their computers had
automatically saved TIFs.95
The majority preemptively responded to the dissents discussion of
how TIFs operate.96 The majority emphasized that even though computers
automatically save TIFs, in order for the computer to do so the user must
have taken some proactive measure to access the website on his own
volition, which serves as evidence of intent and knowledge.97 The majority
also refuted the dissents assertionthat a constructive-possession analysis
creates unnecessary confusionby indicating that the dissent conflate[ed]
[their] preliminary review of the legal definition of the undefined term
possesses in Blacks Law Dictionary (7th ed.) with [their] subsequent
discussion of the adverb knowingly.98

ANALYSIS

III. The Flick Court Strained to Apply the Doctrine of Constructive

Possession to Punish Viewing Under the Statute.

It is clear that the Michigan Supreme Court wanted to uphold the

policy that people who view child pornography without actually
possessing it should incur criminal liability because they are still
participating in an action degrading to children.99 The issue with the
courts holding, however, is that its conclusion did not find support in the
clear language of the statute.100 The court stretched the statutory language
far beyond its intended meaning by utilizing complex logic that was
grounded in the conflagration of constructive possession with TIF
technology.101 This is common of many courts in states with possession-
only child-pornography statutes, and it is most likely attributable to the
courts fear that defendants who only view and do not actually possess
child pornography will slip through the statutes grasp.102 At the root of

94 Id. at 314-15 (citing United States v. Kuchinski, 469 F.3d 853, 861-63 (9th Cir. 2006); see
also United States v. Romm, 455 F.3d 990, 997-98 (9th Cir. 2006)).
95 Flick, 790 N.W.2d at 311.
96 Id. at 306-07 (majority opinion).
97 See id.
98 Id. at 307.
99 See id.
100 See MICH. COMP. LAWS ANN. 750.145c(4) (West 2011) (criminalizing only someone
who knowingly possesses with no mention of viewing).
101 See Flick, 790 N.W.2d at 300-07.
102 See supra notes 48-52 and accompanying text.
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922 New England Law Review v. 46 | 909

this problem is the widening gap between the stagnant nature of statutory
language and the rapid development of modern Internet technology.103
Since the Michigan Supreme Court knew the legislature was aware of its
own difficulty in keeping up with technology, it twisted its logic to fit the
statutory language.104

A. The Court Incorrectly Inferred Intent from Power.

The court avoided reasoning that the defendants actually possessed the
pornographic images because the only evidence of such images were TIFs,
and it was clear that the defendants did not know their caches stored them
automatically.105 Instead, the court reasoned that the defendants had
constructive possession over the images at the time they viewed them,
rendering the act of viewing punishable under the Michigan possession-
only statute.106 While the majority theorized that constructive possession
could be shown by the power and intent to control the images with
keystrokes and mouse clicks,107 it struggled to keep the power and intent
elements separate.108
At this juncture, it is important to note the distinctions between each
defendants factual circumstances. Flick downloaded and subsequently
deleted images from his computer, and the majority explained that in order
to voluntarily delete the images from his hard drive, Flick must have had
both the power and intent to delete them.109 The court logically reasoned
that when Flick viewed the images, he had the power to control them by
means of accessibility to the files and the skill set to command the
computer to delete the images.110 The court then separately determined that
Flick also had the intent to control the images because he subsequently
downloaded and deleted themvolitional acts of control.111

103 See supra Parts I.A.2, I.B.

104 See supra note 101 and accompanying text.
105 See Flick, 790 N.W.2d at 311 (Cavanagh, J., concurring in part and dissenting in part)
(*T+here is no evidence in the record before this Court that either defendant was aware of the
TIFs, had accessed the TIFs, or had manually or intentionally deleted TIFs or any other files
with prohibited images.).
106 Id. at 307 (majority opinion); see also id. at 313 (Cavanagh, J., concurring in part and

dissenting in part) (discussing the majoritys holding).

107 Id. at 304-05 (majority opinion) (for example, the defendants could save, email, print,

enlarge, and delete the images).

108 See id. at 313 (Cavanagh, J., concurring in part and dissenting in part) (*T]he majority is
apparently holding that an intention to exercise dominion and control over prohibited images
on a computer screen can be inferred whenever a defendant simply has the power to do so.).
109 Id. at 304 (majority opinion).
110 Id.
111 Flick, 790 N.W.2d at 304.
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2012 People v. Flick and Evolving Internet Technology 923

In contrast to Flick, the only explicit images that detectives found on

Lazaruss computer were in the form of TIFs.112 Despite having the power
to exercise control over the images on his screen at the time he viewed
them, there was neither evidence that Lazarus saved the images himself
nor that he took any other actions involving them aside from his initial
viewing.113 There was no way to prove that Lazarus had any intent to
control the images he viewed, so the court glossed over the element of
intent, claiming that Lazaruss power to control them must signify that he
also had the intent to do so.114
Ultimately, the court failed to consistently apply the doctrine of
constructive possession to both defendants.115 Rather, the court
manipulated the doctrine, blending the two distinct elements of power and
intent because it knew it could not otherwise conclude that the defendants
constructively possessed images as they viewed them.116 Without
constructive possession, there was no other clear approach to prove that
merely viewing images amounted to knowing possession under the
existing possession-only statute.117 As a result the court acted as a super-
legislature out of fear that the statute as written would not adequately
punish viewing of child pornography.118

B. The Court Did Not Fully Address the Significance of TIFs.

The majority did not address the second issue on appeal: whether the
presence of TIFs can constitute knowing possession of child
pornography under the doctrine of constructive possession or whether

112 Id. at 299.

113 See id. at 304 (Regardless of whether the only remaining presence of child sexually
abusive material on defendant Lazaruss computer was located in his temporary Internet files,
the contraband depictions at issue are the electronic visual images or computer images on
his computer screen, and not the automatically created temporary Internet files.).
114 Cf. id. at 304-05 (When defendants purposely accessed depictions of child sexually

abusive material on their computer screens, each defendant knowingly had the power and the
intention to exercise dominion or control over the depiction in myriad ways with a few
keystrokes or mouse clicks.).
115 See id. at 304.
116 See id. at 313 (Cavanagh, J., concurring in part and dissenting in part) (*T+he majority
does not argue that accessing and viewing the prohibited images constituted an actual
exercise of dominion or control. Instead, it argues that because defendants intentionally
accessed and viewed the images, defendants must have also had the power and intention to
take an additional action to exercise dominion and control, such as saving or e-mailing the
images.).
117 See Flick, 790 N.W.2d at 313. But see id. at 300-07 (majority opinion).
118 See id. at 304.
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924 New England Law Review v. 46 | 909

TIFs merely serve as circumstantial evidence that the defendant knowingly

possessed child pornography at one time.119 This issue was incredibly
problematic for the prosecution because the TIFs were the only evidence on
Lazaruss computer that he viewed the explicit images.120 The court was
careful not to overreach when it reasoned that the defendants had the
intent to view the child sexually abusive materials at the time they purchased
access to websites displaying the images;121 however, in order to find that
the defendants constructively possessed the TIFs themselves, the court
would have had to find that the defendants had both the power and the
intent to exercise control over the TIFs.122
With respect to Flick, there was no evidence that he ever intended to
exercise control over the TIFs: When he deleted the downloaded images,
any intent he had to exercise control over the images ceased, and he was
unaware his computer retained the separate TIFs.123 As for Lazarus,
evidence showed only that he intended to view the images because he did
not conduct any further action over them, such as downloading them, and
he was unaware the TIFs existed.124 While the court could have found that
that the defendants had the power to exercise control or dominion over the
TIFs,125 it would be incomplete and presumptive for the court to assume
that the defendants therefore intended to exercise control or dominion over
TIFs.126

IV. The Michigan Legislature Should Follow Congresss Lead and

Amend the Statute to Establish Viewing as an Independent
Offense.

TIFs are circumstantial evidence of intentional viewing because they

are copies of websites a computer user visits on his own volition.127 If the
Michigan statute expressly criminalized viewing, the Flick court could

119 See id. at 300 (asking the parties to address the issue); id. at 295-307 (lacking in the
majority opinion).
120 See id. at 304 (explaining that while Lazarus admitted that he paid to access websites

containing child pornography, forensic examination revealed that all the child-pornographic
images on Lazaruss computer were located in its TIFs).
121 Id. at 304-05.
122 See supra notes 45-47 and accompanying text.
123 See Flick, 790 N.W.2d at 311 (Cavanagh, J., concurring in part and dissenting in part).
124 See id.
125 See Marin, supra note 17, at 1213-14 (admitting TIFs are not stored in such a way that
they are completely inaccessible to the user but noting that a user needs advanced computer
skills to access cached files while the computer is offline, thus the cache is generally outside
the control of Internet users).
126 See Flick, 790 N.W.2d at 313.
127 See supra Part I.A.1.
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2012 People v. Flick and Evolving Internet Technology 925

have used the presence of TIFs as evidence that the defendants must have
intentionally viewed child sexually abusive materials because the TIFs
would not otherwise exist.128 Thus, by amending the Michigan possession-
only statute to include viewing, the Michigan legislature would decrease
the difficulty of applying constructive possession to TIFs, and it would
allow the Michigan court to use TIFs more effectively as proof of crime.129
The key underlying issue is that the Flick court attempted to use the
doctrine of constructive possession to punish an act involving computer
technology under a law written prior to the relevance of TIFs.130 If the court
continues along this path, the discrepancy between Michigan case law and
Michigan statutory law risks becoming so vast that case law will no longer
reflect the nature of the statute.131 As a result, the Michigan court risks
reaching inconsistent verdicts, and defendants risk deprivation of their
constitutional due process right to notice of criminal conduct they may not
commit.132

A. Failure to Amend the Statute Results in Judicial Inconsistency.

In Flick, the Michigan court found a way to stretch its logic to make the
defendants actions fit within vague statutory language.133 As the Michigan
court continues to define the contours of the Michigan statute on a case-by-
case basis, the court will assuredly reach inconsistent results, undermining
the Michigan courts legitimacy.134 Federal courts have struggled to
incorporate the role of TIFs into their analysis of possession, and this is
only predictive of the future challenges that the Michigan court will face.135
Congress has already acknowledged this reality: It amended the federal
child-pornography statute to criminalize viewing to account for
technological advancements that rendered possession more difficult to
define and analyze.136

128 See supra Part I.A.1; supra text accompanying note 116; cf. Flick, 790 N.W.2d at 313.
129 See infra Part IV.C.
130 See Howard, supra note 21, at 1255-57 (discussing the use of knowledge by courts in
constructive-possession casesas hereversus actual-possession cases).
131 See discussion supra Part III.
132 See supra Part I.A.2.
133 See generally 790 N.W.2d 295, 297-307 (Mich. 2010).
134 See, e.g., id. Flick represents one example of the Michigan Supreme Courts willingness
to utilize a case-by-case approach to interpret the statute to reach a particular, policy-driven
outcome.
135 See supra notes 44-47 and accompanying text.
136 See infra Part IV.C.
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926 New England Law Review v. 46 | 909

B. Failure to Amend the Statute Results in Vagueness and Violates

Defendants Due Process Right to Notice.

The requirement of statutory clarity is implicit in the Due Process

Clause of the Fourteenth Amendment where the defendants right to notice
is a protected procedural guarantee.137 Under what is commonly referred to
as the vagueness doctrine, an ambiguous criminal statute can be
unconstitutional for one of two reasons, either it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct
it prohibits; or it authorizes or even encourages arbitrary and
discriminatory enforcement.138 This rule protects the defendant from
being convicted of a crime he might not have known he was committing.139
Nowhere in the Michigan statute does the word view appear with
respect to child pornography.140 Where the Flick court inferred that
knowingly possesses included the viewing of child pornography, it is
unfair to assume that the statute as written affords notice to individuals
with ordinary intelligence that viewing child pornography is a crime.141
While Flick definitively established that viewing constituted knowing
possession, this case law solution fails to adequately notify the defendant
that viewing child pornography is a crime because notice is not provided
on the statutes face.142

C. The Michigan Legislature Must Amend Its Possession-Only Child-

Pornography Statute to Include Viewing as an Express and
Independent Offense in the Face of Rapidly Evolving Internet
Technology.

As Bob Dylan simply stated, the times they are a-changin, and the
legislature cannot ignore the Internet technology phenomenon.143 As
written, Michigans child-pornography statute merely contains the
language knowingly possess without further definition or illustration.144
When the statute was writtenbefore the Internet became the dominant
medium for child pornographythe simple phrase knowingly possess

137 See In re Banks, 244 S.E.2d 386, 388 (N.C. 1978).

138 Hill v. Colorado, 530 U.S. 703, 732 (2000) (citing Chicago v. Morales, 527 U.S. 41, 56-57
(1999)).
139 See Banks, 244 S.E.2d at 388 (discussing the principles of statutory construction when it
is argued that a statute is void for vagueness).
140 See MICH. COMP. LAWS ANN. 750.145 (West 2011).
141 See 750.145c(4); Morales, 527 U.S. at 56.
142 See supra note 138 and accompanying text.
143 See BOB DYLAN, The Times They Are A-Changin, on THE TIMES THEY ARE A-CHANGIN
(Columbia Records 1964).
144 750.145c(4).
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2012 People v. Flick and Evolving Internet Technology 927

was adequate because child-pornographic materials only appeared in

hard-copy form.145 As new technology develops, the meaning of the
statutory language becomes increasingly vague, and Michigan case law
must redefine possession to accommodate and include new offenses, such
as the viewing of child pornography on the Internet.146 Since the statute in
its present form fails to account for technological changes, the Michigan
court is effectively being forced to legislate from the bench.147 The Michigan
legislature might well argue that the word possesses is timeless and
shields it from having to amend the statute each time a new technology
develops.148 While this is a practical consideration, the Michigan legislature
presumes that all forms of child pornography may somehow be possessed,
which might be harder to definitively assert as Internet technology
advances.149
Despite evolving technology, all forms of child pornography still share
a common, inherent attribute: They may be viewed.150 The Michigan
legislature should amend its statute to expressly include intentional
viewing of child sexually abusive materials as an independent offense.151 It
could be as simple as rewriting the statute to punish anyone who
knowingly possesses or intentionally views, similar to the federal child-
pornography statute.152

1. The Federal Counterpart: Language, History, and Purpose

The Federal Child Pornography Prevention Act (CPPA)

distinguishes between possession and viewing, acknowledging the role of

145 See supra Part I.A; see also supra note 48 (discussing courts practice of likening the

possession of drugs and handguns to the possession of child pornography in pre-digital print
and film form).
146 See MICH. COMP. LAWS ANN. 750.145c(4).
147 See People v. Flick, 790 N.W.2d 296, 298 (Mich. 2010).
148 See Beryl A. Howell, Real World Problems of Virtual Crime, 7 YALE J.L. & TECH. 103, 115-16
(2004); supra notes 50-52 and accompanying text.
149 See, e.g., Michaels, supra note 20, at 855 (providing the example of an online

videoconference live feed of a child in the act of being sexually exploited as a form of child
pornography which a defendant could claim he did not possess). For a compelling story on
the increased ease with which predators use other online mediums that are growing more
difficult to regulate, see Kurt Eichenwald, Through His Webcam, a Boy Joins a Sordid Online
World, N.Y. TIMES, Dec. 19, 2005, at A1 (chronicling the story of a thirteen-year-old boy who
was lured into selling images of his body on the Internet over the course of five years, via
his webcam, and explaining how the high-tech boom has changed the face of child-
pornography crimes).
150 Michaels, supra note 20, at 855.
151 See id.
152 See infra Part IV.C.2.
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928 New England Law Review v. 46 | 909

the Internet in todays child-pornography crimes.153 When Congress

originally enacted the CPPA in 1996, the statute only contained the phrase
knowingly possesses.154 In 2008, Congress amended the statute to make it
a federal offense to either . . . knowingly possess[] or knowingly access[]
with intent to view any visual image involving child pornography.155 The
CPPA also mentions the various mediums in which such visual depictions
may appear or be transported, including hard-copy sources and explicitly
listing by computer.156
Congress identified one purpose of this amendment as being to save
children from . . . predators and to make the Internet safer.157 Congress
centered its efforts on protecting against two wrongs: the direct harm child
pornography causes children where distributing child-pornography
images re-victimize[] the child each time the image is viewed,158 and the
future harm child pornography causes children where there is an
undeniable link between child pornography and child sexual abuse.159
Congress emphasized the critical role of the Internet in child exploitation
throughout the process of amending the statute.160 In a 2007 hearing,
Congress expressed that the Internet is an extraordinary means of
communication but that it unfortunately provides a venue for
unscrupulous sexual predators to commit their crimes161 and that there
has been an explosion of child pornography on the Internet.162 Within the
act itself, Congress characterized child pornography as a multibillion
dollar industry of global proportions, facilitated by the growth of the

153 See Enhancing the Effective Prosecution of Child Pornography Act of 2007 203, Pub. L.
No. 110-358, 122 Stat. 4001 (2008) (codified as amended at 18 U.S.C. 2252(a)(4)(A)-(B) (Supp.
II 2009)).
154 See Child Pornography Prevention Act of 1996, 18 U.S.C. 2252A(a)(5)(B) (1996), amended

by 18 U.S.C. 2252A(a)(5)(B) (Supp. II 2009).

155 18 U.S.C. 2252A(a)(5)(B).
156 Id.
157 See Sex Crimes and the Internet: Hearing Before the H. Comm. on the Judiciary, 110th Cong. 2
(2007) [hereinafter Hearing] (statement of Rep. Randy Forbes, Ranking Minority Member of
the Crime Subcomm.).
158 See Effective Child Pornography Prosecution Act of 2007 102(3), Pub. L. No. 110-358,

122 Stat. 4001 (2008) (codified as amended in scattered sections of 18 U.S.C.).

159 See Hearing, supra note 157, at 2 (*Eighty-five] percent of offenders who downloaded

child pornography also committed acts of sexual abuse of children.).

160 See id.
161 Id. at 1 (statement of the Hon. John Conyers, Jr., Chairman, H. Comm. on the Judiciary).
They use the Internet to join chatrooms and arrange sexual encounters with minors. They use
the Internet to distribute images of child sexual exploitation and other child pornography. Id.
162 Id. at 2 (statement of Rep. Randy Forbes, Ranking Minority Member of the Crime

Subcomm.).
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2012 People v. Flick and Evolving Internet Technology 929

Internet.163 Keeping the role of technology at the forefront of their

discussions, Congress amended the federal statute to encompass
viewing, reaching a broader array of offenses and accommodating future
technological advances.164

2. The Federal Statutes Acknowledgment of the Role of

Technology Should Serve as an Example for the Michigan
Legislature.

Michigans child-pornography statute punishes offenders for creation,

possession, and distribution of child pornography; the federal statute
punishes activities relating to child pornography in the context of its effect
on interstate commerce.165 The federal statute should serve as a model for
the Michigan legislature because Congress addressed the very same
problem facing the Flick court and all state courts with possession-only
child-pornography statutes.166 Congress expressly stated that the purpose
of the amendment was to fill[] a gap in existing law that has led some
courts to overturn convictions of possessors of child pornography.167
Congress firmly declared that its proposed solutionto criminalize not
only possession of child pornography, but also knowingly accessing child
pornography with the intent to view itwould correct case law
anomalies while protecting those who accidentally view child
pornography from prosecution.168 Likewise in Flick, the court struggled to
make viewing fit the possession-only language of the statute or risk the
defendants slipping through the gap.169
Congress also referenced cases in which there were TIFs on
defendants computers. There were records that the defendants viewed the
images, but the defendants were not guilty of violating the statute under
the narrow interpretation of knowingly possesses because they did not
know the cache automatically saved the images onto their computers.170
Similarly in Flick, where the court was presented with nearly identical facts,
the court could not find that the defendants knowingly possessed the TIFs.
Neither defendant knew the TIFs were present on their computers, and

163 Effective Child Pornography Prosecution Act of 2007 102(1).

164 See id.
165 Compare id. 102(7), with MICH. COMP. LAWS ANN. 750.145c (West 2011).
166 See, e.g., People v. Flick, 790 N.W.2d 295, 301 (Mich. 2010).
167 Hearing, supra note 157, at 39.
168 Id. at 40; see also United States v. Kuchinski, 469 F.3d 853, 863 (9th Cir. 2006).
169 See supra Part II.B.
170 Hearing, supra note 157, at 39-40 (noting that the motion to dismiss in United States v.
Teal, No. 1:04-CR-00042-CCB-1 (D. Md. Aug. 13, 2004) was due to a lack of evidence that the
defendant actually downloaded or saved the pictures); Kuchinski, 469 F.3d at 863.
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930 New England Law Review v. 46 | 909

instead, the court had to reason down a different, more convoluted path.171
However, if the Michigan statute contained the word view or viewing,
then the TIFs would have been circumstantial evidence of viewing, and the
court would not have needed to utilize the doctrine of constructive
possession.172

CONCLUSION

There is no doubt that the Internet has changed the nature, intensity,
and volume of child-pornography crimes. Unfortunately, the Michigan
legislature has yet to modernize its child-pornography statute in
response.173 Michigan serves as an example for why state legislatures
should direct their resources into updating their statutory language to
more adequately and precisely acknowledge the role of the Internet in
child-pornography offenses. States could then better effectuate their
policies to punish individuals who view (but do not actually knowingly
possess) child pornography and uphold their statutory obligation to
provide defendants with adequate notice that their conduct may be
criminal. In a field of crime so clearly dominated by the Internet, it is time
the Michigan legislature, and other similarly situated state legislatures,
stopped clinging to legalese and started being more practical.

171 See supra Part III.A.

172 See supra Part III.B.1-2.
173 See MICH. COMP. LAWS ANN. 750.145c(4) (West 2011).