Can a person be prosecuted for unknowingly possessing illegal computer files? Today there was a news article that claims researchers have found illegal files embedded in the Bitcoin blockchain. This is a large database-type file that contains a list of all the Bitcoin transactions that have ever happened along with possible "meta-data" and it's claimed that some of this data contains illegal images of child abuse. Bitcoin power users may have the entire blockchain downloaded locally to their computers, but people do not just browse the file for fun. It contains transaction data that is parsed by automated bitcoin clients and mining utilities, so you wouldn't expect any user to directly access the database and just browse it. Everyone's copy is exactly the same, so if illegal content is proved to be in the blockchain, then everyone with a copy possesses the illegal content. So, the question is... Could someone be arrested or otherwise "get in trouble" because they have a hidden illegal image on their computer that they do not know about? Especially since the file is hidden amongst useful data that is required for certain bitcoin tasks that the users do have a legal right to participate in? Tagging as US because that is my primary concern, but would be interested in other locations. It was German researchers that have found the material.
There is a federal law, 18 USC 2252, which criminalized distribution and receiving of child porn. One part of the law addresses a person who (1) knowingly transports or ships 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 mails, any visual depiction, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; The next part addresses one who (2) knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; The word "knowingly" is crucial here: it may mean that if you don't know, it's not a crime. The wording is not completely clear, in that maybe the law only says that you have to know that you received and don't have to know anything about the item that you received. So it is up the the Supreme Court to say exactly what that means. In US v. X-Citement Video, Inc., 513 U.S. 64, they did. The court held that "knowingly" does not just mean that you know you are receiving or distributing, because that would yield absurd results such as that a retail druggist who returned a roll of film unprocessed would be guilty of distributing child porn, just in case the film contains child porn. As the court says, "We do not assume that Congress, in passing laws, intended such results". There is a general constitutional presumption that any crime has a scienter requirement (Morissette v. United States, 342 U. S. 246, Staples v. United States, 511 U. S. 600): "the standard presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct". The court rejects the narrow interpretation that "knowingly" just applies to the verb, and "This interpretation is supported by the canon that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions". There are also state laws which are untouched by X-Citement, which may make possession of child porn a strict liability offense. Washington state law is written so that you have to know or intend ("Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, finances, attempts to finance, or sells a visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4) (a) through (e)" or "Possesses with intent to develop, duplicate, publish, print, disseminate, exchange, or sell any visual or printed matter that depicts a minor engaged in an act of sexually explicit conduct as defined in RCW 9.68A.011(4) (a) through (e)".) The statutory rape law on the other hand has no requirement pertaining to knowledge or intent (1) A person is guilty of rape of a child in the third degree when the person has sexual intercourse with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim. I don't know whether some state's statute was written without a "knowingly" requirement.
It's possibe to cover auto-starting apps and cookies under the definition. I'm not convinced and could argue against that but I don't think it matters. The tiny extract you linked isn't a law. It is a definition. It does not say &quot;these things are illegal&quot;. For that, we have to zoom out a little. Section 43 includes the offense in question (emphasis mine): If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network... introduces or causes to be introduced any computer contaminant or computer virus... So back to the question. Could Steam be considered a virus? Maybe. Is it illegal? No. On the other hand, if I were to gain access to your computer and download Steam, yes that could be an example of breaking that law.
Laws against such actions are not stated in terms of popular and fluid concepts like "computer virus", they are stated in terms of clear concepts like "unauthorized access". There are federal and state laws against this. This web site lists and links to all of the state laws on the matter. There is also a federal law: a detailed legal analysis by DOJ is given here. There are some limits to federal jurisdiction, for example "protected computers" include "computers used in or affecting interstate or foreign commerce or communication". The term "affecting interstate or foreign commerce or communication" is widely used in federal law, and can be used to prohibit growing feed for your own animals. Anything that you "send" clearly affects interstate commerce (the internet is internationally connected). 18 USC 1030(a) says Whoever ... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains...(C) information from any protected computer Essentially, a computer connected to the outside world is protected. The key here is "without authorization". If you authorize MS to report back stuff about your computer, that is not unauthorized. It may not be possible to use their product without giving such authorization, in which case you can use a different product that doesn't require that you grant authorization. There is also the possibility that some software producer has technically violates the law because they think that it's okay for them to access the computer as long as they do no harm. Typically, people are not aware that they have granted software publishers access to their computer. The concept of "harm" is pretty much irrelevant to computer-crime criminal law. It would be relevant, though, if a plaintiff were to sue someone for sniffing around their computer: then you'd have to show that you were damaged.
It's legal as long as you follow these guidelines: They [The Cached Files] are created only for the purpose of viewing (In Your case listening) content The copies do not unreasonably prejudice the legitimate interests of the rights holders. The creation of the copies does not conflict with a normal exploitation of the works. Source: http://www3.ebu.ch/contents/news/2014/06/eu-court-rules-on-legality-of-in.html
The user can always claim that. Whether such a claim will be believed is another matter. A party to a contract with a &quot;wet-ink&quot; signature can claim that it was forged or that the signer was impersonated. But such claims are hard to prove, particularly if they are not true. The answer to the question in the title is that terms are binding if the user freely agrees to them, and if they meet the conditions for a legally binding agreement in the relevant jurisdiction. The question in the body is more about what evidence will establish this. Suppose the code behind a web-site is so designed that no user is allowed to proceed without affirmatively accepting the ToS, and the operator can demonstrate this. That will be persuasive evidence that the user did accept the terms. If the site logs the consent in a database along with a timestamp that would be further evidence. A journaling database provides an audit trail of changes, which would be further evidence. Evidence of other users that the site always worked that way, and of coders that the code had never permitted a user to proceed without accepting the ToS might also help. Backups of the DB stored with a 3rd party including the consent logs would also provide evidence that the timestamps were present and unchanged. A hash of the log can be stored on the blockchain. The site could also send a &quot;registration accepted&quot; email to the user (if the user has provided an email address) which could include a mention that the user had accepted the ToS. Such an email would be reserved in the logs of the senders and receiver's email providers, and could be retrieved as evidence. Ultimately it will be a question of what the finder of fact believes, if the matter goes to court. And as user Amon says, the US standard is preponderance of the evidence (that is, the evidence is at least a little bit stronger on one side. This is sometimes loosely expressed as more than 50% or 51% or better proved, but courts do not in fact measure degrees of proof in numbers), not absolute proof.
According to EU case law, everything in your scenario is legal except if Example Site is hosting the image without authorization and Pirate Site is a for-profit site, then Pirate Site is presumed to be violating Article 3 of the Copyright Directive on communication to the public (in this scenario, Example Site is also trivially violating Article 2 on the right to reproduction). In Meltwater, Case C-360/13, the court ruled that browser cache and on-screen copies fell under the temporary reproduction exception, Article 5(1) of the Copyright Directive. This means that the visitor is not infringing copyright (IPKat reference). In BestWater, Case C-348/13, the court ruled that embedding content was itself not a communication to the public when that content was hosted with rightsholder authorization, and so did not violate Article 3. This means that Pirate Site is not infringing on communication to the public rights (it is also not creating a copy itself, so is not breaking Article 2) (IPKat reference). When content is not hosted with authorization, the situation is quite a bit more nuanced. GS Media, Case C-160/15, is the controlling case. Here, the court ruled that if a link (note it doesn't even have to be embedded/hotlinked) is posted by a for-profit site, that site is expected to have done its due diligence to ensure the linked content is hosted legally. Therefore, it is presumed to be violating Article 3, i.e., the burden of proof is on the link posting site to demonstrate that it had done its due diligence in verifying the legality of the linked content. So in this scenario, Pirate Site is presumed to be infringing on communication to the public rights (IPKat reference - WARNING: slightly NSFW image here, Playboy was one of the parties to the case).
It is probably illegal, just not pursued. In the case of something like bank robbery, you'd have a victim that filed a police report. A murder would need to be discovered somehow - either a missing person report or a dead body. If the porn shoot happened somewhere that a member of the public saw it and subsequently filed a police report, the video could be used as evidence. Absent a report, the police simply have no reason to look into it (unless the police catches them in the act, but we probably don't see those videos posted online). Why would these public offenses go unreported? Perhaps nobody sees it. Perhaps the bystanders in the video are paid extras. Maybe they're filming in what appears to be public but is actually private property. Perhaps they have a permit to use a public space for this purpose. Perhaps they just got lucky. Again, there might be some confirmation bias here - you're not going to see as many videos of folks they catch breaking the law, since they will either be interrupted and stopped or (maybe) have their videos ordered taken down.
Can you unambiguously, legally, and conclusively determine what is and is not a "porn site"? I'm sure many are easy... but what about that "Swimsuit modeling" site, or the "Artistic Nudes" site featuring classic French Renaissance paintings? There will always be a grey area. What makes a "site" in a legal sense? Consider all the blog sites filled with user generated content: If just a few pages out of tens-of-thousands are hardcore, indisputable porn, would you require the entire domain to be classified XXX, even if 99% of its content is completely innocent? Who would enforce this? Are you proposing an "Internet Police" force to review all new domain names and their content before they get approved? That is called "Prior Restraint on Free Speech", and is established law. Suppose a site does get approved, then immediately changes the content of their pages from Cooking Recipes to hard-core porn. Who is going to review and approve every update to every website, when sites are updated constantly?! Maybe you're proposing that any individual who finds porn on a .ORG site has the right to sue for damages? This would likely clog the courts with endless vigilante lawsuits about what content belongs on which domain. This is a flat out horrible, poorly thought out idea.