is so devoid of other information that might observe the establish probable cause with this point your honor because i think the government's casting of this argument for presentation at this point is a little bit misleading we are not asking the poor to create the new rules we are not asking for us to raise the bar of probable cause for internet computer computer cases so the contrary we are asking the cord to preserve something of the bright line that has already been twenty two fifty two say that if gord had subscribed to the site paid for the site looked at thirty pictures of children on the site but had not downloaded any to his computer he would not that if he subscribed to the site just so we could look at dirty pictures of children and then look at thirty pictures of children on the site but knowing the lofty carefully avoided sound loading any through his hard drive  any circuits that stated so many words yeah that's what it means if they look at the pictures but they don't download them if they're legal you know i cannot say that i know of the cases where it said that meter viewing i have to have been a long line of cases  the position that i believe it's the correct one from this court's precedents and obviously to have the right to revisit them but i think we need to understand the context in which it's happened in the smith case the court was very clear that it did not want to leave the materials that gordie might have had were illegal child pornography what were they doing on the site other than people into the period interest of the viewer you are if we draw that inference and that the sole purpose is to appear to the whatsoever about mr record apart from his name his e mail address which is not in any of the e mail address for example and hey you had a lot of other at suggestiveness in terms of the type of names that were being used and other could both intentionally and unintentionally put information on your computer and people like him are likely to retain information so it's like a four five six step process you are just so i guess i'm taking issue with your by any means and if you look at paragraph twenty seven which i think of the advocate which i think you're referring to they're not talking about automatic downloading of any images what they're talking about is the transmission records that are the communication records that are routinely saved on servers which was our point sometime in january there's no evidence that the server was in possession of the government whilst mr lord could be moving isn't that correct no your honor let me clarify the record since the server was seized in january my question focuses on something a little different than my understanding is that the server maintains the history of computers that have obtained downloads from the server is that correct that's correct are they and would you concede that if in this case when they went through the history or if they went through the history that the server maintains that there had been if that history showed that ward had downloaded pictures of child pornography and the prohibited congress that there would be enough probable cause combined with what else was in the af with such such areas as our hotmail that are related to their interests let me ask you something about what you just raised do we know that they didn't were there any questions at the suppression hearing did you check the server history and have you ascertain whether gore did or did not download any images you want if i can refer you to us sixty seven as just one example of the record question it's fair to say that a record of the somebody downloaded images from the site when they downloaded them or other information indicating that i don't really wonder what is my question i'm sorry you're talking about what could be done and i meant talking about it was not was done it was not done is fair question and answer where he says personal computer are going to be last much too much the discretion of the government takes talks about to tell you the circumstances and common sense but it is a guided and now this where the magistrate has to have the final say based on the age of the individuals present the picture to something else without any collateral profile information that is directly related to specific facts about mr gordon remember we need to come back to the party regarding illinois v gates and what that means and in this particular case i submit a commonsense view of the facts would lead a magistrate judge to conclude that he can voluntarily joined a child pornography web site a website dedicated to child pornography with the images that were seen on the first two pages the advertisements help me on that yes here's my question let's just hypothesize a site where all of the pictures are unquestionably not constitutionally protected their own questionably in violation of the statute pictures of children doing something sexual hypothesized that the size that a person going to the site because he has an intense sexual desire to look at such pictures i'd like you to further hypothesize that the person wishes to stay out of prison and carefully read spell law and reads a lot to mean that as long as he pays his dues to the site looks at the pictures satisfies the sexual desire that he has but that's not download or any of the pictures he has not violated the law in that hypothetical case is he right well i suppose it depends on what i already told you what the images were there there are images of the sort that the law would probably would prohibit would anyone constitutionally prohibit i already told you that my question is about downloading versus looking i understand the question and i wanted to get to that anyway yes under my view it is ok what do i look at in the statute that makes him a criminal if he does not download any pictures first of all the statute would be specifically section twenty two fifty two or late for something that you know how you click on it and you read the news for that day or the new york hindsight whatever you like to look at you read the news for that day but if you don't download it and the capability to save certain pages from there you could well yes if you if you decide to save it but it does go into you the web cache which was discussed in the affidavit but it didn't say that that was possession you're scratching it all it did is describe computer functions cash being one place where things could be stored you're stretching this case way beyond the affidavit from what i can tell there was never any argument anywhere that bringing up the image on the screen was possession i think it's a want an argument that was raised that was a position that was raised the idea that when you possess something on your computer you take that in conjunction with the characteristics provided in the affidavit one can conclude when you are is the question isn't the more precise question knowing possession so that work beyond a reasonable doubt well you have to have their probability that you have evidence of website to a dedicated child pornography website the primary feature of which as stated in the affidavit was the images section the primary feature of this website was an ocean of pictures twelve to seventeen year old naked lo you or one of these other suffixes that indicates what it is that they've got an image but what you're talking about is the computer's history of every place it's gone and the cache that retrieve and what you're doing is converting everything that a person has ever looked at on the net to possession if i understand your argument right all i'm saying is that it's open it's an open question and you a when you signed up is a description of a child pornography web site that's correct tell me what's in those pages that make it a pornographic offer well we've got our pornography off it's well we've got the advertisement itself that's what i'm talking about that's all in the record before he signs up there's only a few pages plus images that he describes what he saw when he signed up there's nothing else in the records that he went any further that he kreuzer to get anything else to tell me for in those that are shown on page one the opening web page we've got the second page that we know that he visited and there we've got the testimonials from the members but there we have a caption lolitas age twelve to seventeen the naked only have to wonder there well the question is certainly what he wanted to remain like that but do we have to wonder there i think in the totality of the circumstances we can look at the affidavit as a whole i understand what your question is how can we look at the a what he did other than the fact that you called him a collector by a description of a collector of someone who has who has these interests and yet in the affidavit it doesn't show any history of why he should be classified as and as a collector and in our web or case we set up some pretty high standards relative to what you have to do you have somebody fit and experts profile without reference profile you can't get there can you well i or if i think i understand your question a person who seeks out a website by the name of lolita girls i mean the name in and of itself has a connotation associated with words that said in the affidavit i come from mars i don't know what image let's suppose that's the case why wouldn't it then be too much to infer from this search warrant affidavit that he downloaded any images since the government did not put in any evidence that the history of downloads from the site did not show any downloads to this individual this person sought out a web site with the name lolita girls duty to conform to the spirit and the numbers in the emanations of the criminal law just the letter of it so i'm thinking if this person really had a thing for little girls but he didn't want to get busted for a felony he could as long as he didn't download and it might be that a lot of law abiding individuals do just that because they want to be law abiding individuals if indeed the law does permit looking as long as you  long if you don't download it seems like the affidavit would not be enough to show that this followed one and beyond that law abiding status jeopardy that shows it was a fair inference to believe this person downloaded images from the will they have the server for they have the server for a long long enough time to look the history of downloads on the server and they didn't say that he downloaded this is one of the problems with the case is that we are there is not a server the f b i did not have the server and during this the questioning of the agents at the district court that term server and computer was used interchangeably which was creating a false impression of what we didn't have the server what whatever you want to make the server so unlike the case in the hay case where we had dr evans a one on one child pornography trader that from the facts of the reported opinion it appears that he was distributing pornography from his computer directly to a customer the f b i didn't have the server in this case they did have mr gourds or excuse me mr fields computer and the agent did try to clarify that the computer of mr fields seized at the time of the warrant i don't know whether the server was located at his residence or whether it was at another site and whether he just used his personal computer to gain access so i want to make that clarification at the outset the f b i did not pornographic and that's not illegal to possess that's one factor i'll i'm saying we've got the title the leader girls we've got the opening web page we've got the statements about you can't go wrong if you like young girls we have new to images on the they located child pornography on his computer we have the undercover agent capturing hundreds of images of child pornography during the time the undercover agent was a member  pornographic images not at the search warrant stage what shall we have to show whether there is a reasonable probability to believe that contraband or evidence of a crime to an adult or to a child pornography website if it's not a child pornography website is it designed to appeal to that period interest for the user it is not a child pornography web site material should not negate probable cause that flies in the face of illinois gates if it's sexual pictures of nineteen year old girls and their advertised as appealing to the fantasies of people who would like to look at sexual pictures of seventeen year old girls is that enough to make possession of the images criminal it probably would not be criminal because they're not minors but here i who the bad man who nevertheless wants to stay out of jail might think this is the site that's going to address nineteen year olds up bobby socks and given high school book banks so that you get the best of both worlds it's legal but it appeals to his  lot of people who are concerned about animal welfare and those poor animals and and new orleans have accidentally stumbled across a site that had some affiliation with the animal liberation front a terrorist group and that some people who are just interested in keeping in touch with environmentalism and seeing what all the different groups have stumbled across that environmental liberation front sight parasites of politics is going in looking was getting himself until he had several opportunities to back out if you or could have taken a free tour of the site and said yeah i don't want to be involved in this and could have backed out but we know the defendant here further he took this a step further he actually purchased a membership which gave him unlimited access two thousand pictures of naked little leases twelve to seventeen years old which we knew contained child pornography based on what  you look at the very words provided by the enthusiastic members a complete collection of young girl pictures any of these will lead to pictures are first in my collection so we've got the members going on in the weather case the defendant there received from government action and advertisement apparently in this advertisement the written opinion doesn't make it clear that there were no images provided sufficient how can a subscription to a website that is not only legitimate or clearly illegal going to be sufficient and it's not just my interpretation of what the advertising was about if you look at the record from sixty nine to seventy  or record one hundred three the f b i agents themselves recognize that there is all sorts of fetish material and other might type of material with this will leave it in front of her that is perfectly legal and does not necessarily constitute contraband so we're looking at commonsense on content site up hundreds of images were captured by the undercover and only starman them were lascivious that kind of inconsistency when there's no pictures from the site itself even though they supposedly been captured isn't even that straight nothing about by any seems to be there are a lot of people who want to walk up to the line and stay within the constitutional protections more gucci recognized than himself he testified at sixty nine to seventy of the records that existed or this item for actually getting to the continental could be auto downloading stary and inane and i'm sure it will come up it would have been challenged by the defense in a very different way we can to stay on this the issues we get into whether or not there is a knowing possession which is required by haste some evidence of probable cause to believe it was a yellowing and not an intentional possession let the government raise those issues it will raise a host of interesting new challenges for the four to address on a proper record but what they're doing by slipping that in at the hearing is almost