Does viewing CSAM count as possessing? Name all prosecutable cases for mere viewing.
Executive summary
Federal and state law uniformly criminalize possession of child sexual abuse material (CSAM), but courts have split on whether passive viewing alone counts as “possession”; some jurisdictions treat intentional viewing as constructive possession while others require evidence of dominion or ability to control the files [1] [2] [3]. Recent litigation over AI‑generated images highlights a separate constitutional wrinkle—virtual CSAM that does not depict real children may have First Amendment protections in some courts even while production or distribution remains prosecutable [4].
1. The legal baseline: possession is a crime, but the element is control
Congress and the states criminalize possession, receipt, distribution, and production of CSAM—federal statutes such as 18 U.S.C. § 2252 and § 2252A squarely cover possession and related acts, and state codes impose graduated felonies based on volume or type of material [1] [5] [6]. To convict for possession, prosecutors must prove the defendant knowingly possessed or had control over the material beyond a reasonable doubt, a standard repeatedly stressed in defense‑oriented guides and court practice notes [2].
2. “Viewing” as constructive possession: where courts have said yes
A key precedent cited by defense and prosecution materials is a state supreme court decision finding that viewing images on a computer can constitute “constructive possession” because a viewer has the capacity to save, forward, or otherwise exercise dominion over the files—this ruling treated intentional viewing as sufficient evidence of possession in that jurisdiction [3]. That opinion noted dissenting views within the court but crystallized an important prosecutorial theory: that purposeful viewing shows the requisite intent and control to satisfy possession elements [3].
3. The opposite tack: when viewing is not enough
Other courts and commentators emphasize that mere, passive exposure to an image—especially when users lack the ability or intent to control the file—should not automatically equal possession; prosecutors often need corroborating evidence (saved files, metadata, account control, or distribution activity) to show dominion and intent to possess [2]. Fourth Amendment and private‑search doctrine disputes—such as those arising when platforms scan and flag material—further complicate when images discovered by providers can be used to establish a defendant’s possession without a warrant [7] [8].
4. Practical prosecutorial realities and policy context
Prosecutors report that while CSAM identification has ballooned, prosecutions do not always track proportionally; reasons include proof problems, investigatory resource limits, and legal ambiguities around possession definitions and platform search practices [9]. Jurisdictions vary widely in sentencing and thresholds (e.g., Texas statutory gradations by image counts), which shapes charging decisions more than abstract doctrinal debates in many local prosecutions [6] [5].
5. The AI wrinkle: virtual images, constitutional claims, and prosecutability
Cases involving AI‑generated images that do not depict real children have produced novel defenses invoking Stanley, Osborne, and the Free Speech Coalition line of First Amendment precedent; at least one recent federal challenge argued that private possession of obscene AI‑generated CSAM is protected speech while governments counter that Congress may bar virtual CSAM to prevent grooming and to avoid misidentifying real victims—courts remain divided and such claims change the prosecutorial landscape for “viewing” when the images are not of actual children [4].
6. Answer to the question posed: does viewing count as possession, and what prosecutions exist for mere viewing?
Viewing can count as possession where courts find the viewer knowingly engaged with the material and had the capacity and intent to exercise dominion (constructive possession), a theory affirmed in at least one state high‑court decision and relied upon by prosecutors and prosecutors’ guides [3] [2]. However, not all jurisdictions adopt that rule, many prosecutions require additional evidence of control or saving/distribution, and federal statutes focus on possession but leave factual possession questions to courts [1] [2]. The reporting supplied does not provide a comprehensive catalog of every prosecution classified as “mere viewing” convictions nationwide; the only explicit judicial holding in the supplied sources treating viewing as constructive possession is the Michigan‑state example discussed in practice summaries [3], while other sources describe statutory schemes, prosecutorial practices, and the unsettled AI‑CSAM litigation but do not list a complete set of prosecutable case names limited to mere viewing [6] [1] [4] [9].