(Unallocated) Space, the Final Frontier: New Interpretations of What Constitutes Possession of Child Pornography

State v. Ballantyne, No. 125,064, 2024 WL 388161 (Kan. Ct. App. Feb. 2, 2024).

Author: Jay Shank, Staff Editor

Issue: Does child pornography stored within a computer’s unallocated space constitute possession of child pornography?

Answer: No. Because computers automatically store images from webpages within a hard drive’s unallocated space, a user cannot access or exert control over the images.

Facts: After obtaining a warrant, detectives found twenty-five illicit images stored in “unallocated space” on the hard drive of Randy Ballantyne’s computer. Detectives also located an mp.4 file containing child porn in the computer’s recycle bin—allocated space. Ballantyne was convicted of twenty-six counts of possessing child pornography. Ballantyne appealed.

Discussion:

The Kansas Court of Appeal’s analysis centered on what constitutes possession as it relates to images stored in unallocated and allocated space of a computer’s hard drive. The difference between allocated and unallocated space boils down to accessibility. A file lies within allocated space if it can still be accessed; once files are deleted from a computer they can no longer be accessed, but the data remains on the computer.

When users browse a webpage, the computer may automatically download all the images contained on that webpage—an automatic function that enhances webpage experience. These automatically downloaded images are not created files by the user and are thus stored in unallocated space.

A user possesses material by (1) exercising control over items with knowledge or intent to have such control or (2) by knowingly keeping an item in a place where the person has some measure of access and right of control. The State must “show that the defendant was knowingly aware of the presence and character or the identity of the visual depiction and that the depiction was consciously subject to his or her control and influence.” Ballantyne, at 29.

Because the illicit images within unallocated space could have been downloaded automatically without Ballantyne’s knowing, and because he could not access or control the images in unallocated space, Ballantyne did not possess the child pornography. The court reversed his conviction for counts one through twenty-five.

For count 26, the Kansas Court of Appeals found that because the video was located within an allocated space (the recycling bin), Ballantyne retained access and control, constituting possession of child pornography.

Key Authorities: Kan. Stat. Ann. § 21-5510(a)(2) (Supp. 2018); Kan. Stat. Ann. § 21-5111(v) (Supp. 2018) (statutory definition of possession); United States v. Dobbs, 629 F.3d 1199 (10th Cir. 2011).