Nov
09

Child Pornography And Computer Viruses

ABC News carried a terrifying story this weekend: Hackers have the ability to use an unsuspecting party's computer to store and transport child pornography. Reading the story was enough to make me wonder whether it made sense ever to go online. Check it out: http://abcnews.go.com/Technology/wireStory?id=9028516

Possession of child pornography is a possessory offense. It is a crime simply to have it. The number of images in your computer dictate the prison sentence to which a possessor is exposed. In most cases, there is a mandatory minimum sentence of at least five years.

Of course, as with any possessory offense, the accused must be in knowing possession of the prohibited material. But try telling a prosecutor, or a jury, that you didn't know the contents of your computer. "It's an example of the old 'dog are my homework excuse.' The problem is, sometimes the dog does eat your homework," said Phil Malone, director of the Cyberlaw Clinic at Harvards's Berkman Center for Internet & Society.

The report cites the case of Michael Fiola, a former investigator of worker's compensation claims in Massachusetts. When supervisors found that his computer was storing an inordinate amount of date, they investigated. They found child pornography.

Fiola claimed the material was there without his knowledge or consent. Never mind, he was fired and charged with a felony. He spent his life savings, mortgaging his home and even selling his car, to find the right experts. He was able to show, in the end, that his computer was severely infected by viruses. One virus visited as many as 40 child pornography sites a minute. One night, someone logged on to his computer while he and his wife were away from his home, and spent 90 minutes surfing porn sites. He was eventually exonerated, but only after his life was undone.

One expert contends that 20 million of the estimated one billion computers used to connect to the Internet are infected by viruses that could give a hacker full control over a third party's computer. A computer can serve as a warehouse for images accessible to strangers without the owner even being aware of it.

Of course, prosecutors and prosecution experts say the problem is overstated, and that such incidents are rare. But, frankly, any instance of such contamination of a computer is terrifying if you happen to be the owner of that computer.

It strikes me that there ought to be something like a two witness rule in computer child pornography cases. If mere possession ought to be criminalized, it seems that there ought to be some sort of corroboration requirement in the form of direct or circumstantial evidence that the defendant had actual knowledge of what was stored in his computer. Absent that, there ought to be a fund to which defendants can apply to secure the services of an expert. As always, in a prosecution, the state has the government's resources at its disposal to investigate and present its case. Indigent folks can avail themselves of public defenders and the wealthy can take care of themselves, but folks caught in the middle are on their own.

In Wyoming, a man named Ned Solon of Caspar is doing six years for possession of child pornography. He and his expert contend that the material was present because of a virus. A jury didn't get to hear the whole story, however, because the trial judge cut off the funding for Solon's expert before trial. Money mattered in that case, and it shouldn't have.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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