Dangerous legal loophole in child-porn prosecutions under review

Summary:A little more than a year ago, I wrote a column entitled A porn trap to steer clear of that dealt with some thorny questions that most would rather not ask when attempting "throw the book" at creators, distributors, and consumers of child pornography.  After all, the scum should be locked up and the key should be thrown away, right?

A little more than a year ago, I wrote a column entitled A porn trap to steer clear of that dealt with some thorny questions that most would rather not ask when attempting "throw the book" at creators, distributors, and consumers of child pornography.  After all, the scum should be locked up and the key should be thrown away, right? Or, are we sure they're the scum we say they are?  Are we sure they deliberately downloaded the material to their systems?  I know of no one that hasn't somehow at some point inadvertently ended up with pornographic images on their hard drives. (If you don't know how this can happen, read the column.) 

It's a difficult situation that, due to the sensitivities involved, has commanded a response that's probably unconstitutional. So badly do we as a society want to send the message that child porn won't be tolerated, that we're willing to strip the accused of their right to due process. In that column, I detailed the plight of a ZDNet reader who swears he's innocent when it comes to child pornography possession charges that were levied against him, and that ruined his life.  But, the part I omitted -- a very important part -- is how in some such cases, the burden of proof shifts from the prosecution to the accused.  In other words, instead of being innocent until proven guilty, the accused is essentially guilty until proven innocent.  In such instances, many cases never make it to a deserved trial because the defendant feels more pressure to plead guilty in hopes of getting a lighter sentence. 

Now however, thanks to a recent potentially precedent-setting ruling in Hennepin County, Minnesota, the legal loophole that essentially denied defendants to the due process they deserved was ruled unconstitutional. Speaking of the lawyer who challenged the loophole, Margaret Zack of the Star-Tribune wrote:

Dean said Tuesday the judge found that the statute unconstitutionally shifted the burden of proof from the prosecution, which ordinarily must prove that the subject is a child, to the defense, which was forced to prove that the age of a subject is a disputed issue.

To look at my three children who range in age from 11 months to 15 years (a 3-year-old is in the middle) and to think that somewhere else in the world, children of the same age are being exploited for pornography makes me ill.  But, at the same time, knowing what I know about technology and how easy it is (a) for porn of any type to inadvertently get onto the systems of people who never deliberately consume it or (b) for child porn to get onto the systems of people who are trying to consume "legal" porn, or (c) to misjudge the age of subjects in a photograph, a movie, or in person for that matter, ruling the statute unconstitutional was the right thing to do.

For example, while at my son's football game recently, I saw several formidable looking players on the opposing team with full facial hair and muscles that even Arnold Schwarzenegger would admire.  To my 43 year old eyes, they looked like they were in their twenties.  In the stands behind me was a group of high school seniors wearing shirts that said "Class of 2006."  When you're 15, you can instantly spot someone who is a year older or a year younger than you.  My son does it all the time. But, discerning age with such granularity for a 67 year old man -- the age of Dean's client in the aforementioned case -- is impossible.  One day in age (actually, one second if you want to get technical) can mean the difference between something being child pornography, or not.

Knowing this, I found the prosecution's comments (in that case) to be very troubling. According to Zack's story, Hennepin County Attornies said:

We think the decision is wrong ....we will continue to bring these cases...proving whether a person is a minor is not an issue in most cases because it's obvious that the subjects are children.

I actually agree.  There are some cases that are probably unmistakable.  But, when you're talking about someone's constitutional rights, who gets to be the judge of that -- the one in charge of saying "that one's marginal" which, by virtue of the existing statute, really equates to "let's see, who will we make guilty until proven innocent today?" 

Finally, this isn't just a potential new lease on life for the ZDNet reader who alerted me to the court decision.  As I originally opined when I wrote that first column a year ago, there are all sorts of implications for corporate IT and system usage in businesses.  For example, if you're a business manager, what are your procedures the minute you think an employee is breaking the law or corporate policy with their system (not necessarily for pornography)? 

If I'm that employee's lawyer, and the burden of proof is on you as it should be, the first questions I'm going to ask are "Was the system impounded and if so, by whom and when?" and "who else had access to the system during times when my client did not (including before, during, and after the point at which the system was impounded)?"  You can see how that line of questioning could easily lead to reasonable doubt (again, assuming we're operating under a system where defendants are innocent until proven guilty) and the loss of your case. Outside of preserving corroborating evidence like employee time sheets and detailed network logs, I don't even know what advice to give you (perhaps there are some lawyers out there who can comment).  All I know is that any decent defense attorney worth their salt backed by a solid technical expert witness should be able to tear most cases to shreds.

Topics: Legal

About

David Berlind was fomerly the executive editor of ZDNet. David holds a BBA in Computer Information Systems. Prior to becoming a tech journalist in 1991, David was an IT manager.

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