Dangerous legal loophole in child-porn prosecutions under review

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?

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TOPICS: Legal
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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.

Topic: Legal

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14 comments
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  • Being accused is all it takes.

    Innocent or guilty have little to do with the fact that simply being accused can and often does ruin a person's life.

    The zealotry of "getting the scum" far outweighs common sense in moving ahead in such cases. Indeed many are charged with a minimal amount of evidence because it's PC to do so. If it were any other sort of case with such flimsy evidence it simply wouldn't happen.

    After all, who is going to argue with "Save the Children"???
    No_Ax_to_Grind
    • More rhetoric...

      "Get tough on crime!"
      Zinoron
    • I think I hear a little sumtin here!?

      Bad experience with a 11 year old No_ax?
      An_Axe_to_Grind
      • As rediculous...

        ...as No_Ax's statements usually are, he is not wrong this time.
        Zinoron
  • Convention remains for all public cases.

    In the court of public opinion, you are guilty until proven innocent. And not even then. If you want to see the difficulty of proving someone's age by appearance alone, one must look at the history of Traci Lords.

    Unfortunately, where the fires of passion burn hotly, reasoned decisions are rare. We even wish to abdicate thought at all and move towards quote, "Zero Tolerance" policies. Political rhetoric on crime and punishment saddens me greatly because so few seem to get it.

    I agree with your sentiment in whole. The atrociousness and vulgarity of the offense in no way contributes to the evidence that a particular individual is guilty.
    Zinoron
    • Mitchell Brothers Film Group checked her id.

      When Traci Lords worked in the industry, she used a fake id to get her job. It wasn't until she was trying to get into more mainstream movies (MPAA ratigs G through R) that she filed the complaints. She had a fake drivers license, the same trick kids use to buy alchohol, tobacco or get into places that they don't belong.

      Currently, the members of the industry are required to keep records for up to 7 years on any given performer (this is held to in Europe, also). They are also required to provide listings for where the records are kept and by what agency, in accordenece with 18 U.S.C. Section 2257.
      B.O.F.H.
      • The issue being...

        ...that it wasn't apparently obvious that she was using a fake ID and was in fact under-age. The wide spectrum of appearance of individuals between 15 to 25 make it impossible to determine age by appearance alone.
        Zinoron
  • Revenge tactics and dirty tricks

    In my company, two managers were fired last year after porn (plain) was found on their computers. Both of them complained bitterly (once outside of the company) that they had been victims of revenge for laying people off, but they couldn't "prove their innocence", and they didn't want their families dragged through a public humiliation. One is still unemployed, and he has reconsidered his decision to remain silent about the whole thing. But because PORN is involved, he hasn't been able to get a good lawyer who would have any chance of a successful suit.

    That was for "just plain porn". If child pornography had been involved, these guys wouldn't be out of a job, they'd be in federal prison. Their families would have been destroyed, as both parents are now "automatically" suspected of wrongdoing when any case of alleged child sexual misconduct is investigated. So even their wives could have lost custody of their children.

    Internet Porn (especially child porn) makes an incredible "throw down" evidence for a frame job, much better than the old police standby (crack cocaine). It is invisible and undetectable unless you are looking for it, even a novice could probably find it on the web in an hour, and it is infinitely reproducible without a trace.

    If you are a manager, or a person with "enemies", now is the time to guard your computer with your life, because it could cost you your life ... literally.
    terry flores
    • Some good points jjjjjjjj....

      The porn conundrum is an easy way for someone who wants to railroad another employee to achieve their conspiratorial objectives. There are a number of best practices that one can probably take to reduce their vulnerability to such attacks. Here are some tips:

      1. Never walk away from your workstation without locking it down in some way (log out, lock the current session with the built-in screen saver, power down, etc.).
      2. Don't keep passwords in an obvious place, like tapped to the top of your monitor or the wrist rests on your notebook.
      3. Add extra measures of security where possible. Consider adding a fingerprint reader in order to gain access to the system and use your system BIOS password feature to require a password just to successfully boot the system.
      4. If it doesn't interfere with the operation of the software you use, run your computer under a User ID that doesn't have administrative rights. This isn't perfect, but it could prevent some malware from getting onto your system -- malware that could result in your system storing or even hosting content that you don't want there.
      5. Turn off all preview modes in e-mail. For example, not just the feature that disables the automatic display of images that have been sent to you in an email, but also the feature (in outlook, this is the preview pane) that previews the email in another pane you the email as you navigate your inbox. These measures can prevent your system from temporarily storing (caching) unwanted images on your hard drive (such caches can take a long time to automatically clear and it isn't easy to manually clear them).

      There are other best practices involving spam and not clicking on URLs, etc, etc. ... but these ones jump to mind as measures that not everybody takes and that they could take to increase their "reslience."
      dberlind
  • double edged sword

    I've seen the law shifting on a lot of situations where the accused is guilty until (if) they can prove their innocence. There seems to be a mind set where we have been either letting or those in government have been taking our basic rights. The one that first caught my attention was confiscation without going through court of vehicles and homes if one is accused of selling or distributing drugs. At first I thought it was a great idea but then it seems all money has a taint of drugs on it. The equip. dealer who bought and sold farm machinery had his truck and ten thousand dollars impounded after he was stopped for a traffic check. A year later he was still fighting for his truck and the return of his money. The lady from CA driving through Louisana stopped for improper lane change had her car impounded. She finally got it back six months later but had to sell it to pay for the lawyers.

    Somehow our laws were turned around whether it's child porn or vehicles and homes. And don't get me started on emminent domain....,
    What happened in the last fifty years to our rights and our constitution?
    always,
    Barb
    BarbieLee
  • Guilt by accustion. Traffic law anyone? (NT)

    .
    Update victim
  • Our policy and some extra thoughts...

    As the owner of a small computer service and repair company, I require my technicians to read and sign a Standards of Conduct document, which reads in part:

    "7. Customer Privacy. [company name], Inc. respects the privacy of its customers. During the normal course of business, [company name] technicians are often entrusted with logons and passwords, and may be exposed to confidential, proprietary or personal information. [company name] technicians or representatives shall not share, divulge, discuss or otherwise compromise proprietary or personal client information derived by accident or design in the course of their duties. The sole exception to this rule is where the technician or representative becomes aware of information or data that is clearly illegal, such as evidence of fraud, child pornography, and gross copyright violations. In these instances, the representative shall not confront the client or alert law enforcement authorities, but rather shall contact [company name], Inc at their earliest opportunity. [company name], Inc. shall assume all responsibility for alerting the appropriate legal authority."

    The key words here are "becomes aware". We don't go looking for porn or gross copyright violations; we don't have the time, nor do we have the training or expertise to label something that seems suspicious as definite proof. Our policy simply covers things that we might stumble upon in the normal course of our computer service and gives the technicians guidance on how to handle it when they do.

    There is a fine line separating good citizenry and zealousness. As a good citizen, I support any person who honestly believes a serious crime has been committed and takes action to report their suspicions to the appropriate authorites. Where I disagree with this legislation is the imposition of legal requirement to do so, and by extension, the culpability and punishment for failing to do so. Does this mean that I or my technicians would be legally required to do full scans of every customer's computer, view every video, every image just to satisfy our own legal responsibility? Do I tack on an extra two or three hours of labor on every customers bill and note "State Law Required Porn Scan"?

    Where does it stop? If we are going to turn every PC technician into members of the Anti-Child Porn Gestapo, will we then require every auto mechanic or car wash operator to keep trained drug and bomb-sniffing dog onsite and certify that every vehicle has been checked for drugs and explosives in accordance with state law?
    DrMicro
  • RE: Dangerous legal loophole in child-porn prosecutions under review

    I love the title of this article.. The thought that the
    accused's constituional rights are a dangerous legal
    loophole. I think that sums up the current Amerikan
    legal climate in 1 sentence or less.
    backwards
  • RE: Dangerous legal loophole in child-porn prosecutions under review

    I totally agree that we need to start standing up for our rights. I have a 30=year friend that is not as computer/internet savvy as me; even though he and I worked for several years in the military in the same field, (he was on the aircraft,, while I worked in the repair shop. He has been subscribed to several porn sites, (some paying), including a T/V and some gay sites. These forms of sex are repulsive to him personally. I am in the process of helping him track down who might have done this. It could have easily been a child porn site, which would not only have criminal implications for him, but would have cost him his current federal job, and banned him from further federal employment. As a disabled veteran, and him retired military, we would also lose our compensation/retirement benefits, which would mean permanent financial ruin for us. I am unable to work, and this would destroy my family. We would not only lose everything, we would not have the financial means to defend ourselves. We must demand that the authorities stick to the constitution, no matter how repulsive the crime may sound. We must stand by the premise of innocent until proven guilty in a court, and all means of appeal have been exhausted.
    cbiggs99@...