According to reports published by the United States Federal Government, in the mid-1980s, trafficking of child-pornography within the United States was nearly eradicated through successful campaigns by federal and state authorities.
In the 1980's, producing child pornography was difficult and expensive, however, with the advent of computers and the internet, child pornography has become easier to acquire, reproduce and store.
Digital cameras and the ease in which images and movies can be posted on the internet, combined with a world wide web which has no borders, has made it easy for distributors and collectors of child pornography to obtain the illegal photographs and videos. Although most people have some knowledge about the vast amount of pornography located on the internet, The National Center for Missing & Exploited Children has estimated that 20% of all internet pornography involves children.
Legally speaking, 20% of the pornography located on the internet is illegal to possess in the United States.
As a result of the increase in the availability of child-pornography, federal and state convictions for crimes related to child-pornography has increased. Recently, the United States Department of Justice announced a national strategy for eliminating child pornography. The effort includes nationalized databases allowing states to share information and the hiring of 38 assistant U.S. Attorneys across the United States to prosecute child pornography crimes.
A person must merely open a newspaper or watch the television to find a news article or picture of a person whose name and reputation is ruined by state or federal charges related to possession of child pornography.
Instead of focusing on the people producing child pornography, efforts have shifted and law enforcement is now targeting people who possess child pornography. In order to help prosecute regular citizens, the federal government has partnered with internet search engines to find people searching for, downloading and possessing child pornography.
Computer crimes are not limited to simply possession or distribution of child pornography.
Many people have seen television shows where law enforcement uses a computer to lure unsuspecting people into illegal situations (e.g., NBC's documentary, To Catch a Predator, etc.).
In such situations, a law enforcement officer poses as a minor and lures a unsuspecting person to a location; the location is usually portrayed as the minor's home. When the unlucky person arrives at the minor's home, television cameras record the subsequent conversation between the surprised adult and law enforcement.
Sometimes, the unlucky person believes (or hopes) he or she may be able to "talk their way out" of a potential arrest; however, the statements made by the person is recorded and likely used by a prosecutor as the basis for a criminal prosecution.
In short, sex crimes, internet crimes and computer crimes are a primary focus of state and federal law enforcement throughout the country.
Examination of the Computer
In any case involving a computer, it is critical to use a computer expert in any child pornography case. The use of such experts can help establish a defense to the crime by showing some of the following:
• When an illegal file was downloaded;
• Which computer program was used to download an illegal file;
• Which computer user downloaded an illegal file;
• Whether the illegal file was placed on the computer as a result of a computer virus;
• Whether the illegal file was placed on the computer by somebody "hacking" into an unsuspecting user's computer, and;
• Whether the people portrayed in the images and/or movies are actually "children" or models above the legal age of consent who are "posing" as a minor.
Unfortunately, most attorneys do not have sufficient knowledge about computer technology to even consider the use of computer experts. Most attorneys without sufficient computer background simply believe that if child pornography is found on a computer, the person is "guilty".
Examples of Common Situations
Throughout the United States, prosecutors can file variety of different charges against a person for using a computer for what may appear to be legal activities.
Three common examples are provided:
Example #1: A suspect looks for pornographic material on the internet and subsequently downloads both legal and illegal materials (e.g., child pornography, etc.). The illegal materials actually come from a website which is operated by the federal government for the sole purpose of finding and arresting people who download child pornography. Once the illegal materials are downloaded from the law enforcement computer, a warrant is requested from a local court and the computer is seized and searched.
The person is arrested even if they didn't know the materials downloaded onto their computer were illegal.
Many people believe that if a website looks "legitimate", the materials that come from that website must be legal to possess (e.g., pictures, videos, etc.); however, such an assumption is not true.
As indicated, the federal government has set up "legitimate" looking websites which provide child pornography. The sole purpose of the website is to lure a person into committing illegal acts (e.g., downloading an illegal movie and/or picture, etc.) and then arresting that person for downloading and possessing the illegal item provided by the federal government.
Example #2: Similar to the example above, a suspect uses a "peer-to-peer" file sharing program to download pornography (e.g., LimeWire, Bittorrent, BearShare, etc.). Unbeknownst to the suspect, some of the pornography downloaded is actually child-pornography, and it comes from a computer owned and operated by law enforcement. Once the illegal materials are downloaded from the law enforcement computer onto the suspects computer, a warrant is requested from a local court and the computer is seized and searched.
Another example is when law enforcement uses those same "peer-to-peer" file sharing programs to "search" for illegal child-pornography. Once law enforcement finds illegal materials, a computer program determines the TCP/IP address of the computer which houses the illegal materials. With the TCP/IP address, law enforcement can issue a warrant to determine the location and address of the suspect computer. Once law enforcement knows the physical location of the suspect computer, another warrant is obtained allowing the search and seizure of the computer.
Example #3: A suspect contacts a person believed to be a minor through a chat room on the internet. The minor is actually law enforcement. Through several conversations, the suspect is either encouraged to send naked pictures, or, in the worst-case scenario, the suspect is badgered into a personal meeting with the minor only to arrive at a pre-arranged destination and have law-enforcement waiting to arrest the suspect.
The three examples are common situations where people are charged in either federal or state court, however, the examples provided are not the only actions which can result in criminal charges.
Federal Charges relating to Child Pornography
Federal law makes it a crime to possess or distribute child pornography. Specifically, Title 18, section 2252 and 2252A of the United States Code criminalizes possession or distribution of child pornography.
Federal law defines child pornography as any visual depiction (pictures, video, data stored on a computer, etc.) which involves a minor engaged in sexually explicit conduct.
Title 18, section 2256 of the United States Code contains several definitions relating to crimes involving child pornography; the following simplified definitions are provided:
Minor: The term "minor" as used in the federal law, means a person under the age of 18.
Sexually Explicit Conduct: The term "sexually explicit conduct" as used in the federal law, means any sexual act, including material which simply shows a child's genital area.
Visual Depiction: The term "Visual Depiction" includes film, videotape, or other data stored on a computer, or computerized data or any data able to be converted into a picture or film.
Although there are several different criminal provisions of the United States Code relating to computer crimes, charges and penalties associated with child pornography are provided:
Receiving or Distributing: If a person receives or distributes child pornography, that person is subject to imprisonment in a federal prison for a mandatory minimum sentence of five (5) years.
Title 18, U.S.C., § 2252(a)(2); § 2252A(a)(2) (2010).
Transporting: If a person sends, gives or provides child pornography to
another person in any manner, (e.g., via mail, email, any
electronic means, etc.), that person is subject to imprisonment
in a federal prison for a mandatory minimum sentence of five (5) years.
Title 18, U.S.C., § 2252(a)(1); § 2252A(a)(1) (2010).
Possessing: If a person possesses, in any manner, child pornography, that person is subject to imprisonment in a federal prison for not more than ten (10) years.
Title 18, U.S.C., § 2252A(a)(4)(b); § 2252A(5)(B) (2010).
In essence, federal law makes it a crime for any person to possess materials which display a person under the age of 18 nude, genitals exposed or engaged in any sexual activity.
When representing a person charged with a crime involving child pornography, it is important to fully understand the differences between the potential charges and the risk of incarceration for each.
Significantly, if a person pleads or is convicted of a crime involving the possession of child pornography, there is no mandatory minimum sentence; however, if a person pleads or is convicted of receiving, distributing or transporting child pornography, there is a mandatory minimum sentence of five (5) years imprisonment.
State Charges for Child Pornography
In essence, all states makes it a crime to possess pictures or movies which portray a child's genitals, pubic area or breasts (in the case of a female), if the child is under a certain age.
Common examples of illegal behavior are easy to image (e.g., a person possessing video tapes or pictures of underage children, etc.); however, the statute also criminalizes the possession of digitalized images and movies which can be stored on a computer or cellular phone. As such, if a person receives an illegal picture through email, and the person has a phone which receives email, a person could be charged and convicted simply for illegal items accidentally saved on their phone. Further, with the increasing popularity in cellular phones which are capable of taking pictures and recording movies, many more people are at risk of criminal charges for simply taking and saving illegal pictures.
Many state laws make it a crime for anybody to make a picture or video which shows a person under the age of 18 with his or her genitals exposed in any manner or engaged in "sexually explicit conduct".
This includes pictures made with a cellular phone or a digital camera.
Prosecutors in many states have used this statute to prosecute people for merely downloading or copying images from the internet and then saving those pictures onto the hard-drive of a computer.
Restated, if you are downloading images and/or movies from the internet and then saving those images and/or movies on your computer, you may be charged in state court with the crime of manufacturing child pornography under the above statute.
Common Defenses in both State and Federal Court
Regardless of whether criminal charges are filed in state or federal court, there are many issues which should be examined by an experienced criminal defense attorney familiar with computer crimes.
The same issues arise whether the crime involves child pornography, sex crime or general internet crimes.
Although not limited to the following, several common issues which frequently arise are analyzed.
Knowing possession
In both state and federal court, in order to be convicted of the crime "possession of child pornography", a defendant must knowingly possess child pornography, that is, the person charged must have knowledge of the existence of the child pornography.
This means the government must prove, beyond a reasonable doubt, that the person accused had knowledge of the existence of the child pornography.
Giving a Statement
Many defendants mistakenly believe if a reasonable explanation is provided as to "why" child pornography is on a computer, criminal charges can be avoided.
Restated, many defendants believe that providing an honest statement to law enforcement will help avoid being arrested or facing criminal charges.
That is not true.
When a defendant provides a statement to law enforcement, the statement will likely be used against the defendant during a criminal prosecution.
A criminal defense attorney should try and suppress any statements given by a defendant which, in any way, provide a link between the defendant and any child pornography found by law enforcement. A Motion to Suppress should be filed regardless of whether the defendant was in custody when the statement was given.
Many people believe statements given by defendants can not be suppressed if law enforcement provides Miranda warnings. This is also not true. An attorney should try and suppress statements given by a defendant even if law enforcement provides Miranda warnings.
Recent case example
In one recent case, an older, married man was suspected of possessing child pornography based upon activity to known websites containing child pornography. The gentleman lived with his wife in the suburb of a large city and had lived in the same neighborhood for years.
Law enforcement did not have enough evidence to get a warrant to enter the suspect's house and seize the computer. Because they couldn't get a warrant, law enforcement decided to walk up to the man's house and talk to him to see if they could gain access to the house voluntarily.
In arriving at the house, law enforcement waited until approximately 7:30 p.m., when it was dark, and all the people in the neighborhood were home. Three federal agents and some local police came to the older man's house. After convincing the man that they should be allowed into the house, the authorities also convinced the man they should be allowed to "examine" the computer within the house.
In short, law enforcement coerced the gentleman to verbally provide permission to search the computer. Law enforcement threatened to stay in the man's house for several hours while they attempted to get another search warrant. Law enforcement also threatened to seize and take several items which belonged to the man's wife.
The man believed if he did not give consent, multiple officers would arrive in the neighborhood with the lights on their patrol cars flashing, law enforcement would stay in the house for hours, search through all of his items and his wife's items, and ultimately take several things which belonged to him and his wife.
After several hours of badgering, and believing he had no other choice, the man finally admitted he may have downloaded child pornography, provided verbal consent and the computer was seized. Shortly thereafter, the man was federally indicted because his computer contained child pornography.
In the above example, an attorney should challenge whether the officers even had the right to go to the man's house and talk to the older gentleman. An attorney should also challenge the verbal consent and statement given by the older man on the basis the consent was coerced. Finally, an attorney should challenge whether the officers had the right and authority to examine the computer because the wife did not give consent and both parties had access to the computer.
Initial Seizure of the Computer by Law Enforcement
In all criminal cases involving a computer, it is likely that law enforcement will seize the computer and subsequently perform a forensic search of the computer.
Although all law enforcement has different procedures for an initial search and seizure of a suspected computer, an experienced criminal defense attorney should ensure all procedures were followed properly.
The failure of law enforcement to follow proper procedures in analyzing a computer for the presence of child pornography can result in charges being reduced or completely dismissed in some cases.
Recent case example
In a recent case, a defendant's computer was seized and subsequently examined by a computer expert hired by local law enforcement. The expert reviewed the computer and found what was believed to be child pornography.
When deposing the expert, attorneys discovered the expert did not follow procedures and protocol required by both federal and state law. Because the proper procedure was not followed, several motions were filed and arguments were made in court to have the charges dismissed. After several days of arguing, the prosecuting attorney finally agreed to a substantial reduction of charges.
Recent case example
In one recent case, a computer was seized by a person suspected of possessing child pornography. A close examination of the computer and suspected child pornography resulted in the discovery that the pictures believed to be "illegal" were downloaded from a commercial adult website and the alleged "children" were adult models.
In that case, the owners and creators of the website were contacted and records were sought to demonstrate the people within the pictures were actually adults.
Determining who had access to the Computer
In most households, multiple people have access to a computer. Sometimes, people even allow friends, relatives and neighbors access to a computer. We have represented clients charged with crimes simply because the person allowed other people to use their computer.
In such cases, it is important to thoroughly consider all people who have had access to a computer to determine possible defenses. Such information is critical in establishing the party responsible for putting illegal material on a computer.
Recent case example
A defendant was recently charged with possession of child pornography, however, the defendant lived with three (3) other people. A detailed examination of the computer determined most of the illegal materials were downloaded onto the computer between 8:00 a.m. and 5:00 p.m. during the regular work-week. Because the defendant worked a regular job during the day, employment records were sought and ultimately, a significant amount of doubt was cast upon who, exactly was responsible for downloading the illegal materials, and the defendant accepted a very good plea agreement which completely avoided the risk of lengthy imprisonment.
Limewire and other "peer-to-peer" networks
Although many people use software such as Limewire for legal purposes, some people download child pornography using such software.
When a person is facing charges which involve "peer-to-peer" networks, such as Limewire, Kaza, etc., an attorney with technical knowledge can quickly look at a computer to determine whether the material may have been downloaded "accidentally." Restated, an experienced attorney can look at the manner files were downloaded onto a computer to determine whether a person was intentionally seeking illegal materials such as child pornography or whether the person accidentally downloaded child pornography.
Remember, the law requires a person "knowingly" possess child pornography. Possession of pornography involving adults is not a crime. The government must prove, beyond a reasonable doubt, a defendant knowingly possessed the illegal image(s) and/or video(s) and the person charged must have reason to know of its true content and character (e.g., that the material is illegal, etc.).
As such, if a person did not intentionally download child pornography, it is likely the person would not know the illegal item was located on their computer. An attorney with computer knowledge will examine a computer to determine whether illegal files were likely downloaded accidentally.
Further, experienced hackers can access a person's computer through an internet connection and store illegal materials on the computer of an unsuspecting person.
Restated, pedophiles with computer knowledge can hack your computer and use your computer to store and access their illegal child pornography without fear of getting caught.
Use of Computer Experts
As noted above, although it is important to have an attorney who possesses significant computer knowledge, it is also important to have a computer expert on your team who can provide testimony, if necessary, to the technical issues which arise when defending somebody charged with a computer crime.
Recent case example
In a recent case, a defendant was charged with several counts of possession of child pornography based upon images and movies found on his home computer. The defendant's computer was seized by law enforcement and later searched by law enforcement when the computer was at the police station.
When deposing the police officers who searched the Defendant's computer and found the illegal material, I discovered the "expert" did not follow procedures and protocol required by both federal and state law.
Simply stated, the police officers did not follow the required technical procedures when searching for pornography on the Defendant's computer.
Recognizing the problem, the client retained a computer expert who also reviewed the analysis done by law enforcement. The expert wrote a report showing the technical mistakes made by law enforcement, and how those mistakes impacted the Defendant's ability to establish a defense.
Those mistakes were the basis for defense motions to dismiss the charges for violation of the defendant's constitutional rights. Ultimately, the prosecuting attorney agreed to a substantial reduction of charges.
Punishment in Federal Court
If a person is convicted of a crime involving a computer or the internet in Federal Court, the person will be sentenced based upon the Federal Sentencing Guidelines.
Although no longer mandatory, the Federal Sentencing Guidelines is a compilation of written standards which exist all across the nation to help equalize sentences for similar crimes. The Federal Sentencing Guidelines (hereinafter "The Guidelines") provide a framework for judges to follow when determining an appropriate sentence for an offender. The Guidelines help ensure that a person convicted of a federal crime in one state receives a similar sentence to another person convicted of the same crime in another state.
With respect to a crime involving child pornography, the term of imprisonment for a convicted defendant can increase significantly based upon factors outlined within The Guidelines.
The following enhancements may apply in a case involving child pornography.
Prepubescent Minors: If the materials found on a computer (e.g., pictures and/or movies, etc.) involve a "prepubescent minor" (e.g., a minor who had not attained the age of 12 years), an increase in the sentence is warranted.
Use of a Computer: If a computer is used to access, distribute and/or store the illegal materials, an increase in the sentence is warranted.
Sadomasochistic Conduct: Depictions of sadistic or masochistic conduct or other depictions of violence in the materials requires an increase.
According to recent federal decisions in the issue, penetration of children (in any manner) qualifies as "sadomasochistic conduct" because the courts believe forced sex of a child is painful and, as such, "sadomasochistic".
Number of Images: An increase in the sentence is also warranted if the number of images located on a computer is more than 10 images. A substantial increase is warranted if there are movies and/or videos located on a computer. One video counts as 75 images, and videos substantially longer than 5 minutes may require an upward departure.
In short, after considering all of the factors which impact a potential sentence, it is not uncommon for a person convicted of possession of child-pornography in Federal Court to have an average sentence somewhere between eight (8) and fifteen (15) years.
Enhancements exist in Federal Court for every type of computer crime, not just possession of child pornography.
Punishment in State Court
As indicated, in every state, felony charges exist for sex crimes, internet crimes and computer crimes.
As in Federal Court, there are many factors which can impact a judge's decision in imposing a sentence. An experienced attorney will ensure a Court is aware of all favorable factors before a defendant is sentenced.
Conclusion
The popularity of computers and the internet have made it easier for people to commit computer related crimes. The consequences of criminal charges related to computer crimes can include a lengthy term of imprisonment. It is imperative that a person facing criminal charges for computer crimes consult and retain an attorney who has in-depth experience and knowledge about computers and other technology. Frequently, it is such knowledge which provides the basis for a short sentence or probation as compared to a lengthy sentence of imprisonment.
Chad J. Wythers
Berry Law Firm
2650 N. 48th Street
Lincoln, NE 68504
(402) 466-8444
http://www.jsberrylaw.com
