Expert Witness Questions Child Porn Jailings

Internet article

By: Iain Thomson

Date: October 4, 2005

Source: Thomson, Iain. "Expert Witness Questions Child Porn Jailings," October 4, 2005. 〈http//:www.vnunet.com/vnunet/news/2143191/expert-witnessquestions-child〉 (accessed January 7, 2006).

About the Author: Iain Thompson is a journalist who specializes in legal affairs for the Business Publications section of the technology publications website, vnunet.com, based in England.

INTRODUCTION

In the pre-computer age, the manufacture and the distribution of child pornography was the preserve of the stereotypical "dirty old man," a lurking, furtive individual, clad in a trench coat, with a manila folder of obscene photographs tucked under his arm, looking to make a trade with a like-minded person. The technological advances in the processing speed and immense storage capacities of the computer, coupled with the global reach of the Internet, have eradicated the stereotypical pornographer. A child pornography trade based upon digital images has elevated the detection and the apprehension of child pornographers from the realm of traditional police work to a high-technology-based, forensic discipline. The criminal possession of child pornography will now, invariably, involve the use of a computer, a hardware peripheral, or a portable, removable media compatible with computer use.

The law does not move with the same speed as the digital technologies it has sought to regulate. In North America, computers were a staple of both the corporate world and the typical residence long before the power of the state to authorize comprehensive searches and seizures of computer records was confirmed in legislation. The public and law enforcement agencies alike had difficulty with the concept that data stored in a digital fashion within a computer file should be treated as if it were illegal in the conventional sense. Because computer files could seemingly be made to disappear with the press of a button, computer contents were not characterized as pieces of real, tangible evidence.

The first computer-based child pornography prosecutions of the early 1990s generated a significant change in public attitudes toward the contents of a computer and the concept of criminal possession by digital means. Seizures of tens of thousands of images depicting innocent children in positions of utter depravity became common. Police agencies began to direct significant attention and resources to child pornography investigations. A troubling companion issue arose—was child pornography an isolated perversion, or was it a growing, many-tentacled, social ill?

Because of enhanced resources and greater public awareness, significant penalties now exist for all forms of child pornography possession in countries throughout the Western world. From conduct that was deemed to be a personal peccadillo—a victimless crime—the convicted child pornographer is now subject to incarceration. Penal consequences have driven the development of more sophisticated, technology-based, criminal defenses to counter the results of a seemingly successful forensic computer search.

PRIMARY SOURCE

A witness in computer crime trials has called for the release of individuals convicted of child pornography offences based entirely on material found on their hard drives.

Jason Coombes, who has been involved in computer crime trials since 1994, issued a statement calling on police to be more thorough in their investigations.

The expert contends that third-party control of a PC which is then used to store or view child pornography images could lead to the conviction of innocent people.

"I have seen numerous cases in which the computer forensic evidence proves that a third-party intruder was in control of the suspect's computer," said Coombes.

"Every person convicted of an electronic crime against a child based only on evidence recovered from a hard drive that happened to be in their possession should be immediately released from whatever prison they are now being held."

"There is simply no way for law enforcement to know the difference between innocent and guilty persons based on hard drive data circumstantial evidence."

Coombes added that it was the responsibility of the police to use key-logging and internet wiretaps to prove guilt beyond reasonable doubt.

He also described it as "outrageous" that someone could be convicted of such a crime based solely on the contents of their hard drive.

Coombes highlighted the case of Commodore David White, who was accused of accessing a US child porn website and was relieved of his command despite there being no hard evidence against him. He was found dead in his swimming pool the next day.

Investigations into child pornography have led to 4,000 arrests, 1,600 people charged and 1,200 convictions. In the UK there have been 34 suicides by the accused.

Professor Neil Barrett, professor of computer science at Cranfield University, and himself an expert witness at computer crime trials, said: "I have heard this argument before, predominantly from defence witnesses seeking to poke holes in a case."

"To say that everything [in a child porn prosecution] is to do with a hard drive is unreasonable. We would never bring a case purely on the basis of what's on the computer."

Professor Barrett explained that suspects are interviewed and their stories checked before action is taken. If their computer is clean, for example if someone else was using their credit card number, no action is taken.

He added that the onus is always on the prosecution to prove that the accused directly accessed the images.

SIGNIFICANCE

The chief significance of the debate concerning what constitutes the actual or legal possession of child pornography is rooted in the simple question—is it right to convict someone of a serious crime on the sole basis of what is found in a computer? Computer errors abound in our high technology society, from bank machines to computer-generated statements of all kinds. Identity theft, sometimes furthered through computer access, is another basis for the lingering public distrust of technology as the definitive answer to any question. For these reasons, there are many people—although repulsed by child pornography—who are uncomfortable with the computer search alone as proof of a crime. Jason Coombes is giving voice to that constituency.

In very broad terms, the public accepts computer technology as a fundamental ingredient of their daily lives. Law enforcement approaches are largely a reflection of public attitudes. A criminal conviction—a fundamentally permanent conclusion regarding the character of an individual—may be supported in part by a technological device, but the public's comfort level is increased if the computer data is not the only evidence in an investigation that supports guilt.

In the Anglo-American tradition of criminal law, wrongful possession of an object is determined by the proof beyond a reasonable doubt of two separate, but related, components—a knowledge of the criminal nature of a particular item and control of it. A person driving a stolen motor vehicle is clearly in control of it; if he honestly did not know that the vehicle was stolen, a charge of possession of stolen property will fail. The same approach has been advanced in computer crimes involving child pornography. The discovery of obscene images stored on a person's computer is not conclusive proof that the owner knew that the images were there. However, there is a fear implicit in the concerns of Jason Coombes that society may be prepared to accept such evidence alone—without other corroboration—to determine guilt, given the foul nature of the material seized.

The comments of Professor Barrett echo the defenses raised in many child pornography trials. Proof as to who was actually using a computer when the image was stored or received may be difficult to establish in some circumstances. This line of reasoning is significant because it raises its own potential solution—is child pornography such a compelling social issue that it warrants its own law to define possession? Should child pornography or the possession of any contraband on a computer be resolved through different, more draconian legal rules, founded on the reverse of the old maxim, "Possession is nine-tenths of the law?". Law enforcement resources also reflect public sentiment. The public wants safety and secu-rity, but begrudges the tax increases required to fund additional police resources. Eliminating other suspects in child pornography investigations—who may have taken control of or otherwise accessed a computer to store pornographic images—carries a substantial cost.

The debate concerning police methods in child pornography investigations raises a related, significant issue. With a greater number of child pornography cases coming to light, have the number of such deviant persons increased, or is technology simply allowing child pornographers to be more easily identified? This troublesome question involves a number of issues, including whether the Internet has fostered a climate where such persons feel comfortable.

FURTHER RESOURCES

Books

Taylor, Max. Child Pornography: An Internet Crime. New York: Brunner-Routledge, 2003.

Web sites

Sherriff, Lucy. "U.S. Rules All Porn Is Child Porn," The Register, June 24, 2005. 〈http://www.theregister.co.uk/2005/06/24/us_law_2257/〉 (accessed January 9, 2006).

United States Department of Justice. "Child Pornography." 〈http://www.usdoj.gov/criminal/ceos/childporn.html〉 (accessed January 11, 2006).