Ok, I cannot be the only person in the world who thinks this is ironic and amusing. The International Information Systems Security Certification Consortium, Inc. (ISC2) has had some of its websites go down recently. One can only presume they were hacked, since both of the websites were set up to be portals -- one for registering to teach internet safety to kids and another to vote for an awards program.
The ISC2 issues the most prestigious certifications offered in the field of information security- the Certified Information Systems Security Professional (CISSP, which has specializations in architecture, engineering and management), a certification which I hold, the Systems Security Certified Practitioner (SSCP), Certified Authorization Professional (CAP), Certified Secure Software Lifecycle Professional (CSSLP).
If the ISC2 people can get hacked ANYBODY can get hacked. If they aren't secure, NOBODY is secure. If you have important information, back it up and encrypt it. Just sayin.
New York ruling highlights gray area of Connecticut law
James Kent, a public administration professor at Marist College in Poughkeepsie, N.Y., was convicted of hundreds of counts of procuring and possessing child pornography via the Internet on his work computer. Last week, New York’s highest court reversed the convictions that were based on images located in temporary Internet or “cache” folders on his computer hard drive. The national headlines shouted that the New York Court of Appeals ruled that looking at child porn is not a crime.
But neither the decision, nor the technology that guided the justices toward it, is quite that simple.
What the Court of Appeals ruled is that the prosecution must show that a defendant did more than simply view images on a computer screen. According to the majority decision, “some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen.” But in this case, the justices ruled that the images and videos were apparently downloaded from web sites through the automatic functions of the operating system of the defendant’s computer, and thus there was no proof that the defendant knowingly committed a crime.
This holding is consistent with those in some other states and federal circuits, but has not been addressed in Connecticut as yet. This is an important issue because prosecutions are regularly moving forward in the state based on images located in temporary Internet storage and a number of defendants have been convicted.
Accidental Access
Generally speaking, when you go to a web site, images are downloaded to temporary storage on your computer — whether it’s a personal computer, pad, laptop or certain smartphones. This temporary storage is called “cache.” The pictures and video are temporarily stored to make it easier for your computer to display those images from the web site if you go back. It makes the processing time faster. This is an automatic process conducted by your computer’s operating system.
Yes, that means you or a client can accidentally access child pornography unknowingly. There may be pictures or videos that depict child pornography that you haven’t viewed that get automatically downloaded and stored in temporary Internet storage or cache. Yes, that means that even if you or a client accidentally access child pornography and try to delete it, if the police find out about it, they will make an arrest, push to prosecute and the resultant conviction will garner a mandatory minimum sentence of incarceration. In Connecticut, for fewer than 20 images, the mandatory minimum term is a year; for 20 to 49 images, two years; for more than 50, three years. One sentenced for a child pornography offense must register as a sex offender upon release from prison.
Compare images located in cache to files intentionally saved by the user. Files saved by a user will be found in folders like “My Documents” or “My Pictures.” Forensic software like EnCase and Forensic Tool Kit can help prosecutors, defense attorneys and their experts figure out whether files have been accessed, modified or deleted and when these actions occurred. Files located in temporary Internet storage most often are never accessed after they have been initially downloaded. That can be interpreted to mean that that the user either didn’t know the files were there or that they couldn’t access the files, or both.
Collectors of child pornography usually have many pictures and videos — they number in the hundreds, thousands, and hundreds of thousands, and serious collectors categorize their collections into folders. It doesn’t take many cases before one can discern the serious offenders.
Unallocated Space
In addition to data in temporary storage and purposefully saved files, there is unallocated space on digital media. Unallocated space may be empty. It may contain complete files, or it may contain incomplete files or data. Sometimes deleted data can be “carved” from unallocated space by forensic software. The software guesses what type of file the data once was and attempts to reconstitute it. Speculating as to the meaning of data in unallocated space is more alchemy than science or law. How the trial court in People v. Kent came to its conclusion that the defendant was guilty of possessing images located in unallocated space but not in temporary Internet is fact specific and should not be applied to data found in unallocated space in general, because unallocated space is a much different animal than temporary Internet storage.
Still, that shouldn’t diminish the impact or import of the court’s holding regarding data held in temporary storage. There are several cases holding that data in unallocated space is not knowingly possessed for the same reasons the court held that files located in temporary Internet storage are not possessed in the Kent case — because the user did not know that the files were being saved and the user could not access the files without specialized software.
In the New York case, Justice Victoria Graffeo wrote in a concurring opinion that, according to the majority opinion in the case, “it is [now] legal in New York to knowingly access and view child pornography.” But it’s not easy to prove that someone viewed something. A person can accidentally access a web site and their computer will download hundreds of pictures or videos. While it is possible to prove that a web site was visited for a certain period of time, it isn’t possible to determine what pictures on that web site someone looked at, or even if the person was looking at the web site the whole time.
Still, police and prosecutors in Connecticut have in the past and today continue to push these cases, even as New York, other states and some federal jurisdictions abandon the practice.
This isn’t a matter of advocating for child pornographers or sex fiends. Everyone agrees that child pornography is odious. The child sex assault and exploitation that the pornography chronicles is, without question, an insult to our humanity and an unrelenting victimization of the minors depicted. No one would ever marginalize those souls or minimize their anguish. Yet, to effectively deal with this issue, we must recognize that there is more to it than the pictures themselves.
Child pornography cases should interest us all because they are at the cutting edge of electronic evidence cases. We will see the most salient legal issues tested in those cases first before the principles are applied to other areas of the law. People v. Kent demonstrates the necessity of analyzing the legal issues rather than focusing on the visceral recoil we experience at the offense. It is a good case to look at because the defendant was guilty in part and not guilty in part. The court held that some of the child pornography on his hard drive was possessed knowingly — the images in unallocated space — but the images stored in cache — in temporary Internet storage — were there without his knowledge and therefore not unlawful. •
Thanks to the Connecticut Law Tribune, where this appeared in the Monday May 14, 2012 issue at http://www.ctlawtribune.com/getarticle.aspx?id=42167 online.
