Child Porn Decision Turns On Downloading Intent

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. 

HP Pavilion DV7 Review- It's Not Good

All I wanted was a basic functional laptop. I wasn't looking for anything fancy. After lots of research, I chose the HP Pavilion DV7. I had an HP before and I liked it. It was better than the Dells I've had that have gone through power cords and mother boards and hard drives. For the money, it looked like a good deal. It also has a 17" screen, which I figured would be good because I spend a lot of time at the computer (probably 10 hours a day) and I can use as much assistance as I can get with making the display readable. I've had the laptop for about a month, maybe two. 


Two keys have fallen off the keyboard. I hesitate to call customer service. As I recall from my last HP, they require you to send the laptop in for service. I may as well save my time and just buy a keyboard because that is never going to happen. There is an odd thing that happens with the mouse or the keystrokes. It is either a combination of keystrokes or a super-sensitivity of the mouse, but at times the cursor flies up to a section of my document while I'm typing and will highlight a section and delete it, or insert the text that I'm typing at the point where it's landed. It can be a big productivity waster, because I find I spend unnecessary time tracking down and correcting errant cursor flitting about in my documents.

Blackberry P 9981 - $2k for a Phone? Not Happening

Blackberry announced a new phone designed by Porche- the P 9981. Meh. Same keyboard design. Chromey and a bit thinner than my bold. New apps? Can it do all the stuff a Droid or an iPhone can? Does it have the new Microsoft OS? No.

But it has augmented reality abilities and a touch screen. And RIM says it can browse the web faster. All for a mere $2,000.

Did I say $2,000 for a Blackberry? Yes. And how many people are going to buy it? Four, maybe five people so they can keep them in the original box and try to sell them twenty years from now for millions because they'll be 'rare.'

I try not to let myself waste too much time speculating about things like this, but I wonder what the meetings were like that led to the pricing decision on a 2 thousand dollar cell phone. I might pay two thousand dollars for a phone if I could call the spirit world (and someone would answer) or God, maybe for a five minute conversation with the president or Dali Lama. But for a Blackberry? Seriously. I would LOVE to meet the people responsible for the pricing decision and learn from how that lapse of collective reasoning was made.

The Cybercrime Wave that the Op-Ed Authors Didn't Address

Today’s NYT published an Op-Ed by Microsoft researcher Cormac Herley and Dinei Florêncio that informed us that reports of cybercrime have been greatly over exaggerated. Their article suffers two major flaws. First, they never define cybercrime. Second, their premise is both naïve and irrelevant.

Take a look at the article. Cybercrime isn’t defined. The authors apparently assume we know what they’re talking about. No, we don’t. Is cybercrime Internet facilitated crime that results in financial loss? Is it any activity defined by law as a crime facilitated by the Internet? What, exactly, are they talking about?

By every account, 2011 saw more data breaches than have ever. The first quarter of 2012 is on track to break that record. Online trafficking in child abuse images and infringement of intellectual property is not subsiding as more people enter the Internet community. It increases. We lack the ability to measure the rate at which these activities occur.

Their premise is that cybercriminals don’t make a lot of money from their crimes. Individual losses are small. But the thesis isn’t why we’re all concerned about cybercrime, is it? The loss in terms of dollars actually stolen is not what matters. What is important is the cost of mitigation, and that cost is very large.

Anyone who has suffered a virus infection on their home pc knows that the down time required to wipe a hard drive and reinstall your operating system is significant. Many people don’t bother. They buy a new computer. Identity theft on the smallest scale requires a great deal of time to contact credit agencies, banks and creditors, get new cards issued, and check credit reports.

Businesses spend a lot of money guarding against cybercrime because the threat of data breach is great. Data breaches require assembly of a team of experts, response and mitigation. Clean up following a breach can be costly, requiring identification of account holders whose information may have been compromised. The cost to reputation and good will for businesses charged with protecting client data when they fail to protect it is incalculable.

When government databases are breached and private data exposed, the direct individual cost may be small. However, it is irrelevant, isn’t it? Who can place a value on your social security number combined with your name, birthdate and address? It isn’t the small financial gain per
person per incident, if that was what the authors of the op-ed article were talking about.

The important consequence of data breaches, at least, are the exposure of private personal data that makes people vulnerable to financial and personal attack. Do not negate the inherent value of privacy. Many countries protect personal privacy as something that is as valuable as property. It has value and the authors completely ignore the host of violent crimes and other crimes against persons facilitated by the Internet. Most prominent among those crimes is the trafficking in child abuse images. We certainly have not seen any abatement in the flow of child pornography on the web, nor have we seen a drop in the rate of arrests or prosecutions for the crimes.

Thankfully, we have seen a reduction in online auction fraud due to improvements in security and practices at the major auction sites. We have seen a drastic reduction in the number of minors lured by predators as well. Today, it is fairly safe to say that the only 13 year olds who are on chat rooms being enticed into sexual relationships are more than likely police officers.

One is left to wonder what the authors' were really saying, then. What's the motivation? Being a skeptic, I look to who wrote the article and what they didn't talk about. I also look at what has been going on lately. One of the authors works at Microsoft. They didn't define 'cybercrime.' They focused on the costs to individual victims of small events like identity theft and didn't calculate the remediation costs. In the past eighteen months there have been hacks of government networks and major corporations unparalleled. My conclusion is that the article is an attempt to salve our legitimate concerns about a very real threat.

Electronic Discovery Publication Must Read- Gartner's Magic Quadrant

This white paper is absolutely mandatory reading for everyone involved in e-discovery. Gartner reviews 24 e-discovery vendors. They've done the research for you and provided accurate and succint evaluations.

Eleventh Circuit Weighs in -- Encryption Key IS Protected by 5th Amendment

Out of a sense of obligation, I'm posting this update on 5th Amendment protection of encryption passwords. Ho hum. In United States v John Doe, the 11th Circuit ruled that yes, the 5th Amendment does protect one's encryption password as it is testimonial in nature. Right.

As I've stated before. Big deal. Who cares? If the 11th Circuit had held the opposite, and had ordered the defendant to produce the key, what would have been the practical result? Tick tock. The defendant would have 'forgotten' the password. Hello?

I'm as game as the next lawyer for 'angels dancing on the head of a pin' sorts of arguments, but in this economy, it seems. . . well. . . not only excessive but insulting to us as taxpayers to address such obviously idiotic issues. Really. I'm not going to waste my valuable time researching how much the exercise over at the 11th Circuit cost. I'm willing to bet it was more than $100 grand, though. I can buy a lot of paper clips with that. Just sayin.

Spam-Smishing-Cramming: Tips

Sunday’s New York Times Technology Section carried two articles that, together, provide some valuable information to cell phone users. First, you’ve probably noticed an increase in spam on your cell phone. If you’ve got texting, you’ve no doubt received at least a couple of spam messages. Apparently, there has been a large increase in phone spam in the past three years, and a spike in phishing spam- termed ‘smishing.’

As with email spam, there’s not much you can do about it. Delete it. Not much point in blocking individual numbers, because it’s unlikely that the same number will spam you more than once. You can sign up for a service that costs money to block the spam texts. You can change your phone number. Wait- no, not really, because if you discontinue your service before your contract expires, you’re subject to an early termination fee. OR, you can do what another article in the Times mentioned in the context of another topic- cramming.

Cramming is what happens when your cellphone bill gets bigger and bigger as your provider tacks on curious charges for things you didn’t ask for and don’t use. Cramming can work insidiously with smishing to make your cellphone bill unwieldy. Here’s how it works. You get an unsolicited text and respond. That gets you signed up for a service that charges your account ten bucks a month. The cellphone company gets a cut of the charge because it bills for it.

The Times blogger brought up an excellent point. Why is it that the default isn’t that all phones don’t block unrequested services unless requested? Instead, what happens is that the companies charge customers and customers pay the charges until they notice that their bills are costing them as much as their mortgages do and they take a look at the itemized bill. When cornered, AT&T and Verizon assured the Times reporter that they will block unrequested services if requested by the subscriber. Note, though, that the customer must request that the services be blocked, so don’t assume it’s happening if you haven’t made the call.