Child Pornography

Child Pornography

There is currently greater and more widespread enforcement of laws against child pornography than ever before.  The public is largely uninformed about the aggressive steps law enforcement officers routinely take to find and arrest persons who possess, transfer or manufacture child pornography.  Most people in the community do not know that anyone who views, posts or searches for pornographic images and videos online has a real risk of being targeted as potentially being in possession of child pornography.  A person who is identified by law enforcement as having cause to believe to be in possession of these materials, including a single image, will experience a large contingent of law enforcement officers descending on that person’s home at 6:00 a.m., a search of that person’s home and the indefinite seizure and eventual search of all of that person’s electronic devices.  As will be described below, this is really happening, happening often and it can happen to almost anyone.

First, it is necessary to understand some basic concepts pertaining to child pornography.  It can be loosely understood to be the depiction of minors in sexually suggestive images that reveal sex related body parts or minors engaged in sex acts.  It is treated in criminal law as contraband much like illegal drugs.  Possession of child pornography is a serious crime in the same way that possession of cocaine and heroin would be.  Unlike obtaining illegal drugs which usually involves a hand to hand transfer from a dealer, child pornography is typically obtained over the internet, at home and in secret.  This method of acquisition promotes a false sense of security in which the person feels anonymous, that he is not someone law enforcement would go after and that it can’t be that bad if it can be downloaded from the internet.  This set of beliefs is wrong.  If any technology provider in the chain of delivery identifies child pornography in a file a user is uploading, downloading, viewing or searching for, that user will be reported.  This includes most often websites, web hosts, internet service providers and search engines.  Downloading .tor files which contain child pornography using a bit torrent client and permitting those files to be shared by the bit torrent client (usually the default setting in the software) and uploaded to other users qualifies as transferring child pornography (sometimes called “promoting”) which is much worse than mere possession.  Being caught in possession of these materials often leads to a felony criminal record, registration as a sex offender and a prison sentence.  Transferring or manufacturing child pornography have even more severe penalties.  The consequences of a conviction for even possession of child pornography tend to be life-altering just as a conviction for any serious sex crime like sexual assault would be.

Technology providers are required by law to report all instances of suspected child pornography to the National Center for Missing and Exploited Children (“NCMEC) which is a quasi-governmental organization.  Reports are made by technology providers via a special tip line should include the suspect file and related data, including the IP address of the end user.  NCMEC then sends the tip to a local law enforcement agency in the geographic locality where the end user is believed to be located.  The local law enforcement agency then obtains a subpoena or search warrant to obtain the user’s identity from the user’s internet service provider.  The local law enforcement agency then obtains a search warrant for the identified person’s home and raids that person’s home in a break-of-dawn warrant execution which rivals anything seen on TV.  The person’s house is torn apart and every electronic device that cannot be “cleared” on scene is seized.  The suspect is then left with no phone, no computer and often no access to that person’s personal and business records which are stored on computer hard-drives.  The search of that person’s electronic devices can take months or years depending on the backlog of the forensic search team.  This can result from uploading one single image to a message board which another message board reader reports as possibly being child pornography or from searching for one single image on Google or Bing images.  Be aware that law enforcement may not conduct any further background investigation into the person suspected of possessing child pornography other than the single report from NCMEC before obtaining a search warrant, seizing that person’s electronics and throwing that person’s life into chaos.  Considering how common it is to view pornography on the internet, the current state of law enforcement tactics to combat child pornography places large swaths of the public at risk of false accusation for child pornography, at least in the investigation and search/seizure process.

Defending these types of cases have two principal prongs.  First, careful attention has to be paid to the basis for the search and the search warrant process must be vigorously challenged if there is even a remote challenge possible.  The less information law enforcement gathers before pouncing on a suspect’s home, the more susceptible search warrants are to attack.  The second phase of child pornography defense is to attack the computer search forensics.  This is a highly complex area and tends to require the use of a defense computer expert.  It is in this arena that distinctions can be drawn between child pornography which was intentionally downloaded and viewed and child pornography which was downloaded inadvertently and possibly never even seen by the defendant.

Child pornography investigations and prosecutions are escalating rapidly and ensnaring a diverse group of people with varied levels of actual culpability.  KAPLAN AND KAPLAN has significant experience in this area of the law and would be pleased to consult with you about your circumstances.

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