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CHILD
PORNOGRAPHY LAWS: POSSESSION IS A CRIME
Introduction:
If you
have child pornography on your computer you have committed a federal
crime (and possibly a State crime) by its mere possession. Given the
wide scope of spam invasions of most computers and programs that can pop
up on your computer from aggressive internet advertisers, this danger is
ever present in both the home and work place and the law enforcement
agencies encourage the employer to take steps to notify the prosecution
assuming such material is found on an employee’s work station.
The
statute is seriously enforced by Federal authorities and a person’s
reputation can be utterly destroyed by the mere accusation. A few clicks
on your mouse and you may face a life changing series of events that
will alter your life forever.
It is
vital to know and understand the applicable laws.
Statutory
Basis of Crime:
Title
18 United State Code (USC) § 2252 provides the following regarding
certain activities relating to material involving the sexual
exploitation of minors: a defendant can be convicted of possession of
child pornography, in violation of 18 USC § 2252(a)(4)(b) where the
defendant
“(4)
knowingly possesses one or more books, magazines, periodicals,
films, video tapes, or other matter which contain any visual depiction
that has been mailed, or has been shipped or transported in interstate
or foreign commerce, or which was produced using materials which have
been mailed or so shipped or transported, by any means including by
computer, if—
(i)
the producing of such visual depiction involves the use of a minor
engaging in sexually explicit conduct; and
(ii)
such visual depiction is of such conduct;
shall
be punished as provided in subsection (b) of this section.”
Punishment defined by subsection (b) states “whoever violates, or
attempts or conspires to violate, paragraph (4) of subsection (a) shall
be fined under this title or imprisoned not more than 10 years, or
both.”
Case Law:
In
US vs. Ziegler, 456 F.3d 1138, the court dealt with the issue of
child pornography on an employee’s workplace computer. Ziegler, the
employee, was charged with receipt of child pornography, in violation of
18 USC § 2252A(a)(2); possession of child pornography, in violation of
18 USC § 2252A(5)(B); and receipt of obscene material, in violation of
18 USC § 1462.
Ziegler tried to argue a reasonable expectation of privacy per his
Fourth Amendment rights. However, even though his office was locked and
his computer was password protected, the court did not provide him
protection under the Fourth Amendment. The case the district court
relied on for this finding was United States vs. Simons, 206 F.
3d at 399 where anything in, “…the records or fruits of [one’s] Internet
use” was considered subject to employer control. A supervisor reviewed
“hits” originating from Simon’s computer via the firewall, where no
download was involved. [Each photo is a file and hence a “hit.”]
It is
important to note that the fact that Ziegler sought to protect access to
his computer was irrelevant. The crime was not disseminating the
materials. Mere possession of the materials is a crime in and of itself,
similar to possession of prohibited drugs, such as cocaine.
Cyber
Law is governed by federal law since interstate commerce is involved.
There
is no statutory authority on the legal requirement to report child
pornography to the FBI or other Federal Agencies. However, there is
published an interview in USA Today from 2002 with Michael Heimbach,
chief of the FBI’s crimes Against Children Unit. He says you are
encouraged to report incidents of child pornography (specifically
referring to websites and knowledge of accessed websites by others) to
either
www.missingkids.com or call 1-800-The Lost which will in turn be
disseminated to law enforcement. Law enforcement then is supposed to
report the incident to their local FBI Office.
In
particular, he discusses employer’s liability in reporting incidents it
discovers and says that all incidents of child pornography should be
reported to law enforcement since it is a felony charge. He does not
state any law requiring anyone to report the information, and neither
specifically to the FBI but rather law enforcement in general. It is, as
expected, only strongly suggested to do so.
Practicalities:
Since
the crime is possession of the material, in and of itself, if one finds
oneself staring at such pornography on one’s screen regardless of how it
arrived there, one has a problem. And, as seen in our article on
Computer Discovery,
the history of that product on your computer is not eliminated by
closing the program or “deleting” it. The odds are good it remains on
your hard drive until erased by additional materials over writing it
which may not occur for years or ever.
Further, the fact that you have entered that website is permanently on
the records not only of that website but on various servers that give
access. Most of that information can be obtained by enforcement
agencies.
If you
are inclined to view such materials, you are violating the law and
facing not only disgrace but prosecution. The FBI does actively
prosecute such matters on a regular basis.
But
assume you did not seek to have the materials and they suddenly popped
up on your screen. Assume it was at work. What should you do?
Most
employees will simply close the program and expect that nothing will
ever happen and they are probably correct. However, if the machine is a
dedicated one to your personal work station and the materials are later
discovered, you may find yourself in real trouble. For those companies
which move computers around without erasing hard drives, new employees
may suddenly be accused of having such materials on their hard drive and
an investigation can arise seeking to trace the materials back.
That
may or may not be possible. While date and time of entry can normally be
discovered, unless the computer was locked away in a room, that alone is
not evidence that a particular person opened the program. It is not
uncommon for employees to have to review their records to determine who
worked where and when during such an investigation, with the FBI at
times participating in such investigation.
The
problem is not only prosecution, for the FBI will not actually prosecute
a case predicated on suspicion. However, such accusations are incredibly
destruction to a person’s reputation in the community, can destroy
marriages, and can arise during later divorce proceedings and custody
battles. It is one of the areas in our culture where mere suspicion can
destroy a person’s life.
But if
you did not actively seek it out and it pops up, that can also be
demonstrated and a good proactive step is to immediately go to your
supervisor, advise them what happened, and insist that your report be
made part of the record and that an investigation as to how it arrived
be undertaken. That should eliminate most dangers to you and even if no
such investigation is made, your record will be complete and a possible
defense against later claims.
But if
you did seek it out and it is on your machine, you face a very dangerous
situation. Clearly counseling would be useful since you are breaking the
law and should address why you are doing that. Any communication as to
what occurred with other than legal counsel or medical advisors is quite
possibly discoverable so obtaining legal advice immediately is a very
good idea. |
