Wednesday, February 20, 2019

If the accused is not a sophisticated computer user -- knowledgeable of caches and other digital arcana -- his chances of acquittal increase in a child-porn case

This might read like a misprint, but it's a central question that arises in many child-pornography cases: Is the accused a sophisticated computer user?

Why would that matter in a child-porn prosecution? Well, we will go into specifics in upcoming posts, but the main reason is this: In the postmodern digital world, child-pornography images (and images of other kinds) can appear on a computer without the user's knowledge -- or without him taking any steps to acquire them. Images also can be stored on a computer -- in various places, most likely a thumb or browser cache -- without the user having any idea they are there.

To obtain a conviction, the government must show the accused "knowingly" received, possessed, or distributed "contraband" -- unlawful images of child pornography. That task is made easier if it can be shown the accused is a sophisticated user -- who knows how the guts of a computer work.

That certainly would exclude your humble blogger, along with many computer users -- including the defendant in the Missouri case of U.S. v. Scott J. Wells. The feds' complaint/affidavit in the Wells case provides little or no evidence that the accused is the kind of user who would know how to enter the bowels of his laptop and exert "dominion and control" over images he might or might not know were even there. (The complaint/affidavit is embedded at the end of this post.)

Our review of the court file indicates that is one of several reasons the government has an exceptionally weak case against Wells. In fact, it's a prime reason Wells should be acquitted, the charges probably should be dismissed, and he likely should never have been charged or detained (for almost two years).

This issue has arisen in numerous child-porn cases, across state and federal jurisdictions. Our research indicates state and federal child-porn laws share much in common, with identical language often turning up in both. A classic example of "sophisticated-user" analysis providing a turning point in a child-porn case is Barton v. State of Georgia (2007). Here are the key facts:

Following a jury trial, Edward Ray Barton was convicted of 106 counts of sexual exploitation of children.  On appeal from the trial court's denial of his motion for a new trial, Barton asserts that the State failed to prove his knowing possession of child pornography.  He further claims that the trial court erred in allowing a computer forensic analyst to testify as to the age of persons depicted in images found on Barton's computer. Finding that the State failed to prove knowing possession of child pornography, as charged in the indictment, we reverse. . . .

. . . the evidence shows that, after the Walker County Sheriff's Department began investigating allegations of child molestation against Barton,1 his wife provided authorities with Barton's laptop computer. Upon conducting a forensic examination of that computer, law enforcement retrieved 156 images they believed met the definition of child pornography stored on the computer's hard drive. Barton was indicted for sexual exploitation of children with respect to 106 of those images. Specifically, Barton was charged with “knowingly possess[ing] ” child pornography in violation of OCGA § 16-12-100(b)(8), which makes it unlawful “for any person knowingly to possess or control 2 any material which depicts a minor or a portion of a minor's body engaged in any sexually explicit conduct.”

How did the government seek to prove it's case. The process sounds a lot like what probably will happen in U.S. v. Wells:

At trial, the State sought to prove Barton's knowing possession of child pornography via the testimony of Special Agent Ben Murray of the United States Secret Service, a forensic computer analyst. Murray testified that all computers will store pictures or other information viewed over the internet on the computer's hard drive, in temporary internet file folders. There is nothing that such a user can do to prevent the computer from storing such items. Murray also explained that not everything stored in a computer's temporary internet file folders results from the affirmative conduct of a computer user. Rather, even those images which “pop-up” on a computer screen, even though neither sought nor desired by the computer user, are stored on the computer's hard drive. Furthermore, despite the fact that they are stored on the hard drive, Murray testified that no one using the computer can retrieve information stored in the temporary internet file folders without special forensic software. No such software was present on Barton's computer.

Murray testified that each of the pornographic images on Barton's computer was stored on the hard drive of his computer, in temporary internet file folders. This meant that Barton had viewed the pictures over the internet, but had taken no affirmative action to save them on his computer. Barton could not access or alter the pictures found stored on his computer's hard drive. Murray further testified that Barton had viewed all of the images within two separate time periods, totaling slightly less than four hours, on December 2 and 3, 2003.  He offered no testimony as to whether the images resulted from some affirmative action by Barton, represented “pop-ups” which appeared on Barton's computer, or both. Although Murray could not tell how long Barton had spent viewing each individual image, or how long he had kept those images open on his computer, he could say that Barton had never opened any image more than once.

How did Special Agent Murray's testimony fly with the Georgia Court of Appeals? You might say it crashed and burned:

Barton argues that this testimony was insufficient to establish his knowing possession of child pornography because:  (1) he took no affirmative action to store the images on his computer;  (2) he was unaware that the computer had automatically saved those images to the hard drive;  and (3) he had no ability to retrieve or access those images.  Reluctantly, we must agree.

(Note: The last sentence, highlighted above, shows the presumption of guilt that defendants often face in child-porn cases. Why would a judge be "reluctant" to properly apply the facts and the law? Such a statement is hard to comprehend, displays flagrant prejudice against Barton, and suggests someone on the Georgia court is a smart-ass.)

In the end, the Barton court appears to have reached its conclusion rather easily. It cited case law from two federal circuits (plus the U.S. Supreme Court) and three different states:

These decisions differ as to whether possession requires that a defendant take some affirmative action to download or save internet images onto his computer. None of those decisions, however, found that a defendant may be convicted of possessing child pornography stored in his computer's temporary internet file folders, also known as cache files, absent some evidence that the defendant was aware those files existed.   Several of those courts specifically found that there can be no possession where the defendant is unaware that the images have been saved in the cache files, reasoning that such ignorance precludes a finding that the defendant could exercise dominion or control over those images. . . .  (“[T]o possess the images in the cache, the defendant must, at a minimum, know that the unlawful images are stored on a disk or other tangible material in his possession.”); . . . (knowing possession of child pornography in this context requires the prosecution to show that the defendant intentionally sought out and viewed such materials with the knowledge that the images would be saved on his computer).

Here, the State's brief fails to address the issue of Barton's knowledge, and we find that at trial the State failed to meet its burden on this issue. The sole witness on this issue-Agent Murray-testified that Barton took no affirmative action to save these images to his computer, a conclusion supported by the fact that all of the pictures were stored on the cache drive as “thumbnails. . . . ” (citing expert testimony that “if only the ‘thumbnail’ image appeared on a hard drive, this would indicate that no one ever [attempted] to download the [image]”). Murray offered no testimony indicating that Barton was aware that the computer was storing these images, but instead established only that these files were stored automatically, without Barton having to do anything. Murray also testified that Barton would have been unable to view or access these images without using software that was not present on Barton's computer. Thus, there was no way that Barton could have learned of the cache files in the normal course of using his computer. Nor did the State present any circumstantial evidence that would have allowed the jury to infer Barton's knowledge of these files-i.e., they did not show that Barton was an experienced or sophisticated computer user who would have been aware of this automatic storage process. In short, the State presented no evidence that Barton was aware of the existence of the files at issue, and in doing so, they failed to prove that Barton knowingly possessed these images.

Will the government be able to prove Scott Wells knowingly possessed child-porn images. Our review of the case file suggests the answer is no. If the trial involves an honest judge and a competent jury -- both big "ifs" -- Wells should be acquitted. In our view, it would be a grave injustice if the case goes to trial.

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