Law enforcement agencies that investigate child pornography cases face special technological challenges when tracking the distribution of contraband on the Internet, and then in building a case against a specific defendant. A case in point is “Dreamboard”, an online bulletin board that advertised and distributed child pornography. Dreamboard users employed encryption software, peer-to-peer networks and the so-called “Dark Web” to share images between and amount members/subscribers in 13 different countries. In fact, all Dreamboard subscribers were required to use specific encryption software when viewing and/or sharing images. Further, each file description had a specific link and password which allowed access to images through another website that stored encrypted files. Dreamboard was the target of a 2009 sting operation that resulted in approximately 70 convictions. The site was infiltrated through the efforts of several dozen law enforcement agencies including, without limitation, the Departments of Justice and Homeland Security, and 35 domestic ICE offices.
Dreamboard users obviously had to have both a level of technological skill, as well as the appropriate equipment and software, to be members. The Dreamboard case was, however, not unique in this regard. In a recent Louisiana case, a defendant set his computer to wipe the hard drive clean if a password was not entered within a few seconds of opening the device. Another defendant asked an undercover agent posing as a minor to send him a picture during an online chat. Law enforcement personnel are not allowed to distribute pornography, so the agent’s smartphone would not allow him to send a photo. This ultimately led the defendant to believe that the agent was using a smartphone, at which point he ended the conversation.
If it all sounds complicated, that’s because it is. The possession and distribution of online pornography is becoming increasingly sophisticated in terms of technology and scope. These cases can include the use of password protection, encryption, file servers and/or peer-to-peer networks, software designed to eliminate evidence, remote storage, partitioned hard drives, and the like. These cases are further complicated by the fact that pornography has gone global, and frequently involves the use of mobile devices, apps, and social media sites including What’s App, Kik Messenger, Instagram and Snapchat. Finally, cases can involve terabytes of data. (One terabyte equals about 1,000 gigabytes, and can hold approximately 3.6 million images or 300 hours of video.)Both federal and state law enforcement agencies are working hard to stay on top of the technology used in these cases. For example, specially trained officers use computer forensics to identify IP addresses and “Globally Unique Identifiers” or GUIDs, which identify a specific computer’s operating system, and match them to users who are accessing and distributing images and videos online. Staying abreast of this technology is difficult and consumes substantial law enforcement resources, but there is no sign of backing down.
The foregoing technological issues make it difficult for law enforcement to build a case against a defendant, but can also make it just as hard to mount a meaningful defense. In order to effectively represent a defendant charged in a child pornography case, defense counsel must obviously be familiar with applicable law and procedural rules, but must also have a working knowledge of the applicable technology. Absent an understanding of the increasingly complex technological aspects of these cases, it is difficult to see how a defense attorney can engage in intelligent and informed plea negotiations, make appropriate motions, work with defense experts, or cross-examine a witness at trial. To the extent it is not already happening, CLE organizations should be offering courses in the purely technical aspects of these cases.
The latest activity in this area also includes procedural developments that, in many respects, stem directly from the increasingly sophisticated technology. In 2015, during a federal investigation of a child pornography site called “Playpen”, the Government sought a warrant that would allow the FBI to search an unlimited number of computers anywhere in the world. Interestingly, the FBI infiltrated the site and infected the computers of users with malware that allowed law enforcement to track them remotely. Ultimately, well over 2oo individuals were charged. However, courts in Washington, Oklahoma and Massachusetts suppressed evidence seized as a result of the warrant because, in their view, it was overly broad. Other federal courts declined to do so.
This is significant because Federal Rule of Criminal Procedure 41, which governs warrants, has been amended to, in essence, significantly relax or even eliminate some requirements that warrants typically must meet. First, a warrant must be “particular”, meaning that it must specifically identify what evidence is being sought, where it may be located, and who or what is to be searched. Another major requirement is “territoriality”, which refers to the fact that the warrant is issued in the jurisdiction where it will be executed. The amendments amount to a substantial relaxation of these requirements in online pornography cases. The proponents of the amendments argued that they were necessary because the old rule was outdated in light of advances in computer technology. Opponents respond that the amended Rule can allow for the searches of computers used for perfectly legal activities.
Child pornography cases are going to become increasingly complex as computer technology develops, and as laws and procedures are amended to respond to such advances. Defense counsel cannot be effective in such cases absent familiarity with changes in both areas.
Attorney James S. Friedman defends individuals charged with possession and/or distribution of child pornography in the state and federal courts located in New Jersey and New York City. If you have been charged in a kiddie porn case, contact the firm immediately to learn about your options, and to start building your defense.