Child Porn Charges Dropped

June 24, 2008 by David S. Seltzer

First off, thank you to Prof. Patrick Corbett, from Thomas M. Cooley, who passed this story on to me. I recently ran into Patrick at the ABA Cyber Seminar, in Washington, DC. I attended Cooley, prior to transferring to Miami. I transferred for family reasons, but I truly believe that the education at Cooley is one of the best in the country, because they really, truly care about the success of their students.

State worker was charged with possession of child pornography on his workplace computer. A situation that is all too familiar these days. However in this case, the computer wasn't all that accurate. Yes, the computer did possess child pornography, but in filing a case the State must also prove that the user knew (or had dominion on control over the images). In this situation the State had neither. In a forensic review of the computer, the defendant was able to prove that he was not accessing or viewing child pornography, rather the computer was. What?

This is not the first instance of computers doing things on their own. Basically what happens is that you either intentionally, or unintentionally (virus), download a software application. They come in many forms, but the gist of the application is the same - it seeks out pornography, and doesn't differentiate between child and adult. It then appears to the world that your "machine" has been viewing pornography, and thus the police investigation/charges.

Who's fault is this? You would think that in the "pursuit of justice," that the police would be cognizant of the various types of viruses out there and when they forensically analyze the media they seize, that they would search for them. In reality what happens is that due to the backlog of media that is waiting to be forensically analyzed throughout this country, once the analyst discovers the evidence to make its case, the forensic review stops and the case gets filed. That begs the question, who really has the burden of proof?

It just goes to show you that you really can't judge a book by it's cover. For the article, click here: State Worker Cleared on Child Pornography Charges