Florida Serviceman Charged With Possession of Child Pornography -- Miami Cyber Crimes Defense Lawyer

December 5, 2008 by David S. Seltzer

The Santa Rosa Press-Gazette reported Dec. 2 that an Air Force serviceman was arrested for possession of child pornography. According to the article, the Cyber Crime Unit in Florida Attorney General Bill McCollum’s office found pornographic images of children online and traced them back to the man’s computer. In April, law enforcement seized the computer and an external hard drive, on which a forensic analyst found multiple images and videos alleged to be child pornography. The man is charged with 15 counts of possession of child pornography and one count of promoting the sexual performance of a child, carrying a total of 255 years in prison.

Unfortunately, the article doesn’t go into details about the images and how they were produced. But as a criminal defense attorney specializing in cyber crimes, I can see many possible defenses for this man, just from the few facts presented. For one thing, evidence that something was sent from a person’s computer is not evidence that it was sent by that person. You may not realize it, but viruses and “malware” can and regularly do quietly install themselves on vulnerable computers, which allows them to send and receive all kinds of things without the owner’s knowledge or permission. That was the case for a Massachusetts state worker I wrote about back in June. Of course, another human could also have used the machine.

Either way, once this stuff is on your computer, it can be automatically transferred to an external hard drive or other storage medium by backup software, thus giving law enforcement “evidence” that you collect it. There are many technical pitfalls like this when it comes to tracing electronic evidence. Others include easy-to-fake timestamps, “spoofed” identifying information and lack of accountability for Internet users and companies overseas. If an alleged solicitation was accomplished through Internet servers in another state, you can be charged with a federal crime, even if everyone involved lives in Florida. If you’re charged with this kind of crime, it is essential to find a lawyer experienced in cyber crimes defense, who understands where to look for these small but potentially exonerating details.

Finally, I’d like to point out that the man in this case is being charged under a relatively new Florida law: The Cyber Crimes Against Children Act of 2007. Among other things, this law doubled the penalty for promoting or distributing certain images of a child, which may explain the lengthy potential prison sentence. Whatever the outcome, I hope justice is served.