How Can An Attorney Help You With Your Child Pornography Case?
Interviewer: What defense strategies are available to someone once Law Enforcement has executed a search warrant and seized their computers, phones and their electronic devices on suspicion of possession of child pornography?
Paul Cramm: First and foremost, we need to have our own independent forensic examination performed on any computer, phone, ipad, tablet or any other electronic device seized from my client’s residence, or from his possession. I typically use Envista Digital Forensics. They are preeminent and nationally recognized. Their examiners are very familiar with the agents at the regional forensics computer laboratory here in Kansas City. The technicians from Envista have conducted countless on-site examinations of digital evidence at the RCFL. They know the protocol and they get the job done.
I want to have an independent examination of the computer. That’s first and foremost. Let’s figure out digitally and forensically what we are dealing with. There are so many available defenses as to how a certain file or piece of data may have found its way onto a computer. Additionally, I want to know from my interview with my client as well as the report from Envista where the images came from. Did they come from a website that pretends to be a lawful website with the mandatory federal 18 U.S.C. 2257 disclaimer? If that type of disclaimer is present on the site where the images came from, and it’s a matter of a very physically mature 16- or 17-year-old girl who could easily pass for 22, there may be a knowledge and intent defense there.
I want to know where the images came from and what one would reasonably think or believe when visiting that site. I want to know if my client’s home network is Wi-Fi, as opposed to a hardwired system. A lot of people have Wi-Fi so that they can carry their tablet or laptop all over the house and work with it. If there’s a Wi-Fi location, does my client use a password? Is it secure or unsecured?
Certainly there are very well-known incidents where a purveyor of unlawful material will cruise through a very nicely developed upper middle class neighborhood with his Wi-Fi on to see what all available Internet connections are sent by an open Wi-Fi. They look for a wireless network that is not password-protected. They log on to a non-password-protected Wi-Fi account from someone’s residence, which anyone can do from 30 to 40 feet away. The person can have an absolute holiday, downloading God knows what.
In a case like that, Law Enforcement will find after they take every piece of electronic equipment out of the house for forensic examination and none of the images are found on the equipment from the house. Certainly this type of type of Wi-Fi connection is an issue, especially now that we have so many people whose high school and college age kids and their friends are coming in and out of the home at all hours. What if somebody’s friend came over with a wireless laptop or tablet, accessed the residential Wi-Fi account at the client’s home, downloaded a whole bunch of information, and left? We really need to look at that as well.
Interviewer: That’s a good relevant point. I had a friend that would sit outside my house just to use my Wi-Fi so he could do job searches. I do have an unsecured network. It makes it easier for many devices that I use. Even when I didn’t have Wi-Fi, when I needed to use Wi-Fi, there are areas like a motel that you can sit by, or coffee shops – those things. That brings up a good point. Is that a new realization that something could totally make a case dismiss after a while?
Paul Cramm: It can. I think, once again, a lot of that will depend upon if agents have done a complete examination of thumb drives, flash drives, laptops, tablets, towers, you name it. Agents have seized every piece of equipment in the house, and none of the equipment contains the images or files that triggered issuance of the search warrant in the first place. They know that access to a known child pornography website occurred from the listed IP address. Then absolutely, if there’s a Wi-Fi account at that address, that would create an enormous hurdle for the prosecution to clear.
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