Protecting Men And Women Accused Of Online Crimes

According to the experience published by U. s. Federal administration, since the mid-1980s, the trade in child pornography in the United States of America has been virtually eradicated due to the flourishing strategies of the federal and state governments.

Since the 1980s, creating child pornography has been difficult and expensive, but with the advent of computers and the Internet, small-scale pornography has become easier to obtain, reproduce, and buy.

Digital cameras, plus the ease with which photos and videos are often posted online, combined with the use of the world's largest borderless website, has made it easy for distributors and collectors of child pornography to acquire illegal photos and videos. While most people are somewhat aware of the sheer amount of pornography posted on the Internet, The Nationwide Heart for Missing & Exploited Children has estimated that 20% of all Internet pornography involves children.

Legally, 20% of pornography posted on the Internet is illegal in America.

Due to the increased availability of child pornography, federal and probation convictions for crimes related to child pornography have increased. The US Department of Justice recently announced a nationwide strategy to eradicate pornography for boys and girls. Efforts include nationalizing databases to allow states to share information, as well as hiring 38 assistant US attorneys across the US to prosecute boys and girls for pornography offences.

One simply has to open a newspaper or watch television to find a news article or photograph of a person whose name and reputation have been tarnished by executive order or federal child pornography charges.

Instead of focusing on people creating child pornography, efforts have changed and law enforcement is now targeting those with child pornography. To help prosecute ordinary citizens, the federal government is partnering with Internet search engines to find people who search, download, and possess child pornography.

Computer crimes are not limited to the simple possession or distribution of child pornography.

Many people have seen television shows in which law enforcement uses a computer to lure unsuspecting men and women into illegal situations (such as the NBC documentary To Catch a Predator, etc.).

In such situations, a law enforcement officer poses as a minor and lures an unsuspecting person into the scene; this place is usually depicted as the home of a minor. When the unfortunate man arrives at the minor's home, television cameras record the subsequent conversation between the surprised adult and law enforcement officers.

Sometimes the unlucky person believes (or hopes) that he or she can "dissuade" a potential arrest; however, the testimony made with this person is recorded and is likely to be used by the prosecutor as a basis for criminal prosecution.

In short, sex crimes, internet crimes, and computer crimes are the focus of state and federal law enforcement across the country.

Computer research

In any computer-related case, it is very important to use a computer expert in any child pornography case. The use of such experts can help establish a defense against crime by demonstrating some of the following:

• When downloading an illegal file;

• What computer program was used to download the illegal file;

• Which computer user uploaded the illegal file;

• Whether the illegal file was placed on the computer as a result of a computer virus;

• Whether an illegal file was placed on a computer by someone who "hacked into" an unsuspecting user's computer, and;

• Whether the people depicted in images and/or movies today are actually "children" or adult models who "impersonate" minors.

Unfortunately, most lawyers do not have enough information about computer technologies to even consider using computer experts. Most lawyers without sufficient computer experience simply assume that if child pornography is found on a computer, the person is "guilty."

Examples of Common Situations

Throughout the United States, prosecutors may file various charges against a person for using a computer for purposes that may appear legal.

Three typical examples are given:

Example #1: A suspect searches for pornographic material on the Internet and then downloads both legal and illegal material (such as child pornography, etc.). The illegal material actually comes from a website that is run through the federal government for the sole purpose of finding and arresting people who download child pornography today. Once illegal material is downloaded from a law enforcement computer, a warrant is requested from the local court and the computer is seized and searched.

A person is arrested even if he did not know that the materials downloaded to his computer were illegal.

Many people feel that if a website looks "legitimate", the material coming from that website should be allowed to own (like images, videos, etc.); on the other hand, this assumption is wrong.

As stated, the federal government has created "legitimate" looking websites that contain child pornography. The sole purpose of the website is to lure a person to commit illegal activities (such as downloading illegal movies and/or images, etc.) and then arrest that person for downloading and possessing an illegal item provided through the federal federal government.

Example #2: As in the example above, the suspect is using a peer-to-peer file sharing program to download pornography (eg LimeWire, Bittorrent, BearShare, etc.). Unbeknownst to the suspect, some of the downloaded pornography is actually child pornography and comes from a computer owned and operated by law enforcement. Once illegal material is downloaded from a law enforcement computer to a suspect's computer, a warrant is requested from the local court and the computer is seized and searched.

Another example is the use by law enforcement of the same "peer-to-peer" file sharing programs to "search" for illegal child pornography. Once law enforcement detects illegal material, a computer program determines the TCP/IP address of the computer hosting the illegal material. Along with the TCP/IP address, law enforcement can issue a warrant to determine the location and address of a suspicious computer. Once law enforcement becomes aware of the physical location of a suspicious computer, another warrant is issued authorizing a search and seizure of the computer.

Example #3: A suspect contacts a person believed to be a minor via an online chat. The juvenile is actually a law enforcement agency. Over several conversations, the suspect is either encouraged to send nude photos or, in the worst case, the suspect is forced into a face-to-face meeting with the minor only to arrive at a predetermined location and get the law enforcement waiting for the suspect to be arrested.

These three examples are common situations where individuals are charged in either federal or state court, but even so, the examples given are not the only actions that can lead to criminal prosecution.

Federal accusations regarding child pornography

Federal law makes it a crime to possess and distribute child pornography. Specifically, Title 18, Sections 2252 and 2252A of the US Code criminalizes the possession or distribution of child pornography.

Federal law defines child pornography as any visual image (images, videos, data stored on a computer, etc.) that involves a minor in sexually explicit conduct.

Title 18, Section 2256 of the US Code contains several definitions relating to minor pornography offenses; the following simplified definitions are given:

Minor: The term "minor" as used in federal law means a person under the age of 18.

Sexually explicit behavior: The term "sexually explicit behavior" as used in federal law means any sexual act, including material that simply shows a child's genitals.

Visual Image: The term "Visual Image" includes film, video cassette or other data stored on a computer or computerized data, or any data that can be converted into an image or film.

Although there are several different criminal provisions in the US Code relating to computer crimes, there are charges and penalties related to child pornography:

Obtaining or Distributing: If a person obtains or distributes child pornography, that person is subject to federal prison with a mandatory minimum sentence of five (5) years.

Title 18, United States Code, § 2252(a)(2); § 2252A(a)(2) (2010).

Transportation: If a person sends, transmits or provides underage pornography

to another person by any means (for example, by mail, e-mail, any

electronic means, etc.), that person is subject to imprisonment

in federal prison with a mandatory minimum sentence of five (5) years.

Title 18, United States Code, § 2252(a)(1); § 2252A(a)(1) (2010).

Possession: If a person is in possession of child pornography in any way, that person is subject to imprisonment in federal prison for a term not exceeding ten (10) years.

Title 18, United States Code, § 2252A(a)(4)(b); § 2252A(5)(B) (2010).

In effect, federal law makes it a crime for anyone to possess material that depicts nudity under the age of 18, exposed genitals, or engages in any sexual activity.

When representing a person charged with a child pornography offense it is important to fully understand the difference between potential charges and the risk of imprisonment for each.

Notably, if a person pleads guilty to the offense of possession of child pornography, there is no mandatory minimum sentence; however, if a person is convicted or found guilty of obtaining, distributing or transporting child pornography, there is a mandatory minimum penalty of five (5) years in prison.

Government fees for child pornography

In fact, it is a crime in all states to own photographs or movies showing a child's genitals, pubic area, or breasts (in the case of a female) if the child is under a certain age.

Common examples of illegal behavior are easy to depict (for example, a person has videotapes or photographs of minor children, etc.); however, the law also criminalizes the possession of digitized photographs and films, which are often stored on a computer or mobile phone. Thus, if a person receives an illegal image via email and has a phone that receives the email, that person can be charged and convicted simply for the illegal items accidentally stored on their phone. In addition, with the growing popularity of cell phones capable of taking photos and recording videos, many more people are facing criminal charges simply for taking and storing illegal photographs.

Many condition laws make it a crime to make any photograph or video that depicts a person under the age of 18 with their genitals exposed in any way, or engaging in "sexually explicit conduct".

This includes photos taken with a mobile phone or electronic camera.

Prosecutors in many states have used this law today to prosecute people for simply downloading or copying images from the web and then saving those images to a computer hard drive.

In other words, if you download photos and/or videos from the Internet and then store those images and/or videos on your computer, you can be prosecuted for all child pornography offenses under the above law.

General remedies in both state and federal court

Whether criminal charges are filed in state or federal court, there are many issues that an experienced criminal defense attorney familiar with computer crimes should explore.

The same questions arise whether the crime involves pornography for boys or girls, sex crimes, or general crimes on the World Wide Web.

Although not limited to the following, a few general questions that often arise are analyzed.

Ownership Knowledge

In both the terms and in federal court, to be convicted of the offense of "possession of child pornography", the defendant must knowingly possess child pornography, that is, the defendant must be aware of the existence of child pornography.

This means that the Administering Administration must prove, beyond reasonable doubt, that the defendant was aware of the existence of pornography for boys and girls.

Statement

Many defendants mistakenly believe that if a reasonable explanation is given for "why" child pornography is on the computer, criminal charges can be avoided.

In other words, many defendants believe that giving honest evidence to law enforcement will help them avoid arrest or prosecution.

It is not true.

When a defendant provides a statement to law enforcement, that statement is likely to be used against the defendant in a criminal prosecution.

The criminal defense attorney must attempt to suppress any statements by the defendant that in any way indicate a connection between the defendant and any child pornography found by law enforcement. A motion to dismiss must be made whether or not the defendant was in custody at the time of the motion.

Many people believe that the defendants' statements cannot be covered up if Miranda is alerted by law enforcement. This is also incorrect. The lawyer must try to cover up the statements made by the defendant, even if Miranda is warned by law enforcement.

Recent case example

In one recent case, an elderly married man was suspected of possessing child pornography based on his activity on known child pornography websites. This gentleman lived with his wife in the suburbs of a large city and has been living in the same area for many years.

Law enforcement did not have enough evidence to obtain a warrant to break into the suspect's home and confiscate the computer. Since they couldn't get a warrant, law enforcement decided to go to the man's house and talk to him to see if they could enter the house voluntarily.

Arriving at the house, law enforcement agencies waited until about 19:30, when it got dark and all the residents of the area were at home. Three federal agents and several local police officers came to the elderly man's house. By convincing the man that they should be allowed into the house, the authorities also convinced the man that they should be allowed to "inspect" the computer in the house.

In short, law enforcement forced the gentleman to give verbal permission to search the computer. Law enforcement threatened to stay at the man's home for several hours while they tried to get another search warrant. Law enforcement agencies also threatened to seize several items belonging to the man's wife.

The man believed that if he did not give consent, several police officers would arrive from the area along with the flashing lights of their patrol cars, law enforcement would stay in the house for hours, search all his and his wife's belongings and, ultimately, take several things that belonged to him and his wife.

After several hours of bullying and the belief that he had no other choice, the man finally admitted that he may have downloaded small pornography, gave verbal consent, and the computer was confiscated. Shortly thereafter, the man was charged with federal charges that his computer contained child pornography.

Whereas in the example above, the lawyer must dispute whether the officers had any right to go to the man's house and speak to the elderly gentleman at all. The lawyer must also challenge the verbal consent and the statement given through the older man on the grounds that the consent was obtained under duress. Finally, the lawyer must dispute whether the law enforcement officers had the right and authority to inspect the computer, since the wife did not give consent and both parties had access to the computer.

Initial computer seizure by law enforcement

In all computer-related criminal cases, it is likely that law enforcement will confiscate the computer and subsequently conduct a forensic examination of it.

Although all law enforcement agencies have different procedures for the initial search and seizure of a suspected computer, an experienced criminal defense attorney should ensure that all procedures are properly followed.

Failure by law enforcement to follow proper procedures when analyzing a computer for child pornography can result in reduced or no charges in some cases.

Recent case example

In a recent case, the defendant's computer was confiscated and subsequently checked by a computer expert hired by local law enforcement. The expert looked through the computer and found what was thought to be child pornography.

In removing the expert, attorneys found that the expert did not follow the procedures and protocol required by both federal law and the Conditions Act. Because due process was not followed, several motions and arguments were filed with the court to drop the charges. After several days of wrangling, the prosecutor finally agreed to a substantial reduction in the charge.

Recent case example

In one recent case, a computer was confiscated by a person suspected of possessing pornography for boys or girls. A thorough examination of the computer and the suspicion of child pornography led to the discovery that images deemed "illegal" were downloaded from a commercial adult website and the alleged "children" were adult models.

In this case, the owners and creators of the website were contacted and records were requested to demonstrate that the people in the photographs were in fact adults.

Determining who had access to a computer

In most households, several people have access to a computer. Sometimes people even allow friends, relatives and neighbors access to the computer. We represented clients accused of crimes simply because today this person allowed other people to use his computer.

In such cases, it is important to carefully consider all persons who have had access to the computer in order to determine possible remedies. Such information is critical to identifying the party responsible for placing illegal material on a computer.

Recent case example

Defendant was recently charged with possession of child pornography, yet Defendant lived with three (3) other men and women. A detailed examination of the computer showed that most of the illegal material was downloaded to the computer between 8:00 am and 5:00 pm. during a normal working week. Since the defendant worked at a full-time job during the day, work records were requested and ultimately there was a significant degree of doubt as to exactly who was responsible for uploading the illegal material, and also the defendant accepted a very good plea agreement that completely avoided the danger long prison term.

Limewire and other "peer-to-peer" networks

While many people use software such as Limewire for legal purposes, some people today download child pornography using such software.

When a person is charged with "peer-to-peer" networks such as Limewire, Kaza, etc., a lawyer with technical knowledge can quickly scan the computer to determine if the material was "accidentally" uploaded. In other words, an experienced attorney can examine the way files are downloaded to a computer to determine if the person was intentionally looking for illegal material, such as child pornography, or if the person accidentally downloaded child pornography.

Remember, the law requires a person to "knowingly" possess child pornography. Possession of adult pornography is not a crime. The managing administration must prove beyond reasonable doubt that the defendant knowingly possessed illegal image(s) and/or video(s) with the accused person must have reason to know their true content and nature (e.g. that the material is illegal, etc.) .).

Thus, unless a person deliberately downloaded pornography for boys or girls, they would probably not know that an illegal item was found on their computer. A computer-savvy attorney will check the computer to determine if illegal files have been downloaded by accident.

In addition, skilled hackers can gain access to a person's computer through an online connection and place illegal material on an unsuspecting person's computer.

In other words, pedophiles with computer information can hack into your computer and use it to store and access their illegal child pornography without fear of getting caught.

Use of computer experts

As noted above, while it is important to have a lawyer with significant computer know-how, it is also important to have a computer expert on your team who can, if necessary, testify on the technical problems that arise in defending someone. computer crime charge.

Recent case example

In a recent case, the defendant was charged with multiple counts of possession of child pornography based on illustrations or photographs and films found on his home computer. The defendant's computer was confiscated by law enforcement and then subjected to a law enforcement search while the computer was at the police station.

In testifying to police officers who searched the defendant's computer and found illegal material, I found that the "expert" did not follow the procedures and protocol required by both federal and state law.

Simply put, the police officers did not follow the necessary technical procedures when searching for pornography on the defendant's computer.

Realizing the problem, the client hired a computer expert who also reviewed the law enforcement analysis. The expert wrote a report showing technical errors committed by law enforcement and how those errors affected the defendant's ability to provide protection.

These errors were the basis for the motions of the defense to drop the charge of violating the constitutional rights of the defendant. Ultimately, the prosecutor agreed to a substantial reduction in the charge.

Punishment in federal court

If a person is found guilty of a computer or network offense in Federal Court, that person will be sentenced based on the Federal Sentencing Guidelines.

While the Federal Sentencing Guidelines are no longer mandatory, they are a collection of written standards that exist across the country to help equalize sentences for similar crimes. The federal sentencing guidelines (the "Guidelines") provide a framework for judges to follow in determining the appropriate sentence for an offender. The guidelines help ensure that a person convicted of a federal crime in one state receives the same sentence as another person convicted of the same crime in another state.

For the offense of child pornography, the prisoner's sentence may be significantly increased depending on the factors set out in the Guidelines.

The following improvements may apply in the case of child pornography.

Prepubescent juveniles: If the materials found on the computer (e.g. images and/or videos, etc.) concern a “prepubescent minor” (e.g., a minor under 12 years of age), an increase is applied in the sentence term of punishment. guaranteed.

Computer Use: If a computer is used to access, distribute and/or sell illegal material, an increase in sentence is guaranteed.

Sadomasochistic Behavior: Depictions of sadistic or masochistic behavior or other depictions of violence within the content need to be enlarged.

Under recent federal rulings on the matter, child penetration (in any form) qualifies as "sado-masochistic behavior" because courts consider forced sex of a minor to be painful and, as such, "sado-masochistic."

Number of illustrations or photographs: An increase in the proposal is also justified if the number of images placed on the computer exceeds 10 photographs. Substantial enlargement is guaranteed if there are movies and/or video clips on the computer. One video counts as 75 images, and videos longer than 5 minutes may need to be uploaded.

In short, after considering all the factors that go into a possible sentence, it is not uncommon for a person convicted in Federal Court of possession of child pornography to receive an average sentence of somewhere between eight (8) and fifteen (15) years.

There are improvements in the Federal Court for every type of computer crime, not just possession of child pornography.

Punishment in state court

As stated, in each count, the charges exist in sex crimes, online crimes, and computer crimes.

As in Federal Court, there are many factors that can influence a judge's decision in sentencing. An experienced lawyer will ensure that the court is aware of all favorable factors before sentencing the accused.

Conclusion

The popularity of desktop computers and the Internet has made it easier for people to commit computer-related crimes. The consequences of criminal charges related to computer crimes can include long prison terms. It is imperative that a person facing criminal charges for computer crimes consult and hire an attorney with in-depth experience and knowledge of computers and other technologies. It is often this understanding that warrants a short sentence or probation as opposed to a long prison sentence.

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