The Official CHFI Study Guide (Exam 312-49): for Computer Hacking Forensic Investigators by Dave Kleiman

The Official CHFI Study Guide (Exam 312-49): for Computer Hacking Forensic Investigators by Dave Kleiman

The Official CHFI Study Guide (Exam 312-49): for Computer Hacking Forensic Investigator by Elsevier Books Reference

A Child Pornography Puzzle By Matt Kaiser

A Child Pornography Puzzle By Matt Kaiser/ Nov 12, 2015

Imagine you’re an associate running a document review for a client of your law firm. One day, as you’re sitting at your desk reading Above the Law, a staff attorney calls and asks you to come over to see something. You ask the staff attorney to send it to you, or flag it so you can pull it up in the database, but the staff attorney says you should just come down to the staff attorney area in the building.

As you walk past a partner’s Tesla to the part of the parking garage where your firm has put its staff attorneys, annoyed that you have to breathe these fumes just to see a document, you wonder what you’re about to see.

The staff attorneys are huddled around a computer looking uncomfortable. You turn to the screen and find… pornography. But not normal pornography — that’s common enough. And not even weird normal pornography — that’s also common.

No, you find child pornography. Lots of it.

What do you do?

First, let’s note that child pornography is illegal to knowingly possess. That’s 18 U.S.C. § 2255. At the moment when your computer — or a computer in your custody or control — has child pornography on it, you knowingly possess it.

There’s no “I didn’t possess it for a creepy reason” defense in the statute, but there is a safe harbor affirmative defense that’s sort of similar. If you “promptly and in good faith” try to destroy the child porn or report it to law enforcement, then you can raise that as an affirmative defense.

But, by statute, that applies only if there are three images or fewer. There is no “I only had child porn because I’m that guy’s lawyer” defense to possession of child porn, just like there’s no “I only had cocaine because I’m that guy’s lawyer” defense to drug possession.

So assuming you have more than three images, what are your options? (and, yes, “ask a partner what to do” is an option, but let’s assume you want to solve this problem not delegate it up)

(1) Go to law enforcement

The government would be happy to hear about your client’s child pornography possession. One option, would be to call them and tell them about the child porn.

Let’s think that through. You got the child pornography from your client who either knowingly possessed or had an employee who knowingly possessed the child porn. The fact that they knowingly possessed it is something you learned in the course of the representation (you billed for that time, right?). So it’s governed by your jurisdiction’s Rule of Professional Conduct 1.6.

If you look at the ABA’s Model Rule 1.6, you’re permitted to disclose client confidences in some circumstances to prevent a prospective commission of a crime, or mitigate a financial harm. This isn’t that — here, you simply have evidence that your client committed a crime; the exceptions to 1.6 don’t let you go to law enforcement.

Ok, so don’t go to the cops.

Or, maybe, you could go to the cops after you tell your client and get the client’s blessing. If it’s a large corporate client and the stuff was an employee’s that’s more likely. If you’re representing a rich guy and going through his documents, the odds go way down.

(2) Destroy the Child Porn

Can you just destroy the child pornography? Probably not — you’d run the risk of obstructing justice. You aren’t allowed to destroy evidence of a crime. Under 18 U.S.C. § 1519 there’s no statutory requirement that there be an active investigation into the crime that you’re destroying evidence of. I think that’s the best reading of what obstruction of justice requires, but, DOJ probably would prefer a broader view.

So the delete key solves one problem (if you’ve truly deleted it, but you may have ended your knowing possession if you only think you have), but it creates another.

(3) Hire a lawyer to work it out

You could hire a lawyer to represent you to solve this problem.

Of course, now you’ve just kicked the can down the road. What’s that lawyer supposed to do?

If a client dumps drugs in your office, you can hire a lawyer to broker an anonymous hand off of the drugs to the cops without revealing the name of the client or the name of the lawyer who represents the client. I’ve heard of some bar associations offering that brokering service for lawyers in those jurisdictions — but have no personal experience with it. It does seem like a cool member benefit though.

There are two problems with this for child porn.

First, child pornography — like other digital media — is easily copied and spread. But a copy of child pornography isn’t like a photograph of a murder weapon or a log of a drug sale — the copy is, itself, contraband. Each time you make a copy you make new separate evidence that can’t be destroyed without legal risk.

So, you can give a copy of the child porn to the lawyer you hire to turn it over, but then you’re still stuck with the stuff on your computer, which you aren’t allowed to destroy.

Second, and probably more relevantly, think about the metadata on that child pornography, obstruction of justice, and Rule 1.6.

That metadata may contain information about your client that would be a client confidence protected by Rule 1.6, such that you can’t hand it over to the feds. It could contain, say, who downloaded it, and when, and when it was opened and how long it was viewed. And, in the absence of knowing whether it’s got that metadata, you can’t hand it over if it might. But you also can’t strip the metadata, because that’s obstruction of justice.

So hiring a lawyer likely doesn’t end the legal risk.

There are likely other options, but I think those are the big ones. I don’t think there’s a way to eliminate the possibility of criminal prosecution if you knowingly possess child porn because of a client representation.

At the same time, I don’t think lawyers face much real risk for being prosecuted for possession of child pornography for stuff they find when doing document review.

The answer to this puzzle — as with so many in the criminal space — is “trust the government.” Which is fine if you’re into that, but what if you aren’t?

But, when folks say that we have to enforce the law as written, I like to think about the child pornography/document review problem. No one seriously thinks a lawyer who finds child porn while doing a document review ought to be guilty of a crime. Though, as the law is written, she is. And that’s a problem with the law and not with her.

I mean, document review is bad enough without this.

CHILD PORNOGRAPHY, THE INTERNET, AND THE CHALLENGE OF UPDATING STATUTORY TERMS

CHILD PORNOGRAPHY, THE INTERNET, AND THE CHALLENGE OF UPDATING STATUTORY TERMS