The Official CHFI Study Guide (Exam 312-49): for Computer Hacking Forensic Investigator by Elsevier Books Reference
"Created to solve the problem of child sexual abuse, child pornography law...has grown dramatically in the past two decades, expanding and proliferating along with the underlying problem that it targets. Curiously, the law's expansion has not solved the problem, but only presided over its escalation." Amy Adler, Associate Professor, New York University School of Law** The TRUTH about Child Pornography; the myths and your cognitive dissonance. attorney notes
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Wednesday, January 13, 2016
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
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
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