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Sunday, January 24, 2016

Over NINE THOUSAND images of children being sexual abused were shared online by the FBI

The Justice Department recently acknowledged in court filings that the FBI was running the website known as “Playpen” from Feb. 20 to March 4, 2015. During that time frame, the site averaged more than 215,000 users and housed more than 23,000 images and videos, more than 9,000 of which users could download directly from the FBI. Those NINE THOUSAND children did not deserve the protection of The National Center for Missing and Exploited Children (NCMEC) because “There was no other way we could identify as many players.” says former FBI official Ron Hosko. According to the Justice Department, children are harmed each time an explicit image of them is viewed, and once outside of the government’s control, there is no way to prevent the images from spreading to other parts of the Internet. So why exactly did the FBI allow OVERT NINE THOUSAND images to be spread to other parts of the Internet?

Over NINE THOUSAND images of children being sexual abused were placed outside of the government’s control to be shared on other web sites and peer to peer (P2P) software because according to the FBI there is no other way of doing it. In other words the FBI says they don't have the time or manpower to do proper investigations so for them to BREAK the LAW after all they are the big brother of a FREE SPEECH nation who will do anything even break the law to get an arrest. That case led to Federal CP charges against at least 25 people. Nine of the people charged in those cases are still NOT identified in court records and listed as “John Doe,” the FBI has not been able to identify. Law enforcement does not really desire the elimination of CP just as the military does not want to make world peace and the social services do not desire eliminating poverty. If these agencies were that successful THEY would no longer be needed and so it is with the FBI allowing over NINE THOUSAND images to be shared because its JOB SECURITY.  FBI share child porn on website only to have it re shared by others

Monday, January 18, 2016



Prosecuting Sexting as Child Pornography by, Marsha Levick, Kristina Moon

Prosecuting Sexting as Child Pornography Marsha Levick, Kristina Moon

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

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.



Tuesday, January 12, 2016

Child Pornography: To See, or Not to See? Do reporters need to see child pornography to write about it? By Alia Malek

Child Pornography: To See, or Not to See? By Alia Malek
Do reporters need to see child pornography to write about it?

Writing in Salon on August 24, Debbie Nathan wanted to start a conversation about child pornography. She raised the question: How can journalists report on child pornography when it is a crime to even look at such images? Nathan argued that journalists should be protected from prosecution for possession of child pornography if that possession is for legitimate reporting purposes, including, for example, testing government claims about the prevalence of child pornography.

Instead, the conversation came to a screeching halt.

According to Nathan’s article, her inquiry was rooted in her own research this summer into child porn on the Internet. In the course of her reporting, she inadvertently stumbled onto a Web site that featured illegal images. She became consumed with a fear that she would be arrested and prosecuted, recalling the prosecution and incarceration in 2000 of freelance journalist Lawrence Matthews in Washington, D.C. on charges that he had received and transmitted pornographic images of children in the course of his research on the topic. She reached out to other journalists and researchers who had looked into the subject, and heard stories of people abandoning the enterprise because of the risk of prosecution.

Then on August 20, the New York Times published a piece by Kurt Eichenwald that exposed a group of new Web sites purporting to have legal images of children but which in fact feature images that are arguably pornographic. As Eichenwald explained, courts have decided that nudity is not required for images to be deemed child pornography. The Times article was accompanied by a disclaimer that stated: “Covering this story raised legal issues. United States law makes it a crime to purchase, download, or view child pornography, unless the images are promptly reported to authorities and no images are copied or retained. The Times complied with the law, disclosing what it found to appropriate authorities.”

Eichenwald’s article, beyond just reporting on the trend, included lurid descriptions of the kinds of images found on these “child modeling” sites, though he says he relied on law enforcement and chat-room descriptions of the images rather than firsthand viewing. Nathan, however, assumed that Eichenwald had seen the images himself, and kicked off her article by provocatively saying that Eichenwald had spent time recently “look[ing] at a lot of kiddie porn.” Though she discussed Eichenwald’s tactics and opined on their legality, she ultimately was arguing that “the government prohibits reporters and other legitimate investigators from doing front-line research into child pornography,” because she believes such work requires journalists to view illegal images and risk being prosecuted.

Uncontested in Nathan’s argument is the notion that journalists have to actually see these images to test “government claims as to how prevalent child pornography really is and what makes an image pornographic.”

On the same day Nathan’s article was posted on Salon, the magazine pulled it and any letters it generated, and issued two corrections. The first correction emphasized that the law “does offer some legal protection for journalists and other researchers” and that an “affirmative defense may exist that would protect such work under certain circumstances, and the opinion asserted by Nathan that her work … would constitute a violation of the law was inaccurate.”

(An affirmative defense is one that does not deny the truth of the allegations against the defendant but gives some other reason why the defendant cannot be held liable.)

The second correction stressed that Eichenwald’s article was “not based on reviewing the content of the sites themselves” and reiterated the legal disclaimer that the Times originally ran with Eichenwald’s piece, asserting that journalists who come to possess these images inadvertently and who report them to the federal authorities are protected from prosecution.

With Salon disavowing Nathan’s entire article, the matter seemed settled. But the two questions at the heart of this episode are worth considering. First, the question Nathan addressed in her ill-fated article: Should journalists be protected from prosecution when they intentionally seek out child pornography for reporting purposes? And this one, which Eichenwald vigorously answers in the negative: Do journalists need to see these images — and therefore break the law — to adequately report on the subject?

The Times limited its interpretation of the federal statute’s provision for an affirmative defense to the case of inadvertent viewing. But a journalist like Nathan, who wants to see the images for her reporting, by definition would break the law and risk prosecution. (For a detailed review of the law as it pertains to journalists, see “Reporting on Child Pornography: A First Amendment Defense for Viewing Illegal Images?” by Clay Calvert, Kentucky Law Journal, Fall 2000/2001.)

We asked Calvert, a professor of communications and law and co-director of the Pennsylvania Center for the First Amendment at the Pennsylvania State University, to fill us in on the state of the law and any affirmative defenses as they apply to journalists:
“It is still very risky for journalists today to receive and transmit, during their investigation of a story or a report, images of child pornography. The Matthews case makes this clear in the U.S. Court of Appeals for the Fourth Circuit, and the general line of Supreme Court precedent is that journalists are not exempt from generally applicable laws that apply equally to all citizens. Clearly child pornography statutes are such laws of general applicability, so journalists take a risk today when investigating child pornography as they come across it on the Web, even with the exception spelled out in the federal statute pertaining to destruction of the images and reporting the matter to law enforcement officials. That defense under federal statute [18 U.S.C. 2252A (d)] only applies, by its terms, to the possession of ‘less than three images of child pornography.’ In other words, basically a journalist would be allowed under this defense to only possess two images, and that’s not a lot of content to look at for a full-blown investigative article.”
Nathan argues that to report on child pornography, journalists will be forced to take the government’s word about, for example, what these images are, where they are, who is involved, the extent of the problem, and how much revenue is generated. And by extension, so will the public. Her argument is that the government cannot be trusted.

Indeed, in May of this year, a piece in Legal Times tried to ascertain the source of a statistic, used by Attorney General Alberto Gonzales, on the prevalence of consumers of child porn on the Internet. As it turns out, both the media and the government were using a number — that at any given time 50,000 predators are on the Internet prowling for children — that seemed to come out of thin air. The media cited the government and the government cited the media as the source for the number.
But does contesting such a government claim require viewing the images? For Legal Times, at least, it did not.

In a heated exchange in the comments section of the blog on Open Democracy between August 25 and September 2, Eichenwald asserted that journalists don’t need to see the images to adequately report on the subject. Eichenwald quotes his own e-mail to Nathan on the blog, saying that her “apparent belief that we need to study child porn images has all the earmarks of a rubbernecking obsession on the grotesque.” He argued that journalists can trust descriptions of the images given by the courts and law enforcement officials. He reiterated these comments to CJR Daily in a phone interview.

This is tricky territory. We understand the importance of challenging government claims, especially when labels are used to stigmatize people and silence debate. For example, in the context of “terrorism,” we have more than anecdotal evidence that the government has falsely accused individuals and misled the public. But such investigations did not require journalists to engage in terrorism themselves, or to break the law in any other way, to find out the truth.

In the context of reporting on child pornography, it seems the only reason to see the images (and thereby break the law) is to determine whether or not they are actually pornographic, and we haven’t yet seen credible evidence that the press is being lied to and manipulated in this context. Some might see this as a chicken/egg problem. But the most expedient methods of accessing information are rejected by journalists all the time when those methods are illegal. Those who argue the need to see child porn to understand it too easily dismiss the fact that not only is viewing illegal, but that it also prolongs the exploitation of these children — because society has determined that merely seeing children in these poses victimizes the child. Similarly, we recognize the tension this creates with our role as the Fourth Estate.

Whether this situation necessitates a privilege analogous to what journalists seek in a federal shield law is perhaps a discussion worth having. Of course, such a discussion would require — as in the shield law debate — an examination of the question, Who is a journalist? And in a profession that requires no licensing, there is the very real danger that pedophiles could hide behind our privilege to indulge their criminality.

Saturday, January 9, 2016

UNITED STATES OF AMERICA, Plaintiff, v. JAY MICHAUD, Defendant Motion to Dismiss indictment


Child Pornography Case Overturned After Extreme Police Interrogation -Posted By: John Floyd

Child Pornography Case Overturned After Extreme Police Interrogation -Posted By: John Floyd

US Court of Appeals finds extreme police conduct, circumstances of search and length of interview place suspect in custody and trigger Miranda

Child pornography is one of the most demonized crimes in our criminal justice system. The popular public perception is that there is a nexus between child pornography and child molestation. The U.S. Supreme Court in its 1982 decision, New York v. Ferber,—a decision that criminalized child pornography—lent credence to this nexus when it said child pornography “is intrinsically related to the sexual abuse of children” because “the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” This observation notwithstanding, the court would only describe the nexus as a “casual link” because there was, and remains, no convincing empirical evidence to support it. In 2002, law professor Alan M. Dershowitz said the nexus had not been proven “convincingly,” believing that “the vast majority of people who watch child pornography never act on it, and a considerable number of people who are child molesters do not watch child pornography.”

While a number of controversial studies have over the past decade supported the nexus theory between child pornography and child sexual abuse, each have recognized that the nexus involves a “complex interaction” between the two. But these studies have nonetheless provided sufficient energy for law enforcement, child advocacy groups, and lawmakers to fuel the misperception that there is a “definite link” between the two sex crimes. For example, the Bureau of Immigration and Customs’ Homeland Security Investigations unit (HSI) believes that “countless children around the world fall prey to sexual predators” involved in the production, trade, and possession of child pornography. HIS established “Operator Predator” to not only apprehend child pornographers but others involved in sex trafficking of children and overseas travel for sex with minors. HSI now works closely with 61 other Internet Crimes Against Children Task Forces led by state and local law enforcement agencies.

HSI’s active involvement in child sex crimes investigations places those crimes on equal footing with terrorism-related crimes. And perhaps that explains the highly questionable police conduct in the case of Faisal Hashime whose child pornography conviction was overturned by the Fourth Circuit Court of Appeals on October 29, 2013.

The case began in November 2010 when HSI was monitoring a child pornography website and came across the picture of a naked minor boy with an accompanying email address. Eight months later, July 2011, a HSI agent sent an email to the naked boy’s email address suggesting a trade in child pornography. The agent subsequently received two dozen explicit photos of a naked boy, allowing HSI to trace the naked boy’s account to an IP address associated with someone at the Hashime family home in suburban Virginia.

HIS then waited ten months before it secured search warrants for both the email account and the Hashime residence. We suspect that the significant delays in this case occurred because HSI was trying to link Faisal Hashime to other criminal activity. Be that as it may, a team of 15 to 30 state and federal agents descended on the Hashime home on May 18, 2012. Armed with a battering ram, the agents began to scream “open the door,” knowing that Hashmine, a 19-year-old college student, lived at the residence with his parents.

After the agents were admitted into the residence by Hashime’s aunt, they barged past her with their guns drawn. One agent raced to Hashime bedroom where the college student was naked and asleep having gone to bed at 5:00 a.m. that morning. The agent pointed his weapon at the teenager, ordering him to “Get up … Get out of bed” and show his hands. Even as Hashime was putting on a pair of boxer shorts, the agent continued to bark orders at him as he held the suspect’s arm. The agent then marched Hashime out into the front yard where the other agents had corralled family members. Despite it being a chilly morning, the agents kept the family members in the front yard, some dressed only in their nightclothes.

The agents eventually permitted the Hashimes to reenter their home only to be herded into the living room while the agents completed their search. Faisal Hashime was not allowed to “go to the bathroom” during the search, and while he was given some clothes to put on, the gesture did not include socks or shoes. Hashime’s mother, who was recovering from brain surgery, was not permitted to lie down. Other family members were not permitted to be alone and had to be accompanied by an agent at all times. As soon as the search was completed, the agents launched into an interrogation of each family member, including the ill mother.

Two agents took Hashime into the basement for questioning. Although the basement itself had recently been refurbished, the officers elected to take Hashime into a room used as a storage area. The interrogation lasted three hours, during which time other family members were not allowed to see or speak to him. During the interrogation, Hashime’s mother asked the agents three times to have an attorney represent him but was told she could not see him “or otherwise interrupt the interrogation.” The agents informed Hashime’s mother that her son was “under arrest.” The Fourth Circuit explained what happened next:

“The officers secretly recorded the interrogation. When Hashime asked them if they were recording it, the lead interrogator, who was not carrying the recording device, told Hashime, ‘I can tell you I don’t have a recorder on …’ During the interrogation, Hashime admitted to having child pornography on his computer and told the officers in great detail about how he had obtained the photographs. Hashime also gave the officers the password to his computer and told them where the child pornography images were located on the hard drive.

“At the beginning of the interview, the officers told Hashime that he did not have to answer their questions and could leave at any time. However, at one point in the interrogation, one of the officers told Hashime, ‘I need to know, and I need you to be completely honest with me here even if you’re afraid, I don’t care if you say I don’t want to answer that or I’m afraid to answer it, but I need to know the truth.’ In addition, when one of the interrogators left Hashime to go upstairs, he told Hashime, ‘[L]ike I said at the beginning, the search warrant we got to kind of keep an eye on you … I can’t leave you here with nobody here.’

“The officers did not read Hashime his Miranda rights until over two hours into the interrogation.”

Hashime was arrested three days after the interrogation. A federal grand jury indicted him on seven counts of production, distribution, receipt and possession of child pornography. He was convicted at a bench trial. The Government requested a thirty-year sentence which was rejected by the district judge as “way more than would be appropriate” because of Hashime’s “youth and immaturity.” Handcuffed by a 15-year-mandatory minimum on the production charge, the judge imposed the mandatory minimum on that offense and a combination of “mandatory and non-mandatory five-year sentences” on the remaining offenses, all of which were ordered to be served concurrently.

The primary issue before the Fourth Circuit was whether Hashime’s conviction should be reversed because the agents did not timely advise him of his Miranda rights. The Government argued that such a warning was not required because the interrogation was “non-custodial.” That argument fared as well as the Titanic on its maiden voyage. Finding, based on the totality of the circumstances, that Hashime was in custody for purposes of Miranda, the appeals court concluded that “law enforcement’s failure to read [Hashime] his Miranda rights makes his testimony inadmissible and requires that his conviction be reversed.”

We applaud the Fourth Circuit for not letting the police-state conduct of the law enforcement officials involved in the Hashime search/interrogation prevail. Their conduct was shameful, especially the draconian behavior exhibited toward the Hashime family members. We strongly feel that HSI’s involvement in the case triggered the agency’s ingrained terrorism paranoia resulting in a totally unnecessary and offensive police reaction. A violent drug cartel leader and his family would have been accorded more respect and humane treatment.

Saturday, January 2, 2016