If you have child pornography on your computer you have committed a federal crime (and possibly a State crime) by its mere possession. Given the wide scope of spam invasions of most computers and programs that can pop up on your computer from aggressive internet advertisers, this danger is ever present in both the home and work place and the law enforcement agencies encourage the employer to take steps to notify the prosecution assuming such material is found on an employee’s work station.
The statute is seriously enforced by Federal authorities and a person’s reputation can be utterly destroyed by the mere accusation. A few clicks on your mouse and you may face a life changing series of events that will alter your life forever.
It is vital to know and understand the applicable laws.
Statutory Basis of Crime:
Title 18 United State Code (USC) § 2252 provides the following regarding certain activities relating to material involving the sexual exploitation of minors: a defendant can be convicted of possession of child pornography, in violation of 18 USC § 2252(a)(4)(b) where the defendant
“(4) knowingly possesses one or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if—
(i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(ii) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.”
Punishment defined by subsection (b) states “whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both.”
Case Law:
In US vs. Ziegler, 456 F.3d 1138, the court dealt with the issue of child pornography on an employee’s workplace computer. Ziegler, the employee, was charged with receipt of child pornography, in violation of 18 USC § 2252A(a)(2); possession of child pornography, in violation of 18 USC § 2252A(5)(B); and receipt of obscene material, in violation of 18 USC § 1462.
Ziegler tried to argue a reasonable expectation of privacy per his Fourth Amendment rights. However, even though his office was locked and his computer was password protected, the court did not provide him protection under the Fourth Amendment. The case the district court relied on for this finding was United States vs. Simons, 206 F. 3d at 399 where anything in, “…the records or fruits of [one’s] Internet use” was considered subject to employer control. A supervisor reviewed “hits” originating from Simon’s computer via the firewall, where no download was involved. [Each photo is a file and hence a “hit.”]
It is important to note that the fact that Ziegler sought to protect access to his computer was irrelevant. The crime was not disseminating the materials. Mere possession of the materials is a crime in and of itself, similar to possession of prohibited drugs, such as cocaine.
Cyber Law is governed by federal law since interstate commerce is involved.
There is no statutory authority on the legal requirement to report child pornography to the FBI or other Federal Agencies. However, there is published an interview in USA Today from 2002 with Michael Heimbach, chief of the FBI’s crimes Against Children Unit. He says you are encouraged to report incidents of child pornography (specifically referring to websites and knowledge of accessed websites by others) to either www.missingkids.com or call 1-800-The Lost which will in turn be disseminated to law enforcement. Law enforcement then is supposed to report the incident to their local FBI Office.
In particular, he discusses employer’s liability in reporting incidents it discovers and says that all incidents of child pornography should be reported to law enforcement since it is a felony charge. He does not state any law requiring anyone to report the information, and neither specifically to the FBI but rather law enforcement in general. It is, as expected, only strongly suggested to do so.
Practicalities:
Since the crime is possession of the material, in and of itself, if one finds oneself staring at such pornography on one’s screen regardless of how it arrived there, one has a problem. And, as seen in our article on Computer Discovery, the history of that product on your computer is not eliminated by closing the program or “deleting” it. The odds are good it remains on your hard drive until erased by additional materials over writing it which may not occur for years or ever.
Further, the fact that you have entered that website is permanently on the records not only of that website but on various servers that give access. Most of that information can be obtained by enforcement agencies.
If you are inclined to view such materials, you are violating the law and facing not only disgrace but prosecution. The FBI does actively prosecute such matters on a regular basis.
But assume you did not seek to have the materials and they suddenly popped up on your screen. Assume it was at work. What should you do?
Most employees will simply close the program and expect that nothing will ever happen and they are probably correct. However, if the machine is a dedicated one to your personal work station and the materials are later discovered, you may find yourself in real trouble. For those companies which move computers around without erasing hard drives, new employees may suddenly be accused of having such materials on their hard drive and an investigation can arise seeking to trace the materials back.
That may or may not be possible. While date and time of entry can normally be discovered, unless the computer was locked away in a room, that alone is not evidence that a particular person opened the program. It is not uncommon for employees to have to review their records to determine who worked where and when during such an investigation, with the FBI at times participating in such investigation.
The problem is not only prosecution, for the FBI will not actually prosecute a case predicated on suspicion. However, such accusations are incredibly destruction to a person’s reputation in the community, can destroy marriages, and can arise during later divorce proceedings and custody battles. It is one of the areas in our culture where mere suspicion can destroy a person’s life.
But if you did not actively seek it out and it pops up, that can also be demonstrated and a good proactive step is to immediately go to your supervisor, advise them what happened, and insist that your report be made part of the record and that an investigation as to how it arrived be undertaken. That should eliminate most dangers to you and even if no such investigation is made, your record will be complete and a possible defense against later claims.
But if you did seek it out and it is on your machine, you face a very dangerous situation. Clearly counseling would be useful since you are breaking the law and should address why you are doing that. Any communication as to what occurred with other than legal counsel or medical advisors is quite possibly discoverable so obtaining legal advice immediately is a very good idea.