Monday, January 25, 2016

GOP in Congress wants to narrow federal law enforcement of "strict liability standards", might protect users from frivolous prosecution of c.p. from malware

Bob Goodlatte (Rep, R-VA) and Orrin Hatch (Sen, U-UT) provide an important column in Politico, “Protecting citizens from obscure laws”, p. 19, Jan. 20, 2016,

The column explains a new bill that specifies that, when a federal law doesn’t stipulate a clear requirement of criminal intent (“mens rea”) to convict someone of a federal crime, that standard will be understood as a default.  Only when Congress specifically says that something is a “strict liability offense” will it be so.
The idea can matter in child pornography possession prosecutions.  About ten years ago, some legal writers characterized possession of child pornography as a “strict liability” offense, and there was a notorious case in Arizona (Internet safety blog, Feb. 3 and 23, 2007; Nov. 11, 2009).  In more recent years, commentators report that prosecutors will consider the possibility that it could have been planted by malware or hackers (or breaking into a router).  But I don’t recall an explicit statement on whether federal law still could regard mere possession of c.p. by a home users as a strict liability offense when accidentally discovered (as by a computer repair tech, who can be forced to report it in many states). I wrote a bit about this in the summer of 2013.  Some moralists see the harm to children so egregious that they think all “amateur” uses “owe it” to parents to take extraordinary precautions to ensure they are not hacked.

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