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.

Thursday, January 21, 2016

FBI ran a child porn website after seizing to conduct a sting of users

Brad Heath, of USA Today, reports that the “FBI ran website sharing thousands of child porn images”  The site, called “Playpen”, was on the dark web and usually accessed through TOR.  The FBI had seized it in the late winter of 2015, and operated it for about 13 days, in order to find users to prosecute.  Apparently at least 25 people will face charged (although there may have been 100,000 visitors while the site was under FBI control).

Of course, this sounds like “entrapment”, and is like distributing heroin in a bad neighborhood to catch low-level addicts, as the story says.

Apparently the site was not accessible through the normal public web.  But it sets up the idea that someone could be framed.

This is apparently not the first time the FBI has run this kind of sting.

The Washington Post has a detailed account of this matter by Ellen Nakashima.

Vox also reported the story today.

Sunday, January 03, 2016

What if you get an "illegal" image or video with an unsolicited text message (from a stranger)?

Friday night, New Year’s Day, I received an unexpected text with a video (15 seconds) from a phone number with area code for Brooklyn, New York.

The video appears to be a dinner scene at a Vietnamese restaurant and is in Vietnamese language, and so it was probably sent to a wrong number.  I know some people in Brooklyn, especially in the music world, but this seems unrelated.

Nevertheless, it raises a good question.  What are your legal obligations if you got a video from an unsolicited text and it contained child pornography or, for that matter, a terror threat?

The same question of course exists with spam (or for that matter opening a tiny url link on a tweet perhaps).  But with spam email, you probably won’t open the email at all if it looks “suspicious”, so the possibility of inadvertent illegal “possession” doesn’t come about.