Saturday, November 25, 2017

Case against California doctor dismissed because original image was not illegal and subsequent searches were illegal

The child pornography possession case against a California oncologist has been dismissed after a federal judge had ruled that the original evidence used to justify his home search inadmissible (May 18). Tom Jackman has his update story in the Washington Post on p A2 on Friday, November 24, 2017.  The defendant had filed suit with the help of the Electronic Frontier Foundation. 

Again, it’s worthy of note that images found in unallocated space (related to deletion) may lack the metadata necessary to show possession in the eyes of the law.

Furthermore, the one image in question, allegedly of a minor female, may have constituted erotica but was not explicit enough to meet the definition of child pornography, according to the judge.  There is some controversy over this, as I know other material on this issue claims that images (at least photos, not animation) intended to arouse could be considered pornographic even if they don’t “show everything.”

But the case is thrown out because all the subsequent searches of the doctor’s house were ruled illegal, and therefore inadmissible, because the original image did not meet the legal definition of child pornography.

There remains a troubling question of whether technicians at the Geek Squad center in Kentucky (where computers needing extensive repairs are sent) were paid by the FBI and may have made gratuitous examinations of the hard drives. Company policy says that technicians will not look for illegal images but must report them when found. There remains a questions as to the legal judgment of a technician as to what is an illegal image (as in this case).  We’ve covered before the troubling possibility that an illegal image could be placed on a computer by malware (and there is at least one variant of ransomware that does so).

The sex trafficking issue may seem part of this, because many sex trafficking victims (especially overseas) are minors.  Viewing an ad for sex trafficking would not be illegal, but responding to one might well be.

Viewing of a motion picture of video or still image (on a computer or smartphone) produced overseas could raise legal questions.  In the United States, actors must certify they are 18 or over in order to act in adult films. The age may be lower in Europe.  Most reputable production companies enforce the 18 year old rule overseas, but some might not, exposing the viewer to possible legal liability, it would seem. 

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