GateHouse Media
April 5, 2019
Sexual Exploitation of Children, including what is commonly
referred to as child pornography, has increased by more than 200 percent in the
last decade. This horrific trend has been fueled by the easy spread of illicit
material over the internet, according to Enough is Enough, a website dedicated
to making the internet safe for children and families.
Easy access to the internet will only increase in the
future. The Pew Research Center predicts that more than 30.7 billion devices
are expected to be connected to the internet by next year.
With the proliferation of child pornography, law enforcement
agencies have become more sophisticated in trackingdown cyber consumers
and purveyors of exploitation. For instance, software that tracks images to
specific internet connections has become a vital tool for prosecutors.
With this as a backdrop, eight out of 10 Americans believe
federal laws against internet obscenity should be vigorously enforced. The
question is how far is too far?
This week, ProPublica an independent, nonprofit
investigative news agency, exposed cases in which prosecutors have dismissed
charges against an accused consumer of child pornography as opposed to turning
over the workings of the technology used to detect the illegal images.
Defense attorneys have sought to have the government explain
how child pornography was traced to their clients’ computers.
During the early years of the commercialization of the
internet there was a peer-to-peer file-sharing network known as Napster. People
who used Napster could share music with one another by sharing files
directly with other music enthusiasts. The same method is used to distribute
child pornography.
Investigators use software programs to scan for child
pornography on peer-to-peer networks. According to ProPublica, police rely on
modified versions of peer-to-peer programs to flag IP addresses of suspected
users of child pornography. This enables investigators to subpoena the internet
providers to reveal the identity of the internet subscribers.
After identifying the internet subscriber, investigators
obtain a search warrant for computers or other devices at the home, office or
physical location of the subscriber who allegedly received the child
pornography file.
However, in some cases, according to ProPublica, child
pornography was being traced to an internet address, but after examination no
illicit images were found.
As a result, law enforcement agencies have, in some cases,
been faced with a difficult decision - drop the charges or disclose the
workings of the detection software.
“When protecting the defendant’s right to a fair trial
requires the government to disclose its confidential techniques, prosecutors
face a choice: Give up the prosecution or give up the secret. Each option
has a cost,” Orin Kerr, an expert in computer crime law and former Justice
Department lawyer told ProPublica. “If prosecutors give up the prosecution, it
may very well mean that a guilty person goes free. If prosecutors give up the
secret, it may hurt their ability to catch other criminals. Prosecutors have to
choose which of those outcomes is less bad in each particular case.”
Software developers want to protect their propriety rights
to the software. Law enforcement wants to protect the ability of investigators
to utilize technology that is having an impact on the exchange of child
pornography.
The sexual exploitation of children is diabolical. Those who
create it, and the consumers who trade it, deserve the wrath of the criminal
justice system. However, a hallmark of the American criminal justice system is
that a person charged with a crime has the right to “be informed of the nature
and cause of the accusation” and the right to confront those who have made the
accusation.
Keeping secret the manner and method of detecting a crime
flies in the face of the Sixth Amendment to the U.S. Constitution.
The end never justifies the means in a court of law. Those who harm children
should be held accountable - and those who pursue them must be held to a
standard consistent with this nation’s traditions of fairness and transparency.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
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