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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