Nov 3, 2014

Houston Criminal Attorney: Child Pornography Convictions

As computers have become a part of daily life, so have prosecutions involving the use of computers as a vehicle for child pornography. Otherwise innocent people may find themselves caught up in overzealous government investigations of internet sex crimes.
Internet sex crimes such as possession of child pornography or online solicitation make media headlines, especially when business owners, teachers, or other prominent citizens are facing these accusations. Using the internet to solicit sexual acts from a minor is an incredibly serious offense. Any sex crime charge, even if false, can be extremely damaging. That's why it's important to seek immediate and aggressive legal representation.

Some pornography web sites can install software on your computer or come looking for you without your knowledge, and can then send you to another web site containing potentially illegal content. In addition police officers often pose as minors and seek to entice visitors to Internet chat rooms. In many of these situations, there are several legal means by which to challenge the legality of the this process.

Federal law defines “child pornography” in 18 USC Section 2256(B) (8): as "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct."

In addition, the Texas Penal Code Section 43.26 states that a person commits an offense if "the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and... the person knows that the material depicts the child".

Strict child pornography laws are important in the fight to keep our children safe from predators and others who attempt to exploit their innocence for criminal purposes. But because the laws are overly broad, they often have the opposite result and can easily be used to convict innocent people.

One example is a fad among teenagers known as "sexting", which involves sending or receiving sexually explicit text messages or photos via cell phones. Although most people understand the difference between a teen's poor decision and an adult exploiting a child for sexual purposes, the law makes no such distinction; in fact, even if the minors consensually shared personal images, both the sender and receiver can end up in juvenile jail and be forced to register as sex offender for the rest of their lives. In addition to identifying the child to the public, sex offender registration will impact their ability to get a job, live in certain areas and travel freely throughout their adult life.

Another commonly held assumption by law enforcement is that if a pornographic file shows up on your computer, it must be yours. In reality, that isn't necessarily the case and with proper legal defense it can be difficult for the prosecution to prove that the file was yours.
In fact there are multiple ways for media to to be downloaded to a person's computer without their knowledge. One of the most obvious, of course, is simply for another user to download files on a shared hard disk drive. But with the expansion of the internet and related technology, especially P2P or file sharing software such as BitTorrent and Limewire, people are increasingly at risk of not only unintentionally downloading illegal materials but also sharing them over the P2P network. A common example is the downloading of multi-part file packages such as .zip, .rar or .7z. These are compressed directories containing multiple files, and although the downloader may only be interested in part of the content they seldom know exactly what the package contains. Additionally, files from anonymous sources may often be intentionally  mislabeled or misidentified.

Another possible means of unknowingly spreading or accepting illegal digital media is through computer viruses or hacking. Illegal "botnets" have become a serious internet issue and can be used to literally take over a computer without the owner's knowledge or consent.
When a user's computer is infected with certain types of malicious software, or "malware" -which may lurk in virtually any email, website or digital file- modules are installed which allow the computer to be surreptitiously controlled by a third party. These robot networks of infected computers, or "botnets" can then be directed to connect to IRC channels, download and disseminate files, send mass email messages (spam), or to repeatedly connect to a specific URL, instigating a denial of service (DDOS) attack. In some cases the hacker may even take command of peripheral devices such as a connected webcam, all without the knowledge of the computer's owner.

Serious issues are also connected with the way your computer records and stores the media files that your web browser encounters while you're surfing the internet. Unbeknownst to many people, older versions of  browser software such as Internet Explorer and Firefox can, by default, automatically download and save a copy of every media instance -digital photograph, "Flash" video, and graphic- that they encounter. These may include pop-up and pop-under advertisements that the user doesn't actually see. Although modern web browsers include better controls over what the user allows to be saved by default, they are often complicated to use and poorly documented. These images may stay in your browser history indefinitely without your knowledge.

One tool that a defense attorney may use in fighting child pornography charges is metadata- information attached to every digital file which can be used to trace its origin. .JPEG images, a popular file format,  usually contains a wide variety of information including the camera's make and model, focal and aperture information, timestamps and sometimes even GPS coordinates.

Internet crime cases are often highly complex and technical. The specific penalties that a defendant faces for a federal computer crime conviction will vary depending upon the particular offense: imprisonment may be a common denominator for all computer crimes, heavy fines and victim restitution are likely in a case involving fraud and sex offender registration is mandatory in a case involving child pornography.

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant’s needs. Contact Parnham & McWilliams today at (713) 224-3967 or click here for our convenient online submission form.
We will work tirelessly to ensure the best possible outcome for your case.

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