Child Pornography Bust in Raleigh

WRAL is reporting a child pornography sting operation throughout the southeast. Eight people in North Carolina face charges of sexual exploitation of a minor. Given the multi-state enforcement of child pornography laws, it’s likely that the federal government is involved and this is part of a larger sting operation

I’ve written about past child pornography prosecutions, including the most recent large scale sting in May.

A couple of things to keep in mind:


  1. Do not say anything to the police, whether they are investigating you for child pornography or any other crime. Any statement you make will be used against you. Even false denials.

  2. Be sure to hire a good criminal defense attorney, preferably someone with familiarity with the technology.

  3. Be aware that a state prosecution may later be dismissed in favor of a federal prosecution; in general, federal prosecutions are much more severe.

  4. Bonding someone out of custody may be the right approach, but be sure that when you bond them out, a federal prosecution does not immediately follow so they are simply re-arrested.

  5. Talk to a criminal defense lawyer before making important decisions about thecase.

  6. Save all documentation you receive, including receipts for seized hardware, harddrives, phones, and storage devices.

  7. Do not panic. This is a long process. Mistakes made early can have last effect on the case, and outcome.

  8. Do not speak with the police. Again. Do not speak with police. Have a lawyer present if you decide to participate in an interview.

Child Molestation and Roy Moore

Allegations against Roy Moore, Republican candidate to replace Jeff Sessions as senator from Alabama, raise troubling questions about power and coercion. Rumors of Moore’s interest in underage girls date back to the late 1970s and early 1980s, and in fact there’s a report out now that he was apparently banned from one mall in Gadsden, Alabama.

As of today, there are no allegations that Moore produced or distributed any child pornography. But is it any stretch of the imagination that a man who fondled young girls might have viewed child pornography at some time?

What would Moore be Guilty of in NC?

If the allegations of molestation are true, Moore would be at least guilty of indecent liberties with a minor, which merely requires that someone engage in a lewd or lascivious act upon the body or any part thereof of a person under the age of 16. Moore was in his early 20s at least at the time. Sex offender registry would’ve been mandatory.

Why don’t these acts get reported? Especially in small towns, and especially when men have positions of power – are lawyers, or, in Moore’s case, prosecutors – victims can feel both ashamed and also afraid of the repercussions that will follow even if they are believed. And given how someone like Roy Moore has been able to flout the law – twice ejected from the Alabama Supreme Court – and still come back as the GOP candidate for senator, there’s every reason for the victims to have believed he would’ve destroyed their lives.

Downloading Pornography – No Prosecution

Client retained our firm after a tracking device was discovered on his car when he took the car in for a regular check-up at Jiffy Lube. Once the tracking device was removed, police – seeing that the tracking device was no longer functional – visited the client one day before work, interrogating him and his wife about his conduct. Client gave a partial statement and then, wisely, requested a lawyer.

Shaken, he came into our offices. Police suspected that the client had planned a rendezvous with a minor in another state to pursue sexual activity and were monitoring his car to see if he left North Carolina. We addressed his many concerns, and then started him on a rigorous program of mental health treatment and monitoring.

We followed-up repeatedly with the federal agent, prepared evaluation reports for his review, prepared an “innocence package,” and prevented our client from giving additional incriminating statements. In the end, police declined to press federal charges against our client.

Sentencing Guidelines Meet the Modern Internet

Internet chat systems have been around as long as the internet itself. The first communication between computers on Arpanet, the precursor to the Internet, was basically an instant message.

Robust internet chat systems that operated in real time were developed in the 1980s through BBS (Bulletin Board Systems) that were only sporadically connected to the Internet. (Some BBS systems operated as independent computers that could be accessed by dialing up the system through a modem that ran at very low speeds; other BBS systems operated as independent systems that did not have steady connections to the Internet: users could call up the BBS at any time and post messages or play text-based games, and once a night or once a week the BBS would access the internet to download messages from the broader internet.)

Photographs could not be exchanged, first because no consumer computers allowed for the capture of photographs, and second because connection speeds were so slow that as late as the mid 1990s it could take minutes to download a single gif or jpeg.

At most, adult or child pornography fell into two categories: ASCII (text-drawn renditions) akin to what sometimes are today used on twitter, and fantasy stories. In addition, BBS and Usenet (an old form of message boards) might serve to put people in touch with one another for the purpose of sexual contact.

Possession under 18 USC 2252

By and large, the exchange of pornography before the 1990s occurred via magazines (such as Hustler, Playboy) for adult pornography, and underground, illicit newsletters for the sharing of illegal child pornography or to arrange illegal meetings between adults and children.

In that context, the United States Sentencing Guidelines, first authorized in 1984, were developed with sanctions increasing to a maximum number of 600 images (the highest level). Back when images were shared as single photographs that had to be mailed, sharing 600 or more images was time consuming and difficult, and was distinguishable from sharing 10 images. While each are equally illegal, the Guidelines authors rightly viewed the sharing of 600 images as evidence of a deep commitment to illegal conduct that warranted draconian punishments.

Today, it takes a couple of seconds to download 600 images of any type from a website or over BitTorrent, and given the structure of BitTorrent sharing systems, a person can inadvertently download images where they have no intent to possess child pornography.

Consequently, where federal law punishes the mere possession of child pornography with penalties up to 10 years per count, the sentencing guidelines (USSG Sec. 2G2.2) add five points under subsection 7 for possession of 600 images or more. Additional punishments apply for images or movies that contain especially young or especially sadistic photographs.

Distribution under 18 USC 2252

Distribution or receipt of illicit content can be separately punished under 18 USC 2252 with statutory maxes, in general, of 20 years per count. The laws, written for the most part before the advent of the Internet, can be inadvertently violated in certain cases.

Imagine a scenario in which a person intends to download adult pornography from a peer-to-peer (of BitTorrent) based system. The person types in search terms, and multiple potential file names appear on the screen. The person selects a couple hundred, and goes to bed planning to look at the photographs at some later date.

Assuming normal installation software settings, the content will be automatically re-shared. That’s fundamentally how BitTorrent works and why it’s called “peer-to-peer.” Since most people do not modify the settings, they may automatically be re-sharing what they downloaded. Given that the believed that they were downloading adult pornography, they may not necessarily be concerned. But if in selecting the files to download, they have downloaded child pornography, serious criminal ramifications may follow.

Receipt of illicit material – also a 20 year max per count – can work similarly. Clicking on links by mistake or out of curiosity will be enough to violate the law. Each instance is potentially a 20 year max criminal charge.

Does Deleting the Content Help?

The answer is, deleting the content could arguably invite additional criminal charges: Obstruction of Justice, for instance. If you believe may have violated the law, you should disconnect the computer entirely from the Internet, and consult a criminal defense lawyer immediately. There are steps you can take, but be very careful about doing something in a panic that could land you in a heap of trouble. As the old saying goes, sometimes the “coverup is worse than the crime.”

How Does Law Enforcement Know?

The tracking and investigation into offenders is actually not complicated at all. With respect to peer-to-peer sharing, law enforcement has a number of tools at its disposal. Files are sometimes coded or even named, and then tracked so that law enforcement can track who is downloading and re-sharing the content via BitTorrent.

In addition, the FBI has been known to set up “honey pot” websites or computers on the Web or on peer-to-peer nodes with the aim of attracting people whose activities can be monitored, tracked, and ultimately documented for prosecution.

The FBI or Department of Homeland Security (DHS) can sometimes watch individuals for years before making an arrest.

Law enforcement also monitor chat groups or message boards including Internet Relay Chat (IRC, an early version of chatrooms that is still in operation), Yahoo Groups, and Usenet newsgroups, another old version of message boards.

The monitoring can occur by actually running bots or staffing the channels with agents who respond to requests for illicit content. Or the monitoring can occur at the server level with or without the consent of server operators who allow access to law enforcement. Since no court has ever found that private messaging on chatrooms or IRC is protected by Fourth Amendment privacy rights, and since sometimes one of the parties is an actual government agent, the defense of illegal government spying carries almost no water in court.

What Can I Do?

Serious crimes demand a serious defense. First, and obviously, stop all illegal conduct and disconnect all affected computers or devices from the internet. Second, consult with a good criminal defense lawyer who understands the law and the technology. Third, do not destroy evidence. Talk to an attorney.

By stopping the illegal conduct before the knock comes on the door – and it eventually will if you continue, and may even come if you stop – you increase the chance of non-prosecution or a reduced punishment because you basically signaling implicitly that you are not a predator who can’t stop without going to prison.

In addition, with the advice of an attorney, you may decide to go to counseling with a therapist or psychiatrist who specializes in sex offense-related disorders. The counseling is private and, in most cases, confidential. If the police later show up at your door, your attorney may be able to respond by showing that whatever, problem you might have had, your issues are being addressed.

Finally, you should not speak to law enforcement without your lawyer present, and never consent to the confiscation of computers, harddrives, Network Attached Systems (NAS), or jump drives. If police come with a search warrant, they may still be able to seize the items and you should not obstruct those efforts. But never consent either in writing or verbally to the confiscation or search of these items, and don’t provide passwords to these items without first talking to your attorney.

Penalties

I’ve described some of the penalties above. They are harsh, including maxes of 10 or 20 years per count depending on the offense. In addition, depending on the state, you may invite prosecution in your area even if the federal government does not decide to prosecute.

Finally, these crimes carry with them mandatory sex offense registration at the federal level. In North Carolina, where I am a Board Certified Specialist in State and Federal criminal law, violation of state crime – called Sexual Exploitation of a Minor – requires registration for 30 years, with review after the first 10 years.

Offenders often report that the sex offender registry system is even worse than prison, because it restricts where you can live, work, and hang out. It is a modern day version of the Scarlet Letter, resulting in ostracism from normal society.

Revenge Porn: The Rob Kardashian Story

Unless you’ve been living in a cave for the past 10 years, you’ve heard of the infamous Kardashian family. From marriages to children, to leaked sex tapes, this family has been all over social media. Most recently, the youngest of the clan Rob Kardashian has been accused of violating California’s Revenge Porn Law.
 
The law, passed in 2013, makes distributing nonconsensual pornography such as a nude photo to cause fear in or harass another person a crime punishable as a misdemeanor with up to six months in jail. The first case prosecuted in California under this statute led to a one-year sentence for the person who posted nude photos of an ex-girlfriend on a company Facebook page.
 
At this time, 38 states and DC have some type of revenge porn law, including North Carolina. Passed in 2015, NCGS § 14-190.5A makes the transfer, publishing, distribution, or reproduction of a photograph, film, videotape, recording, digital, or other reproduction of intimate body parts such as male or female genitals or of sexual conduct with the intent to harass, humiliate, demean, coerce, or cause financial loss, a crime punished as a misdemeanor and in some instances as a class H felony.
 
When they law was enacted district attorneys found it difficult to prosecute cases when the victim was unaware that their picture had been taken and therefore not knowing who originate the distribution of the picture couldn’t file charges. To address this Republican Representative Chris Malone sponsored a bill that would make several changes to the law.
 
Recently, NC Senate Judiciary Committee approved these changes allowing the punishment of anyone who obtained nude images without the person’s permission. Meaning that a person can be punished for obtaining these types of photos, even without there being a relationship with the depicted person. The new changes also added to the definition of what is regarded as an image. In addition to what is mentioned above a computer or computer-generated image or picture falls within the scope of the law.
 
As of June 2017, the Bill has returned to House for a second vote.

Operation Broken Heart: Child Porn Crackdown

In the wake of Attorney General Session’s Atlanta speech decrying child pornography and reiterating the Trump administration’s emphasis on enforcing pornography distribution laws, the FBI announced Operation Broken Heart IV in late May and early June, a nationwide effort that led to a more than 1,000 arrests.

Louisiana saw more than 100 arrests. The Los Angeles Police Department arrested 186 people. Thirty-five people were arrested in Baltimore. Alabama saw 43 arrests in June. And so forth.

According to the Department of Justice:

Internet Crimes Against Children (ICAC) Task Forces arrested 1,012 suspected child predators from more than 40 states during a two-month nationwide operation following the investigation of more than 69,000 cases, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) announced today. The arrests marked the end of Operation Broken Heart, a coordinated investigative operation to intensify efforts to identify and arrest suspected child sexual predators during April and May 2017. The 61 ICAC Task Forces, funded through OJJDP grants, comprise more than 4,500 federal, state and local, and tribal law enforcement agencies that participated in the operation.

Many of the people have been charged on the state level, although federal penalties are often more severe, with child porn possession punishable by up to 20 years in prison per count.

For more information on how you can defend yourself against these criminal charges, contact us at (919) 352-9411 or read here for more information.

Peer-to-Peer Sharing and Child Pornography Crimes

Matthew White admits he was surfing the Internet looking for a “Girls Gone Wild” video – a perfectly legal act – when he happened upon a file using the peer-to-peer network Limewire.com.  The file was child pornography.  White did not intend to download it, and immediately deleted the file.  He went on with his life.

A year later the Federal Bureau of Investigation came knocking, and asked to see White’s computer.  Using sophisticated software (EnCase), FBI computer forensic examiners (the Computer Analysis Response Team) were able to undelete the offending file.  The FBI admitted that White had no access to the file he had long deleted, but since the file still resided on his harddrive, it was evidence that at one time he had possessed child pornography.

While some people caught in child pornography stings are true predators who seek to do harm to children, most other people prosecuted by the state or federal government fall into one of two categories. Either they are:

  1. people with psychological issues who have gravitated to child pornography, need treatment, but aren’t a threat to children, or
  2. they are innocent people who happen upon child pornography entirely by accident while searching for adult pornography.

Are you being investigated or have you been charged with distribution of child pornography or sexual exploitation of a minor? Call Damon Chetson, a Board Certified Specialist in State and Federal Criminal Law for immediate assistance.

Peer-to-Peer Sharing Networks

Peer-to-Peer sharing networks run on a basic protocol called Bittorrent.  These sharing systems may go by a number of different names, including LimeWire, Gnutella, or Bearshare.  Originally these networks focused on the distribution of music, but in the late 1990s and early 2000s, these networks came under legal fire from the RIAA and music distributors like Sony who essentially forced them to shut down that part of their services.

While copyright violations continue to take place on these networks, a significant part of the content on peer-to-peer networks involves pornography.  The Electronic Frontier Foundation, the leading civil liberties organization on the Internet, says that millions of people use P2P networks.

The networks have several problems:

First, they are almost entirely unregulated meaning that anyone with a computer and a broadband internet connection can offer files that may be both legal and illegal.

Second, the files themselves may be illegal, but the names of the files themselves may give the downloader no indication of what’s in the file.

Third, the files by default are automatically re-shared on the network.

Fourth, the networks are well-known to police, and the FBI has been known to set up honey-pot sharing nodes and servers that allow people download illegal files hosted on FBI servers that are later tracked through the internet, resulting in arrest and prosecution.

The Dark Web

The Dark Web is a second source of problems.  These computers are accessed using specialized software, such as The Onion Router (TOR Browser). The TOR project actually is very useful, allowing dissidents and people living under oppressive regimes to share political sensitive information.

But the dark underbelly of the Dark Web is its use by criminals, including organized criminal organizations, to sell products – such as designer drugs, fentanyl, GBH – to traffic in illegally obtained financial information such as large scale credit card fraud, and to distribute child pornography.

While it is harder for police to track activity on the TOR network and the Dark Web, it is not impossible because much of the traffic runs through key data interconnections that are monitored by government agents.

Chat Rooms, Newsgroups & IRC

Still other routes for the exchange of illicit material include chat rooms, newsgroups or posting boards, and chat networks such as the Internet Relay Chat (IRC).  These are some of the oldest distribution systems which have been around since almost the beginning of the internet.  The advent of broadband internet service means that large quantities of material can now be shared in very short order.

Steps to Protect Yourself

Whether one thinks pornography is harmful or not, it is legal.  But in searching for pornography, someone browsing the internet needs to be very careful to steer clear of any website or network that gives even the hint of trafficking in child pornography.  Avoiding search terms that suggest a search for child pornography.  Do not download unknown files.  Be careful about re-sharing files that you’ve downloaded on peer-to-peer networks.  Do not have anything on your computer at all that is illegal, including child pornography.

Second, be aware that any file that is saved or downloaded to a computer is not deleted simply by throwing it in the “trash icon.”  That trash bin on the computer doesn’t actually delete the underlying file.  It simply frees up space for that file to be overwritten in the future.  But if the file is never overwritten, it can be recovered by a forensic expert months or years later.

Third, be sure that any device you want to donate, or give away, or take to a computer store or BestBuy’s Geek Squad has absolutely no illegal content. Someone fixing your computer can easily find any content on your hard drive.  A future user may stumble upon content you thought you had deleted.

A safe way to donate a computer on which you have confidential information is to remove the hard drive, and then donate the computer either with a brand new hard drive installed or give it away without a harddrive at all.

Legal Issues

Appellate courts across the country have ruled that a warrant is not required for the authorities to view and download files traded on P2P networks. Since LimeWire, Bearshare, and Bittorrent are a file-sharing systems that allow the public at large to access files in shared folders, a defendant has no expectation of privacy unless the defendant took steps to block such access and the Government hacked into the harddrive. Because a warrant is only required if a search violates a reasonable expectation of privacy, the court found that no warrant was required.

A conviction for possession of child pornography can carry up to a 20 year prison sentence.  Distribution or manufacture of child pornography can carry even stiffer federal sentences.

In North Carolina, Sexual Exploitation of a Minor (in the First, Second, or Third Degrees) are all registrable sex offenses carrying felony consequences, and jail time. Anyone believing they have mistakenly or accidentally downloaded illegal material should contact a lawyer immediately for advice on their rights, obligations and how to proceed.

What You Should Do

Contact a lawyer as soon as possible.

Do not say anything about your activities, your computer use, or any other conduct without first talking to a lawyer.

Do not consent to a search of your property, home, or computer systems.  Require that the Government or state law enforcement officials obtain a valid search warrant.

Hire a Board Certified Specialist in State and Federal Criminal Law.

Peer to Peer Software, LimeWire, and the Threat of Criminal Prosecution

The threat of criminal prosecution is very real in North Carolina, particularly if people use peer-to-peer based file sharing software and either intentionally or even inadvertently download pornography that includes child pornography. While few Raleigh criminal lawyers are familiar with the way this software works, it is important that any lawyer you hire be familiar with the way computer networks operate so as to build a viable defense.

In North Carolina, the crime of possessing or distributing child pornography is the Sexual Exploitation of a Minor either in the first or second degree. In addition, the federal government often takes a strong stand against the distribution of illegal pornography, and federal sentencing guidelines establish very low thresholds – as few as 600 images – before the person is subject to maximum penalties. Penalties can range up to 40 years in prison.

In addition to those penalties, a person convicted of crimes either at the state or federal level will be required to register as a sex offender for at least 10 years, and must petition to be removed from the list after the decade is up. That petition must be granted by a judge in order to be removed from the sex offender registry.

The problem from a technological perspective is that it can be difficult to know whether someone intentionally or inadvertently downloaded illegal materials. That’s because most of this activity occurs on peer-to-peer sharing networks that utilize client software to interact with the network.

These networks include Gnutella and BitTorrent and clients can include LimeWire, BearShare, or GigaTribe. The sharing networks and software can create inadvertent dangers for people seeking legitimate software, or even legal pornography. In my experience from interviewing clients charged with such crimes, they may have been searching for legal pornography, and have selected a large batch of files to download.

Over a series of months in repeatedly selecting large batches of thousands of pornographic images, they may have perfectly innocently and inadvertently downloaded child pornography because they have failed to inspect the filenames of each and every file downloaded.

By default, those downloaded files may sit in a person’s Download file, where they are subject to re-sharing by the default settings of the software. In a legal sense, the person has now become an unwitting possessor and also distributor of child pornography.

The government takes these issues so seriously that even defense lawyers are not allowed to knowingly possess hard drives of clients that contain child pornography, and given that rule, defense lawyers are frequently required to review offending images by visiting secure facilities maintained by law enforcement.

People accused of possession child pornography should immediately contact a Raleigh criminal lawyer familiar with these technologies.

Strange News: Man Arrested for Watching Child Porn on Delta Flight

Here’s some advice. If you’re going to possess child pornography – which under federal law is punishable by up to 40 years in prison and possible permanent detention if you’re determined to be a violent sexual predator – then it’s a good idea not to watch that child pornography on a cross country airline flight.

According to the Associated Press:

Massachusetts State Police say a 47-year-old [man] was sitting in first class Saturday afternoon when a fellow passenger saw the pornographic images on [his] laptop and alerted the flight crew. When the Delta flight landed at Boston Logan International Airport just after 4 p.m., troopers interviewed [the man] and subsequently arrested him.

Child Pornography: Throwing Away the Key

When asked about their thoughts on child pornography, most people have this reaction: “Lock ’em up and throw away the key.”

This is just as true in North Carolina – maybe even more so.

The best evidence from studies, surveys, and research, indicates that even people who view child pornography almost never actually participate in the sexual assault of minors. There are also plenty of stories of prosecutions against people whose computers were hacked or Wi-Fi networks were compromised such that contraband material was on their computers when they weren’t even aware of its presence.

And, of course, there are people who download legal pornography on peer-to-peer networks such as BitTorrent or Gigatribe only to find out that some of the files contain illegal child pornography.

In spite of these real problems with the prosecution of people who merely possess child pornography, the penalties are incredibly harsh. So harsh that they are calling into question the whole approach to addressing child pornography in the United States.

The New York Times reports that:

State and federal laws, which generally increase penalties based on the number of pornographic images, reflect the idea that acquiring child pornography requires extensive time and effort and thus is a measure of a defendant’s involvement and interest. But with the rise of the Internet, it is possible to download hundreds of images in a matter of minutes, making the size of a stash a less than reliable indicator, Mr. Stabenow and other criminal justice experts said. It is now a rare case that does not involve the possession of hundreds, or even thousands, of images.

As a result, many federal judges have issued sentences lower than those called for by federal guidelines, which add months for multiple images and other aggravating factors. And even when such sentencing enhancements are enforced, the sentences — which can sometimes be 18 or 20 years — are often well below what Mr. Vilca received. The federal guidelines, for example, recommend a minimum of 57 to 71 months in prison for possession of 600 or more images of very young children.

Certainly there’s something deeply offensive about child pornography. But, I would argue, there’s something deeply offensive about a society that sends someone to prison for life for the mere possession of images.

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