Accidental Download Leading To Prison Sentence?

from the that's-a-problem dept

No one denies that child pornography is a serious problem that needs to be addressed. However, it often seems like the laws related to child pornography are targeted at the wrong thing. That's why we get laws requiring filters, rather than the shut down of whoever is producing the content, and laws against those who end up having any on their hard drive, even as that could make a felon out of someone just because they receive an email. Take, for example (as pointed out by Slashdot), this story of a man who was searching online for regular (legal) pornography, but accidentally downloaded some underage pictures -- which he immediately deleted. Though the FBI officials who eventually searched his hard drive admit that the images had been deleted and could not be accessed, he was still charged with child pornography and is pleading guilty to get a shorter sentence (3.5 years, 10 years probation, and a lifetime on the sex offenders list).

Though this article serves as a warning of why you shouldn't go looking for porn online -- it would seem that the stronger argument is why the laws on possession should change. In cases like this, where the guy was clearly not out there seeking out or collecting such content, it seems ridiculous that he should be charged and feel the need to plead guilty. Anti-child porn efforts should really focus on those who produces and distributes such content. As for those who collect it, I would assume that mental health help would be a more appropriate response than jail time. And, for those who accidentally come across it... it seems fairly ridiculous to charge them as well.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    how about, Dec 8th, 2009 @ 2:06am

    Accidental WACKY advertising

    ya know the universe is whacked enough
    kids getting prison time for listening to music
    ALL this will cause a revolution one day

    then add this new ad you have popping all over the place
    please stop the madness

     

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    AW, Dec 8th, 2009 @ 3:54am

    Wait what?

    How is someone being charged for a file they had no access to? And why shouldn't you being doing a completely legal process online? There are many reputable pornographic sites online. Still I don't know that I would plea out of this. I would fight it.

     

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    Chris in Utah (profile), Dec 8th, 2009 @ 3:55am

    To be human

    Never reproach another for his love:
    It happens often enough
    That beauty ensnares with desire the wise
    While the foolish remain unmoved.

    -Havamal

    I'm sorry, find a group of his peers and plead not guilty. Porn is as American as Apple Pie; Its why Sex Talk is on every night, Skinamax exist, and why "The internet is for Porn" song with World of Warcraft characters is so dam funny.

    And a Creed lyric comes to mind here as well because of how about...
    ..Sex sales. yeah the hold world is buyin'.

    Holy hell get an appeal. Life time in the the sex offenders city is no life. (have you seen the news lately)

     

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    Ima Fish (profile), Dec 8th, 2009 @ 4:17am

    In my state merely burning your porn to a CD makes you a "producer" of porn, which is a much higher charge than mere possession.

    So in my state a guy was convicted of producing child porn merely because he backed up his collection for his own personal use.

    To me someone who produces porn is the guy who takes the pictures of the boys and girls, or at least is the guy who sets up the photo shoot.

    If merely burning content to a CD makes you a producer of that material, then I guess I'm the producer of the Beatles' White Album.

     

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      interval, Dec 8th, 2009 @ 8:33am

      Re:

      No, you're a MUSIC PIRATE. The other guy was a PEDOPHILE.

       

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        TheStupidOne, Dec 8th, 2009 @ 10:22am

        Re: Re:

        Or Ima Fish made a backup of his legally purchased CD and the pedophile got trumped up charges laid on him because CP is such an emotional issue and those in power can't separate their own emotions from their reading of the law.

         

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    Elohssa (profile), Dec 8th, 2009 @ 4:34am

    This story rings false. The FBI doesn't have time or resources to chase pornhounds, so the porn isn't what brought them knocking, unless it was a wildly unsuccessful sting.

    I'd be interested in other charges he is facing, but neither the article nor a brief search reveal anything. Links, anyone?

     

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      PaulT (profile), Dec 8th, 2009 @ 5:54am

      Re:

      "unless it was a wildly unsuccessful sting"

      That's probably what it was. The linked article at CBS clearly states that Limewire was used, so he wouldn't have known what the file was until he opened it.

      If the file used in the sting was badly named, it could have been found by any number of legitimate users (e.g. schoolgirl, cheerleader and other things that can be used in legal adult roleplay, or terms like teen regularly used to describe porn of legal age).

      Just as there should be more proof of IP infringement than your IP address accessing as file called "2012.avi", so there should be a much higher bar for prosecuting these crimes. Not a single child was hurt, or potentially hurt, by this guy yet your taxes are going to pay for his prosecution, jail time and monitoring of his sex offender status, as well as picking up the pieces of his broken life afterwards.

      I wonder how many children could actually be protected, counselled, treated and adopted for those tax dollars, let alone the actual perpetrators of these crimes caught and dealt with correctly...

       

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        Jon Renaut (profile), Dec 8th, 2009 @ 6:24am

        Re: Re:

        I sincerely hope that it wasn't any sort of sting. If the FBI is seeding file-sharing sites with child porn, or even tracking child porn that's already out there, then they are harming the children they claim to protect.

        I can't think of any sting scenario where the children involved would not be much better served without the sting.

         

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    Vincent Clement, Dec 8th, 2009 @ 4:40am

    Don't forget that the people that support these laws always say "if you aren't doing anything wrong, you have nothing to worry about" or "this law will only be used to catch those interested in child porn".

    Well, here is a guy who will be in prison on the taxpayers dime and who will be on a sex offenders list for life for accidentally downloading files and then deleting them. Even the FBI couldn't find them at first and had to deep scan the hard drive. But hey don't worry about these laws.

    I found this tidbit in the article interesting:

    "The FBI could not comment on this specific case, but said if child pornography is ever downloaded accidentally, the user needs to call authorities immediately. They may confiscate your computer, but it's better than the alternative."

    Why would they confiscate your computer? And do you really trust the FBI to not make an example of you, even if you cooperate?

     

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      Anonymous Coward, Dec 8th, 2009 @ 6:33am

      Re:

      i got a clip once that turned out to be child porn.

      i messaged the admin of the forum where the link was found.

      he told me they will take care of the poster but i should delete the file ASAP and suggested i do not report it to the police as merely having the file on my HD was enough to put me in prison.

      PS that forum was a member of www.asacp.org

      so i don't buy the he should have contacted us before instead those case are guilty until proven innocent

       

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        Anonymous Coward, Dec 8th, 2009 @ 6:45am

        Re: Re:

        It is the reason that anonymous forums and posting are a real issue for many sites, because people can post up almost anything. There are plenty of "230" sites out there that are conduits for child porn, and they cannot help authorities to figure out who uploaded it because they are anonymous.

        That sucks.

         

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      Chris in Utah (profile), Dec 8th, 2009 @ 12:59pm

      Re:

      I'll plead the 5th on fear of reprisal.

       

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      butch, Jun 4th, 2012 @ 3:47pm

      Re: Reply

      They will worry when they become the victims, all someone has to do is say they did it. May I remind those types that about 10,000 inno0cent people are convicted every year 10 years =100,000!!!

       

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    NullOp, Dec 8th, 2009 @ 5:01am

    Easier..

    To law enforcement you are guilty until proven innocent. And then only grudgingly. It's also much easier to bust end-users of child porn than the producers who are well heeled from profits. This guy obviously needs a better lawyer and their local D.A. needs to get a better grip on reality rather than just jumping on the "we can get this guy" bandwagon.

     

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    Anonymous Coward, Dec 8th, 2009 @ 5:11am

    I do not know if you are seeing what I am seeing but This new Nokia Ad is very annoying. I am in the market for a new cell phone but these ads make me want to buy any other brand.

    The guy should have fought it. It sounds like he had no intent so proving any intent would be hard. His intent was just to look at porn.

     

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    Anonymous Coward, Dec 8th, 2009 @ 5:19am

    The last paragraph is the kicker:

    Internet searches reveal a large number of complaints from people who say they've accidentally downloaded child pornography through Limewire.

    Proof that you don't know what you are downnloading when you get stuff off of file sharing sites. I think there is another part to this story, that he wasn't visiting porn sites, but rather trying to download from P2P or similar.

    Oops! Perhaps proof that you should use proven providers, not shady sharing systems?

     

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    beep, Dec 8th, 2009 @ 5:31am

    Thats like saying you bought a playboy or penthouse and flipped through and saw someone slipped a picture of a nude child in there.. so you throw the whole magizine away and get sent to prison cause you accidently saw it. how stupid

     

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      D, Dec 8th, 2009 @ 5:41am

      Re:

      Actually it's like saying you bought a playboy or penthouse, and flipping through it saw someone slipped a picture of a nude child in, so you go ahead and shred the whole magazine and then the FBI raids your shredder basket puts everything back together and THEN you get sent to prison... Joy of joys glad to know my kids are being protected from these crazy internet porn watchers!

       

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      Anonymous Coward, Dec 8th, 2009 @ 6:47am

      Re:

      Actually, it's like buying a playboy or penthouse rip off copy from the same guy selling the $25 Burberry bags on a street corner, and then finding out it's filled with child porn.

      You did something stupid to start with.

       

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        Chronno S. Trigger (profile), Dec 8th, 2009 @ 8:58am

        Re: Re:

        No, it's like buying a playboy from the 711 down the street. A lot more shady than the B&N further down the street but just as legal. Quit being an idiot.

         

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    Anonymous Coward, Dec 8th, 2009 @ 5:35am

    Setup?

    The file or files on Limewire may have been installed by the FBI themselves. This is possibly a planned sting operation that goes after anyone downloading certain files - even if accidentally.

     

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    Coyote, Dec 8th, 2009 @ 6:37am

    Unsuccessful Sting Indeed

    This guy is probably guilty as hell of intentionally downloading a lot more than one file. He's trying to use Limewire as a cover up. The CBS13 news crew is technologically ignorant, if they believe his story. As for slashdot... blah blah blah, big brother, the man, tinfoil hat, blah blah blah. Techdirt can do better for sources.

    Yes, there is misleadingly named crap on file sharing services, but why would the FBI do that? There's no solid case there. They want to catch people who know exactly what they are looking for.

    The last time I head something in the news about a sting, the FBI was running their own well-hidden bait site, and they knew exactly where they put links to it.

     

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      Anonymous Coward, Dec 8th, 2009 @ 6:53am

      Re: Unsuccessful Sting Indeed

      Maybe you are right and he was a smart child pornography collector. However there is little evidence shown anywhere to give any sort of reasonable doubt that this is the case. Facts. Link facts or your statements are taken as trolling.

       

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    Tyanna, Dec 8th, 2009 @ 6:40am

    I'd be interested to know the name of the file he downloaded off Limewire. If the file was name appropriately, and someone downloads it, I can see the argument being made. If the file was named something that had no relevance to nude child pictures then it's shady entrapment and the FBI should be called on it.

    I think this guy should have fought it though. Now we know though...if you accidentally download child porn, destroy the drive and get a new one!

     

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    Slam (profile), Dec 8th, 2009 @ 6:47am

    This is a case where a person should have paid attention to what they were downloading and from where it was coming from.
    If you do get something that you don't want, don't delete it, that is a waste, delete only changes the first couple of symbols of the address and it is then marked as free space, it is still on your hard drive and will remain there till it is written over at least 20 times. If you are a down loader of any files that might be suspect, get a file shredder that will write that file back to zero at least 12 times, some will do it 100 time. Always practice safe down loading, wipe free space frequently with out regard for the time involved. Letting your computer run for a few hours when you are away from in order to wipe free space is much better than even a day in jail.

     

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    Joshua, Dec 8th, 2009 @ 8:14am

    Music Copyright punishments do not fit the crime

    I have been watching this unravel for so many years. I remember when MP3 encoding basically came into existence. I remember downloading MP3's from shared FTP servers long before Napster or MySpace were even online.

    I do agree, there are laws that need to be dealt with.. I am older, more responsible, and I buy my music. HOWEVER, to insinuate that these companies and artists are loosing millions of dollars on every single person who shares or downloads using file sharing sites/apps is ridiculous.

    The truth is, we need a revamp in copyright laws that takes into account the digital age. You cannot lump every offender into the same category.

    A college student who downloads 80 songs is not the same as the guy running a Kaazza server with 1.3 million songs for download lol.

    We segregate drug "dealers" from people whom simply posses it, and I think the same concepts need to be applied to copyright laws to protect minor offenders from insurmountable amounts of debt for the rest of their entire lives.

     

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    WammerJammer (profile), Dec 8th, 2009 @ 8:22am

    Accidental Download Leading To Prison Sentence?

    It seems to me the guy could not or did not hire the proper legal representation. But your article did fail to say what country this happened in. If it was in the United States then what state did it happen in. We have some strange states here that also deny basic human rights. If it was in the United States then there are several agencies that will investigate and even sue the prosecutor or companies in cases that are abuses of the law. The prosecutor can be made liable in the United States, sued and fired. No one here gets a free ride except maybe the President. Because of it's laws, everyone in the United States is liable and can be sued. Even (especially) public servants, which include prosecutor's, police, other attorneys and even Judges.
    I didn't like a judgment I received in a California Family Court, so I sued the Judge personally in Civil court on the grounds of bias towards men. I won a small settlement from him because he treasured his good name and didn't want the publicity.
    Of course I have a small advantage as I am disabled and every state in the United States allows disabled people to file lawsuits for free, thus saving thousands of dollars in filing fees. Plus there are many agencies willing to provide disabled people legal help and in many cases actual attorneys for free. Their are hundreds of do gooder organizations out there to help poor displaced people and anyone can take advantage of their services. Just takes a little footwork.
    Of course if it was in Europe or any other country. Who can say? I hear about some strange laws being passed with no regard to whom they harm. I have seen the largest take-away of civil rights ever in the last 3 years. Australia, Europe, Netherlands and too many others to name. As an American I think I will stay right here and not visit those freaks. I have no desire for their money and no desire to send them any of our work. I definitely have no desire to be stripped of my rights simply because I am in another country. Like I said I will stay here. It may not be perfect, but I still have the ability to fight back.
    If this did happen in America and the person convicted is not fighting back then he's flat out an idiot and deserves what he gets.

     

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      PaulT (profile), Dec 8th, 2009 @ 10:42am

      Re: Accidental Download Leading To Prison Sentence?

      You could have saved your keyboard by actually clicking on the actual article linked, which starts:

      "SACRAMENTO (CBS13) ― A local man..."

      Yep, your state.

      Also, the guy's 22 so probably doesn't have the money required to guarantee justice in your court system. Calling him an "idiot" for not fighting back assumes that he's not going to be bankrupted by court bills and that it wouldn't jeapordise the plea bargain he's doubtless been talked into making.

      Would the agencies you mention be willing to attack a public prosecutor for going after child porn on his behalf? I somehow doubt it, even if that is the correct thing to do (logically as opposed to politically).

       

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    Benjie, Dec 8th, 2009 @ 8:30am

    Still

    these's "porn watchers" going to prison doesn't help the fact that most children are sexually abused by their parents. I say just throw all parents in prison.

    but really, child porn is f'n sick, and I mean the correct definition, not the "I took a pic of my new-born and now I'm in prison for producing child porn" definition.

     

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      nasch (profile), Dec 8th, 2009 @ 4:40pm

      Re: Still

      these's "porn watchers" going to prison doesn't help the fact that most children are sexually abused by their parents.

      I think what you mean to say is that most sexually abused children are abused by their parents.

       

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    Anonymous Coward, Dec 8th, 2009 @ 9:19am

    He's done... regardless of proof.

    There are lots of problems with a situation like this. While I admit hunting for porn online is probably pretty dangerous, deleting the file off of your hard drive immediately after realizing what you got is the only thing you can really do. Heck, you could go to a legitimate website and click on a link that reads "Two morons set themselves on fire", and after you download it you realize it's child porn. What do you do? You're already screwed. You could delete it, but that's 'destroying evidence'. You could notify someone, but they'll only come and arrest you.

    Even if someone sent you an entire library of pictures of child porn into your email, just the fact that it's there means you're now guilty. How can you know what it is if you don't access it? And if you don't access it, it's only a matter of time before the Feds come to your door.

    The only factor that could help this guy is whether or not he had any other child porn on his computer OR if he had a history of downloading it in the past. Obviously if it happened once, it can be defeated easily in court unless the judge is so corrupt or biased that he/she has already declared a guilty verdict before the defendent has even entered the courtroom for the first time, or if you have the world's worst incompetent lawyer that could defend an innocent man all the way to death row.

     

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      Anonymous Coward, Dec 8th, 2009 @ 5:14pm

      Re: He's done... regardless of proof.

      Obviously if it happened once, it can be defeated easily in court...

      Except that just isn't true.

       

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    A-dub, Dec 8th, 2009 @ 11:38am

    Do not try this at home....

    Download one of the many newsgroup robots, connect to your ISP's news servers, select all of the groups with "pictures" in the title and have it download "*.jpg". Come back a few hours later and you'll enough child porn to put you under the jail for the rest of your life.

    I respectfully disagree with Elohssa's comment "The FBI doesn't have time or resources to chase pornhounds." When the reality is that they relish it.

     

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    Anonymous Coward, Dec 8th, 2009 @ 2:36pm

    Something clearly does not jive here. Assuming what is contained in the article is the unvarnished truth and is unassailable, all the prima facie elements of the pertinent federal law regarding child pornography are not met.

    There is a lot more to this story than just an inadvertent download that was immediately erased. A copy of the criminal indictment would be very helpful to determine just what it was that the USG was asserting against the individual. I suspect it would present a much more thorough presentation of the facts pertinent to the case.

     

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      Anonymous Coward, Dec 8th, 2009 @ 5:19pm

      Re:

      ...all the prima facie elements of the pertinent federal law regarding child pornography are not met.

      If you believe that, then you aren't familiar with the law.

       

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        Anonymous Coward, Dec 8th, 2009 @ 10:27pm

        Re: Re:

        Assuming that you are familiar with the relevant federal laws, for my edification are you able (keep in mind the assumptions I stated) to state what the prima facie elements comprise and how each is present in this matter?

        Titles 18 and 47 would seem to be a good start.

         

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    tommy pollock, Jan 26th, 2011 @ 2:55pm

    abuse

    i think ur right most of these men women are not well and may have been abused themselves prison is no answer help is. go after the the makers not the viewer alot policw judges solicitors etc look at porn but they never get caught or should i say get away with it .

     

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    tomy pollock, Jan 30th, 2011 @ 1:26pm

    usa and bigots

    i think usa law is a cruel law they talk about democracy and fair play and liberal laws none exist its outside the third world the most brutal state in the western world . hatred of everything that donr fit into their way of thinking they murder others who murders makes them murders too. i have seen the police brutality in usa in demo supposed to be legal when they beat the heads of the protesters . millions living on streets and in poverty . sick police regime of chaining prisoners i could go on , yet the tell other countries how to run their people etc hypocrites . re pedophiles orwhatever u want to call them it should be said first its easy for u me all to call them all names when we dont know what goes on behind doors elsewhere and ruing their lives in aftermath of a hearing we should try to see what happened to them as a boy a girl and see if that turned them to that area like abused as a boy it should be taken into concideration as then the help may be assesd . im sure prison is not the answer to kill is to hurt is to look at pics i dont think so . i think help is the answer not prison . but im so sorry to say usa is no place to get help as they see all as having crinimal minds , but forget who pays these hypocrites their wages you . take care from me tommy eire go braight

     

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    identicon
    tomy pollock, Jan 30th, 2011 @ 1:29pm

    usa and bigots

    i think usa law is a cruel law they talk about democracy and fair play and liberal laws none exist its outside the third world the most brutal state in the western world . hatred of everything that donr fit into their way of thinking they murder others who murders makes them murders too. i have seen the police brutality in usa in demo supposed to be legal when they beat the heads of the protesters . millions living on streets and in poverty . sick police regime of chaining prisoners i could go on , yet the tell other countries how to run their people etc hypocrites . re pedophiles orwhatever u want to call them it should be said first its easy for u me all to call them all names when we dont know what goes on behind doors elsewhere and ruing their lives in aftermath of a hearing we should try to see what happened to them as a boy a girl and see if that turned them to that area like abused as a boy it should be taken into concideration as then the help may be assesd . im sure prison is not the answer to kill is to hurt is to look at pics i dont think so . i think help is the answer not prison . but im so sorry to say usa is no place to get help as they see all as having crinimal minds , but forget who pays these hypocrites their wages you . take care from me tommy eire go braight

     

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