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Re: Careless Law Enforcement Computer Forensics Lacking InfoSec Expertise Causes Suicides
From: Daniel Margolis <dmargoli+lists () af0 net>
Date: Sun, 2 Oct 2005 12:21:37 -0400

On Oct 1, 2005, at 2:17 PM, Jason Coombs wrote:

There is simply no way for law enforcement to know the difference between innocent and guilty persons based on hard drive data circumstantial evidence. Something must be done to correct this misuse of computer evidence, and whatever that something is, it is clear that only an information security organization is going to be able to explain it to law enforcement and legislators.

Of course, it is in part up to the defense to prove that the defendant was not the one who downloaded the illegal material. It's worth noting, though, that technically this case could still be criminal; while I cannot imagine anyone wanting to prosecute someone who never was aware that his computer contained child pornography, strictly speaking the law does not necessarily require mens rea, meaning that mere possession could in fact be illegal (see http:// caselaw.lp.findlaw.com/cgi-bin/getcase.pl? court=8th&navby=case&no=962027p, which deals with the requirements for knowledge that a participant in a pornographic photo shoot was under age; this may not really extend to simple possession, since the court notes many distinctions between producing porn without knowing the participant is a minor and viewing the same porn, but in any case, these both deal with not knowing that the porn is child porn, not with not knowing that the porn is even there). But I doubt anyone would ever prosecute it as such, because it's just plain ridiculous (then again, maybe the current administration would).

In any case, there is no clear mens rea requirement for possession of child pornography (just like there is no requirement for statutory rape, but I have yet to see you send a letter to Full Disclosure about how she told you she was eighteen, Jason), so if you have a problem with this, you really have a problem with the statute, not with the legal prosecution of it.

Anyway, I would have thought that, as a professional expert witness, you'd be happy about this. Doesn't it make more work for you?
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