As a Fort Lauderdale child pornography criminal defense attorney, I frequently represent and read about cases in which a defendant is charged with possession of child pornography as well as distribution of the same child pornography. It is (unfortunately) established in Florida law that defendants may be charged separately for possession and distribution of the same materials, as well as possession of several copies of the same material. Similar issues arose on the federal level in U.S. v. Faulds, 2010 WL 2680307 (7th Cir. July 8, 2010), an appeal of a federal child pornography prosecution, which ultimately failed. But as a post on the CYB3RRIM3 blog by law professor Susan Brenner pointed out, the ruling makes an interesting point about the fact that distributing an electronic file doesn’t mean giving up its possession.

The Constitution protects criminal defendants from “double jeopardy” -- prosecution twice for the same crime, or for two different offenses that arise from the same action. In examining whether that protection is violated, courts use a U.S. Supreme Court ruling from the 1930s, Blockburger v. U.S., 284 U.S. 299 (1932), in which the court upheld a conviction for selling illegal drugs to the same person on two different occasions. James Faulds Jr., 39 and of central Illinois, was accused of possessing child pornography as well as distributing it to a federal law enforcement officer through a file server Faulds maintained. He was convicted in 2008 (after a trial in which he served as his own defense attorney) and sentenced to 20 years in federal prison for the distribution and 10 years for the possession.

Faulds appealed, still acting as his own defense lawyer, arguing that conviction on both counts was double jeopardy because the convictions were probably based on possession and distribution of the same materials. (The prosecution didn’t specify which materials were the basis of which counts.) Under the Blockburger ruling, defendants may not be charged for a crime that is a “lesser included” crime of another charge in the same case, which could include possessing an object as well as distributing it. As it turns out, the distribution count was based on downloading that happened more than a month before the possession count, so the court found that they were factually distinct. It also noted that the Blockburger test is based on the idea that contraband is a physical object. Unlike with sales of drugs or illegal weapons, Faulds was able to distribute an electronic copy of the child pornography, but retain the original for his own use. That means that possession of child pornography after distribution is not a lesser included crime of distributing it under Blockburger.

As a Miami-Dade child pornography criminal defense lawyer, I’m not surprised by this ruling. Courts have generally rejected double jeopardy arguments in child pornography cases, including, as noted above, arguments about multiple copies of the same image. And in this case in particular, the argument that possession was a lesser included offense of distribution was weak because of the timing of the possession and distribution charges. In fact, Professor Brenner blogged last year about another case in which a court rejected a double jeopardy argument based on separate counts for receiving and possessing child pornography, even though possession is clearly an element of receipt.

No doubt this court and others like it had solid legal footing. But as a West Palm Beach child pornography possession criminal defense attorney, I don’t believe courts are typically very sympathetic to arguments by child pornography defendants. Despite all of the protections offered by the Constitution and caselaw, child pornography crimes create strong feelings among judges, prosecutors and juries, which can make it difficult to succeed with an argument based on legal protections. Arguments based on double jeopardy and similar issues can be perceived as “technical” rather than factual, even though their outcomes are of course extremely personal and factual to the defendant. I believe there’s a strong double jeopardy argument to be made by defendants facing receipt and possession charges, and I will continue to look for cases examining that issue and related issues.

As a Fort Lauderdale cyber crime criminal defense attorney, I was interested to see two news items out of California about the conflict between defendants’ right to privacy and the growth of DNA technology. Last week, the Ninth U.S. Circuit Court of Appeals heard arguments in a lawsuit challenging California’s practice of taking DNA samples from everyone in that state arrested for -- but not necessarily convicted of -- a felony. According to the San Francisco Chronicle, the American Civil Liberties Union argued that this is a violation of privacy and may not work, given that one-third of Californians arrested for felonies are never convicted. California attorney general Jerry Brown, who is running for governor, called a news conference calling DNA “the fingerprint of the 21st century” and no more invasive.

The ACLU represents Elizabeth Haskell of Oakland, Calif., who was arrested at an antiwar rally. The police originally suspected her of trying to free another person who was arrested, but the charges were dropped. She initially refused to give a DNA sample, which is taken through a cheek swab, after her arrest, but relented when she was told she would be arrested for another crime if she refused. California’s DNA law, which was passed by ballot proposition in 2006, allows people like Haskell to petition to be removed from the database, but only after three years. A judge or prosecutor may deny such requests. The ACLU argued that taking such samples from people without a conviction is an unreasonable search and seizure, a violation of the Fourth Amendment.

The state’s argument got a major boost earlier this month when Los Angeles police used the DNA database to find a suspected serial killer in that city. Lonnie Franklin Jr. is accused of killing at least 10 young women since 1985. He was identified through a family DNA match, after his adult son was convicted on a felony weapons charge. At oral arguments, the Ninth Circuit asked the ACLU whether this type of breakthrough was worth the “minor intrusion” of DNA testing. One judge compared the practice to fingerprinting, as Brown did. The ACLU argued that fingerprints carry far less personal information than DNA and don’t require allowing foreign objects in the mouth. Another judge asked the state of California why it keeps the DNA of people not convicted. The deputy attorney general on the case said the database helps solve crimes and has a deterrent effect for people who know the state already has their DNA.

I very much doubt the deterrent argument. People committing crimes out of strong emotion or for sexual reasons are unlikely to think about bureaucratic details before they act. The state may have a stronger argument about solving crimes, but as a Miami-Dade cyber crime criminal defense lawyer, I believe the privacy argument is also very strong. Our justice system is built around the concept of presuming innocence unless the suspect is proven guilty. People convicted of crimes lose privacy and freedom, but we almost never subject people who are merely accused of crimes to probation, sex offender registration, weapons restrictions or other invasive criminal penalties. When we do, the invasions are limited and controversial, as they should be.

As the ACLU noted, it’s true that the police will be able to solve more crimes if they have access to DNA samples of people who were never convicted. In fact, they could solve even more crimes if everyone in America had to give a DNA sample -- but the public wouldn’t stand for that, because it would violate some of our founding principles. I believe retaining DNA from people who were not ultimately convicted is a smaller-scale version of the same thing. After all, as many of my clients can tell you, the police don’t always arrest the right person. The Ninth Circuit does not have the power to invalidate Florida’s DNA sampling law, but its decision could set a precedent for other courts to follow, especially if this case ends up at the U.S. Supreme Court. As a West Palm Beach cyber crime criminal defense attorney, I hope the court’s decision does not trample privacy rights.

As a West Palm Beach cyber crime criminal defense attorney, I was interested to see a recent item about the difficulties of prosecution in cyber crime cases. SC Magazine, a publication for IT security workers, reported July 12 on the case of Eric Porat, 19, of Brooklyn, who is accused of trying to sell data obtained from Internet data mining company Digital River to the company’s competitors. Investigators wanted to know how Porat came to possess the information on about 200,000 people, but Porat invoked his Fifth Amendment right against self-incrimination. As the article notes, this is perfectly within Porat’s rights and has been upheld in court in other cyber crime cases. And because investigators believe Porat obtained the data through an Indian company or person, they have a limited ability to get the information through subpoenas.

According to the Minneapolis Star-Tribune, Digital River and its subsidiaries sell software to other companies to help them run “affiliated marketing” programs. Data gathered by those programs is stored on Digital River’s servers, and it is some of that data that was breached. Investigators believe that someone using computers from a Digital River customer in India stole the data while the company’s security system was temporarily down for an upgrade. Rather, the SC Magazine article said, the Indian interloper used a “well-crafted search query” while Digital River’s guard was down, suggesting that there was not any illegal activity. From there, it’s not clear how the data got to Porat. He has acknowledged that it came from India but declined to say how or from whom. Once he had it, he is accused of trying to sell it to the highest bidder among Digital River’s competitors. One of them turned him in to the FBI.

Digital River filed a lawsuit and got a court order in late May blocking Porat from selling, distributing, destroying or altering the information. The company’s lawsuit was filed under seal and without notice to the defendants to protect evidence, the Star-Tribune said, but unsealed in early June. The suit seeks to understand how Porat and his company, Affiliads, got the data and what they did with it. Porat reportedly gave a deposition of about six hours, but invoked his Fifth Amendment rights about 26 times during that time.

As the SC Magazine article noted, Digital River has serious legal problems in this case. As a Miami cyber crime criminal defense lawyer, I agree with the author that this is “the single smartest thing a cybercrime defendant can do.” Normally, when someone invokes the Fifth Amendment, investigators can simply look for other sources of the information. But in this case, the other end of the transaction is in another country, which means they cannot subpoena the Indian company or any individuals who may have been involved. In fact, the article notes, Porat may not face criminal theft, hacking or identity theft charges at all, or face only the lesser charges investigators can prove. Meanwhile, it’s also unclear whether the Indian company or any individual there did anything illegal, since the company was a paying customer of Digital River and apparently did not exceed the access allowed to customers. In the end, the article says, Digital River should consider strengthening its security measures.

This is a great example of how the law has yet to catch up with the possibilities offered by technology. Even if the prosecution could reach into other countries, it’s unclear whether the Indian person or people involved actually broke a U.S. law by accessing this information. Selling the information to Porat could be a crime, but it will be difficult to determine whether that is indeed what happened. And of course, it will be hard to make charges stick to Porat without better information. Congress may be able to address part of the problem by passing a law on how information may be exchanged and sold internationally. But as a Fort Lauderdale cyber crime criminal defense attorney, I believe it’s vital for any such law to respect civil rights of individuals and businesses. In the meantime, cyber crime defendants like Porat may be able to count on the Fifth Amendment to protect them and their international compatriots.

I’ve written here before about the phenomenon of “virtual” child pornography, in which children’s pictures are digitally placed into pornographic or obscene pictures. As a Miami-Dade child pornography criminal defense attorney, I am interested in this because it’s not quite technically child pornography -- no children are directly exploited to make it, which has led to court rulings that it is protected free speech. This issue was raised again last month in Utah, where a woman is facing 18 counts of sexual exploitation of a minor for digitally adding the head of a 13-year-old girl to the body of a woman in a picture depicting bestiality. Danette Stark, 37, is accused of making 30 flyers with the picture and words the Deseret News described as derogatory and profane, and distributing them at the middle school the girl attends. Officials declined to talk about a motive, but noted that Stark has a daughter at the school as well.

According to the Salt Lake Tribune, Stark was caught on a surveillance camera May 24 placing some of the flyers in the girls’ bathroom at the school. She admitted to putting others in some lockers, and said she made 30 altogether. Only 18 have been recovered, and officials have requested that anyone who has a remaining flyer turn it in. Stark told the police that she did this as revenge for a “perceived wrong” by the girl, who is not being named. Prosecutors and defense attorneys have declined to explain this, citing embarrassment and privacy concerns, but one defense attorney said the relationship between the victim and Stark’s daughter “possibly” played a role. Comments reported in the Deseret News suggest the girls may have had a falling out or a fight. Stark faces up to 15 years in prison for each of the 18 felony charges, for a total of up to 270 years in prison. Her attorneys have said they plan to argue that her flyers are not child pornography.

As the Deseret News noted, virtual or manufactured child pornography like the flyers is a subject of legal debate. In 2002, the U.S. Supreme Court ruled in Ashcroft v. Free Speech Coalition that laws against virtual child pornography violate the First Amendment, restraining free speech without protecting children from exploitation. In response, the federal government and many states passed laws that explicitly include manipulated images, drawings and other depictions that are not straightforward photographs, as long as these are “obscene” and lack artistic value. Since then, at least one defendant accused of manipulating photographs to make virtual child pornography has been acquitted, while at least two defendants accused of possessing drawings of child pornography have been convicted. The Supreme Court has declined to revisit the issue, leaving states and federal appeals courts to decide on their own whether virtual child pornography should be penalized as child pornography.

As a Fort Lauderdale child pornography criminal defense lawyer, I don’t believe the flyer described in this case should be considered child pornography. The Supreme Court banned child pornography in 1982 for the very good reason that making child pornography inevitably requires exploiting an actual child. Other types of pornography remained legally protected free speech. Because virtual child pornography does not require the sexual exploitation of a child, I do not believe it should be exempted from the First Amendment -- no matter how much we dislike it.

This is all a separate issue from the question of whether Stark should be penalized, or whether our society should tolerate her behavior. Most observers agree that it’s inappropriate for an adult to be involved in teenagers’ fights at all, and extremely inappropriate to launch a sexually themed attack. If it’s proven that Stark did it, some penalty for bullying or obscenity may be appropriate. But as a West Palm Beach child pornography criminal defense attorney, I do not believe Stark is guilty of sexually exploiting a minor, which is the charge she faces. This is not an academic distinction; she faces more than two lifetimes in prison if convicted on all counts. With this much at stake, I believe prosecutors and jurors should carefully consider whether it’s fair or wise to apply laws meant for the worst kind of child molester to this case.