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  xSaturday, September 28, 2002

is there a lawyer in the house?

I get Wired News' daily email notification, so of course I saw this story about a former Marine/small-town cop who recently got busted in a child-pr0n sting. Although the article raises ominous implications that innocent Web surfers can face child-pr0n posession charges with one inadvertent mouse click, I declined to comment on the artice. (I actually chose to, as opposed to simply lacking the time, as is the case with so many other things that cross my radar.) For one thing, although the article seemed to portray suspect Adam Vaughn as a high-energy, risk-taking kind of guy who basically downloaded a lot of pr0n and didn't realize there were some kiddie images in the mix, as a result of a Yahoo newsgroup he once joined and apparently forgot about,

Now lawyer Dodd of Ipse Dixit has a legal analysys of the statute under which Mr. Vaughn was charged, and he concludes that--while the discretion and zeal of a prosecutor always needs to be taken into account--that a single, inadvertent, promptly deleted image appearing on one's computer doesn't pose the legal risk the article implies.

[to be continued...I am having trouble connecting to Dodd's blog and therefore can't link his post or cite his analysis.]
Update: Everything's working now, so here goes.
I thought that the article seemed a bit overblown, so I did what the author apparently thought was un-necessary: I read the actual statute (18 USC 2252A). It took less than one minute to find it and determine that I was right. Every variation (possession, distribution, and conspiracy) of 18 USC 2252A has the word "knowingly" in it. In short, possession of child pr0n is not a strict liability crime. [Emphasis in the original]

So, one cannot be convicted for having a single image in one's deleted files - the act of deletion establishes that one took "reasonable steps to destroy" it. One also cannot be convicted for having an image one does not know one has...

With all due respect to Dodd's legal knowledge, I would offer the small dissent that one could not be justly convicted. Although Dodd is certainly correct that the statue makes the noted excptions, whether one is actually convicted has much to do on the lawyers, judge and jury. A jury could, after all, decide to disregard evidence that the pr0n was unintentional, or a defense lawyer fail to assert the defense at all, or with sufficient vigor. That said, I'm sure such a convition ultimately would not stand. Of greater concern would be am innocent person who accepted a plea bargain despite the availability of this defense. After all, the thrust of the Wired article as I understand it was that Mr. Vaughn accepted a plea bargain believing that no matter what defense he raised--and apparently unaware of a flaw in the prosecutor's case--a just seeing the images would convict him no matter what. I'm not erudite enough on the law to know the availability of appeal to one who has pled guilty rather than been convicted.
Was Mr. Vaughn treated unjustly? That's hard to say. We cannot ever know for certain that the 300 images he had on his hard drive were unintentional downloads. Quite possibly they were; as described (albeit by a demonstrably sloppy author), he didn't act guilty. But the only way to reduce the draconian effect on people who really do get snared by this law for unwitting violations would be to increase the defense threshhold across the board. Doing that would make it easier for the people who do intentionally traffic in this stuff to evade prosecution, as well. A balance between society's desire to crack down on child pr0n and the reality that simply using the Internet may cause one to end up downloading an illegal image entirely by accident has to be struck somewhere. As a policeman, Mr. Vaugh should be expected to know and understand this even better than ordinary citizens. Maybe the 3 images threshhold really is too low; but there's no way it would be increased to 300, now is there?

The lesson here is that ordinary, everyday Internet users need to be careful what they say, do, and especially download when they're on the 'Net. We already know we need to be careful because of viruses. Mr. Vaughn's case shows that we have to be wary of other hazards, too.

Indeed, one perception I got from the Wired piece was that for the most part--down to both electing to accept and then not challenge his plea bargain--Mr. Vaugn's situation arises from a series of choices he has made. Perhaps that situation is not just, and perhaps Mr. Vaughn could have made better decisions WRT his legal strategy had he been better informed or better advised, but ultimately I don't see Mr. Vaughn having anyone to fault but himself.

By the way, Dodd also has another thought-provoking post that I'm cooking up a (favorable) response to.