The increasing use of computers in every area of work and life has brought about a corresponding growth in the number and type of computer crimes being charged. These computer crimes take various forms: white collar type crimes, computer sex crimes, wire frauds, and others. It is no secret that federal and state law enforcement agencies now have very broad powers to monitor internet use.
Cable companies can provide user data to law enforcement upon proper request, and such cooperation is now routine. Federal agents and local law enforcement now have special squads to seize home or business computers. The computers are then subject to exhaustive forensic searches, through the use of programs such as EnCase or Forensic Toolkit (FTK).
There is a record on every computer of nearly everything that has happened on that computer. People rarely appreciate the capability, scope, and power of electronic media; and the detailed records that can be reconstructed of a person’s computer “life” is truly amazing: search terms, downloads, sites, emails, forums, chatrooms, and electronic images can be accessed.
We have found that law enforcement is very proficient with the use of social media also: Instagram, Facebook, Twitter, blogs, 4Chan, Reddit and associated subreddits, Tumblr, Tinder, OKCupid, and other dating sites can be accessed as the situation requires.
Of particular concern is the advent of peer-to-peer “file sharing” software such as Frostwire, Gnutella, Kazaa, and Limewire. Users of these file sharing sites can “share” music, movies, images, and other communications. However, getting on these file sharing networks is not what it seems. Just by being on these networks, without managing your settings, you can permit your computer to become a “bulletin board” or receiver of illicit material, usually child pornography.
We have seen situations where people download files en masse, only to discover that the files were mislabeled or contained contraband images. The software’s default settings can cause participants to function as “through-ways” or passage-points for illegal material, with disastrous consequences.
An in depth knowledge of computer forensics is key to mount an effective defense. We have this specialized knowledge. At Phillips & Thomas LLC, our criminal defense department has defended a large number of these cases and have been able to secure outstanding results for our clients.
In our initial client interview, we will probe into the client’s degree of sophistication with computers; how the images got on the computer; statements to law enforcement, if any; possibility of entrapment (common in solicitation cases); and the lack of intent if a person didn’t know the images were of a minor.
It is critical initially to focus on the computer forensics. It is important to: (1) verify if a forensic exam has been done; (2) examine all internet service provider (ISP) reports; (3) request version numbers of law enforcement forensics software; (4) verify all communications between the ISP and law enforcement; (5) examine the search warrants for specificity and particularity; and (6) verify any interactions by NCMEC.
Computer sex crimes are encountered at both the state and federal levels. In the pretrial stage is it also important to: (1) retain a forensics expert if needed; (2) determine whether the image files were found in the web cache, which is a temporary storage location on computer hard drives that stores data from search requests; (3) see if the files were found in unallocated space, since this would show previously deleted images, and possibly lack of intent. A working knowledge of the computer issues is what we have.
When someone has had a computer seized, a defense attorney can file motions to limit the scope of the forensic search, or even prevent the search altogether. If overly broad searches have been conducted, motions to suppress and suppression hearings can be techniques to prevent the seized evidence from being used against a person. Daubert motions can be filed challenging government experts. Whether law enforcement has preserved all required communications, or can authenticate all communications, are crucial questions. It is absolutely critical to hire an attorney who can handle these issues right from the beginning.
Another commonly encountered type of computer crime is the “decoy” scenario, or the online “internet solicitation” scenario. The increasing use (and relative anonymity) of social media and internet chatrooms means that the online world is a much more common way people have of communicating. Law enforcement (both federal and local) have special teams that monitor these communications.
Frequently, however, we find that law enforcement goes beyond their mandate, and can stray into the region of entrapment of a defendant. Creating a crime where none would have existed is a common feature of these online solicitation cases.
With the current requirement of sex offender registration upon conviction for these types of felony cases, the stakes are high. It is absolutely critical to consult with an attorney at the very first stages of something bad happening.
Did you get a “friendly” call from a police detective who wants you to clarify something or “make a statement”? Was your computer seized? Did you get a call from a federal agent who wants to ask you some questions? If so, you need legal counsel immediately. Waiting is not an option.
Read More: Different Types Of Federal Crimes