CSAM & Predators - Information Tech: Should you report suspected child sexual abuse material, otherwise known as child pornography?

Dr. Frank Kardasz (Ed.D.)

Revised December 22, 2013

A dilemma for some information technology professionals involves the question of whether or not to report suspected unlawful images found on a clients computer. 

The preferred answer is, "Yes - Report!" but the dilemma brings other questions and consequences to consider.

One issue for IT professionals is determining whether an image is lawful or unlawful.  Some devices arrive for repair loaded with the often-seen lawful adult pornography that is not criminal.  So how can the lay-person determine if an image is illegal contraband in violation of complicated statutes and case law?   

 

Most IT professionals do not have training in determining the legal peculiarities and nuances of contraband images, and there are NO colleges that offer courses where child pornography is on display so that people can be trained about what to look for.  My advice to IT professionals:  Don't even try to make a determination – it is not your call to make - notify law enforcement to make that judgment.

Another option is to simply ignore the images and pretend that they are not there.  Unfortunately, ignoring the images risks the possibility that they may be discovered later by someone else.  Once discovered, the accused might then blame the IT professional for placing the contraband on the computer.  The defendant, if captured may try the old "SODDI" (Some Other Dude Did It) defense and suggest that the IT person is the perpetrator.

I recall reading a newspaper column once by an alleged ethics expert who counseled readers never to report unlawful images because, in the misguided writers opinion, the penalties for child pornography were too harsh.  That argument is hogwash.  Legislators, investigators, lawyers, plea-bargains, judges, juries, aggravating and mitigating factors make up the long legal process that occurs before anyone ever suffers a penalty for contraband images.  At the end of that process, if the defendant receives a long period of incarceration, he deserved it.

One important factor to consider is the law regarding the act of misprision. Misprision is defined as neglect or wrong performance of an official duty, or concealment of a felony by one who is not a participant in the felony.

The US statute -  Misprision of Felony, is found at 18 USC §4.  It reads as follows:

• Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

The misprision of felony statute has been interpreted through several court decisions to require knowledge of the crime along with some affirmative act of concealment or participation in the crime (1).  I am not aware of prosecutions against IT repair personnel for this crime but it is an offense that information technology personnel should be aware of when considering whether or not to report the crime .

If you are suspicious about an image - report it - don't ignore it - some child's life, safety and welfare may depend on you.   

Finally - what if that was your child?

Where to report:

• Your local law enforcement agency:  Call 911
• National Center for Missing and Exploited Children (NCMEC): www. cybertipline.com  or call 1-800-THELOST
• Internet Crimes Against Children Task Force Program: https://www.icactaskforce.org/Pages/TaskForceContactInfo.aspx
• FBI: http://www.fbi.gov/contact-us/field
• HSI/ICE: http://www.ice.gov/exec/forms/hsi-tips/tips.asp

 Notes:

(1) Branzburg v. Hayes, 408 US 665 (1972). [Footnote 36]. This statute (18 USC §4) has been construed, however, to require both knowledge of a crime and some affirmative act of concealment or participation. Bratton v. United States, 73 F.2d 795 (CA10 1934); United States v. Farrar, 38 F.2d 515, 516 (Mass.), aff'd on other grounds, [408 U.S. 665, 697]   281 U.S. 624 (1930); United States v. Norman, 391 F.2d 212 (CA6), cert. denied, 390 U.S. 1014 (1968); Lancey v. United States, 356 F.2d 407 (CA9), cert. denied, 385 U.S. 922 (1966). Cf. Marbury v. Brooks, 7 Wheat. 556, 575 (1822) (Marshall, C. J.).  Retrieved from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=408&invol=665

======================================

December 21, 2013

One commenter (an IT Professional) responded: 

Often we hear of the situation where a customer takes his computer to a shop for the power supply to be replaced.  After installing the new power supply, the operational check is good; but the repair tech, for no valid reason, peruses the customer's personal data and finds an unlawful image.  This type of perusal, while not illegal, creates an issue.  What should be done about the unlawful image?

In a scenario above, where a tech is tasked with a simple power supply repair but exceeds the scope of his authority and wanders into illegal images: What are the possibilities and ramifications?  Let's carry that scenario to the worst imaginable extreme: Imagine that the computer being repaired comes from the day-care facility where the Tech's own child spends her mornings and the illegal images include pictures of the Tech's own child being abused.

At least three responses come quickly to mind:

• Some techs might admit to exceeding the scope of their work, accept whatever ramifications follow; including the possibility of job termination and civil lawsuit; and proceed against the abuser, using the improperly obtained images as reporting evidence for the authorities.  Utilitarian philosophers might associate this to the theory of the "greater good" whereby the potential harm attached to reporting the situation outweighs the harm of ignoring the situation.

• Some might say, "I would take care of it myself and KILL the offender!"  This extrajudicial justice response is accompanied by it's own set of possible penalties.  The retributive philosophy of atonement traces it's roots to the code of Hammurabi, also reflected in Deuteronomy 19:17-21, and Exodus 21:23-21:27, which prescribe the punishments of "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot."  None of those justice models are presently prescribed nor approved in U.S. Code.

• Some techs might ignore the images and not report them, placing self-interest in keeping their job above protecting children and helping the offender to find justice.  This response aligns with objectivism as described by Ayn Rand in her work, The Virtue of Selfishness.

In summary, the options for the improperly found contraband images in the scenario above included utilitarianism, atonement or objectivism.  Which one are you?

======================================