What you should do when you are under investigation for Child Pornography

Many people think that child pornography cases involving the distribution, receipt, or possession of child pornography are not that serious because these offenses do not involve an actual victim.   Whereas the production of child pornography usually involves the use of actual children, the possession and distribution of child pornography do not.  Most people don't realize the serious ramifications of these “sex crimes.”  Even looking at or possessing on your computer or other electronic device a few photographs is a very serious crime that can carry a minimum of five years in prison in the case of a Federal Child Pornography case.

The federal code section for this offense is 18 U.S.C. 2252.

These cases are very serious even in state court today.  Many counties in the state of California, for instance San Francisco and Alameda Counties, used to routinely charge these crimes as misdemeanors that carried very little jail time, if any.  While a violation of California Penal Code section 311.11 (Possession of Child Pornography) and related charges were clearly viewed as less serious, they did (and do) still carry lifetime Sex Offender Registration pursuant to California Penal Code section 290.  Thus, it is essential that when someone is informed that there is an active investigation into the possession of child pornography, distribution of child pornography or any other related offense, they immediately obtain the services of an experienced and skilled criminal defense attorney who specializes in dealing with Possession of Child Pornography and Distribution of Child Pornography cases.

If you have been informed of such an investigation or that Child Pornography charges have been filed, we recommend that you call us immediately at 1-800-499-9902.

INCREASE IN CASES

The department of justice reports a 2,500 percent increase in child pornography-related arrests over the last 10 years. While there are many factors that draw everyday people to child pornography, the technological advances of the internet and the proliferation of Peer to Peer (P2P) networks have made it very easy to obtain and share or distribute child pornography, sometimes without even knowing it is happening. Anyone with a computer connected to the internet can obtain an unlimited amount of illegal images or videos with the click of a mouse.

The federal government in particular, not to mention various State of California Task Forces, are stepping up their investigations by actively conducting sting operations, pro-actively posing on or infiltrating internet chat rooms, tracking IP addresses and investigating file sharing networks. We have seen a huge proliferation of child pornography cases in Federal Court and throughout California and the United States.  Along with this, the Federal Courts have imposed a significant increase in the length of prison sentences for federal defendants convicted of these types of sex offenses.

HOW INVESTIGATIONS ARE CONDUCTED

A typical child pornography investigation within a file sharing network involves the Police or FBI signing on to a P2P network, either under a fake username or by using an existing user's credentials. Once on the network, the police will browse the network and search for incriminating files.

When a P2P user downloads a file, the program places it into a “shared” folder. In addition, the user can add additional files from his or her personal collection into this shared folder so that others may gain access.  Some P2P programs allow users to configure their shared folders in order to restrict what files to share and with whom. However, the FBI has developed a program called “EP2P” which allows it to see all of a user's shared files, and may even have the ability to change the shared file's settings. Suffice it to say that the government has very sophisticated methods of identifying and locating child pornography despite any precautions an individual may take.

When the FBI has identified suspected child pornography inside another user's shared folder, it will use another program to identify and track that user's IP address. All IP addresses are correlated with a physical location through an Internet Service Provider (ISP), for example AT&T.  Once the IP address is obtained, they will subpoena the ISP for the owner's personal information and physical location of that IP address and obtain a search warrant to search that location.  The search warrant will often include a command to search for any computer equipment, electronic media, personal papers and documents, indicia establishing that the person lives at or has access to that premises and of course any evidence of illegal material such as photos, videos, magazines or other hard copy of child pornography.

WHAT SHOULD I DO IF I AM UNDER INVESTIGATION OR HAVE BEEN ARRESTED?

1. Assert your rights.

If the FBI or police come to your door, there are two phrases you should repeat over and over: “I want an attorney” and “you do not have permission to search.” It is very important to remain silent except for the two phrases above. Do not engage in small talk or try to explain anything away. Undoubtedly, the FBI or police will try to get you to change your mind and speak with them. The Supreme Court has said that under certain circumstances investigators may even lie to you to induce you to admit you committed a crime.  You must resist their tactics, whether you are innocent or guilty.  If the FBI or police have a warrant, do not obstruct them but then again never consent to anything either. Remember that they are there for the sole purpose of making their case and establishing your guilt, so anything you do or say will be used against you.  Their goal is to build a case and to see that you are convicted and put in prison.

If the FBI is not at your door or you have not yet been arrested, but you have reason to believe you are under investigation, you should still immediately obtain legal representation from an experienced and skilled lawyer who specializes in Possession and Distribution of Child Pornography cases.  Your attorney can evaluate your case and then recommend your best course of action, whether you should cooperate with the government, to what degree, and in many cases help you avoid criminal charges before they are filed.

2. Deleting files.

Many people believe that hitting the delete button on their computer makes a file disappear forever. Some might therefore think that viewing child pornography and immediately deleting those files, internet histories, logs, and cookies will cover up any evidence of wrong-doing. In fact, deleting a file only sends it to another part of a computer's hard drive where it is stored indefinitely until it is over-written by another file. The government possesses very sophisticated computer forensic software that can recover files long after they have been deleted.

3. Get the help you need from an experienced and highly skilled lawyer.

Whether you are completely innocent or have actually viewed, possessed, distributed or even produced child pornography, it is essential that you retain the services of a highly experienced and skilled lawyer who specializes in the area of possession and distribution of child pornography or related charges.  Furthermore, you must fully apprise your attorney of all relevant information related to your case so that he can fully defend you.  The FBI and other federal agencies, the police, and prosecutors carry inherent biases with them. A good lawyer will investigate your case and find gaps in the evidence or mistakes in the investigation.  This attorney will raise these issues with the prosecutor in an effort to get the case or certain charges dismissed or to mitigate any potential punishment.

4. Help Yourself.

There are several things you can do to help your own case.  These often include submitting to a polygraph examination, collecting work and personal letters of reference and recommendation,  cooperating with your attorney and assisting the attorney in the investigation of your case, submitting to a psychological evaluation or sex-offender evaluation, participating in treatment including participation in a 12-Step program for sexual addiction, sexual compulsion or Obsessive Compulsive Disorder (OCD)  and cooperate with the attorney in any effort to obtain a forensic examination of your computer hard drive (which should be done in virtually every case).  There are many potential defenses that can arise from the forensic examination of the computer, but it takes a highly skilled and savvy attorney to make sure this procedure is thorough and precise.

If you are in this situation or need help with a case like this, you should call us immediately at 1-800-499-9902.

To recap, you should do the following:

  • Don't talk to the law enforcement investigator other than to deny the allegations.  Tell the investigator, ” I am requesting to speak to a lawyer” and deny any request to conduct a search of any person, place or thing;
  • Immediately contact and retain the services of a highly experienced and skilled attorney, whether an investigation is anticipated, has just begun or charges have already been filed;
  • Seek professional help, including psychological counseling or participation in a 12-Step program, where needed or appropriate.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 25 years experience.

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