Framed for Child Porn
Inspired by the Story of Ned Solon
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Multiple Cases of Viruses Downloading Child Pornography

Investigation Finds Multiple Cases of Viruses Downloading Child Pornography

Posted on Cyber Crime Lawyer Blog by David S. Seltzer, Esq., Balliro Seltzer LLC.
November 10, 2009
As a Miami-Dade child pornography possession criminal defense attorney, I have known for years that viruses can silently download child pornography, exposing the computer’s owner to life-altering criminal charges and personal consequences. That’s why I was very pleased to see an Associated Press report Nov. 9 confirming that these cases are real -- and that prosecutors aren’t always willing to listen. The AP reviewed court records and interviewed defendants, attorneys and computer forensic examiners to understand the problem. Its conclusion: Viruses that download child pornography are real, and victims can lose their jobs and friendships and even go to prison because of them.

As the article explains, these viruses are typically used by actual pedophiles to download and store child pornography on an innocent person’s computer, helping them avoid getting caught. Sometimes, they can also be used to get back at someone or play a not-very-funny prank. In either case, the computer needs to be vulnerable to the virus and left online for long periods. The viruses store the child pornography in folders that users aren’t likely to open, like the temporary cache for a Web browser. Later, co-workers, family members or investigators can find the folders -- and the computer’s owner is unpleasantly surprised with a criminal charge for possession of child pornography.

Simply claiming that a virus is responsible won’t pass muster with many investigators, because people who are guilty frequently make this claim. However, computer forensic examiners told the AP that it’s not hard to tell whether this is the truth, from data on the machine as well as tell-tale physical evidence like DVDs in the home of the accused. Unfortunately, proving this usually requires the services of a forensic investigator, which can be very expensive. Courts may pay for the investigation if the defendant cannot, but they may also choose not to.

Ned Solon of Casper, Wyoming says that was the case for him. He said he never downloaded the child pornography found in a folder for a file-sharing program on his computer, and the computer defense forensics expert suspects he’s right. However, she never got to finish the job because of a payment dispute. Solon is appealing from prison, where he is serving a six-year sentence.

By contrast, Michael Fiola of Massachusetts was able to prove that a virus downloaded child pornography onto his work computer. But before he could do that, he was fired from his job for the state, had his tires slashed, received death threats and lost friends. To pay for his six-figure defense, Fiola and his wife spent their savings, took out a second mortgage and sold their car. At trial, experts showed that his computer was downloading child pornography at a rate too fast for any human being, at times when Fiola was not at home or work. Nearly a year later, the charges against him were dropped -- but the Fiolas say their physical and financial health suffered. They would like to sue the state, but cannot find an attorney willing to take the case for the small amount of money that Massachusetts law allows them to recover.

In my practice as a South Florida child pornography possession criminal defense lawyer, I see sad stories like these more often than I would like. In many cases, prosecutors haven’t quite caught up with the state of the art in networking technology, which allows child pornography fans to stay one step ahead. When they find child pornography, they don’t always do the painstaking work necessary to rule out viruses and other explanations for the pornography. The result can actually ruin innocent people’s lives, even if they are acquitted or charges are dropped. Merely the accusation of child pornography possession is enough to cause the loss of a job, a spouse, child custody, friendships and professional licenses and a good reputation in the community.

Stories like these are why I use computer forensics experts whenever appropriate, as a Fort Lauderdale possession of child pornography defense attorney. With computers, things are not always what they seem on the surface, and simply having these materials on a computer is not iron-clad proof of a child pornography possession charge. But prosecutors who are understandably eager to find and stop the perpetrator may not stop to consider that -- or they may genuinely not realize that an investigation could change the story. With the defendant’s freedom and future at stake, it is essential that prosecutors and police agencies give virus defenses fair consideration -- and that defendants do whatever they can to prove those defenses. 

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