Claris Law Legal Blogging Community

Editor: Tampa Criminal Attorneys
Profession: Tampa Defense Attorneys

Category: Firm News

The easy access to Child Pornography on the internet has dramatically increased the number of prosecutions for this offense across America. Unfortunately, many people prosecuted for possession of child pornography are completely naïve to the criminal nature of their conduct. Unlike twenty years ago when someone had to go out of their home and actively seek out these materials, now committing a very serious criminal offense is just a few clicks away. The ease of access to this material on the internet also leads some to believe that, while viewing it is lurid and wrong, it is not necessarily illegal. Moreover, most people believe it's impossible for someone to penetrate the security of their computer and determine what computer files have been downloaded onto the hard drive. This ignorance leads to shock when law enforcement arrives at their home with a search warrant to collect their computer(s).

How does law enforcement become aware that someone has downloaded child pornography? Photographs or video images on a computer contain certain traceable digital code. Law enforcement has collected thousands and thousands of digital images (child pornography) which contain the traceable code. This code can be traced by any internet service provider (AOL, Internet Explorer, Safari...etc...). The internet service provider's server is equipped to identify these digital images and the subscriber that has transmitted them. If the internet service provider is notified that someone has disseminated child pornography over the internet they are then required by federal law to report the dissemination of this material over the internet to the National Center for Missing and Exploited Children (NCMEC). The NCMEC then reports the transfer of this material to local law enforcement. Law enforcement receives the photographic images from the NCMEC and reviews them. Once they determine that the images are in fact child pornography the police subpoena the internet service provider for the subscriber information for the specified screen name. Once law enforcement is in possession of this information they are prepared to draft an application for a search warrant for the subscriber's home.

Some have questioned the reliability of the information contained in these search warrants. These search warrants do not specifically identify the internet service provider's employee (business records custodian) charged with receiving and reporting the information to NCMEC. This brings us to the procedures followed by law enforcement in applying for a search warrant and what information must be contained in every search warrant.

It is important to understand the role of the judge in this criminal investigation. Without a search warrant law enforcement would be unable to enter someone's home and collect this evidence. Before a judge or magistrate signs off on a search warrant they must determine whether there is probable cause to believe the contraband described in the warrant is present in the residence. The United States Supreme Court sums up the analysis each magistrate must apply to determine if probable cause exists:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

The Second District Court of Appeals in Florida has determined that the information received from the internet service provider in the fashion described above is reliable and satisfies the probable cause requirement for any search warrant. The Court has also ruled that the internet service provider described in the scenario above qualifies as a "citizen informant". In the Woldridge opinion the 2nd DCA stated:

In addition, AOL was acting in a manner analogous to that of a citizen informant when it forwarded the information to NCMEC. "A citizen-informant is one who is 'motivated not by pecuniary gain, but by the desire to further justice.' " State v. Maynard, 783 So.2d 226, 230 (Fla.2001) (quoting State v. Evans, 692 So.2d 216, 219 (Fla. 4th DCA 1997) (quoting State v. Talbott, 425 So.2d 600, 602 n. 1 (Fla. 4th DCA 1982), and Barfield v. State, 396 So.2d 793, 796 (Fla. 1st DCA 1981))). A citizen informant is one who "by happenstance finds himself in the position of a victim of or a witness to criminal conduct and thereafter relates to the police what he knows as a matter of civic duty." Evans, 692 So.2d at 219 (quoting Wayne R. LaFave, Search and Seizure § 3.3 (3d ed.1996)). As a general rule, the reliability of a tip from a citizen informant is presumed, and corroboration of the tip is not generally required. Maynard, 783 So.2d at 228; Gonzalez, 884 So.2d at 334.

The code associated with these images has enabled law enforcement (through private companies) to develop software aimed at tracking and following anyone who might view and/or disseminate this material on the internet. At the present time many people are viewing child pornography on pier to pier networks. These networks are monitored by law enforcement every moment of the day with the same type of software. In the Court's view the way information is transmitted over computers allows law enforcement to employ very reliable methods upon which to base a search warrant of someone's home.

To learn more about the issues surrounding a search warrant for child pornography you can call us at 813-228-7095 or link to tampa criminal attorney.