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Saturday, December 8, 2007

Clarifying the Securing Adolescents From Exploitation-Online Act, or SAFE Act

Bob Johnston's observations:

It appears that early reporting was very misleading and undoubtedly will create urban legend. When I read the first reporting it indicated that anyone with public Wi-Fi, including you or me should we be so foolish, could be prosecuted if someone used it to transport child porn. My immediate reaction was how would someone even know without monitoring all activity? A virtual impossibility.

Later coverage makes it clear that is not the issue and I wonder why the current bill is even necessary other than raising the penalties from $150,000 to $300,000. The current law makes it clear that if anyone sees child porn wherever....that is, not only digitally but also in print, that we must report it to law enforcement or risk prosecution for failure to do so. Knowledge of this law is important for anyone within the digital computer trade whether a forensic investigator, repairman or simply being a friendly neighbor.

Yes. If you help a neighbor fix his/her computer and observe child porn you must report it. When I take a forensic case, I always advise the client of this obligation. When I help a neighbor, I do not as I do not want to offend a friend but am beginning to wonder whether I should advise them as well. Not because I suspect anyone, but just because it could happen.

Do not misunderstand...I abhor child pornography but I do question laws that hold me accountable for reporting to law enforcement what I observe while practicing my trade. I recently saw a prosecution in the State of Connecticut of an attorney who did not see but had believable knowledge of the presence of child pornography on a laptop. He took the laptop and disposed of it. He was prosecuted under the federal statute and convicted. To me that is a stretch of the statute as I understand it. He was an attorney. When will we see the common man similarly prosecuted?

By way of example...I advise a potential client of my obligation to report child porn if I see it and the client decides not to engage me. Is that "believable knowledge"?

Should I report that to law enforcement?

Can I be prosecuted if I do not?

Should I be prosecuted if I do not?

What say you?

Since Bob discussed this in the private Julie Group blog a second issue is being discussed by Declan McCullagh over at CNet:
The definition of which images qualify as illegal is expansive. It includes obvious child pornography, meaning photographs and videos of children being molested. It also includes photographs of fully clothed minors in unlawfully "lascivious" poses, and certain obscene visual depictions including a "drawing, cartoon, sculpture, or painting."

Most reasonable adults, including home Wi-Fi providers or the Web sites affected by this legislation, can figure out what actual child pornography is. But when it comes to photographs of fully clothed minors in "lascivious" poses, and overly risque cartoon anime that might be "obscene" in one area of the country and permissible in another, it becomes trickier--especially when, legally, only a jury can determine whether an image violates local community standards.
The part I find a bit unsettling is the inclusion of pieces of art in these definitions.


BobJ said...

Understand that the issue relative to cartoons and other forms of "art", that is a graphic form rather than a photographic image, may be punishable under local law but has been found by the U.S. Supreme Court to be protected by the First Amendment as 'freedom of expression" relative to the Federal Statute. Since states must also comply with the First Amendment, I suspect that a similar decision will occur should any state choose to prosecute such graphic images.

Anonymous said...

So if I go to my sister-in-laws house and I find some child porn on her computer, even if she was not aware of it (she really is computer illiterate like many people) I am supposed to report her to the police? My goodness, I think we are going a bit too far. And how do we determine that when a child is clothed it is a lascivious photo? I am supposed to report this to the police? OMG, we are going a bit far on this aren't we? How would they know if the person working on the machine did not put the pictures on there? Too many loopholes for people to be prosecuted that didn't do anything wrong.

BobJ said...

While the law seems overly broad to those not understanding the internals of the operating system, it is not so broad when you understand system internals, particularly digital forensic investigators. The problem is that the publicity is horrific and the cost to defend is too great.

A good forensic investigator can usually determine how such images got on a computer and when.

I share your concerns. When I do forensic work on a computer and I am working for the owner I warn them in advance of the issue. Thus far no one has told me they changed their mind.