Slow Progress

Despite the appearance that nothing is going on, our volunteers are busy behind the scenes working on some basic needs the group has to create a working relationship and a professional delivery system.

Aside from that we have once again identified some patterns of use and abuse that we will begin to invite all of you to participate in exploring to one degree or another. Some of the detective work will always need to be private.

But some of it is a democratic conversation that only citizens can remediate.

Something all of you can begin to think about is the question of what constitutes fair punishment for a given crime? Julie Amero captured the world's attention by being found guilty of involuntarily exposing students to inappropriate content and potentially being sentenced to forty years in jail (the prosecutor - playing devil's advocate and enjoying the kill - whispered to Julie eighteen years). A teacher put in this position could in some places plea bargain down to a charge of murder and get a lighter sentence. In fact local newspapers described murder cases with far lighter sentences concurrent to Julie's ordeal.

Some of us believe the justice system is broken and absurd when it has to deal with disruptive technologies. For example, pornographers are the first adopters of artificially generated computer behaviors that make machines misbehave in the eyes of the law. Yet the authorities are charging the person closest to the misbehaving machine with the crime.

A teacher exposed to the irresponsibilities of students commandeering computers are easy, unsuspecting targets. Are pornographic pictures suddenly found on infected computers indicative of rampant criminal intent by middle-aged, married, middle-school teachers or is there a more sensible conclusion we can come to?

We'd like you all to think about this and let the world know your thoughts and ideas on fixing these legal issues. We'll attempt to feature the best ideas in later entries.

Word of mouth is often the best educational process we can invest in.

What our Links of Interest Represent

The opinions expressed here will vary among writers as will our links. When we post a link of interest we are pointing out to our readers some of the kinds of issues that are important to all of us.

As a clarification, in the case of Matt Bandy, his case has been resolved and our interest is to use his experience as an example for others to learn from. You will hear more in the coming weeks. Unfortunately, we gave the impression initially that the Bandy case was something we would be pursuing pro-actively when in fact we will be doing some postmortems to glean insight into unresolved cases of the same archetype.

We cannot undo or reopen cases that have been tried. Our interest is in learning from some of those that deserve our scrutiny as a society. The Bandy case is a prime example.

Secondly, we invite developers who work for less than ethical spamming companies, pornographers, or otherwise sleazy operators to contact us when your conscience catches up to you. You can help us prevent or understand malicious machine behaviors better than anyone. Write to ask us for our most confidential contacts and start your conversation there.

Preventing malicious behaviors is a very important goal for everyone. Lift yourself out of the mud here.

Connecticut Law Tribune: Set Evidentiary Standards

The Crime & Federalism blog has an article from the Connecticut Law Tribune:

A similar issue arose not long ago in a case I tried against John Danaher, now the state's public safety commissioner. An FBI agent with a fine arts background testified about computer-enhanced images of a hat band that the federal government used to link my client to the robbery of a jewelry store. The agent's testimony about digital manipulation of images came down to this: it is reliable because we use it all the time.

Chief Justice Chase Rogers is reaching out far and wide to tap lawyers and judges to sit on committees for all manner of things. How about a committee on evidentiary standards for computer-generated evidence? The bar is ignorant. And innocent people are getting hurt. Just ask Julie Amero.

This would be an excellent beginning. If the courts were to set evidentiary standards for computer-generated evidence, there would be a foundation for local and state law enforcement agencies to form best practices guidelines around their investigations of crimes involving computers and Internet use.

Matt Bandy Could Be You. Or ME.

Matt Bandy's story sent a chill up my spine as I read it this morning. Matthew was 16 when authorities arrested and charged him with possessing and uploading child pornography (Full Story).

Matt was the victim of at least one (and likely more than one) worm that turned his computer into a "zombie computer". To give you an idea of the pervasiveness of zombies, vnunet.com reported on a foiled botnet operation that had put 1.5 million computers and servers under its control. (A botnet is a collection of computers infected with the same worm). Botnets are used to send spam, infect other computers, and upload pornography, among other things.

Here's the thing: Zombies operate transparently. The user has no idea what his own computer is doing. That means you can be held responsible for activity originating with your computer for which you had no control, involvement or even knowledge.

This is exactly what happened to Matt. Ultimately he accepted a plea bargain on the advice of his attorneys. even though the forensic examination of Matt's computer proved the presence of malware, even though he passed two independent polygraph examinations where he flatly denied any pornography uploads, even though two independent psychological evaluations concluded that he did not meet the profile for a diagnosis of paraphilia.

The prosecutor would not back down. If a jury had convicted him, he could have spent up to 90 years in prison (This is not subject to judicial discretion -- more on that in a minute). If he accepted the plea bargain, he would have to register as a sex offender but would be sentenced to probation. After ABC's 20/20 aired a segment on his plight in January 2007, the sex offender designation was removed by order of the court.

Is this justice? How did this happen?

I. Anti-Porn Policies and Initiatives Pressure Local Prosecutors to Produce

There are certain initiatives in the halls of justice - national and state - that have top priority. Project Safe Childhood is one of those. Here is a description of the initiative from the PSC Guide:

PSC creates, on a national platform, locally designed partnerships of federal, state, local, and tribal law enforcement officers in each federal judicial district to investigate and prosecute Internet-based crimes against children.

and this:

U.S. Attorneys will coordinate the investigation and prosecution of child exploitation crimes, and the efforts to identify and rescue victims. Establishing open and formal lines of infor-mation-sharing and case referrals is imperative, so that investigators and prosecutors can use all available tools for finding offenders and selecting the most appropriate forum in which to seek convictions. And aggressive investigations and prosecutions must be accompanied by strong victim-assistance efforts.

Finally, there's this:

"For these reasons, it is important for federal investigators and prosecutors to bring all available resources to bear upon investigations and prosecutions of Internet-based crimes against children, and for federal prosecutors to substantially increase the number of prosecutions of child pornography and enticement offenses."

This is an admirable goal. I am certainly all for the prosecution of those who commit crimes against children, aren't you?

But there's a word missing from that final paragraph. An important one. The word is "legitimate", and it belongs here, so that the sentence reads this way:

"...all available resources to bear upon investigations and LEGITIMATE prosecutions of Internet-based crimes against children, and for federal prosecutors to substantially increase the number of LEGITIMATE number of prosecutions of child pornography and enticement offenses."

Common sense dictates that when the results of an investigation prove the existence of malware and worms which are linked to illegal activity OUTSIDE OF THE CONTROL of the user, a prosecution is not legitimate. Period.

Prosecutors are expected to deliver the goods, and they are measured on the NUMBER OF CASES they prosecute successfully, either by conviction or plea-bargain.

This sweeping initiative and mandate for federal, state and local law enforcement agencies creates an environment of rigidity and the need for prosecutors to give the impression of zero tolerance for pornography, regardless of its source. If you're convicted, the sentences are non-negotiable under federal and state sentencing guidelines.

II. Ignorance about Malware Left the Door Wide Open

In the Bandy case, the ignorance wasn't simply on the prosecutor's end. Matt Bandy's parents had absolutely no clue about how to secure their computer and network properly. They're not unusual. As an admitted geek, I receive calls all the time from friends and family in a panic because their computer is infected with something and they have no idea how it got that way or what to do about it.

Here's a fact: Kids can infect a computer faster than anyone else in the house. They go to game sites, game hack sites, have their Instant Messenger programs open all the time, accept files from anyone and believe what they read. They're kids. They haven't learned to be cynical yet. So when they click on the blinking "You've just won a million dollars" window, they're believers. By the time they figure it out it's too late if they're out there on the Internet with inadequate safeguards.

Here's another fact: Filters are a bandaid and nothing more. Relying on site and word filters to protect kids from pornography doesn't work for anyone. That means schools, homes, and businesses. There are too many ways around them, they can't block every iteration of the word and they give a false sense of security.

One last fact: It can happen even if you're a geek. I love computers. I'm a geek. I've been on the Internet from the early days, I've built my own computers, I maintain our home and office network and I stay updated on Internet security issues.

Yet, my 17-year old son managed to: a) Visit Internet porn sites; and b) infect his computer with 100 different flavors of malware in February of this year. This, despite what I thought was a locked-down network (he ended up on a neighbor's wifi connection), and up-to-date virus protection (his expired in January, I didn't check and he didn't tell me). As far as I can tell, it took about two surfing sessions to thoroughly infect his laptop.

Matt Bandy's story could have been mine. It could be yours. It will be someone else's. It is already someone else's.

Greater minds than mine are wrestling with this issue. Some of them participate here. While waiting to hear from them, visit the Center for Safe and Responsible Internet Use. Director Nancy Willard has some excellent information on the site about cyberbullying and keeping kids safe. Read it. And start talking about it.

Welcome

Fear and stupidity combined with great power is a very dangerous thing. And that's exactly what's going on in this country right now.

In 2004, Julie Amero reported for duty as a substitute teacher in Connecticut as she had done for the past two years. Julie's life was on the upswing: She was pregnant with the child she and her husband Wes had wanted for years, they had a nice home in a nice town, and she was doing what she loved most, working with children. On October 19, 2004, Julie's life as she knew it was swept away by a "porn storm", or "pornado" caused by malware. The computer in the classroom where Julie was teaching was flooding popup windows and ads, some of which were pornographic, and Julie didn't know how to stop them.

She was accused, tried and convicted of causing the "risk of injury to a child", under Connecticut State Law. The law in Connecticut reads as follows:

Any person who willfully or unlawfully causes or permits any child under the
age of sixteen to be placed in such a situation that the morals of that child
are likely to be impaired shall be punished.

As I write this, her conviction has been overturned by the trial court and she is awaiting a new trial, as a result of the efforts of many: her lawyers, the Connecticut State Police crime lab, and computer forensic experts around the country.

There are hundreds, if not thousands, of others who are in the same boat as Julie Amero.

Witness Mathew Bandy, the 16-year old, who almost went to prison for a false computer forensics charge. Or the teacher in your district (I assure you, there is one), who has spent all of their life savings trying to defend themselves from spurious computer "porn" charges -- when it likely that porn was downloaded on a classroom computer by a student.

The problem is big. And it's not just schools. It's in business as well. We see trojans all day long that download nasty stuff, which aren't the result of anyone having done anything.

And how many people are never charged but quietly fired?

As long as this society has made the decision that porn is a dangerous societal problem, then people all over the world are operating "dangerous" machinery. And when you get educators involved, it's a disaster waiting to happen.

To us, Julie Amero's case has always been about two things:

• Freeing Julie


• Making sure it doesn't happen to others

Personal experiences have molded a lot of our thinking. One of our members wrote this, which was the spark that inspired us to undertake this project:

This is deeply personal to me. Years ago, a family member was charged with a very serious crime under the RICO act, for which I know without question that he was completely innocent. Tens of thousands of dollars later and a horrible experience, we finally got him out of prison. But do you know what RICO does? Your life, property, everything -- gone -- poof.

When people bang the drum about someone being "guilty!", I always pause -- and
look. Yes, most people charged with a crime are guilty. But not all of them, and that I know for certain.

New technologies require education. DNA analysis and evidence has been misused to convict innocent people, bringing the Innocence Project into being for the purpose of education and reforming the system to fairly use a powerful forensic tool. Computers and computer networks are also powerful tools, but much education and reforms are needed to be sure that they are not used against innocent people. In general, judges are not computer experts, nor are many of the lawyers involved on the prosecution and defense.

Our purpose here is twofold: First, to bring attention to those situations where injustice is being done through the misuse or misunderstanding of computers and computer forensics; and second, to prevent future injustice wherever we are able.