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December 3, 2006

A tough question after finding kiddie porn

A few weeks ago, Randy Cohen, who writes "The Ethicist" column for the New York Times Magazine, called me to get a better understanding of the sentencing dynamics surrounding the possession of child pornography.  This week's column has the question that prompted his call: 

I am an Internet technician.  While installing software on my company's computer network, I happened on a lot of pornographic pictures in the president's personal directory, including some of young children — clearly less than 18, possibly early teens.  It is probably illegal and is absolutely immoral.  Must I call the police?  I think so, but I need my job.  Signed S.M.N.

Randy Cohen was kind enough to quote me in his answer, though I am not entirely sure I agree with Cohen's ethical judgment.  I am sure, however, that this is a tough question, and I am interested in reader reactions.

December 3, 2006 at 10:22 AM | Permalink


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Pre-jury nullification? When laws are so draconian in comparison to the crime, isn't this to be expected? A sentence of 200 years in prison though never touching a child? And now the government wants to charge "illegally provocative" child images as hard core child porn. Many agree they should. This is a very slippery slippery slope.

Silence, though? That leaves the president and the company at risk of severe consequences. It is far easier to agree the president should stop viewing the CP than it is to agree he deserves 200 years. A suggestion he Google Eraser and use it and avoid anything compromising on his computer in the future would make more sense. For some, a good slap on the wrist can be painful enough to be very effective.

Posted by: George | Dec 3, 2006 1:27:06 PM

I read this in today's Times. In fact I sent a letter to Cohen that began by telling him not to practice law, and to make sure he understood what Section 2252A requires. Here is the text of my letter: You write: "It is a crime to possess child pornography, . . ." Please, stick to your claimed avocation of "ethicist", and do not give legal advice. 18 USC 2252A makes it a crime to "knowingly" receive, transport, possess, or traffic in child pornography. The key word is "knowingly". In any prosecution, it is an essential element of the government's case to establish - beyond a reasonable doubt - that the party "knowlingly received or posssessed those images." US v. Irving, 432 F.3d 401, 413 (2d Cir. 2005). In a recent 9th Circuit opinion, US v. Kuchinski, --- F.3d ---, No. 05-30607 (9th Cir. Nov. 27, 2006), the Court made this observation:
"Where a defendant lacks knowledge about the cache files, and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control."
What this employee found could easily have been accidentally downloaded, and the "boss" may well not have known of its existence on the computer.
Your final comment: "Alas, silence", sends the wrong message. It says: we all know your boss is likely a child pornographer, but, best advice is to keep quiet about it.
So, please, don't practice law, and I won't lecture on ethics.

Posted by: Bernie Kleinman | Dec 3, 2006 9:54:27 PM

Bernie Kleinman, it is well known that (with rare exceptions) private citizens are not legally obligated to report crimes or suspicions of crimes. Whether to do so is an ethical question, which is what Cohen seeks to answer. Your only legal quibble is that he omits the word "knowingly." It's pretty clear from the context that the addition of "knowingly" wouldn't alter his response. I suspect your real point is that you think he's a lousy ethicist.

Posted by: Marc Shepherd | Dec 4, 2006 8:59:12 AM

Marc, to the contrary. I would not presume that the average layperson [i.e., non-attorney] is aware of a requirement that the person "knowingly" possess such images. And, I do not think that the average lay person is aware of a duty not to report a crime. And, this is not necessarily correct under all circumstances. And, the requirement that the action be done "knowingly" is hardly a "quibble". The issue is more one of the extraordinary over-reaction that the public and politicians have in this area. One who knowingly downloads kiddie porn and neither produces nor traffics in same is on a registration list for 20+ years; when the guy who served 20 years in prison for murder and burglary is invisible in my neighborhood. I do not get it - as a citizen, parent, lawyer.

Posted by: Bernie Kleinman | Dec 4, 2006 10:57:45 AM

Misprision is still a crime - 18 USC 4.

Report the crime to your supervisor - the low man on the totem pole shouldn't have to carry the burden alone.

Let there be some due process.

The advice is the easy way out, but not one that is the least bit honorable or moral.

Posted by: Rufus | Dec 4, 2006 1:35:21 PM

Please note that misprison requires several elements not present in the scenario that Cohen described. The defendant must have known that the alleged offender actually committed a crime, and have taken some affirmative step to conceal that crime. See, e.g., US v. Davila, 698 F.2d 715 (5th Cir. 1983); Lancey v. US, 356 F.2d 407 (9th Cir. 1966). Mere silence, in the absence of any affirmative conduct is not unlawful. [Note: this is US law and the nosey computer geek was in Canada.]

Posted by: Bernie Kleinman | Dec 4, 2006 6:14:56 PM

Yet the article with the advice is published for U.S. readers as well. And the IT guy doing his job doesn't make him nosey. Undoubtedly he has some company policy as well that requires some monitoring.

The company president is not his employer is - the president at the basic level is also an employee. He doesn't get a pass.

In this instance, it's not only mere silence - he has actively entered the domain - thus he would be negligent and possibly aiding and abetting depending on his subsequent actions.

Bottom line - morally and ethically he should report the guy to his own supervisor and let it be a joint decision. Let someone trained do the investigation.

Maybe you believe that possession of child pornography a is a victimless crime? You would be sadly mistaken. The link between possession of the illegal images and the abuse of children is "at least as direct" as that link between possession of cocaine and drug-related violence in society, as expressed in Harmelin v. Michigan. Stopping the demand stops the market for this type of contraband.

Posted by: Rufus | Dec 5, 2006 9:21:32 PM

Altho your logic has some appeal, it is flawed, Rufus. You think that by jailing the users we will eliminate the problem. We have spent billions as a society putting drug addicts in jail, this year Afghanistan is producing its biggest heroin crop ever. Do I find knowing possession of child porn offensive? Yes. Do I think these individuals should be in jail? No. they need therapy, just as the drug addict does. And, as I said before, the politicians love this field as they can always take the moral ground, frequently, if not always, denied them. But the result is the wrong "solution". Knowing possession of such images should be dealt with by denial of computer use, required therapy, outside monitoring. Putting the person in jail? IT did not work with jailing the town drunk, the addict on the street corner, the patron of the hooker, and it will not work here.

Posted by: Bernie Kleinman | Dec 6, 2006 9:13:57 AM

I'd like the IT technician to explain exactly how he found the pornographic material on his boss's computer, exactly what he was doing, and why he was doing it.

I am an electronic engineer, who has built many computers and installed software on all of them. I find it difficult to believe that an IT technician would randomly stumble across pornography while installing software on his boss's computer. Most installation routines are automated, and certainly don't require that the installer have knowledge regarding the presence or absence of pornographic material on the computer in question. I find it easier to believe that the technician was snooping while he had access to the computer - probably looking for the company's salary information or other "juicy" materials.

If the technician was snooping into areas not of his concern, how does this impact the legality of the situation?

Posted by: Tom Spivey | Dec 13, 2006 11:56:59 AM

Tom, the impact depends on whether he was an "Agent" of the govt. If he wa acting on his own, he is not constrained by the 4th Amend. The Bill of Rights only protects us against governmental action, not private action. So, if he was using the computer as a private person, even w/o authorization, he could turn over what he found and it would likely not be suppressed.

Posted by: Bernie Kleinman | Dec 14, 2006 6:06:38 PM

I work at a small company. Any computer problems that arise are fixed by myself. My boss wanted me to look at his computer because he had some weird things going on and his anti-virus software had been turned off. I went to the cookies to see if somehow he had brought in a virus unknowingly, and lo and behold, I find some very offensive cookies. The names alone say it all and I find it hard to believe that it was a "mistake" on his part. I'm unsure of what to do. I just know that I have no respect for him and see him as a pervert!!

Posted by: Daphne | Feb 8, 2007 10:35:45 AM

I was recently put in a similar situation... I am the information security officer at my company (a federal agency) and I WAS SNOOPING I saw using remote desktop survelience that the user was burning dvds I then searched his my documents and found several videos of pornographic material... here is where it deviates a little... I only SUSPECT some of the models to be underage.... however my lawyer told me that child pornography as defined as "an unmarried person under the age of 18 or having the apearance of being under 18" finally she told me that it was a criminal offense not to report it.

Posted by: Jason | Jul 1, 2008 1:45:56 AM

What if a computer repair technician finds evidence of a murder on a clients computer? While trying to recover files from a seriously damaged computer by examining each file, one at a time, the tech discovered a poor quality photo of a badly injured person and along with that, a detailed description of a murder and disposal of a body that corellated to the date stamp on the photo? What does the tech do? Does he report the alleged crime to the authorities? What is he ethically responsible for. His company has a strict confidentiality clause but stipulates that any evidence of future crimes will be reported? What should he do?

Posted by: | Oct 12, 2008 9:42:20 PM

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