Monday, September 21, 2009

What happens if a computer virus is responsible for user's possession of illegal content?

I’ve written before about prosecutions of people accused of possessing digital (or camera-associated) images thought to be “child pornography”. On Feb. 3, 2007 I discussed here such a case in Arizona with a teenager (and later Internet stories did give some credence to law enforcement claims that the suspect knew what he was doing). There was a similar case in Britain in 2003, and there have been a couple high-profiles cases in the workplace, one in Massachusetts, and another with a substitute teacher (not very computer literate) in Connecticut in 2004. The media has reported a few other such incidents, such as in Canada, as I recall.

I checked the Federal statute, USC 2252, on the Cornell Law School database of US Code, and find the adverb “knowingly” used throughout. Furthermore the law offers an affirmative defense when fewer than three illegal images are possessed if the owner destroys them immediately. It sounds as if it is the computer user’s legal duty to destroy any such images if he or she finds them (as if a parent finds they were put there by a kid or guest in the home, or if any computer user, at home or at work, believes they could have been placed there by a virus or worm). The link for the text of the law is here.

Virginia’s state law is similar, if less specific, here. The "knowingly" adverb appears, and that seems reassuring.

The law doesn’t seem to be specific as to the home user’s need for due diligence in using firewalls and anti-virus products, or as to any liability when they don’t protect a user from an incident like this.

Yet, in the past, various articles have been written about possession (as in the Arizona case) as a "strict liability offense", maybe in some states. If that's true, a user would be responsible even if a virus was the cause and even if the user had installed anti-virus software, unless affirmative defenses were offered,

This problem has a “bricks and mortar” instantiation. In numerous cases, families have been accused of making and possessing c.p. when overzealous and untrained employees in photo processing labs call police about innocent “family pictures.” Another major example recenlty has been with cell phone "sexting" by minors, who are in a sense logistically "guilty" even if they don't understand the legal implications of what they are doing.

The ABC link for the story of a family whose children were taken away for a month after Wal-Mart employees called police on family photos is here, by Dan Przygoda, "Couple Sues Wal-Mart for Calling Cops Over Bath Time Photos: Children Were Taken Into Protective Custody Over Pictures Taken at Bath Time," here.

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