Friday, February 23, 2007

Multiple Images of Pornography: Single Offense?

State v. Muhlenbruch No. o5-2028 (Iowa Feb. 23, 2007)

Muhlenbruch was charged with ten counts of violation of Iowa Code sec. 728.12(3) (sexual exploitaiton of a minor) for possession of a single computer that had multiple images of child pornography.

Muhlenbruch moved for an adjudication of law points, arguing that possession of one computer is one offense, and the district court granted his motion. The State appealed.

The state argued that "other print or visual medium" in the statute should be expansively defined to include individual images contained within a single computer.

The Court disagreed, holding that in the absence of any clear guidance from the legislature, if the statute is ambiguous it must be construed in favor of the accused.

As a novice computer geek (no thanks to you, Microsoft), even I can see holes in this opinion big enough to drive a truck through, because the Court's notion of 'what is a computer' is about fifteen years out of date.

A computer is a box with a power supply, a processor, random access memory (RAM), a means to display information in some cases, and some means of data storage and recovery (hard disk drive, floppy or tape if you want to go prehistory). What if the offender has (as is common) a portable hard disk drive on which images are stored and retrieved? What if the offender has multiple hard drives inside the 'box'? What if the offender stores his images on a hosting service and retrieves them from time to time? What if the offender thinks he deleted the files, but they were recovered by the use of commonly available data recovery software?

The takehome's clear for law enforcement and prosecutors: we're going to have to get a lot smarter about this subject if we intend to take people to task for this affectation. That means developing cutting edge knowledge of personal computing technology, or hiring the services of forensic computer analysis experts to develop the means necessary to adequately punish these offenses.


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