Defending Cyber Child Exploitation Charges

Six Months after posting a blog about defending state and federal child pornography charges (see “Defending Child Pornography Allegations”, June 8, 2022), I can confirm that the trend towards aggressive prosecution of these cases has not only continued, but the number of such cases being brought state-wide here in Massachusetts has significantly increased. Moreover, DAs throughout the state are routinely of late asking for higher bails and more onerous conditions of release than is appropriate; they are also more likely to combine charges of possession with charges/allegations of dissemination/distribution than they have in the past. The latter is concerning not only because there is no final jurisdiction in the District Court, (To go forward, the case must be indicted and prosecuted in Superior Court.) but also because, if convicted and a jail sentence is imposed, the sentence in MA must be a mandatory minimum 10 years in state prison (up to a maximum of 20 yrs.).

In Massachusetts, dissemination/distribution is often prosecuted on the fiction that, because someone may have used file sharing software to access prohibited images, they intended to share it with others. When tipped-off by CYBER watchdogs and/or the National Center for Missing and Exploited Children (NCMEC) that a certain device may be “sharing” prohibited images, local and /or more routinely a dedicated “flying squad” of Massachusetts State Troopers, using unique software, connect to the subject device(s), observe certain hashmarks they cross-reference to known child pornographic series or images within NCMEC’s data base, and apply for search warrants.

With their “theory” of sharing being based on the premise that by downloading prohibited images with file sharing software one’s device is therefore offering the same images to other unrelated devices that are utilizing the same file-sharing program, thereby making access to the same images easier and quicker to find ( because more devices are “sharing it”)---hence the disseminating/distribution charge, the state police Cyber Crime Unit ( CCU) , with warrant in-hand, will proceed to the target’s residence or place of business , as pre-determined by the subject device’s IP address, and effectuate their search and seizure. In conjunction therewith, members of the CCU will often attempt to lure an unknowing/unwitting target to admit on tape using file sharing software to access and/or download the offending images. More-often-than not, these “confessions” are the product of syllogistic and/or leading questions specifically calculated to confirm the target’s awareness of file sharing. Frequently, dissemination/distribution charges and their draconian penalties are primarily based on such (tape-recorded) admissions without any evidence of uploading, transfer, or actual sharing of images. One can surmise that the legislative intent behind MGL Ch 272 § 29B, or its federal equivalent under 18 USC §2252A (a) (2) (A), never contemplated so unfair a result.

Nonetheless, possessing, disseminating/distributing (and receiving) child pornography is not only illegal, but constitutes felonious criminal conduct with serious sentencing and collateral consequences, including significant prison time and sex offender registration on both the state and federal level. Should you find yourself the subject of a related investigation, or be presented with a search warrant for your electronic and storages devices, you should decline to answer any questions asked to you on-scene or later during/after booking by law enforcement, as your answers will not only likely be used against you but you will also likely be deliberately “tricked” or misled into making admissions against your interest that will lead to more serious charges. Moreover, you should never consent either verbally or in writing to related searches; nor should you voluntarily provide password/or fingerprint access. Instead, you should immediately also invoke your right to counsel (a lawyer), say nothing further, and politely refuse active cooperation. You must never/should never interfere with the execution of a lawfully issued search warrant as that will lead to further charges. However, you are not required to help with the warrant’s execution; you should not. The less you say and/do, the easier you will make it for your lawyer to defend the case against you and the harder it will be for you to be prosecuted.