How a Computer Virus Can Frame You for Child Pornography

February 1, 2023 Criminal Defense, Sex Crimes

Child pornography charges have very serious consequences if the accused person is convicted. Child pornography offenses can be penalized by the State of Florida, the federal government, or both. That means a person going into a criminal investigation due to child pornography allegations is likely to face high-cost fines and lengthy prison sentences.

What happens if the person accused of possessing child pornography had no idea how it got there? While anyone can use the excuse of, “it wasn’t me!” there are ways in which a defense attorney can help prove that the illegal content was downloaded without their intention or knowledge. One of the ways to do this is by proving the content was downloaded onto a person’s computer via an internet virus or other form of malware.

This article will provide information on the danger of computer viruses, the penalties for possession of child pornography, and example cases in which people have been falsely accused of possessing child pornography due to internet viruses.

The Danger of Computer Viruses

When people say they have a computer virus, it typically implies some form of malware—which could be the result of a virus, computer worm, Trojan, ransomware, or some other harmful thing to harm a digital device. For example, a person could receive an email with an attachment. The receiver may open the file unknowingly, which could cause the virus to run through your system.

A computer virus is a form of malware that attaches itself to another program—like a document, for example—and can replicate and spread through devices after a person has first run it on their system. Computer viruses can be extremely harmful, as they can destroy your data, slow down system resources, or even download illegal content onto your device.

In the most extreme cases, computer viruses can make you the “unsuspecting collector of child pornography.” Whether it be a prank or an actual pedophile looking to remotely store their illegal content, some viruses can infect PCs which can make it appear as if you have been surfing illegal websites or downloading illegal content considered child pornography.

Despite the motivation, a person will likely not realize they have any child pornography or other illicit content on their computer until the police show up at their door, charging them with a criminal offense. An investigation by the Associated Press found multiple cases in which innocent individuals were branded as pedophiles after being charged with a child pornography offense based on an unknown virus on their digital device.

What can make things more difficult in these cases are that both innocent individuals and people with malicious intent may both claim that the child pornography content was caused by an unknown virus—which can cause law enforcement and State prosecutors to be skeptical about internet viruses as a possible defense in the case.

Example Cases

It is haunting to realize that an unknown virus can frame a person for possession of child pornography, but it is entirely possible. The following are two example cases in which individuals were charged with possession of child pornography after a virus unknowingly placed files onto their digital devices:

Michael Fiola

A Massachusetts-based worker’s compensation agent had a technician review his work laptop in 2007 after his company became suspicious that he had used 4 ½ times the amount of data compared to his colleagues.

Upon investigation, the technician found examples of child pornography in Fiola’s PC folder which stores images that had been viewed online. Fiola was fired from his career and charged with possession of child pornography, with each charge carrying the weight of up to five years in prison. Fiola reported that during the investigation from authorities, he received death threats, had his car tires slashed, and was shunned by friends. As a result, Fiola and his wife hired an attorney who worked with a computer forensic expert to examine the work laptop.

The inspection revealed that Fiola’s laptop had been severely infected—it had been programmed to visit as many as 40 child porn sites per minute, which is humanly impossible. The defense claimed that someone had logged onto Fiola’s laptop while he and his wife were out, resulting in the child pornography flowing onto his computer for an hour and a half.

The prosecution did another evaluation of the laptop, in which they discovered the same evidence. This resulted in the charges being dropped against Fiola, 11 months after the initial charges were filed. However, even being able to walk away free did not lessen the impact of facing the charges to begin with.

“It ruined my life, my wife’s life and my family’s life,” Fiola said. He and his wife have attested to health problems that have resulted from the stress of the case. In addition, they have been unable to sue the state for the charges, despite speaking with multiple lawyers. This is likely because the State was only following through on a lawful investigation and unless they maliciously or willfully caused Fiola to be infected by the virus, then there is little to nothing to sue them over.

Ned Solon

The Wyoming native was arrested on charges of possession of child pornography after a folder containing illicit images was found in a file-sharing program on his computer. Solon admitted to downloading video games and adult pornography onto this device but maintained that he never downloaded child pornography. Solon used Tami Loehrs, an out-of-state expert with experience in computer forensic analysis, to review his digital devices to determine how the unwanted incriminating images wound up on his computer. In her testimony, Loehrs stated that the antivirus software on Solon’s device was not working properly, and appeared to have been shut off for long periods of time—a usual sign of a virus. In addition, Loerhs could not find evidence that the five examples of child pornography had been downloaded fully or even viewed.

The child sexual abuse material (CSAM) was found in a file-sharing program that was titled “incomplete” due to canceled downloads or errors generated from the device.

However, Randy Huff, the forensics expert hired by the State, claimed that Solon’s antivirus program was properly working and that another antivirus program run could not find a trace of a virus. Yet, security experts have said that it is not uncommon for antivirus scans to miss things.

Despite the defense’s claim that Solon had no part in the illegal content downloaded onto his computer, the defendant was convicted and sentenced to six years in prison for the child pornography found on his device.

“Everybody feels they’re innocent in prison. Nobody believes me because that’s what everybody says,” Solon said after his conviction. “All I know is I did not do it. I never put the stuff on there. I never saw the stuff on there. I can only hope that someday the truth will come out.”

The Argument of the “SODDI Defense”

Federal prosecutor James Anderson of Wyoming calls it “The SODDI defense: Some Other Dude Did It.” However, is that always the case? Forensic examiners have claimed it would be difficult to get away with using a “bogus virus defense” as an excuse for a child pornography case.

Cases involving pedophiles who attempt to carefully download and view child pornography are still likely to leave incriminating evidence, such as emails, DVDs, or other clues that can easily be traced. Damon King, trial attorney for the U.S. Justice Department’s Child Exploitation and Obscenity Selection, said that viral defenses are no match for such evidence. That means that virus detection does not often allow actual pedophiles to get out of legal trouble. However, in cases such as Solon’s, it can result in forensic examiners believing that legitimate claims were not completely aired.

“I personally would feel more comfortable investing my retirement in the lottery before trying to defend myself with that,” forensic specialist Jeff Fischbach said of defending child pornography allegations with unwanted computer viruses.

Jeremiah Grossman, the founder of WhiteHat Security Inc., has warned that computers should not be trusted. Grossman claims it is “painfully simple” for a computer to download something the owner does not want or intend to download. This can range from display ads to incriminating content. Grossman also warns that there may be more illegal material waiting to be discovered—knowingly or not.

“Just because it’s there doesn’t mean the person intended for it to be there—whatever it is, child porn included,” Grossman said.

Where does this leave individuals who have been accused of downloading illegal content considered to be child pornography?

Penalties for Child Pornography Possession; Florida

Possession and distribution of child pornography have some of the most detrimental penalties if convicted in Florida. In addition, a person can be charged by both the State and Federal government, often leading to extensive fines and lengthy prison sentences.

In the state of Florida, the charges for a person accused of possessing child pornography are codified under Florida Statute Section 827.071. The law states that it is considered a third-degree felony for any person to knowingly possess, control, or intentionally view a photograph, video, exhibition, show, data, or computer depiction of child pornography. A third-degree felony has penalties of up to a $5,000 fine and up to five years of imprisonment.

Child pornography is defined under Florida Statute Section 775.0847 as any depiction of a minor—person under the age of 18—that is engaged in sexual conduct, or an image portraying an identifiable minor that has either been created, altered, adapted, or modified by any electronic or mechanical means.  

It is considered a second-degree felony in Florida if any person uses a child in a sexual performance—by employing, authorizing, or inducing the said child to engage in a sexual performance. This can be the parent, guardian, or another legal adult in the custody of a child. In addition, it is a second-degree felony for any person to possess what is considered child pornography with the intent to promote—meaning selling or distributing the illegal content. A second-degree felony has penalties of up to a $10,000 fine and up to 15 years of imprisonment.

Federal Charges for Possessing Child Pornography

A person accused of possessing child pornography can also face federal charges. Images or depictions of child pornography are not protected under a person’s First Amendment rights and are considered illegal contraband by federal law.

Under Section 2256 of Title 18, United States Code, visual depictions of child pornography include any of the following:

  • Photographs
  • Videos
  • Underdeveloped film
  • Underdeveloped videotape
  • Electronically stored data
  • Digital or computer-generated images; or
  • Images created, adapted, or modified to depict a minor.

Federal law states that the legal definition of sexually explicit conduct does not require an image depicting a child engaging in sexual activity—an image of a minor who is naked can constitute as illegal child pornography if it is considered sexually suggestive. In addition, the age of consent for sexual activity in a state is considered irrelevant when it comes to federal law on child pornography. That means any depiction of a minor who is engaged in a sexually explicit manner is illegal and can result in federal charges of child pornography possession.

Federal Child Pornography Penalties

For a person who is convicted of a first-time child pornography production offense, the federal repercussions include fines along with a statutory minimum sentence of 15 years of imprisonment and a maximum of up to 30 years in federal prison.

For a person who is convicted of a first-time offense of transporting child pornography in interstate or foreign commerce offense, the federal repercussions include fines along with a statutory minimum sentence of five years of imprisonment and a maximum of up to 20 years in federal prison.

If the person accused of a federal child pornography offense is a convicted felon, or if the content has any of the following aggravating situations:

  • Child pornography depictions that are violent, sadistic, or masochistic in nature;
  • The minor depicted in the child pornography was sexually abused; or
  • The offender has prior convictions of the sexual exploitation of children

The convicted person could face up to life imprisonment in federal prison. Again, it is important to note that the accused offender could be prosecuted under both state and federal laws.

How to Receive Help

Given the provided information above, it can be extremely stressful if you have been accused of possessing anything considered child pornography. It is entirely possible that a person has had child pornography downloaded onto their digital device without them ever realizing it. However, it can be extremely difficult to prove to a jury. Considering the nature of the offense, most people tend to consider the accused person guilty from the moment they have been charged with the crime.

In the event that you or someone you know has been accused of possessing or distributing child pornography, you should immediately seek help from a defense attorney in your area. It may be a long and daunting road ahead, but that does not mean a criminal charge inherently equates to a conviction.

A skilled defense attorney will be able to strategize different defenses for your case. They may recommend working with a computer forensic expert, who can run tests on your devices to help determine how exactly they ended up on your computer or other devices. To find out more about how a computer forensic expert can help you in a criminal case, read our blog post here.

Finding a Child Pornography Defense Attorney in Tallahassee, Florida

When it comes to allegations of possessing child pornography, the stakes are entirely too high to not take seriously. The legal penalties by both State and Federal law can result in paying exorbitant fines and spending decades behind bars. In addition, the social stigma of carrying a sex crime will follow you for the rest of your life—due to Florida requiring sex crime-convicted felons to register under the Florida Sexual Offender Registry.

If you or a loved one have been accused of a crime in Florida, contact Don Pumphrey and his team of attorneys today. Our Tallahassee child pornography defense attorneys pride ourselves on working tirelessly with our clients—and strategizing the best possible defense for your case. Contact Pumphrey Law Firm today at (850) 681-7777 or leave an online message today to receive a free consultation regarding your case.

Written by Karissa Key

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