Between A Rock And A Hard Drive

Let’s say a client screwed up.  That’s one of the reasons they come to a lawyer, since they avoid us like the plague otherwise. They downloaded some porn and, included within it, was pornography involving a minor.  That wasn’t their thing, and they, like you, are disgusted and appalled by it.  Yet, there it is, on their hard drive, with the trail from the file sharing site leading straight to their computer.

Mark Bennett raises the dilemma.

It’s illegal for him to continue possessing the images. So you can’t advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law. Is it a crime to destroy the hard drive? To advise the client to do so?

This was the situation faced by Connecticut lawyer Phillip Russell:

Russell’s client, the Greenwich Christ Church (not a bad client, I would say), did what any self-respecting church would do when it found child pornography on its church computer:  It turned to its lawyer for help.  No fed was knocking on the church door.  There was no hint of an investigation.  There was no reason to believe that anyone would ever know that some sick, disgusting human being using this computer purchased with monies from the tithing of its congregents (I’m making this part up, since I have no idea where the money came from to buy the computer and in Greenwich, they could just as easily live off the interest from the Church’s trust fund), would download photographs that would sicken any normal human being.

So Russell finds himself in the position of having to decide what to do with this computer.  The Church no doubt wants its computer back, since it wouldn’t have gotten the computer if it didn’t have any need for it,  But the Church does not want this pics on it.  Russell, in the meantime, knows of the photos as a result of confidential communications (no argument from any source about whether this was as confidential as it comes) and has to decide what to do about it.  He can’t keep the kiddie porn pics, for then he would be violating the law.

So Philip Russell does the only reasonable thing possible.  He deletes the horrific photos.  BAM, he’s indicted for obstruction, having destroyed evidence.

And in case you’re wondering, this case, like Yates, fell under Sarbanes–Oxley, prohibiting the destruction of evidence. Though it’s clearly closer to the nature of prohibited destruction than fish, it’s also applied here to kiddie porn, though SOX was directed toward financial crime.  Well, that was what was meant, anyway. The web of law is a curious thing.

What Bennett raises is an unsolvable problem.

You can’t tell your client to do the smart thing and destroy the hard drive. (Why is it smart? Because the penalty for possessing child pornography is much more severe than the penalty for tampering with evidence, and if the client destroys the hard drive properly and keeps his mouth shut there will be no evidence that he has tampered with evidence.) You can’t tell your client to do the dumb thing and keep the hard drive. What do you do?

We are problem solvers. We hate for the answer to be, “I can’t answer that.” But “I can’t answer that” is the only possible advice in this situation.

Most clients won’t really give a damn about this legal and ethical dilemma, and who can blame them?  They are in deep doo doo, and need a way out. They’ve come to a lawyer to find that way. They have a constitutional right to the assistance of counsel, and there you are, counsel. So counsel them, right?

It’s perverse that the law, which is intended to serve to guide us away from conduct that society deems wrongful, denies us a way out when we inadvertently find ourselves in a Catch-22.  And this scenario is by no means limited to child pornography, but would apply, at least theoretically, to the destruction of any contraband, the possession of which is itself illegal.

The dilemma arises from the back end desire to not only prevent crime, but to punish it. To do so requires prosecution, and to be successful at prosecution, proof is needed. Thus, preserving the evidence is critical to the government’s ability to prosecute and punish, and the only bludgeon in the government’s arsenal is to criminalize the destruction of evidence. Problem solved. Problem created.

The implicit solution, of course, is that while a lawyer cannot counsel a client to commit a crime, he can lay out the law, the relative punishments, the concerns and the options that he cannot, and does not, suggest the client employ.  After that, the client walks away and does what he pleases, without the lawyer’s approval or knowledge.  Yeah, it’s an unacceptable solution, and itself problematic, as plausible deniability which bears the stink of conscious avoidance is hardly a sound defense.

Some will respond to this dilemma with the facile, “so don’t download porn and you won’t have this problem.”  Aside from the fact that this isn’t just a porn problem, people are allowed to enjoy porn. Just not kiddie porn. Plus, people make mistakes, sometimes inadvertent, without any evil intent. Plus, people do stuff with evil intent, which they thereupon regret and seek to undo. Is it not societally beneficial for people who make a mistake to foster regret and the chance to make things right?

But, some self-righteous prig will ask, if this wasn’t the case, wouldn’t you scum-sucking criminal defense lawyers be allowed to tell criminals how to commit their crimes and avoid prosecution and punishment?  Yup. That would also happen. That’s the price. That’s why it’s a dilemma.

41 thoughts on “Between A Rock And A Hard Drive

  1. Bartleby the Scrivener

    This is pretty rough. I cannot support the threat of legal sanction because someone was stuck between two conflicting legal requirements.

    The problem is that I’m not sure how we could get around such; do we gauge the level of harm (or continuation of harm) that will arise from each or do we gauge it based upon the penalties for each?

    So the penalty for action A is 20 years in prison and the penalty for action B is 10 years in prison, but the harm caused by action A is that $2M in property damage will occur and the harm caused by action B is that 50 children will be have damage done to their their reproductive organs some brain damage.

    The law would encourage action B, but action A is quite clearly the preferred outcome. In this case there should be some sort of safe harbor law, allowing the church to turn the drive over to the proper authorities without fear of prosecution.

    As a side note: the person that confessed the sin in question to a member of clergy was nuts. I’ve read time and again where clergy and physicians have immediately testified about what should be privileged information because of a court order.

    If I ever do something wrong (and to be clear, I don’t anticipate doing so), the only person I’d ever tell is my lawyer.

    1. SHG Post author

      If we had a pure, rationally-based incentive system, our legislative body would decide which harm was greater and incentivize our taking the alternate path. But when all we talk about is how every harm is devastatingly horrible, because the interest group that promotes that harm cares nothing about relativity or proportionality, but just getting its pet peeve criminalized, we end up with such dilemmas.

      Kinda like the reason why we don’t penalize rape as severely as murder; because the incentive would then exist for a rapist to murder his victim, so they wouldn’t be there to testify against him and, even if caught, the punishment wouldn’t be any more severe.

  2. jill mcmahon

    What did you think of Bennett’s Anatomy of a Murder example of discussing hypotheticals?

    1. SHG Post author

      How would you feel if the govt had your office bugged and came up with that discussion? Would you feel comfortable with it?

  3. traderprofit

    What about telling the client, “If it were me, this is what I would do, but I can’t advise you to do that.”
    Isn’t it also true that if you are aware a specific child is at risk for this , or say abuse, due to a confession from a client, that attorney-client privilege MUST be broken?

    1. SHG Post author

      If it’s completed crime, then privilege prevents disclosure. If it’s ongoing or anticipatory, then it falls into an exception.

      1. Bartleby the Scrivener

        Does the possession of such count as an ongoing crime?

        Ugh. This is just plain messy.

        1. SHG Post author

          No. The crime is complete upon possession. But if the client was to advise that he intended to download more kiddie porn later, that would present a problem. But then, the lawyer would be able to advise the client not to do so, because it would be wrong. Very wrong.

    2. traderprofit

      and in any case like this, you don’t even know if the images meet the test of the law because you cannot look at them to give advice, otherwise you’d be committing a crime if they are illegal . I guess they just have to describe the to you and you have to draw a conclusion?

        1. Bartleby the Scrivener

          It’s not something I recommend that anyone ever experience. I had the misfortune of seeing the face (not the rest) of a child in such a photo during a trial for such an issue. The child was quite young, but the eyes were the eyes of a person who had gone through 10,000 years of brutal warfare.

          I wish I’d known what they were going to do so I could’ve looked away; those eyes will haunt me for the rest of my life.

      1. Bartleby the Scrivener

        I would decline to look at the images and advise the person on the legal aspects of what would apply if said images were criminal in nature.

    1. SHG Post author

      It’s very different thing to destroy evidence after learning that he was a target of an investigation.

      1. Robert Wunder

        How often does the client come to you after they realized they downloaded some bad things verses after they have been investigated or charged?

        1. SHG Post author

          I assume you’re trying to ask a rhetorical question, rather than about me. That’s what happened in Philip Russell’s case. That happens when a parent or spouse finds the porn, or raises concerns that makes the client decide to act in advance of problems. But most of the time, people come only after the shit hits the fan.

  4. Ken Mackenzie

    In some cases, the best course is to take it to the cops. I’ve delivered client’s contraband to the police. Sure it was unlawful for me to possess it. In theory I could have been prosecuted. But they wouldn’t dare. That depends of course on the local policy

    1. SHG Post author

      Yeah, handing over a hard drive. They’ll never figure out who your client is in a million years. Oh wait.

  5. Patrick Maupin

    I’ve read conflicting things about SOX, about whether it’s a duty to preserve, or a duty to not destroy.

    If it’s a duty to preserve, does that mean that, if a computer-savvy person browsing the internet encounters a picture that some random prosecutor might think could possibly, maybe qualify as child pornography in front of the right jury, then the person should abstain from browsing the internet until he’s had a chance to back up his browser’s download cache and send it to Iron Mountain?

    Because if he keeps browsing, that picture will eventually be deleted out of the cache, and he knows that.

  6. Keith Lynch

    The child porn is proof that someone is guilty, but not that the possessor is guilty if he unknowingly possessed it. So why isn’t the correct advice for him to immediately turn it over to the police? I’d think it was exactly like him finding a dead body with a knife sticking in it in his home. It’s illegal (and disgusting) to just leave it there, and it’s illegal to quietly bury or cremate it without telling anyone. But it’s perfectly legal for him to immediately inform the police, even though it may cause them to suspect him.

      1. Ken Mackenzie

        It’s a balancing of risks – identifying the least worst course of action. That’s what we do.

        1. SHG Post author

          Two things to bear in mind. First, this is US, and you’re Aussie. Our laws are different. Second, we are constrained by law and ethics, regardless of which course we think ought to be followed. We cannot advise a client to commit a crime, even if that’s the least worst course of action.

          1. Ken Mackenzie

            The dilemma in Queensland law is exactly as you and Mr Bennett described it. The ethical rule is the same too. Your prosecutors on the other hand…

  7. John Monson

    How about we stop allowing our government to imprison people for the thought crime of “looking at pictures”?

    “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”
    -Thurgood Marshall

    1. SHG Post author

      While I’m not sure “we” allow them, yeah, I’m very much against thought crimes. But few would argue that the creation of kiddie porn shouldn’t be a crime, and the argument is that we criminalize looking at it because that’s what creates the market to create it. It’s not so clear that this is a thought crime.

      1. John Monson

        Buying it would create a market. Not looking at it.
        The biggest pusher of these laws is Hollywood. It’s hilarious how they always trumpet kiddie porn when they want support to shut down P2P networks.
        According to Hollywood (and the politicians they buy), downloading free movies is going to put the movie industry out of business. But downloading free kiddie porn is a 3 Billion dollar a year industry.
        How’s that work?

        1. SHG Post author

          Much as Hollywood is responsible for some horrific law, I don’t think kiddie porn laws have anything to do with anti-piracy laws.

          1. John Monson

            Google “MPAA child porn”. Or “RIAA child porn”. They frequently use the specter of child porn to fight file sharing.
            For well over a decade they’ve been paying politicians to introduce anti file sharing legislation, veiled as a fight against kiddie porn.

            1. SHG Post author

              You’re conflating correlation with causation. That they use it to their advantage doesn’t mean Hollywood was the impetus for criminalizing possession of kiddie porn or that it wouldn’t be criminalized if Hollywood stopped using it for their own purposes.

  8. MoButterMoBetta

    So, what if he encrypts the drive with strong encryption (like a Twofish Serpent chain, no AES) and uses a random 64 character password with uppers, lowers, number and symbols. He then forgets the password, put the drive a shelf, buys a new drive and does not download any child porn with the new drive. He did not destroy the old drive or the “evidence”. What would be the problems with this hypothetical course of action?

    1. SHG Post author

      He then forgets the password,…

      He accidentally takes a drill press to the drive. He forgetfully buries it in a six foot hole and can’t remember where it is. It’s all the same thing. That was Bennett’s point, that once a client understands the legal landscape, he goes on his way and does whatever he does or doesn’t do. But not because he’s been advised to do so.

    1. SHG Post author

      Good point. While I can’t recall any prosecutor making that argument, is it? Should it be? Would it shock anyone if a prosecutor pursued this position in charging a defendant? Has it been tried and succeeded, or failed?

  9. Neil

    There are already hackers with the chops to encrypt their victims hard drives and extort the victim for the decryption keys. This dilemma should be profitable for the less skillful hackers who can load up the victims hard drive with child porn, and then offer to clean it up for a fee, or turn them in otherwise. I would expect that any time the law creates such a dilemma involving computers there’s a possibility for malicious exploitation. The number of people seeking to use people’s computers for purposes that are concealed or possibly at odds with the intent of the owner is growing ( everybody from governments to criminals and with deep packet inspection potentially your ISP ). The contents of somebodies hard drive may have only a tenuous relation with their purposes for using a computer, but it’s commonly assumed that that’s not the case, as if people were handcrafting each file instead of relying on a mountain of software which may or may not reflect the user’s purpose depending on the skill and intent of the engineers who produced it.

    1. SHG Post author

      I sometimes worry that a comment here could give somebody really bad a really good idea. This is one such comment.

  10. Paul Majors

    Well, is it really a crime when the person never intended to download the image(s). Have we gone away from actus rea and mens rea? Is the statute regarding kiddie porn a strict liability crime? Doesn’t advising the client not to delete it hamper his defense that the possession was unintentional? And lastly, if there is no men rea – is there a crime for which evidence is destroyed?

    Just sayin.

    1. SHG Post author

      This is where reality smacks theory in the face. Take the stand, tell the jurors that you had no idea and never meant to download the kiddie porn, and hope that they believe you and you won’t be a guest of the feds for the next 27 years.

      People have difficulty understanding how intent is proven in court: you intend to do the natural consequences of your act. If you downloaded porn, and kiddie porn is on your computer, you intended to put it there. That’s all it takes. After that, it’s up to you to persuade the jury otherwise. And juries really hate kiddie porn. A lot.

  11. Pingback: What Do You Do When Preserving Evidence Is Labeled ‘Possession’ And Destroying It Is A Felony? | Technology

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