The Nassau County Bar Attorneys Accountants Committee has asked me to present on selected Cyber-Security topics.
When; Feb 27, 2012
Where: Nassau County Bar Association
One of the topics we discussed is the role of the of the Cyberforensics examiner when encountering Child Porn (CP).
The consensus from the Attorneys, Accountants and CFEs was that anything found during the examination is covered by attorney-client privilege.
That view conflicts with federal laws. Unlike any other type of evidence, merely possessing more than 3 pieces of CP is a Federal Offense.
Attorneys have been prosecuted for possessing CP while they were conducting research on behalf of their client. See the case of Attorney Leo Thomas Flynn at http://www.brunolaw.com/prosecution-serves-as-warning.html
My reading of the Leo Flynn case says that he won on a technicality – South Dakota state laws allow Attorneys to view/research CP during an active case. As do several other states.
However, Federal law offers no such immunity.
Most Forensics Examiners, myself included, will notify Law Enforcement if/when I encounter CP during the course of a forensics examination.
Unlike attorneys, Cyberforensics Examiners, Accountants, etc do NOT have a attorney-client privilege shield, and CP is one of the exemptions to Attorney-client privilege.
In my opinion, I think the fundamental error that attorneys have with CP is that they think that if someone downloaded CP, it is a crime that occurred in the past.
If a client commits a crime and tells his or her attorney about a past-deed, the attorney is legally and morally obligated to stay silent about it.
However, having CP stored on your harddrive is NOT a crime in the past. It is a crime in the present.
Therefore, if you as the attorney take
Think of CP as plutonium – if you found plutonium and put it in your pocket, the activity of finding plutonium occurred in the past. The damage caused by radiation however, is an ongoing and present danger. Similar rules apply here. The client may have downloaded or acquired CP in the past, but the mere possession of it by anyone NOT in Law Enforcement, is illegal.
So attorneys, CFEs, etc, please interview your clients regarding CP before you take on the case – or as soon as you suspect it.
You CANNOT shield your client if they have more than 3 items of CP.
Possessing CP is an active crime, and must be reported to law enforcement asap. Otherwise, the DAs office, FBI or Secret Service will put you through years of litigation hell, as they did Leo Thomas Flynn – http://www.brunolaw.com/prosecution-serves-as-warning.html