Sharing files risky, ballplayer finds out
That file you downloaded may seem innocent: a generically numbered video or a photo with a one-word label.
But the images inside may be sinister and illegal.
As a Cedar City football player attempts to defend himself against felony charges for what he claims is unintentional possession of child porn, experts warn that peer-to-peer file sharing carries the risk of downloading criminal material and can land users in a justice system that may have little patience for "accidents."
Cameron Morgan, now 22, was a sophomore at Southern Utah University in September 2010, when investigators with the state Attorney General's Office flagged his household's Internet account as a "download candidate" for child-pornography files on LimeWire, a file-sharing program that has since been shut down by a federal judge. According to court documents, Morgan told investigators he used LimeWire to access adult pornography by searching terms such as "hot girls," downloading everything on the results page and then viewing the contents later.
Morgan said he had come across child pornography, but he deleted it, investigators wrote. According to court documents, investigators identified 12 files containing child pornography and filed charges in connection with 10 of them; Morgan allegedly claimed that any child pornography still on his computer got there unnoticed in a larger download.
Pattern and volume • That explanation is plausible, said Hanni M. Fakhoury, an attorney specializing in technology for the digital civil liberties advocacy group Electronic Frontier Foundation.
"LimeWire is, for better or for worse, a way by which you can obtain a ton of stuff very quickly," Fakhoury said. "Many people do label their child porn descriptively, but lots of people just bunch files together: 'Look, here's a big batch of adult porn.' ... If you download 100 files, you may look at the first 10 and just leave the rest in a folder somewhere."
But that defense may not hold up in court, said Fakhoury. State and federal child-porn statutes require the government to show only that a defendant "knowingly" possessed the material.
"It doesn't matter whether [a defendant] actually viewed them or whether he saw the file name and just left it alone that's enough" to satisfy the requirements of the charge, Fakhoury said.
The Iron County prosecutor's office reviewed Morgan's case in 2011 and declined to prosecute. County Attorney Scott Garrett said only that the evidence was insufficient and would not discuss which elements of the crime would be too difficult to prove to a jury. However, he did say that in most child-pornography cases, he looks for evidence that will not leave jurors wondering whether possession was deliberate.
"What we like to look for is patterns so you can prove intent," Garrett said. "We look for search [terms] ... and volume."
Volume is notably absent in Morgan's case, said his attorney, Keith Barnes.
"This is the first case where I have seen or represented someone charged for this offense with a few images â¦ found on a computer. I've had a number of clients in state and federal court on child pornography. They're in the hundreds or thousands of images found. Clearly on those, there's a pattern. There's a number of downloads, and the computer is â¦ full of child porn. This, we're talking about an alleged 10 images of child pornography pulled off the computer in question."
Fakhoury, a former public defender in federal court, agreed.
"I've seen cases where people have tens of thousands of files," he said. "Part of the reason is, it's very risky to go after those types of files. If you get one, you're going to keep it. That's typically the pattern I've seen."
Investigators and prosecutors from the state Attorney General's Office declined to comment on Morgan's case, including whether they found more illicit files than were indicated in the charges or why he was charged two years after the investigation.
'Negative repercussions' • Even if possession of child pornography amounts to little content, it may be hard for a defendant to sell jurors on the claim that he did not notice anything suspicious in the files' labels.
"If the files themselves have names that leave little to the imagination," Fakhoury said, "it's going to be more difficult for him to argue he didn't know what the actual files were."
In the charges against Morgan, investigators identified two images and a video with explicit file names containing terms such as "Lolita" "preteen," "underage," "childporn" and "pedo." Nine others were labeled only with numbers or with the word "girlfriends."
In a download of scores of adult-porn files, it is conceivable that a user could overlook those terms, Fakhoury said. But, ultimately, it may be difficult to convince a jury that any possession is accidental.
"I've seen it argued once [in court], and it did not go well," said Fakhoury. "It's a tough sell for a lot of juries."
The best protection is to avoid peer-to-peer file sharing altogether, Fakhoury said.
"The ability to share data is becoming easier," he said, "and the end result oftentimes can be the ability to share bad data, stuff you don't want on your computer."
People who do download child pornography may have few options to legally fix the mistake.
"What can you do?" Fakhoury asked. "You can delete it. But if you delete it because you know what it is, you've technically possessed it, and a prosecutor might argue you've technically obstructed justice because you've deleted your trail. Are you going to call the police on yourself? Are they going to believe you? Or are they going to take your computer and take you to jail?
"The law doesn't offer a great way to deal with this," he said. "Once you get that kind of charge affiliated with your name, the negative repercussions that flow from that are tremendous and terrible."
Morgan, a wide receiver from Texas, played in five games this year before a concussion forced him off the field, Barnes said. He had four receptions for 71 yards and a touchdown. The touchdown was a one-handed catch of a Hail Mary pass at the end of the first half of a September game at the University of California, Berkeley, which became a YouTube sensation. He has been a member of the SUU football team since 2009.
Morgan faces 10 second-degree felony counts of sexual exploitation of a minor. He has no other criminal history in Utah. A preliminary hearing is scheduled for Dec. 19.
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