Is Visiting a Site the Same as Possession of
Interviewer: When you view an image on a site, is that considered possession?
Attorney Churak: That’s the question is that, one, they’ve got to prove it’s a child. Two, they’ve got to show it’s a sexually oriented picture. There is distinction between the art situation and the child situation.
There Is a Distinction between Art and Pornography
That’s when we can consult with an IT expert as to whether it was a thumbnail, in other words, an unsolicited image that popped up on your computer. The image is in your history but you never opened it. The question is how many times have you gone on that site and how many pictures do you have in your inventory?
I’ve had cases where the client had a file folder full of child pornography and he took his computer in to get fixed and of course the guy opened it up and called the FBI.
It depends on the investigation. Most state cases the state just stumbles on and usually somebody will find images while working on a computer or they’ll look at online solicitation cases and find child pornography on the computer.
Your Cellphone Can Also Be Confiscated
To note, in addition to your computer you cellphone can also be confiscated by authorities. I’ve had clients that set up cameras in bathrooms and took pictures of people in the bathroom including little girls. That’s not only improper photography; it’s also possession of child pornography if the child is under the age of 17.
In Federal Cases, the Agents Will Build Enough Evidence against a Suspect That a Conviction Is Almost Guaranteed
The Federal agents work a bit differently and are sophisticated. They actually monitor these sites. They know where these sites are. Most of them are offshore. They check the IP addresses. They know where it’s going.
If credit cards are used, they run the credit card against these addresses and everything else so they’ve got a fairly sophisticated investigatory unit that’s doing these things. Once the Federal agent knocks on the door, they already have a pretty airtight case against you.