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Comment by TheSpiceIsLife | Hacker News Reader

> The image found on Rettenmaier’s hard drive was in an unallocated space, which typically requires forensic software to find

So say someone, known or unknown, emails you a bunch of unlawful zeros and ones, you open it or it displays automagically. Or you accidentally type a web address wrong and go to unlawful pictures dot com.

Anyway, you delete the file(s) and / or clear your browser cache. Your file system deletes the entry in the allocation table (or however it works) but the drive still has the relevant magnetic / electrical charges to recover the file using a data recovery tool.

Are you still in possession of the unlawful zeros and ones if you've deleted the files in the only manner you are aware of - assuming the average person doesn't understand the underlying technology???

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IANAL but I have read a ton of case law on similar subjects involving possession.

In the case of Rettenmaier, the possession laws work almost identical to drug possession laws.

When the contraband is not in actual possession(physically on the persons body, in pocket, etc...) then they must use the rules of constructive possession.

(At least in FL, and many other states are similar)

For constructive possession, they must prove:

1. The person had knowledge of the presence of the contraband

2. The person had the ability to exercise dominion and control over the contraband.

There used to be a 3rd rule "Knowledge of the illicit/illegal nature of the contraband" -- but IIRC that one got thrown out a few years ago making most possession crimes strict-liability.

For files in unallocated space, without any other evidence, neither of the rules could be satisfied and a good lawyer would get it dismissed before it ever went to trial. Now, if in an interview, the subject 'confesses,' then they may have 'evidence' of either rule, and the case can go to a jury for the facts to be decided.

There was a case in FL(a quick search didn't find it again) of a person driving a box truck full of marijuana that had a padlock on the doors to the cargo compartment. They were pulled over and the officers could smell the marijuana from outside the truck. They were convicted but the case was overturned on appeal because there was no evidence that the driver knew what marijuana smelled like (no knowledge of its presence) and no evidence that the driver had a key to the locked cargo compartment (no ability to exercise dominion or control)

https://www.law.cornell.edu/wex/constructive_possession

http://www.justiceflorida.com/when-is-someone-in-constructiv...

Thanks for all the info! The case you described also sounded familiar to me so I set out trying to find it. No luck though; the closest I could come was California v. Acevedo[^1] and its related cases like United States v. Chadwick.

[1]: https://en.wikipedia.org/wiki/California_v._Acevedo

Amazing case. I dont think however it will stand the test of time today.

A driver that supposedly doesnt know how marihuana smells (how do you prove he does or does not) drives across the state moving tons of contraband so long as he does not posses a key to the truck's locker.

I guess in court you ‘prove’ that a person has no knowledge of the smell of marijuana by all of:

a) they make a statement under oath to the effect that they have no knowledge

b) they and their immediate family / propuesta they live with have no relevant convictions or charges that would contradict the above, and no known links to anyone who clearly does (no electronic communications collect as evidence)

c) they are otherwise a just, upright, and moral citizen

The burden of proof is on the prosecution. The defendant has a right to remain silent(5th amendment) and that silence cannot be used against him/her.

If there is no evidence* that the person knows what marijuana smells like, then their knowledge of what it smells like cannot be proved, so there is no issue of fact for a jury to consider, and the case should be dismissed.

* - 'evidence' is a very low bar to meet. It can be something as benign as a conversation about herbal remedies. Once there is some sort of 'evidence' -- it can go to trial and is up to the jury (the trier of fact) to determine if indeed that conversation about herbal remedies proves the defendant knows what marijuana smells like.

One thing I found interesting is that nearly every type of charge has a set of jury instructions that tell the jury exactly what they must decide. They are quite enlightening. FL Jury instructions for most drug offenses:

http://www.floridasupremecourt.org/jury_instructions/instruc...

Specifically possession(RTF) http://www.floridasupremecourt.org/jury_instructions/chapter...

I dug a little deeper and still did not find it.

There were two similar cases, one in which the box truck had a pass-through into the cabin, and based on this, the conviction was upheld because it was deemed that the pass-through from the passenger compartment of the vehicle into the cargo compartment allowed the defendants knowledge and control.

In the other case, there was no pass through and the conviction was overturned.

I will dig through some more files tomorrow. They were both State of Florida cases.

Another interesting(older) case was one in which a defendant was seen leaving an unoccupied house, was 'stopped and frisked' and a Tylenol(or some other legal OTC drug) bottle containing some sort of illegal drug(MDMA or something like that) was found in his actual possession(on his body). The defendant told the police that he had taken the bottle from the house and was unaware it contained illegal drugs. The conviction was overturned because while he knew of the presence of the pills in the bottle and could clearly exercise dominion and control as it was in his actual possession, there was no evidence to indicate he had knowledge of the illicit nature of the substance.

it could be used for further inquiry or investigation. in the case of the computer the owner would not even know.

There's likely an affirmative defense, e.g., less than three images and you took reasonable measures to destroy them.

https://www.law.cornell.edu/uscode/text/18/2252A

That less than three image requirement seems really strict. If my browser were to simply pre-fetch a child porn site, I would probably have more than 3 illegal images on my computer.

If there is a limit and the goal is offense, you simply send double it.

a bunch of unlawful zeros and ones

...and I feel that is the root of the problem.

I'm against real pedophiles and child abuse as much as anyone, but it feels to me like possession of otherwise illegal digital or virtual information should really be decriminalised, simply due to its immensely malleable and interpretable nature. It reminds me of things like "illegal primes" and such. Moreover, people can already perform, in the virtual world of games, acts that would be highly illegal in the real world --- and yet this still remains legal.

Maybe after we get over the War on Drugs...

Laws can persevere in the face of technology which pretty much rendered them obsolete. But they remain artefacts of a different time. Let me present you Japan requiring vanilla porn which depicts pubic hair on and around reproductive areas of people to be fuzzed: https://en.wikipedia.org/wiki/Pornography_in_Japan#Censorshi...

They seem to date from back in the Meiji restoration period. But this is Japan which is also known for the Soaplands, so go figure.

You can also commit crimes in novels or roleplaying games that are illegal. That's different from supporting a market that causes child abuse.

Possessing digital/virtual information that required abuse endorses abuse. Entropy is our friend here; only an extremely rare set of bits results from child abuse. You won't just find it.

Even fiction or photoshop is illegal. Your argument is much more applicable here, but seeing how society treats even inactive pedophiles as criminals rather than sick, I don't think it'll be very popular.

>Possessing digital/virtual information that required abuse endorses abuse.

So, like a violent (e.g. decapitation video) that nevertheless plays on all major outlets?

"[...] but it feels to me like possession of otherwise illegal digital or virtual information should really be decriminalised, simply due to its immensely malleable and interpretable nature."

I'm not really sure what you mean here. What makes something being "digital" or "virtual" special? Isn't the content/message more important than the way it is stored and transmitted?

I mean, concretely, you really think if someone has an illegal picture on their computer, and you can prove they were aware of it, that should be treated differently than them having that same picture only printed?

If someone sends an email to hire an assassin, is the fact that it was a digital message so relevant?

The data merely being present on your hard drive isn't enough for law enforcement to make a strong case. They'd also need to prove how it got there, and why.

That is also my understanding.

So in the case where, as suggested in another comment, where a computer tech, or anyone with access to you device, plants the material in order to collect the bounty, while probably annoying and stressful, should auto-resolve during the investigation / discovery.

Still a bit of a worry.

Edit: fixed a thing

Yes, it will auto-resolve, after you spouse divorces you and obtains custody of your children, and your employer fires you.

An interesting Defcon talk on the subject: https://youtu.be/NG9Cg_vBKOg

The last case is most relevant to this topic. All the other ones are about people trying to steal company info.

That is not always true. Possession alone can sometimes be a crime if the crime has strict liability. See https://kellerlawoffices.com/child-pornography-accidental-po...

It's a great way to frame people.

I've wanted to run forensics tools on my computer for a while, just to see what type of information I leave behind. Will that old resume I deleted 5-years ago show up on my HD? Will my personal backup SMS files that I copied to a Veracrypt volume and deleted with BleachBit still be retrievable? Not sure how to be able to access the "real-deal" forensic tools.

I don't think a few files are enough to do a child porn conviction. There's enough plausible deniability there. But I could be wrong...

Even so, simply going to court on something like this could have staggering consequences.

The accusation and court costs (which you would not be refunded for) would likely be career destroying by the time it was resolved.

And if you have children, they will be taken from you until the issue is resolved, which can take months or years.

And googling your name always brings up articles about the charges on the first page. Exonerations rarely get the same attention or media coverage as accusations, if they even get any.

TL;DR Your life is pretty much ruined forever.

http://bgr.com/2017/03/17/right-to-be-forgotten-us-laws/

A real life example (2004):

https://www.computerworld.com/article/2529338/networking/how...

https://www.wired.com/2008/11/proof-porn-pop/

https://web.archive.org/web/20110716163331/http://www.sunbel...

that shows how a "random" accusation can severely de-stabilize someone's life.

There was a case I read which said roughly that, yes, if you clear your cache, and are not technically savvy enough to know the files could be recovered, then as far as you knew, the files were actually gone, and you no longer "possess" them legally.

Of course, proving that you are an idiot is always a great start to a trial, but it's worked in the past.

Well if you are technically savvy... maybe you'd go a step further too and then you do think they're gone, its a whole other question... or the same one.

I don't think not knowing enough about computers to realize that "delete" doesn't actually delete the data qualifies someone as an idiot.

The case got dismissed because of that, which is really unfortunate because they found child pornography on 5 of his other devices when they searched his home.

I’ve read sentencing remarks on other cases where, although the initial evidence would have been struck for whatever reason, the weight of evidence found upon subsequent searches during the investigation resulted in the case still going to trial and a guilty verdict being handed down.

Some of those cases have gone to appeal and been reversed by higher courts.

Such is the nature of an adversarial court system predicated upon the rule of law.

We, as a society, have, and continue to, make these trade offs.

Having been ground through the court system for drug trafficking, and been lucky enough to have the evidence struck at pre-trial conference due to a very similar case where the defendant was found guilty but the decision later reversed on appeal due to illegal police search...

I, personally, reserve my judgement on all cases that make it to trial, and prefer to read about them as a curiosity.

Edited to add: I strongly support the idea that law enforcement shouldn’t be searching people’s homes illegally, and that anything found as a result of such a search should be in admissible.

We need strong privacy protections, and if that means some crime goes under reported... well, so be it.

> Anyway, you delete the file(s) and / or clear your browser cache

If you are in possession of evidence of a crime you are supposed to report it to the police. If you delete it you are destroying evidence of criminal activity.

For an alternative scenario: suppose you find a dead body in your living room. Should you A) call be police B) hack it up in your bath tub and dump it in the river.

Even if you do B you probably won't get convicted of murder, but you are probably going to be under investigation for a lot longer than A.

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