Multiple Images of Child Pornography: 1 Crime or Many?

This post returns to an issue I've dealt with in prior posts: How do you decide when one crime or more than one crime should be charged?

As I explained in a post I did last year, in criminal procedure charging documents (e.g., indictments, informations) charge separate crimes in separate “counts” of the document.

As I explained in another post, if an indictment breaks one crime up into many counts, it will be challenged as multiplicitous, i.e., as breaking what should be a single crime up into many different crimes. As I explained in the initial post, if an indictment charges two or more crimes in a single count, it will be challenged as being duplicitous.

And, finally, as I explained in a post I did a few months ago, the standard courts use to decide when two crimes are the same is the Blockburger test: In Blockburger v. United States, 284 U.S. 299, 304 (1932), the U.S. Supreme Court held that the standard is “whether each provision requires proof of a fact which the other does not.”

All of that brings us to the issue this post addresses: It is a crime under both state and federal law to possess child pornography, i.e., to possess material that depicts a minor engaged in sexual activity. Since those who possess child pornography usually possess multiple images, the question as to arisen as to whether possessing, say, 10 images of child pornography is (i) 10 counts of possessing child pornography or (ii) 1 count of possessing child pornography. In other words, the issue is the standard to be used in parsing the possession of some quantity of child pornography into a crime or into multiple crimes.

This issue seems to have come up primarily at the state level, and the courts that have addressed it tend to disagree on the correct answer. I suspect the disagreement is, at least in part, a function of the idiosyncrasies of state law.

In Peter v. Ogle, 2009 WL 1163838 (California Court of Appeals for the First District 2009), for example, the court held that the defendant’s “possession of multiple images of child . . . was a single criminal violation” of California Penal Code § 311.11(a). Section 311.11(a) makes it a crime to knowingly possess

any matter, . . . including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct. . . .

Jeffrey Ogle was charged with violating this provision when he was arrested at

approximately 10:45 p.m. . . .in relation to a prowling charge which occurred outside a 13-year-old girl's residence in the City of Napa. During a search of [Ogle’s] vehicle incident to his arrest, the police recovered a video camera, which was camouflaged with black electrical tape. The cassette inside the video camera contained separate footage of 12 different teenage girls in various stages of undress, some completely nude, filmed through the windows at their respective residences. . . . The girls ranged from 13 to 19 years old.

People v. Ogle, supra. Ogle was charged with and eventually pled no contest to three counts of possessing child pornography, but preserved his right to “argue on appeal that `despite pos[s]ession of multiple images’, he was guilty of a single” . . . offense of possessing child pornography. People v. Ogle, supra.

On appeal, Ogle claimed he “improperly suffered multiple convictions for a single act of possession of child pornography because the same videotape provided the factual basis for each of [his] convictions.” People v. Ogle, supra. In other words, he claimed there was only crime – and therefore should have been only one count – because the possession charge was based on one videotape. The prosecution argued that there were “`separate and discrete offenses’ because each segment of the videotape involved separate young women videotaped at different times.” People v. Ogle, supra.

In ruling on the issue, the Court of Appeals noted that the California Court of Appeals for the Third District had held, in People v. Hertzig, 156 Cal. App.4^th 398, 67 Cal. Rptr. 3d 312 (2007) that a defendant’s

possession `of multiple images on one computer’ was a single violation of section 311.11, subdivision (a). . . . The court pointed out that the act proscribed by section 311.11, subdivision (a), is the act of possessing child pornography, not the act of abusing or exploiting children.

People v. Ogle, supra. A year later, the California Court of Appeals for the Fifth District held that “possession of multiple images of child pornography cannot be `fragmented’ into separate counts so long as the images are possessed `simultaneously’ and are `found at the same time and in the same place.” People v. Ogle, supra (quoting People v. Manfredi, 169 Cal. App.4^th 622, 87 Cal. Rptr.3d 810 (2008)).

The Ogle court adopted “the reasoning in Hertzig and Manfredi” and therefore held that Ogle’s “possession of multiple images of child pornography on his video camera as a result of his surreptitious recording of young women was a single criminal violation of” § 3111.11(a). People v. Ogle, supra. The California Court of Appeals for the Sixth District reached the same conclusion in People v. Ciccarelli, 2009 WL 3635801 (2009).

Other courts have reached different conclusions. In State v. Fussell, 974 So.2d 1228 (Louisiana Supreme Court 2008), the court was required to decide if, under Louisiana Revised Statutes § 14:81.1(A), a defendant could “be charged with possessing multiple counts of child pornography or . . . should be charged with only one count for a single act of possession of multiple images of child pornography.” The Louisiana statute makes it a crime to possess “any photographs, films, videotapes or other visual reproductions of any sexual performance” involving a child under 17.

After an exhaustive review of cases from Louisiana and elsewhere, and an equally exhaustive analysis of the language and legislative import of the statute, the Louisiana Supreme Court found that the Louisiana legislature

intended to prevent any child from ever being victimized by punishing any of four types of offenders for each action that contributes to that child's sexual exploitation, including a defendant who intentionally possesses child pornography. . . .Thus, in the instant matter, we hold that the language of [§ 14:81.1(A)(3)] evidences a legislative intent to allow a separate conviction on a separate count for each child, in each sexual performance in which that child is victimized, that is captured in any photographs, films, videotapes, or other visual reproductions that a defendant intentionally possesses.

State v. Fussell, supra. This court, therefore, held that the benchmark for determining the scope of a possession count is the discrete act(s) involved in victimizing a child. The Pennsylvania Supreme Court reached the same conclusion in Commonwealth v. Davidson, 595 Pa. 1, 938 A.2d 198 (2007), as did the Indiana Court of Appeals in Brown v. State, 912 N.E.2d 881 (2009).

The U.S. Court of Appeals for the Second Circuit reached the opposite conclusion in U.S. v. Polouizzi, 564 F.3d 142 (2009). After being convicted of multiple counts of possessing child pornography, Polouizzi (aka Polizzi) argued that his convictions “must be vacated because. . . . the conduct charged in the indictment – possessing a single collection of child pornography . . . – constitutes only a single” crime. U.S. v. Polouizzi, supra. Polizzi was convicted under 18 U.S. Code § 2252(a)(4)(B), which makes it a federal crime to possess “1 or more books, magazines, . . . video tapes, or other matter” which contains “any visual depiction” of a child engaged in sexually explicit conduct.

The 11 possession counts in Polizzi’s indictment each alleged that he

` knowingly and intentionally possess[ed]’ one computer file containing a visual depiction of minors engaged in sexually explicit conduct. . . . Collectively, therefore, the eleven counts were for possession of eleven computer files.

U.S. v. Polouizzi, supra. The government argued that the benchmark for determining the scope of a possession count under this statute was “each `matter’”, so the possession of each file (or each image) became a separate count. U.S. v. Polouizzi, supra. The Second Circuit Court of Appeals disagreed:

Based on the clear language of the statute, we conclude that Congress intended to subject a person who simultaneously possesses multiple books, magazines, periodicals, films, video tapes, or other matter containing a visual depiction of child pornography to only one conviction under [18 U.S. Code § 2252(a)(4)(B)].

U.S. v. Polouizzi, supra. The court primarily relied on the language of the statute:

The language`1 or more,’ . . . indicates that a person commits one violation of the statute by possessing more than one matter containing a visual depiction of child pornography. Thus, unlike the word `any,’ which `has “typically been found ambiguous in connection with the allowable unit of prosecution,” for it contemplates the plural, rather than specifying the singular,’ . . . the phrase `1 or more’ specifies the plural. Thus, the plain language of the statute provides that a person who possesses `1 or more’ matters containing a prohibited image has violated the statute only once.

U.S. v. Polouizzi, supra. The Polouizzi court’s distinction between the use of “1 or more” and “any” at least arguably reconciles its decision and the Louisiana Supreme Court’s decision in Fussell. It cannot, however, reconcile the different holdings in Ogle and Fussell, at least not in terms of the plain language used in the respective statutes at issue in those cases.

I tend to agree with the Ogle court that the “harm” criminalized by possession of child pornography statutes is the possession of the material, not the victimization of the child. We have other statutes that can be used to prosecute people who victimize children in order to manufacture child pornography.

If we accept the premise that the gravamen of the crime is “possession,” then treating a single act of possessing some quantum of child pornography makes sense given how we approach possession in other contexts. Assume, for example, that a state statute makes it a crime to possess any of a list of controlled substances; assume, further, that one of those controlled substances comes in pill form. Now assume that police search John Doe’s home and fine 500 pills of a substance the possession of which is outlawed by the statute.

Would it make sense to charge Doe with 500 counts of possessing that substance . . . based on the fact that he possessed 500 different pills, each of which contained that substance? Or does it make more sense to charge him with a single act of possessing that drug?

I think, and I think U.S. law has pretty much taken this approach, that it makes more sense to charge Doe with a single count of possession . . . and then factor the quantity of the item he possessed into the calculation of his sentence. If we go with that theory, then it seems logical to apply the same approach to possession of child pornography.

Forgery and Computer Fraud

As I’ve noted in earlier posts, the test courts use to determine if two crimes are the same is the Blockburger test. In Blockburger v. United States, 284 U.S. 299, 304 (1932), the Supreme Court held that the test is “whether each provision requires proof of a fact which the other does not.”

This post is about a case in which the defendant raised what wasn’t technically a Blockburger argument, but was based on substantive similarities between what were alleged to be two crimes.

The case is State v. Jackson, 2009 WL 4035256 (Kansas Court of Appeals 2009), and here are the essential facts:

Kimberly Ross owned a house . . . in Salina. . . . [and] had not given anyone . . . permission to live in the house. . . . Ross [heard] . . . there was a bicycle on her property and the windows were open. . . . Ross sent her father, Jim Lytle, to the house . . . . Lytle asked [Daniel] Jackson if he lived at the house, and Jackson [said] he. . . . bought [it] . . . .Lytle told Jackson that his daughter owned the house. . . .

Ross contacted the Salina police. Two officers were sent to the property [and] spoke with Jackson. . . . [who] admitted he had been living [there]. Jackson showed one of the officers a lease agreement, which Jackson said allowed him to live in the house. . . .

Lieutenant Salzman. . . . noticed that the landlord's signature appeared to be computer generated. . . . [and] Ross told police she had not rented the property. . . . Salzman told Jackson he did not think the lease agreement was real. Jackson [said] the person he was renting from . . . had drafted the agreement using a computer at the public library.

Salzman and Jackson went in the house. . . . Salzman noticed a . . . laptop computer in the house. Jackson told Salzman that he had used the laptop computer to help draft the lease agreement. Jackson was arrested and taken to the Salina Police Department.

State v. Jackson, supra. When police searched the house, they found “a letter dated July 1, 2007, from Ross to Nijeil Beiker thanking him for the offer on her property;” an identical letter dated September 1, 2007; an owner's affidavit signed by Ross; and a quit claim deed in favor of Beiker signed by Ross. State v. Jackson, supra. Ross would later testify that she never signed any of these documents. State v. Jackson, supra.

At the police station, Jackson told Officer Melissa Short that before he lived at Ross’ house he was homeless for 18 months and was looking for a place to stay when he was approached by Beiker, who told Jackson he purchased a residence and would lease it to Jackson if Jackson would be willing to do some work on it. State v. Jackson, supra.

Jackson [said] he contracted with Beiker to pay a $400 deposit and $400 monthly rent plus utilities for the residence. . . . Jackson [said] Beiker had not been familiar with how to draft a lease agreement so they had drafted the documents at the library. Short asked Jackson about . . . inconsistencies between the lease and his statements to the police, including the amount of the deposit and rent, the date Jackson was supposed to take possession of the property, and the fact that Beiker's signature appeared to be type. . . . Short later testified that Jackson was unable to . . . explain the inconsistencies.

State v. Jackson, supra. Short asked for Beiker's contact information, which Jackson couldn’t provide. State v. Jackson, supra. Short tried to find Beiker by running a driver's license check in Kansas and Missouri and a vehicle registration check in Missouri, running his name through the police department’s computer system and checking city water files. Her efforts were unsuccessful, and Beiker was never found. State v. Jackson, supra.

Jackson was charged with and convicted of one count each of criminal trespass, criminal damage to property, computer crime and forgery. State v. Jackson, supra. Jackson challenged all of the convictions in his appeal to the Kansas Court of Appeals, but we’re only concerned with the forgery and computer fraud counts.

Jackson claimed “there was insufficient evidence for the jury to convict him of forgery because the State failed to prove he had intended to defraud anyone.” State v. Jackson, supra. To find Jackson guilty of forgery under Kansas Statutes § 21-3710(a)(1), the prosecution had to prove each of these elements beyond a reasonable doubt:

1. That Jackson knowingly made, altered, or endorsed a residential lease package so it appeared to have been made or altered by Nijeil Beiker, who did not give such authority;

2. That Jackson did this act with the intent to defraud; and

3. That this act occurred on or between March 5, 2007, and October 5, 2007, in Saline County, Kansas.

State v. Jackson, supra (emphasis in the original).

Kansas Statutes § 21-3110(9) defines intent to defraud as “an intention to deceive another . . . and induce such person . . . to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.” Jackson claimed the evidence was not sufficient to prove

an intent to defraud because the person to whom he intended to show the lease agreement had no authority to `assume, create, transfer, alter or terminate a right, obligation or power with reference to’ the [Ross] property. Jackson contends that although the evidence might have showed that he created the lease agreement `as a ruse to dupe any community member or police officer who questioned his right to be in the house,’ such a scheme was not done with an intent to defraud.

State v. Jackson, supra. The Kansas Court of Appeals agreed with Jackson:

Jackson did not obtain possession of the property . . . because of the lease agreement. Ross was not induced or intended to be induced to part with her property by presentation of the lease agreement. To the contrary, Ross had already been deprived of the use of her property before Jackson presented the lease agreement to the police.

Moreover, the police officers to whom Jackson showed the lease agreement did not have the power to assume, create, transfer, alter, or terminate a right, obligation, or power with reference to the Chester property. The lease agreement was created for and was used to cover up the illegal occupation of Ross' property.

State v. Jackson, supra. The court therefore reversed Jackson’s conviction for forgery.

Jackson then argued that if the Court of Appeals agreed that there was “insufficient evidence to convict him of forgery,” it should also find “that the State failed to present sufficient evidence that he committed a computer crime.” State v. Jackson, supra.

To convict him of computer crime under Kansas Statutes § 21-3755(b)(i)(B), the prosecution had to prove beyond a reasonable doubt that Jackson used a computer for the purpose of devising or executing a scheme or artifice with the intent to defraud or for the purpose of obtaining property, services or any other thing of value by means of false or fraudulent pretense or representation. State v. Jackson, supra. Jackson argued that in deciding whether the evidence was sufficient to prove computer crime, “the only document” the Court of Appeals could consider was the lease agreement. State v. Jackson, supra. His theory was that “the only scheme the jury found the State had proven beyond a reasonable doubt involved the creation of the lease agreement on the library’s computer.” State v. Jackson, supra.

The Court of Appeals did not agree with either proposition. As to the first issue, it noted that the prosecutor hadn’t limited the computer crime charge “to the lease agreement.” State v. Jackson, supra. At trial, the prosecutor used the lease agreement and the other documents found in Ross’s house (the letters plus the affidavit and quit claim deed) to prove both the forgery and computer crime charges. State v. Jackson, supra. So Jackson was charged with 5 counts of forgery but the jury convicted him of only one, and that conviction was based on the lease agreement. State v. Jackson, supra.

The Court of Appeals therefore rejected Jackson’s second proposition:

Because . . . forgery and computer crime have different elements, the jury could have found that that Jackson committed computer crime in regard to the documents found at the Chester property but did not commit forgery in regard to those same documents. . . .

Unlike forgery, computer crime does not require that Jackson did something to the documents so it appeared to have been made or altered by Ross. Moreover, based on the use of the disjunctive `or’ in the statute defining computer crime, an intent to defraud is not required for computer crime. As a result, a not guilty verdict for the charged crimes of forgery and a guilty verdict for . . . computer crime are not necessarily inconsistent.

State v. Jackson, supra. The Court of Appeals therefore held that the evidence was sufficient to prove Jackson’s guilt beyond a reasonable doubt. He had shown the

lease agreement to the police and several documents were found within the residence, including two letters allegedly from Ross, an owner's . . . affidavit, and a quit claim deed. All the documents appeared to have been computer generated. . . . Jackson admitted . . . he used his computer and the library computer to generate one of the documents. The . . . documents were part of a scheme . . . to illegally inhabit the . . . property. . . .

[T]he jury could have found Jackson created the quit claim deed and owner's (seller's affidavit) `for the purpose of obtaining property, services or any other thing of value by means of false or fraudulent . . . representation’. . . .

`Fraudulent representation’ . . . is a `false statement that is known to be false. . . and is intended to induce a party to detrimentally rely on it.’ Black's Law Dictionary 1022 (8th ed.2004). . . . Why would Jackson create a quit claim deed and an owner's affidavit with Ross' signatures if he did not intend to assert a property right at a future date and obtain services or money for the property? A lease agreement alone would have been enough for Jackson to cover up his illegal occupation of the property. . . .

State v. Jackson, supra. One thing this opinion illustrates is how the facts in a case can support a variety of charges. Another is how fraud and forgery can have very similar elements; here, both the forgery and fraud (computer crime) offenses required an intent to defraud and incorporated the same statutory definition of that term. Despite their similarities, they are not the same offense under Blockburger because each includes an element the other does not; forgery requires the alteration of a document while fraud (computer crime) requires the use of a computer.

It may seem peculiar for Kansas to use the phrase “computer crime” to refer to what I’m calling fraud, because it really is a fraud crime. The reason is that instead of adopting different statutes to define different computer crimes, Kansas took the same approach as the federal computer crime statute, 18 U.S. Code § 1030. Section 1030 defines a variety of computer crimes, including gaining unauthorized access to a computer, exceeding authorized access to a computer, computer extortion and computer fraud. Kansas’ computer crime statute – Kansas Statutes § 21-3755 – does essentially the same thing. So both the court and the prosecutor are quite correct when they refer to the charge against Jackson as “computer crime.”

"Data Carving" and Metadata

This post is about an argument that was made in U.S. v. Haymond, 2009 WL 3029592 (U.S. District Court for the Northern District of Oklahoma 2009).

In December of 2008, Andre Ralph Haymond was indicted on federal charges of possessing and attempting to possess child pornography.

The indictment charged Haymond with possessing “child pornography `including, but not limited to’ five specific files.” U.S. v. Haymond, supra.

The government apparently found an additional 135 images of child pornography after the indictment was returned:

There are 140 images at issue here. Of these, the Government claims to have identified 78 pornographic images on Defendant's computer hard drive and 62 images (including one video clip) that allegedly were made available through LimeWire from a location associated with Defendant.

U.S. v. Haymond, supra.

The opinion cited above deals with Haymond’s efforts to gain access to these images and other evidence in the case against him. Haymond filed a second Motion to Compel the government to give him access to images

allegedly contained on his computer that was seized by the Government pursuant to a search warrant . . . . The Government made a mirror image of Defendant's computer's hard drive. For convenience, this mirrored hard drive was made available to Defendant's expert, David Penrod (`Penrod’”) at the Regional Computer Forensic Laboratory (`RCFL’) in Denver, . . . near Penrod's home. . . .

Penrod complained he was unable, using his Encase software, to find any pornographic images on the mirrored hard drive. This generated Defendant's first Motion to Compel. On Sept. 2, after the Court directed Penrod to return and work with the RCFL to try again to access the images, he was able to find 14,000 images on the hard drive using the Government's Forensic Tool Kit (`FTK’) software. Allegedly, 78 of these images are unlawful child pornography. Defendant now complains that he cannot tell which of the 14,000 images are the 78 images on the hard drive that the Government contends constitute child pornography. Defendant further complains that the images have been `stripped’ of all metadata that would enable him to prepare a forensic defense to the pending charge.

U.S. v. Haymond, supra.

Haymond filed his Motion to Compel under Rule 16 of the Federal Rules of Criminal Procedure. Rule 16(E) states that

[u]pon a defendant's request, the government must permit the defendant to inspect and to copy . . . books, papers, documents, data . . . or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

As this court noted, and I explained in an earlier post, Congress modified this part of Rule 16 in 2006, when it adopted the Adam Walsh Act, which added § 3509(m) to Title 18 of the U.S. Code. Under § 3509(m) a judge must

deny a defendant's requests to copy or otherwise reproduce child pornography as long as the material is made `reasonably available’ to the defendant. `Reasonably available’ requires the Government to provide an `ample opportunity’ for inspection at a Government facility.

U.S. v. Haymond, supra. Haymond’s argument was that even though the government made the mirrored image of his hard drive “available” to Penrod at the Denver RCFL, Penrod still couldn’t find “the 78 images on the mirrored hard drive that the Government contends constitute child pornography.” U.S. v. Haymond, supra. Haymond therefore made three arguments as to why he was entitled to more comprehensive discovery.

The first was the “missing metadata” argument. Haymond said his expert couldn’t “find any metadata associated with the files on the mirrored hard drive and implie[d] that the Government may have `stripped’ this metadata when it `data carved’ images from the hard drive.” U.S. v. Haymond, supra. The judge didn’t buy this argument:

At the hearing on Sept. 16, 2009, the Government stated that the hard drive provided to Defendant was a `complete, exact’ copy of the hard drive the Government accessed and if Defendant did not have metadata, it is because the metadata is simply not there. . . . Defendant's own expert, Penrod, represented to the Court at the . . . hearing that he did not expect and was not looking for metadata.. . . . [T]he Court specifically asked Penrod if he was seeking metadata on the mirrored hard drive. He replied:

`Metadata is simply data such as the logical path to a file and the date and time of creation. . . . And you're not going to find that with any kind of-or with about 95 percent of data-carved items. All you're going to get is the image in this particular situation and the physical location of where that data is actually located on the hard drive.’

Later when Defense counsel queried Penrod about getting metadata . . . Penrod stated that he was `99.99-percent sure we won't find any metadata associated with these files.’

U.S. v. Haymond, supra. The judge therefore held that since Haymond hadn’t produced evidence showing that the government “`stripped’ metadata from the hard drive before creating the mirror-image”, there was “no basis for [Haymond’s] complaint in this regard”, i.e., no reason to grant what the Motion to Compel sought. U.S. v. Haymond, supra.

Haymond’s second argument was that he was entitled to additional discovery because his expert couldn’t find the 78 images “the Government contends are on the mirrored hard drive without poring over all 14,000 images found there.” U.S. v. Haymond, supra. The judge didn’t have to rule on this argument because the parties had worked it out:

At the Sept. 16 hearing, the Government agreed to send to the RCFL CDs containing all 140 images at issue in this case. These will be made available to Penrod at the RCFL and will remain in the custody and possession of the Government. Penrod will be able to access these images and compare them to data on the mirrored hard drive. Defense counsel stated that this will obviate the need for any cluster/sector information to locate the images as he had previously requested.

U.S. v. Haymond, supra.

That brings us to the third argument Haymond made in support of his Motion to Compel further discovery of digital evidence. He wanted the prosecution to create

redacted copies of the images at issue so he can use them with subpoenas to the internet web sites where the images originated. Defendant plans to subpoena information from the web site owner to the effect that the persons portrayed in the pornographic images are adults, not minors.

U.S. v. Haymond, supra. If the people in the images were adults, then the material was not child pornography and the charges against Haymond would fail. It might sound like a good argument, but it didn’t work, at least not completely:

[T]he Government stated that the core of its case at trial will be based on 10-12 of the 140 images. These include one video file and photographs where the Government has identified a juvenile victim. These images have been identified in the Child Victim Identification Program (`CVIP’) report available to Defendant. While the Government has not absolutely restricted itself to only using these 10-12 images at trial, it has confirmed that these will be the central core of the case. . . . Defense counsel has estimated that only about 15 percent of the images he has reviewed have any web site information embedded in them that would provide a basis for a subpoena. Accordingly, Defendant should focus on the 10-12 images identified in the CVIP report. If there are images with embedded web site information Defendant wants to subpoena, he shall identify those files well before trial and the Government will prepare redacted images for his use.

U.S. v. Haymond, supra. The Haymond judge noted that this procedure had been used in an earlier, similar case: U.S. v. Dobbs. U.S. v. Haymond, supra. He also noted that at the September 26 hearing in the Haymond case, Haymond’s attorney “conceded . . . that the subpoena issued in Dobbs to an internet site in Holland resulted in a `wild goose chase’” because the subpoena recipient ignored the subpoena. U.S. v. Haymond, supra.

Haymond is the only reported case I can find in which data carving was the basis for an altered/destroyed evidence claim. Not being a computer forensics expert, I can’t opine on the viability of such an argument, but my suspicion is that it’s not particularly sound.

MySpace and § 230 Immunity

This post deals with an issue I've addressed before, i.e., whether the operator of a website can be held liable for what is posted on the site.

As I explained in prior posts, § 230 of the Communications Decency Act (47 U.S. Code § 230) immunizes certain parties from liability based upon content they post online. A few months ago, the California Court of Appeals was called upon to decide if § 230 immunity applies to MySpace.

The decision issued in Doe II v. MySpace Inc., 175 Cal.App.4th 561, 96 Cal.Rptr.3d 148 (California Court of Appeals 2009). It addressed claims raised in four cases that were consolidated because they all involved

similar facts and essentially identical legal allegations. In each case, one or more `Julie Does --girls aged 13 to 15 -- were sexually assaulted by men they met through the internet social networking site, MySpace.com (MySpace). The Julie Does, through their parents or guardians, have sued MySpace for negligence, gross negligence, and strict product liability.

Doe II v. MySpace Inc., supra. This is how the Court of Appeals summarized the facts and legal claims advanced in the four suits:

Then 15-year-old Julie Doe II created a MySpace profile in 2005. In 2006, she met a 22-year-old man through MySpace and was sexually assaulted by him at an in-person meeting. As a result, he is currently serving 10 years in prison. Julie Doe III was also 15 when she created a MySpace profile. She subsequently met a 25-year-old man on MySpace, who `lured Julie Doe from her home, heavily drugged her, and brutally sexually assaulted her.’ Julie Doe III's attacker pled guilty to charges stemming from the incident and is currently serving 10 years in prison. Julie Doe IV was 13 years old when she created a MySpace profile. In 2006, she turned 14 years old and met an 18-year-old MySpace user. He and his adult friend met Julie Doe IV, drugged her and took turns sexually assaulting her. As of August 2007, the 18-year-old user is awaiting trial while his friend pled guilty to second-degree felony rape and was sentenced to 4 and one-half years in prison. In 2006, 14-year-old Julie Doe V and 15-year-old Julie Doe VI each met 18-year-old and 19-year-old men on MySpace and were later sexually assaulted by the men at in-person meetings. . . .

The appellants each bring substantially identical causes of action against MySpace for negligence, gross negligence, and strict product liability. In summary, they complain that `MySpace has made a decision to not implement reasonable, basic safety precautions with regard to protecting young children from sexual predators[.] MySpace is aware of the dangers that it poses to underaged minors using [its Web site]. MySpace is aware that its Web site poses a danger to children, facilitating an astounding number of attempted and actual sexual assaults. . . .’ They more specifically allege that MySpace should have implemented `readily available and practicable age-verification software’ or set the default security setting on the Julie Does' accounts to `private.’

Doe II v. MySpace Inc., supra.

MySpace demurred in all four cases. Doe II v. MySpace Inc., supra. As Wikipedia explains, a demurrer is “filed by a party defending against claims . . . in a lawsuit. The demurrer challenges whether a legal cause of action exists for the facts, as stated by the complaining party.” MySpace’s demurrers were based on § 230immunity, i.e., it said the plaintiff’s claims were barred by the immunity the statute confers on certain parties who post or host content online. Doe II v. MySpace Inc., supra. The trial courts granted the demurrers in each of the four cases and therefore dismissed the suits; the plaintiffs appealed and the appeals were consolidated as Doe II v. MySpace Inc., supra.

MySpace’s immunity claim was primarily based on 47 U.S. Code § 230(c)(1), which provides as follows: “No provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230(e)(3) applies this provision to civil claims brought under state law; it states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

The Court of Appeals began its analysis of the immunity issue by noting that § 230 immunity requires proof of three elements:

(1) MySpace is an interactive computer services provider, (2) MySpace is not an information content provider with respect to the disputed activity, and (3) appellants seek to hold MySpace liable for information originating with a third party user of its service.

Doe II v. MySpace Inc., supra. The appellants relied on the last two elements, “arguing that they view MySpace as an information content provider and do not hold it liable for the communications between the Julie Does and their assailants, but for . . . failure to institute reasonable security measures.” Doe II v. MySpace Inc., supra.

The Court of Appeals began its ruling on the third element by noting that § 230 immunity is to be construed broadly; Congress wanted to immunize Internet services providers from civil liability in order to minimize restrictions on online speech. Doe II v. MySpace Inc., supra. The court consequently found that § 230 immunity shielded MySpace:

That appellants characterize their complaint as one for failure to adopt reasonable safety measures does not avoid . . . section 230. It is undeniable that [they] seek to hold MySpace responsible for the communications between the Julie Does and their assailants. At its core, appellants want MySpace to regulate what appears on its Web site. Appellants argue they do not `allege liability on account of MySpace's exercise of a publisher's traditional editorial functions, such as . . . deciding whether . . . to publish certain material, which is the test for whether a claim treats a website as a publisher’. . . . But that is precisely what they allege; that is, they want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site. That type of activity -- to restrict or make available certain material -- is expressly covered by section 230.

Doe II v. MySpace Inc., supra.

The Court of Appeals then turned to the second issue, i.e., whether MySpace was, or was not, an information content provider “with respect to the disputed activity”. Doe II v. MySpace Inc., supra. The appellants claimed it was an information content provider and

thus is not immunized by section 230. According to appellants, `MySpace acted as a content provider when it collaborated with the Does and their eventual attackers to create and then flesh out their MySpace profiles. . . . MySpace also acted as a content provider when it allowed the attackers to channel information in profiles, search and browse profiles for particular characteristics and then use the results of those queries to locate, contact, and eventually sexually assault the Julie Does.’

Doe II v. MySpace Inc., supra. The appellants relied on the U.S. Court of Appeals for the Ninth Circuit's ruling in Fair Housing Council v. Roommates.Com. Roommates.com

ran a Web site to match people renting out spare rooms with people looking for a place to live. Before a subscriber can search listings or post housing opportunities on the Web site, he or she was required to answer a series of questions about his or her sex, sexual orientation, and whether he or she would bring children to a household.

Doe II v. MySpace Inc., supra. When Roommates.com was sued for violating various fair housing laws, the Ninth Circuit held it was an information content provider as to these questions because it created them, presented a limited choice of answers to the questions and designed its “systems to limit listings based on sex, sexual orientation, and presence of children. Further, Roommates.com forced subscribers to answer these questions as a condition of using its services.” Doe II v. MySpace Inc., supra. The Ninth Circuit held that the site lost § 230 immunity for these questions but retained it for other portions of the site. Doe II v. MySpace Inc., supra.

The California Court of Appeals held that the Ninth Circuit’s holding in Roommates.com did not apply to the case before it because the appellants did not claim that “MySpace's profile questions are discriminatory or otherwise illegal” or that it requires “members to answer the profile questions as a condition of using the site.” Doe II v. MySpace Inc., supra. It noted that the strongest case for applying § 230 immunity exists when a site gives users “unfettered discretion as to what they” post, which is not true of MySpace:

Myspace members are not allowed unfettered discretion as to what they put in their profile. Instead, it is alleged that MySpace users are urged to follow the on-screen prompts to enter a name, email address, gender, postal code, and date of birth. Users are also `encouraged’ to enter personal information such as schools, interests and personality and background and lifestyle. This information is organized by the site and is searchable by other users.

Doe II v. MySpace Inc., supra. The court ultimately found that this was not enough to transform MySpace into an information content provider and deprive it of § 230 immunity. The California Court of Appeals based its holding on the fact that the appellants presented no evidence that MySpace did nothing to encourage the posting of the content at issue in the suit. Doe II v. MySpace Inc., supra. The appellate court therefore affirmed the lower courts’ dismissal of the four actions against MySpace. Doe II v. MySpace Inc., supra.

A federal district court judge reached the same conclusion in Doe v. MySpace, Inc., 629 F. Supp.2d 663 (U.S. District Court for the Eastern District of Texas 2009). The plaintiff in this case also sued MySpace for “negligence, gross negligence and strict product liability for failing to implement reasonable safety measures to protect minors” after her daughter was allegedly “`lured from her home and sexually assaulted by a sexual predator, who . . . orchestrated his sexual assault through the MySpace.com website.’” Doe v. MySpace, supra. This plaintiff also relied on the Ninth Circuit’s Roommates.com decision in arguing that MySpace is an “information content provider” which is not entitled to § 230 immunity. The judge in this Doe case held that the Ninth Circuit’s decision did not apply here:

The Ninth Circuit repeatedly stated . . . that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, and information content provider. Here, however, users of MySpace.com are not required to provide any additional information to their profiles. . . . As such, the court finds that the Plaintiff's argument lacks merit because the facts of the instant case are distinguishable from those in Roommates.com.

Doe v. MySpace, inc., supra.

Judicial Notice and Websites

As Wikipedia notes, judicial notice is an evidentiary principle that “allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted.” As Wikipedia explains, a party must ask a court to take judicial notice of a particular fact, and facts “admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence”.

The permissibility and practice of taking judicial notice of a fact is governed by rules of evidence. Rule 201 of the Federal Rules of Evidence governs judicial notice in federal criminal and civil trials. Rule 201(b) specifies the kinds of facts of which judicial notice can be taken:

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Under Rule 201, judicial notice can be discretionary (“A court may take judicial notice, whether requested or not”) or mandatory (“A court shall take judicial notice if requested by a party and supplied with the necessary information). Rule 20(c)-(d). Under Rule 201(e), a party to the proceeding is entitled “upon timely request to an opportunity to be heard as to the propriety of taking judicial notice”.

The effect of a court’s taking judicial notice of a fact differs in civil and criminal cases. In a civil trial, the court will “instruct the jury to accept as conclusive any fact [it] judicially noticed.” Rule 201(g) of the Federal Rules of Evidence. In other words, the opposing party isn’t entitled to rebut a fact that has been judicially noticed. In criminal cases, the court will “instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed” by the court. Rule 201(g). Criminal defendants are entitled to attempt to rebut judicially noticed facts; the premise here is that requiring a “jury in a criminal case to accept as conclusive any fact judicially noticed” is inconsistent with the Sixth Amendment right to jury trial in criminal prosecutions. House of Representatives Report No. 93-650, 1973 WL 12555.

The question as to whether a court can take judicial notice of the contents of a website has arisen in a surprising number of cases, most of which involve government operated sites. Courts have found that it is appropriate to take judicial notice of facts posted on government-maintained sites because the contents of such sites are presumed to be authentic and reliable. See Williams v. Long, 2008 WL 4848362 (U.S. District Court for the District of Maryland 2008).

The permissibility of taking judicial notice of the contents of a website become more problematic when it’s a privately-maintained site. In Goldberg v. UBS AG, 2009 WL 3077118 (U.S. District Court for the Eastern District of New York 2009), for example, the plaintiffs wanted the court to “take judicial notice of various facts contained on UBS’s own corporate website, including the number of UBS’s worldwide offices and employees, and the fact that UBS’s Israel office is not licensed to provide banking services in Israel.” Goldberg v. UBS AG, supra. The case was a civil suit under the Anti-Terrorism Act, 18 U.S. Code § 2333 brought by the family of a man “killed in a . . . terrorist attack on a Jerusalem bus.” Goldberg v. UBS AG, supra. The plaintiffs claimed UBS was liable for the death under several theories, one of which was that it “transmit[ed] funds on behalf of a terrorist organization in violation of” the Act. Goldberg v. UBS AG, supra.

UBS moved to dismiss the plaintiff’s complaint, claiming it was legally deficient for any of several reasons. Goldberg v. UBS AG, supra. As part of that effort, UBS asked the court to take judicial notice of “various facts contained” on its website, “including the number of UBS's worldwide offices and employees, and the fact that UBS's Israel office is not licensed to provide banking services in Israel.” Goldberg v. UBS AG, supra. The judge declined to do so. He found that

[w]hile the court may take judicial notice of the contents of a website for the fact that such information was published and in the public realm, UBS attempts to introduce these facts here for their truth. . . . Facts on Defendant's own . . . website do not fall into the category of a `source[ ] whose accuracy cannot reasonably be questioned” as required by Federal Rule of Evidence 201.

Goldberg v. UBS AG, supra. In ruling on this issue, this judge noted that other courts have held that a judge can take judicial notice of, for example, the fact that articles were published in a newspaper or magazine; judicial notice is proper here because the only fact established is that the information was put into the public domain. See, e.g., Benak ex. Rel. Alliance Premier Growth Fund v. Alliance Capital Management L.P., 435 F.3d 396 (U.S. Court of Appeals for the Third Circuit 2006). Courts have found that the fact information has been published justifies judicial notice under Rule 201(b)(2).

Courts have disagreed as to whether it is proper to take judicial notice of information published on Wikipedia. In First National Bank in Sioux Falls v. First National Bank South Dakota, 2009 WL 2920812 (U.S. District Court for the District of South Dakota 2009), a federal judge took “judicial notice of population growth and geography information presented in Wikipedia” which was relevant to facts at issue in the case. The judge noted, though, that he was “relying on this source” only for a limited, specific purpose and only “because the information noted is not subject to reasonable dispute”. First National Bank in Sioux Falls v. First National Bank South Dakota, supra (citing Rule 201 of the Federal Rules of Evidence.). My guess – and it’s just a guess – that that the other side didn’t vigorously oppose the judge’s taking judicial notice of this particular information, which made it a relatively easy call.

I assume something similar accounts for what the judge did in Io Group, Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132 (U.S. District Court for the Northern District of California 2008). The case was an action for copyright infringement and at one point the judge took “judicial notice of the Wikipedia definition of `IP address’ as to the fact that an IP address may be shared by multiple users” because he found this was “not a matter that is subject to reasonable dispute.” Io Group, Inc. v. Veoh Networks, Inc., supra.

Other courts have taken a very different view of the permissibility of taking judicial notice of facts published by Wikipedia. In Palisades Collection, L.L.C. v. Graubard, 2009 WL 1025176 (New Jersey Superior Court Appellate Divison 2009), the defendant appealed from the trial court’s entering judgment against him in a credit card collection case. The judgment came after a bench trial, i.e., after a trial to a judge instead of to jury. Palisades Collection, L.L.C. v. Graubard, supra.

At that trial, the plaintiff’s attorney moved, pursuant to New Jersey’s version of Rule 201 of the Federal Rule of Evidence, to admit into evidence

a print version of a page from the website of Wikipedia. . . . Plaintiff offered this to establish that Bank One Corporation was purchased by J.P. Morgan & Company in 2004. Against this backdrop, counsel represented to the trial judge that J.P. Morgan sold the accounts, (including defendant's account) to his client Palisades Acquisition.

Over defense counsel's objections, the trial court granted plaintiff's motion, admitting into evidence . . . the page from Wikipedia. In support of his ruling, the trial judge took judicial notice that `banks are frequently purchased.’ . . . [T]he judge also took judicial notice that `ultimately defendant's account landed at J.P. Morgan . . . [and] was assigned or sold to Palisades Assets.’

Palisades Collection, L.L.C. v. Graubard, supra.

After the trial court entered judgment for Palisades, Graubard appealed, arguing, in part, that the trial court erred in taking judicial notice of the Wikipedia page. The Appellate Division of the New Jersey Superior Court agreed with Graubard:

The trial court's acceptance of Wikipedia was contrary to the principle that judicial notice must be based upon `sources whose accuracy cannot be reasonably questioned.’ [New Jersey Rule of Evidence (b)(3)]. We come to this conclusion after reviewing Wikipedia's own self-assessment.

Wikipedia bills itself as the `online encyclopedia that anyone can edit.’ Anyone with an internet connection can create a Wikipedia account and change any entry in Wikipedia. In fact, Wikipedia warns readers that `[t]he content of any given article may recently have been changed, vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields.’ Thus, it is entirely possible for a party in litigation to alter a Wikipedia article, print the article, and . . . offer it in court in support of any given position. Such a malleable source of information is inherently unreliable, and clearly not one `whose accuracy cannot be reasonably questioned.’

Palisades Collection, L.L.C. v. Graubard, supra [quoting Wikipedia’s Disclaimer Page]. Other courts have reached the same conclusion. See Flores v. State, 2008 WL 4683960 (Texas Court of Appeals 2008); Grabein v. Jupiterimages Corp., 2008 WL 2704451 (U.S. District Court for the Southern District of Florida 2008).

In the Flores case, Manuel Flores was possessing cocaine with the intent to deliver after a trial in which the jury was allowed to consider a written confession he’d given police. Flores v. State, supra. Prior to trial, Flores had moved to suppress the confession on the grounds that it was “involuntary and coerced”; the judge to whom the case was assigned denied the motion to suppress, which meant the confession was admitted into evidence. Flores v. State, supra.

On appeal, Flores argued that the trial court erred in admitting the confession which, he claimed, was the product of “the `John Reid’ technique that allegedly results in false confessions”. Flores v. State, supra. On appeal, he asked the Court of Appeals to “take judicial notice of the Wikipedia entry for the `John Reid’ technique.” Flores v. State, supra. The Court of Appeals declined to do so, noting that “`anyone can edit’” a Wikipedia entry. Flores v. State, supra.