13

Perhaps it might technically be possible, but can someone be convicted of possession of illegal images if nothing can be found on his or her computer? For instance, suppose a website hosting normal legal material and illegal material was seized and its databases looked through, and authorities found Bob’s email address on the server, as well as access logs with his IP address relating to illegal material.

Is this enough for a search warrant, and if so, if nothing relevant to a criminal case could be found on Bob’s computer or anywhere else searched, is this still enough to convict Bob of possession of such materials?

I’ve never heard of any such cases where someone is convicted of stuff like child pornography where evidence could not be found on the suspect’s computer of some kind, so I wonder if it’s even possible at all.

2
  • 2
    Does this answer your question? IP addresses in criminal cases Jun 25 at 14:26
  • 1
    The linked question is similar, but this question is broader and not a duplicate. (It refers to evidence other than IP addressees.) It should not be closed as a duplicate. Jun 27 at 1:06
20

Probably not. Let us take the case US v. Lowe where the evidence seems even more damning. Lowe was convicted, because his computer actually did contain hundreds of child porn images. Police had IP logs that indicated that someone at Lowe's address was hosting a porn-sharing network and they downloaded some porn from the network. After a raid, illegal images were found on one computer, and forensic evidence provided a bit of evidence regarding when some of the files were downloaded, which was also connected with a person opening an invoice file containing the defendant's address 40 minutes before one of the porn files finished downloading.

Lowe moved for acquittal and did not enter any evidence. The court denied the motion. Even so, the court commented that

I have to say, in this case, it has been particularly difficult, even though it’s my job to do so, to discern where that line [between speculation and reasonable inference] is and where what might be a reasonable inference that can be drawn from the record evidence becomes nothing more than an invitation for the jury to speculate as to what the evidence may be or what it may show

Lowe was convicted. On appeal, the court concluded that

no rational juror could find him guilty beyond a reasonable doubt based on the evidence presented at trial.

A juror could conclude that there was porn on the computer and that the defendant occasionally used the computer. But

without improperly stacking inferences, no juror could infer from such limited evidence of ownership and use that James knowingly downloaded, possessed, and distributed the child pornography found on the laptop.

The court noted that there were two other individuals in the house who also had access to the computer. In particular, no evidence was presented to prove that defendant's wife had not accessed the computer at the relevant time. There is a long list of things that the prosecution failed to prove (e.g. they provided no evidence regarding what the defendand and wife did for a living, which was relevant to the evidence regarding "opening an invoice". The court sums up by saying

the evidence presented here fell well short of what we have found sufficient to convict in other cases involving multiple possible users of a single device.

(Citations include US v. Oufnac, 449 F. App’x 472; US v. Mellies, 329 F. App’x 592. The court also found that

the evidence did not permit a juror to conclude that James knew the HP Pavilion laptop contained child-pornography files and permitted them to remain on the computer.

since the files were buried in a Shareaza file-sharing library, and no evidence was introduced to prove that the defendant had opened the file-sharing program.

If you apply the findings in this case to your hypothetical, you could not possibly get a conviction that would not be overturned by a reasonable appeals court. The details of Lowe's trial are not clear from the appeal, but it appears that Lowe (or his attorney, if there was one) failed to create doubt regarding the government's case. Legally speaking, the defendant is not required to create doubt, but the instruction on reasonable doubt may have contributed to the problem. The jury is told that "Possible doubts or doubts based purely on speculation are not reasonable doubts", but since there was porn on the computer, a juror would have had to speculate that someone else downloaded it. The jury is told that "it may arise from the evidence, the lack of evidence, or the nature of the evidence". We do not know to what extent defense failed to make the argument that the government's evidence was severely lacking.

5
  • So even if Bob had his email address and IP linked to access logs on this website, if he wasn’t the only person living under the same wifi it would be very unrealistic to expect merely this amount of evidence to convict him guilty beyond a reasonable doubt?
    – walstack
    Jun 25 at 20:11
  • 1
    I’ve upvoted this answer because Lowe is a good citation that illustrates the issues that arise in these cases, but the hypothetical isn’t detailed enough to say “you could not possibly get a conviction.” Lowe itself cites a stronger case that got over the line: “United States v. Koch, 625 F.3d 470, 478–79 (8th Cir. 2010) (sustaining conviction where the defendant lived alone and the username of the computer seized from his bedroom matched his first name).”
    – sjy
    Jun 26 at 0:29
  • 2
    This makes me wonder if the existence of Remote-Access-Trojan (RAT) software might qualify as reasonable-doubt unless the accused is directly observed. I mean, if it is -- this is, if the existence of RAT-software (which might remove itself, to enable better framing a victimized-accused) is reasonable-doubt, then it'd seem like most folks couldn't be convicted. But if it's not reasonable-doubt, then it'd seem like people could be easily framed. (Dreading the day ransomware-gangs switch tactics.)
    – Nat
    Jun 26 at 3:52
  • @walstack I don’t even know if that would work if he were the only person authorised to use the Wi-Fi. Perhaps a neighbour hacked it, perhaps someone spoofed their IP, perhaps the logs were forged / erroneous… there’s a lot of room for reasonable doubt there.
    – Tim
    Jun 26 at 23:06
  • So is this suggesting that someone has to actually catch Bob in the act of downloading, viewing, and/or distributing the porn for there to be a decent chance of convicting them? Unless they live alone or there's some other way to prove that only they had access to the computer.
    – Barmar
    Jun 27 at 2:16
6

Prosecutions are commonly based on the detection of child pornography by cloud service providers. For example, United States v. Viromontes concerned child pornography found on the defendant’s Dropbox account. In that decision, there is no indication that the defendant’s physical computer was searched.

Whether the evidence is found on a physical device owned by the defendant or a remote system under their control, it’s also common for the defendant to argue that they weren’t aware of (ie. intentionally possessing) it. It is up to the jury to decide whether this defence gives rise to a reasonable doubt, after considering all the circumstantial evidence in a particular case.

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  • 2
    I’m saying to suppose that Bob has no trace of such possession other than the server logs I’ve mentioned.
    – walstack
    Jun 25 at 14:42
  • 2
    I would not be surprised if Bob was convicted, unless there was some reason to doubt that he was the person behind the IP address, or that the server logs reflected intentional access by the user of the IP address. What would you say, if you were on the jury?
    – sjy
    Jun 25 at 14:44
  • 1
    @sjy for a start, how would you prove that Bob was using the IP address at the time? You could prove it was assigned to his house or his phone at the time, using records from his ISP.
    – user253751
    Jun 25 at 23:39
  • 1
    The other answer citing Lowe, and my comment citing Koch, explain how the courts have approached the IP address issue. But in the question, you mention Bob’s email address being found on “the server,” which I interpreted as suggesting use of a password-protected personal account. Similarly, phones are generally used by one person with a passcode. If the circumstantial evidence suggests that others could have been using the IP address or account, this could create reasonable doubt.
    – sjy
    Jun 26 at 0:36
  • @walstack I think the point of this answer is that even if you do find the porn on their computer it's difficult to convict. That implies that it would be nearly impossible if you had all the same evidence except finding the porn on their computer.
    – Barmar
    Jun 27 at 2:14
5

You can be correctly convicted if there is evidence to show you are guilty beyond reasonable doubt. So if there is nothing on Bob's computer, you have to ask yourself the simple question: Is the available evidence enough to find Bob guilty beyond reasonable doubt? That would depend on the evidence.

For example, if you find evidence beyond reasonable doubt that Bob and nobody else ordered things, that Bob and nobody else paid for them, and that Bob and nobody else wrote a letter that he is very happy with what he received, that could very well be taken as evidence beyond reasonable doubt that Bob was in possession of those things at some point. But if there is a chance that the original information might reasonably have been wrong, then most likely not.

And if an expert witness says not only that there is no evidence on Bob's computer, but that there would have been evidence left if the things had ever been there, that is more than reasonable doubt. Same as if someone is shot with a gun; if an expert says the gun was wiped perfectly clean with no fingerprints left, that is no evidence either way. If the expert says "we found some old fingerprints, from before the killing, and some newer ones which are most likely from the murderer, and they don't match Bob's fingerprints, and the old fingerprints prove the gun wasn't cleaned", that will create very reasonable doubt about his guilt.

7
  • Suppose though that the things I mentioned (address logs, IP etc) are the only evidence linking him. No letters from Bob, no transaction history; only the logs and IP and email.
    – walstack
    Jun 25 at 17:22
  • With a good lawyer, not a chance. See the link for US v. Lowe in user6726's answer. The IP address is not enough. You have to prove that it was Bob's computer (not the neighbours who somehow got Bob's WiFi password, or Bob's roommate who uses the same WiFi network), and you have to prove that it was Bob using the computer (again, not Bob's roommate). And that the IP addresses are recorded correctly, and that nobody hacked into Bob's computer. They need to prove that BOB is guilty beyond reasonable doubt, not his computer or IP address.
    – gnasher729
    Jun 25 at 22:37
  • 1
    Would Bob having a password to his computer and a password to his account on the illegal site not be enough to prove without a reasonable doubt that it was him who viewed such things?
    – walstack
    Jun 25 at 22:48
  • 1
    I suppose you’d have to prove someone didn’t just use his computer while it was open and unlocked and already logged in to the illegal site? Or this case is different?
    – walstack
    Jun 25 at 22:59
  • @walstack as I understand it, yes, you'd have to prove that Bob did those things. What if his roommate went to his computer after Bob forgot to lock it, went to the site, downloaded the files onto a flash drive and then logged out and closed the site again? Then Bob didn't do it. Can Bob argue that that's what happened? But you say it was Bob's account. Well, most people tell their own computers to stay logged into sites. So Bob's roommate had plenty of opportunity to access the site on Bob's account.
    – user253751
    Jun 25 at 23:43
1

There is more than one way to skin a cat.

For example, suppose that a witness testified credibly under oath that he say Bob download the material onto his computer, and then bragged over a beer while camping in the middle of nowhere, about how he was never going to get caught because he downloaded it via an anonymous server, and then physically switched out the hard drive for a duplicate hard drive that had all the same files as the original and dropped the original into the Old Faithful Geyser, as he learned how to do as a PhD in computer science at M.I.T.

This sworn testimony, standing alone, if not convincingly contradicted with hard evidence beyond a mere lack of evidence found in a search, and if corroborated by things like Bob's academic record from M.I.T. and his visit to the national park in question at the right time, would be enough to support a conviction beyond a reasonable doubt, and would be upheld on an appeal based upon insufficiency of the evidence at trial.

Many murder convictions have been upheld on appeal with evidence no more solid than that.

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  • 1
    Sworn testimony + lack of evidence to the contrary = beyond a reasonable doubt? Oh dear. If there's no evidence Bob didn't just make all that stuff up, that is a conviction for being overly imaginative. One or two steps away from thoughtcrime.
    – user253751
    Jun 25 at 23:45
  • 1
    @user253751 I would estimate that roughly a third of all criminal convictions at trial rely entirely on sworn testimony from one or two witnesses (and often just one) and nothing else. For purposes of appellate review, that is good enough if the jury is properly instructed.
    – ohwilleke
    Jun 25 at 23:49
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    This answer makes it sound like it'd be almost trivial for anyone to frame just about anyone of a major crime. (Also, have to express a distaste for the idiom in the first line.)
    – Nat
    Jun 26 at 2:15
  • 1
    "Many murder convictions have been upheld on appeal with evidence no more solid than that." Citations needed.
    – barbecue
    Jun 26 at 19:17
  • 1
    I’m not sure that murder is the best example, because there is usually a body which is subject to forensic analysis. However, rape convictions are frequently based on uncorroborated testimony. See this article in the New Republic, or this research article from the UK.
    – sjy
    Jun 28 at 5:12

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