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Few crimes are as emotional and tragic as those related to the sexual exploitation of children, so it follows that the allegation of participating in child pornography is among the most serious crimes to be charged with. It’s no exaggeration that such an accusation against any individual has the potential to utterly destroy that person’s life.  This is an area of criminal justice where there can no room for error, to protect children at risk as well as potentially innocent defendants accused of these crimes. 

New investigative reportingfrom ProPublica reveals that the government’s refusal to share information about the software it has used to track child pornography with defense attorneys has led to more than a dozen cases collapsing. 

As Jennifer Granick, a surveillance and cybersecurity lawyer with the American Civil Liberties Union’s Speech, Privacy and Technology Project comments in the piece, 

“Courts and police are increasingly using software to make decisions in the criminal justice system about bail, sentencing, and probability-matching for DNA and other forensic tests. If the defense isn’t able to examine these techniques, then we have to just take the government’s word for it — on these complicated, sensitive and non-black-and-white decisions. And that’s just too dangerous.”

ProPublica examined multiple cases that followed essentially the same pattern: law enforcement uses a software program, and/or data collected by private firms to locate individuals who downloaded child pornography. When the suspect/defendant’s computer doesn’t have the files that were detected, law enforcement claims they were deleted or are hidden. When attorneys request access to more information about how the allegation against their client came to be made, 

“Defense lawyers are given a bevy of reasons why porn-detection software can’t be handed over for review, even under a protective order that limits disclosure to attorneys and their experts. Law enforcement authorities often say that they’re prohibited from disclosing software by their contracts with the manufacturer, which considers it proprietary technology.”

The article provides multiple examples of cases where prosecutors chose to drop charges rather than comply with court orders to disclose more information about how the charging information was gathered. As the article notes, “Defense attorneys have long complained that the government’s secrecy claims may hamstring suspects seeking to prove that the software wrongly identified them.”

Unfortunately for everyone involved, the public cannot simply accept prosecutors’ word that their methods are accurate and reliable (and constitutional). Although no data exists on exonerations of defendants convicted of possessing child pornography (that we could find), the National Registry of Exonerationsrecords 269 exonerations of prisoners convicted of child sexual abuse. The leading cause of these wrongful convictions? In 84% of cases, higher than for any other crime listed, the wrongful conviction was caused was “Perjury or False Accusations.” 

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