Surfing the Internet lately has become more like strolling through a digital minefield. Viruses, Trojan horses, and malware (malicious software) are some of the familiar hazards of browsing the Web.
But while those simply mean trouble for your computer, these days, download disasters can mean trouble with the law.
Attorneys who specialize in defending clients accused of possessing computer contraband like child pornography or pirated music, report a growing number of cases involving unintended acquisition of the illegal material.
"It is becoming an increasing problem," says Minnesota lawyer Maury Beaulier.
Beaulier recently had a case of a young man who was downloading files from a file-sharing program. Shortly afterwards, his computer crashed and he took it in for repair. Using recovery software, the repair center observed file names they suspected to be child pornography, and the police were called. Search warrants were issued, his computer was seized, and the man was charged with possession of the illegal material. He said he had done a search for files relating to the band The Sex Pistols, when the offending material landed on his computer and he did everything he could to erase it.
According to Beaulier, the young man could not afford a protracted legal battle, so he agreed to a plea with no jail time. But he is now labeled "a criminal sexual offender."
How can this happen? It starts with the fact that most Internet users do not understand how their computer and the Web interact. For instance, computer security experts say that many are unaware that a visit to a Web site leaves an almost indelible record on a computer's hard drive.
Images from a Web site are stored or "cached" in a directory so that the browser — the part of a computer that drives Web surfing — does not have to reload every element of that page, should you call it up again. And even if a user clears this directory, computer forensics specialists can retrieve records from it.
Often, just clicking on a Web site can initiate a download of unwanted material, particularly if the user has been lured to that site through a pop-up ad or "blot."
Beaulier says the danger of getting unintended material "becomes more pronounced when computer users interact with other online users through peer-to-peer programs, or by downloading documents from newsgroups or chat rooms." The reason is that files on these sources appear only as a link with a name that may or may not reveal its content. But the user has to download the file before he can see what's in it.
Parry Aftab, an Internet privacy and security lawyer, points out that the peer-to-peer sites — with names like LimeWire, MP3 Rocket or Kazaa — that link computers in file-sharing networks, can be particularly fertile ground for unsophisticated users to get into trouble.
"Maybe you're downloading music, movies or software from sites like LimeWire or the rest. And along with it comes sometimes porn or, sometimes, spyware that'll put porn or something else on your computer," says Aftab. "It could be you are downloading pictures or images, thinking that's all you are getting and together with it comes porn or marketing materials."
Then, if some of that material turns out to be contraband, you might not only be guilty of possessing it, but also of distributing it. That's because peer-to-peer sites allow others in the network to see what you've downloaded by putting it into a "shared" file on your computer.
According to Beaulier, this is exactly what happened to another of his clients. A man in his 40s, married for many years, was using LimeWire to download legal pornographic images. "He did not understand the default mechanism on the program that allows any file downloaded to be shared with others on the Internet," explains Beaulier.
"As a result, law enforcement located his computer on the peer-to-peer network, found some illegal images that may or may not have been viewed by the user, and seized his computers under a search warrant." Since he may have shared his files with others, the case is being investigated by federal authorities. Beaulier says his client "lives in restless fear, waiting for charges to be filed."
Attorney Reed Lee, of the First Amendment Lawyers Association, has also seen cases of people accused of possessing child pornography who got it unintentionally while browsing legal porn sites. But he believes the stigma against even legal pornography carries over into child pornography prosecutions.
In a case against one of Lee's clients involved with the porn industry, government lawyers "admitted the (contraband material found on his computer) was quickly erased, that it existed only on a cache file and had never been accessed." Still, the government proceeded.
The FBI dismisses the notion of "accidental acquisition" of pirated materials or child pornography. Spokesman Paul Bresson says, "It's hard to stumble across child porn. Most of it is exchanged through password-protected Web sites." That's just one of the "steps taken by pedophiles to ensure they are not openly sharing these pictures."
Not surprisingly, people in the legitimate adult entertainment industry — who reject any association with child pornography — find "I didn't know it was there" to be a convenient excuse, often used against their business.
Kathee Brewer, of Adult Video News Online Magazine says, "People will do that and then say, 'Oh, those nasty porn purveyors, they did this to me. They sent this to me and I didn't want it and they put it on my computer somehow without my knowledge.' It's very easy to blame somebody else, especially in a realm that's as little understood by the majority of Web surfers as technology."
But computer security experts say there are ways to discern whether illegal material on a user's computer is there accidentally or not. "When it's somebody that is doing it intentionally," explains John Pironti of Getronics, a computer services company, "the way we prove it is ... it's very organized, with different directory structures, different naming conventions and different viewing times where you can show the file was viewed so many times in such a time period."
Still, what about those cases where the material is there but the evidence of intent isn't, where the person may have deleted the contraband or not have known about it to begin with? Lee compares such cases to someone receiving a letter with marijuana in it. "If the recipient flushes it down the toilet," does he deserve prosecution? Or, "what if a person comes over to your house and leaves (illegal drugs) hidden behind your couch?" If it's found later by law enforcement, "are you responsible?"
Aftab has seen an increase in the number of people who wind up with contraband on their computers, but they aren't criminals. "A lot of people are doing stupid things because they are curious. They're doing it even with child porn. 'I wonder what this is?' So, they click on this and they'll do it, not because they are pedophiles or because they want to exploit kids. But they are curious as to what it is."
It is clear that Internet users can get information on their computers that is not intended. Otherwise, anti-virus programs and adware removal programs would not be popular. But there may be more of that material out there than most users suspect and it has a way of sticking around.