Inquisition 21
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Child pornography
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1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11
Child porn is at the heart of our new sexual absolutism. Its laws have criminalized both artistic representation and objective intellectual examination and speculation.
Mitsubishi abandons employee
Jack’s story one year on
Over a year has passed since Jack’s ordeal below began. What have we learned? Confirmed by other stories on this web site, once convicted it is most difficult to obtain a reversal of the conviction and justice. In addition, if you are forced to plea bargain, especially in the US where it is used as a form of severe coercion, it is virtually impossible subsequently to argue innocence. Because he was rendered penniless, Jack was not able to launch a counter attack on Mitsubushi who fired him and reported him to the police.
So very little on a personal level for Jack who was imprisoned, paroled, placed on a sex offender’s course, made unemployable – in short his life ruined. But perhaps if he can hold out, something may come out of it for him.
On the wider front, although at great expense to Jack, great good may have been done by his subsequent actions. His story, first told here, got unprecedented publicity, so much that during the summer of 2004 our server shut us down when traffic to the site exceeded bandwidth. Do a search on any of these - browser hijack, Trojan horse, inquisition21, and, over and over, Jack’s story and the dangers of accidental acquisition and malicious intrusion planting criminal child porn on one’s PC come up. Expert opinion since Jack’s case informs us that accidental acquisition and malicious intrusion are now reasonable defences as long as no credit cards were used, and there was no such use in Jack’s case.
Early on before the huge publicity, our editor appealed to Mitsubishi to come to the assistance of the employee they had abandoned. They ignored the appeal. Now we Jack’s story in Japanese, in newspapers and online discussions.
Jack, who was already a computer engineer with Mitsubishi, has become an expert on computer security, indeed a leading world expert. Will some company in the US have the courage to employ him? We have his real name and contact details. Please email us through Contact in the menu on left.
Jack’s story sets off huge debate
Our 'Mitsubishi abandons employee story' below has set off a huge debate about defence against charges of child pornography. We have lost track off the number of online and offline journals and newspapers that have either used it directly or done their own versions. At one stage our server shut us down when our traffic exceeded bandwidth, which we promptly doubled. It was carried by Wired, the Register, Security Focus, TechNews.com, the Washington Times, the Washington Post (their own version), CNN, Reuters and many others and discussed on numerous lists numerous.
The clear opinion is that whether or not Jack was squeaky clean, his browser could have been, and probably was, hijacked, his employer and others badly contaminated the evidence against him, his lawyer gave him bad service, and he has still not received any justice despite his life being destroyed.
Rob Pegoraro, of The Washington Post in his 'Browser Hijacking' follow up story said that ‘the ongoing Internet-security freak-out for anybody using Windows keeps getting worse’ and that ‘Browser hijacking is as bad as it gets’.
Reuters homed in on a most relevant theme: “Prosecutors looking to throw the book at accused computer hackers have come across a legal defence expected to become even more widespread in an era of hijacked PCs and laptops that threatens to blur the lines of personal responsibility: the computer did it.”
Mark Rasch, a former federal computer crime prosecutor, was one of the experts that Jack contacted to get help. Separately, Rasch had told the London Times, "The scary thing is that the defence might be right," - that hijacked computers could be turned to an evil purpose without an owner's knowledge or consent. "The nightmare scenario," he added, "is somebody might go to jail for something he didn't do because he was set up." Jack (not his real name), did go to jail.
Dave Morrell, who worked with the FBI, saw the defence opening the door to hackers. "It sets a precedent now in the judicial system where a hacker can just claim somebody took over his computer, the program vanished and he's free and clear."
We strongly believe that this is not the problem of innocent people whose lives are being ruined in police raids, and who are being frightened away from using the Internet by gangsters and censoring demagogues.
Many now believe that the hijack defence will become even more widespread given the increasing use of spyware programs that can be used by hackers to steal passwords.
We are not impressed with Michael Geist, a law professor at the University of Ottawa Law School in Canada. "The emergence of spyware will only enhance these claims. We're going to have to sort through the level of responsibility a person has for operating their own computer."
Guilty till proven innocent?
See more on the latest in Jack's story at very bottom
Brian Rothery
Invaded, hijacked or guilty as charged?
After you have read the Mitsubishi story below, if you agree that it has implications for us all, please re-read this paragraph and let us know if you can help.
A huge question concerning the Internet is being asked but not yet answered – indeed, the question may not yet have been adequately framed. Both the question and an answer are fundamental to the freedom and future of the Internet itself.
Here is an attempt to ask the question. Putting aside those caught using their credit cards to acquire images of child pornography, how can police or so-called ‘expert witnesses’ know whether images found on a hard disk are there because the owner deliberately sought them out or because of either accidental acquisition or hijack? We have talked with some of the people in the US and UK who are reasonably experienced in these matters, but have failed so far to get an intelligible answer – one for example that might stand up in court. What is most worrying is that we are being told that the police in the UK are using ‘forensics experts’ whose skills are woefully inadequate.
We have a small number of sources of information here. First our own view of the situation in the article ‘Dangers from your hard drive’ below. Next the main after this paragraph which started us on the argument – ‘Mitsubishi abandons its employee’ and the articles that Jack’s story gave rise to in Wired and the Register, links at bottom of the story.
We badly need a better review of the situation. We are already offering what we have as ‘expert witness’ in some cases where we believe there have been miscarriages of justice, with the knowledge that much better information exists that we do not yet have access to. No one is being paid for this, so if you can help please send us your review of the situation. See Contact in menu.
Mitsubishi abandons employee
Jack is a US citizen and former refugee from Eastern Europe, whose English is not yet proficient enough for him to deal with US police and lawyers. He is a highly qualified engineer and worked in the US for Mitsubishi. Ironically, he tested hard drives.
Mitsubishi gave him a Toshiba laptop, over which he used to dial up connect to the company server using an 800 number, and Microsoft Outlook for emails. He also had a connection with an SAP database to track problems, and create notifications. His dial up password was simply 'password' and he believes that everybody could use it and pointed this out many times to his supervisor and after a year and a half he was allowed a new password. When not with customers, he worked out of his home office. His work laptop was connected to the company server all the time. He also had a home PC and a home laptop.
Mitsubishi called him into the Chicago head office with his laptop. When invited out of the room, they seized the laptop, and told him he was fired, and to get out quick as they were calling the police. Two weeks later, returning home from job searching, the police were waiting with a
search warrant. They found no child porn, as he says ‘not even Playboy’, in his home, but on the second personal laptop that he had bought secondhand through eBay, they found 12 small pictures in unallocated clusters on its hard drive. He did not recognize them when they were
shown to him by his lawyer, and says that forensic specialists could not provide the name of files or the time of the files creation. It looked to him like they were deleted pics from the Temporary Internet folder, possibly from a previous owner.
Returning to the company laptop, it transpired that a Mitsubishi Human Resources staff member had copied some of the images she found on it onto her own floppy and printed out 20 other images. The laptop was locked into a secure room for four weeks, and then after a row with Jack
over his unemployment benefits, she or others gave the floppy, the print out and the hard drive to the police. The police did not ask where the laptop had been for the four weeks, or who worked with it. They have now claimed to have found 1,000 pictures, but sent the lawyer only 60.
The lawyer sent a list of witnesses to the DA, including Jack’s son who was prepared to say in court that he had experienced some pop up porn windows after trying to close computer games, and Jack’s friend who knew that he had ordered the laptop from eBay, but Jack says, "Nobody gave me a chance to explain."
On December 4 he pleaded guilty to the possession of child porn, saying, "I could not fight against those charges, because in the US there is no case when somebody can escape conviction. I was told by judge and prosecutor that I will get years in prison if I go to trial. After negotiations through my lawyer I got 180 days in an adult correctional facility. I was imprisoned for 20 days
and then released under the Electronic Home Monitoring scheme. I cannot have a computer at home, so I send these emails from the local library. I am allowed only 4 hours a week to go outside, so I do not have a lot of time to tell all my story. Also the court ordered me to register as a predatory sex offender for 10 years."
He received a sentence of 3 years felony probation, so has a felony sex criminal record. "With this kind of record I will not find a job for the rest of my life. I paid my lawyer $15,000, so I do not have any money now. I think I did not have a good defense."
He believes that the company made statements to the unemployment department and he has not been able to get assistance. He also did well in a recent job interview before they changed their minds, which he assumes was because they had checked with Mitsubishi.
Initial editorial opinion
Jack turned down an offer from us to contact and try to stimulate his lawyer on the basis that he had no more faith in him. Regardless of whether or not Jack allowed child porn images to appear on his screen, the case has serious implications for anyone with a PC. He or his son and friends may have experienced a Trojan Horse intrusion when surfing porn sites. The teenagers may have looked at CP out of curiosity. It seems clear that he should have had a defense of unknowing possession.
It is also clear that the evidence was badly contaminated because of the length of time the laptop was held and because others could have had access to it.
There are two issues here. First that of justice for one man, second, the danger to millions of others. How many of us would want to be in a position where our main defense is that our sons and their friends may have knowingly or accidentally looked at what the state decides is child porn? And as a result be trapped into a plea bargain to protect our children? And how safe are our PCs and laptops in a corporate environment?
How many readers are aware that deleting files containing images merely flags that space as available for overwriting as required and that the image remains there in that space until it is required?
Response from our UK expert
On the matter of a US defense of unintentional download, the US mostly has a common law tradition, which means that any substantial criminal offence requires mens rea, that is, the intent of committing that crime.
Who had control of the laptop between his leaving head office and the police arresting him? Not only did many people have access to the laptop, anyone with a grudge against him could place anything on the laptop.
How were the images found by the company sent to the police? How do we KNOW they were found on the laptop? Never mind how we can be sure that he downloaded them.
It certainly does not sound like the ‘sealed system’ that one would need to produce viable forensic evidence.
(On the subject of the performance of his lawyer) It’s easy for his lawyer just to try to negotiate. Computers further muddy the water – the issues become quite difficult to understand, and to fight with or against computer-based evidence requires a lawyer with a lot of determination and the understanding to be able to extract the correct meaning from the evidence and then explain it to the jury.
(The dial up service) What did this dial up service provide? Did it allow him to connect to the Internet from his home? Or was it simply access to the company’s internal network? Was the password set to ‘password’ by default by the IT department whenever they created a dial-in account for any user? Could some other person have just used his login and entered the ‘password’ and have had access to the dial-up account? Could he try the same thing for any other
login? Was his login different from the login of every other user? Was it something like Login: Jack, Password: password. Or was it Login: login, Password: password? It sounds like his company acted as his gateway to the Internet. Did the company operate Caller Line Identification on the dial-in connections? If someone dialed in with his login and password, could the company verify that it was him or not?
If the login and password were widely known (or could be easily guessed) and the company could not prove that he (or someone from his home) was the one initiating the dial-in, they cannot say that they intercepted him downloading porn from the Internet.
As noted above, American law requires mens rea just like English law does – this just means that you have to deliberately perform an act before you can be held responsible for it under criminal law. So yes, if his computer had porn on it as a result of pop-ups containing illegal material, he has a defense.
(On the seizure of the laptop by Mitsubishi) This is important. To be valid as evidence, it would have to be proved that the computer was as he left it. That no one else had access to the machine. That it was unused and unchanged since he last had access to it.
(The unallocated clusters) If they cannot prove that the files were created after he took ownership of the laptop, then the images cannot be linked to him.
(The images sent to the police by Mitsubishi) Where did they get these pictures from?
(The hard drive they removed for the police) Did anything happen to that hard drive after it left his computer? Was it swapped with another laptop? Did someone place it in another computer? All of these things are possible. Are they unlikely? Who knows. The prosecution should have
to prove that none of them DID happen. If the computer was left freely accessible to all, they cannot prove that.
(On the HR person copying pictures onto her floppy) Where did the pictures come from? If the police had to recover the images from the unallocated clusters on his computer, where did the HR person get them from to copy to floppy? Could someone have download them from the
Internet, then saved them on his hard drive, then deleted them? (Further question from Editor– was her action in accessing, copying and printing them not illegal anyway in the sense of the legislation concerning 'making' or accessing images?)
(On the security of the laptop after its seizure by Mitsubishi) How secure? Could his managers get access to the machine? Why did they wait 4 weeks to contact the police? Why did she take the laptop? Did she know there was porn on it? Why did she not inform the police? It would be much better to inform the police THEN and let the police deal with obtaining a search warrant and taking his laptop away from him.
(On establishing that the only pictures found were in the unallocated clusters) Why then were the only pictures found on his hard drive found in the unallocated clusters? This alone is sufficient evidence to cast doubt on the reliability of the evidence against him. If he was in the UK, I would advise him to appeal. It seems that the evidence against him is flimsy to say the least. I would say that his conviction is unsafe.
But what should he do now? He needs to find some organization that is experienced with dealing with miscarriages of justice, and explain the situation to them and let them advise him what to do next.
Other actions now underway
We are seeking expert advice on whether forensic analyses is able to indicate the dates the images were downloaded, and this could also have great implications for secondhand machines? We are also contacting his local Congressman and the Chicago newspapers.
(The name Jack is a pseudonym to protect the employee from media harassment)
Letter to Mitsubishi - unanswered - marcomm@meau.mea.com
Copy to Jack’s supervisor.
Dear Mitsubishi,
I am an Irish writer/journalist and I edit the web site Inquisition 21st century at www.inquisition21.com/. This web site represents 14 international writers who are engaged in fighting what we perceive to be injustices caused by the current sex abuse and child pornography
absolutism. The work of a few of these writers has helped to bring about some high profile reversals in miscarriages of justice.
I am now writing to you about one of your former employees whose case has been brought to my attention. To protect him from media and possible further adverse reactions against him, I will use the pseudonym ‘Jack’ to describe him, but you can establish his real name from his former supervisor, (name deleted), whom I am copying.
I know that for now I have only Jack’s side of the story, but I have circulated it to several of my writer friends and we believe that a miscarriage of justice may have occurred in his case. I am asking you in the first instance if you would consider taking over and paying for his legal defense, in particular for an appeal, as he is your employee and he is now both broke and unemployed. He was not happy with the legal defense that he received, and we would like to put a number of questions and suggestions to a new lawyer.
If you could see your way to reviewing Jack’s situation, and offering him legal support, there would be little else that I would need to do at this time except to pass on the questions and advise that I have from myself and others to the new lawyer.
I am hoping that you will help with this.
My notes on Jack’s case are below.
Sincerely,
Brian Rothery
Further developments in Jack’s case
A second UK expert has begun to help with advice on Jacks case. First, however, the non-developments. Congressman Martin Olav Sabo has so far ignored an appeal for assistance and Mitsubishi continues to ignore us.
Our two UK experts have now helped to establish the following. The arrest warrant used to raid Jack’s house contained a list of nudist web sites, mainly Russian and Eastern European, none of the models from which were engaged in sex acts. There was a separate single image of a sex act in which the girl had small breasts, which was the only basis for assuming that she was under 18. These images on the search were not however used as a basis for the charges and conviction. Before leaving them, however, readers might be interested to know that our UK expert recognized many of the nudist URLs as those being used in arrests and convictions in the UK, so these naturist sites, while not the reason for Jack’s conviction, are being used in the UK for arrest and conviction.
In Jack’s criminal complaint report the police used 60 pictures from unallocated clusters. Twelve of these were recovered from his personal laptop, bought secondhand from Ebay, and forty-eight were recovered from the Mitsubishi laptop. Some of them were tiny. The prosecutors said that there were twelve images from a well-known child porn series, created before computer generated porn was possible. Apparently, sixty images were from 1940s porn magazines, scanned into a computer, none full size. Interestingly, the main proof used that the Mitsubishi laptop was his was his job resume found on the hard drive.
Returning to the URLs in the search warrant, some warnings. Some images, such as those in the Russian naturist site ‘Holy Nature’ are also in books available on Amazon, so what may appear legal in a book may not be deemed legal if accessed over the Internet. The other URLs had ‘lolita’ or ‘preteen’ or ‘angels’ or similar in the titles. Some also had indications that they were Eastern European or Russian. What may be dangerous for viewers is that all of the sites in question had a disclaimer saying that they are legal under Federal Code 18. One of our UK experts expressed the opinion that on the face of it this appeared to be entirely reasonable, given the wholesome nature of the images, but these were both on Jack’s warrant and are being used for prosecution in the UK, where it seems that nudity now equals indecency.
As was suggested earlier in the story, Jack was reluctant for us to contact his lawyer, but the more we see of this evidence the more we wonder at what his lawyer did for him.
Another implication for liberty and justice
As we carried out this unpaid work, Jack’s lawyer was not seeing any of it, as he had no further interest in the case, Jack being unable to pay him any more. We were close to being able to come up with definitive evidence which could have cleared Jack, but we were obliged by UK, US and Irish law not to access the contents of the URLs on the warrant and elsewhere in the charges as they contained material that could be considered by the authorities to be indecent. What does this say about the nature of the inquisition we now live under?
A similar case
Since the above was written, a similar case has come to light. In April 2004, the Minnesota Department of Transportation apologized to an engineer it had fired, re-hired and promoted him, and paid him and his lawyers $800,000, on the basis that they had violated his privacy rights in the course of investigating a complaint that he had pornography on his laptop computer.
We could read Jack as in the Mitsubishi story above for Adeel Lari, 58, in the MnDOT, as the circumstances are so similar. An exemplary employee for 20 years until in 2002 one or more fellow employee computer technicians ‘discovered’ pornography on two laptops he used for work in 2002. He denied any knowledge of the images. In his defense and subsequent attack, Lari charged that his privacy rights under the Minnesota Data Practices Act were violated by leaks to the media, and that he was unjustly defamed.
The April 2004 judgement was revealing, as, after he was cleared of all charges, the MnDOT settled ‘as a consequence of mediation’ and ‘to avoid litigation and to acknowledge certain past misconduct on the part of a Mn/DOT employee’.
This raises the specter discussed in the related article on ‘Loss of trust’ under ‘Latest news’ and elsewhere on this web site, of child porn allegations being used for reasons of malice or profit. MnDOT manager Douglas Differt issued a public apology as part of the settlement, saying, “I apologize for the conduct of our employees during the investigative process affecting you in 2002. Contrary to the accounts that appeared in early news reports and in our internal investigation, we now know that the actions you were accused of and the manner in which you were portrayed were not accurate. The employees' disclosure of nonpublic 'data' occurred before the facts were known, the investigator drew unfounded conclusions, and it was subsequently proven that you did not violate either MnDOT's sexual harassment policy or the MnDOT Code of Ethics."
Unlike Adeel Lari, all Jack’s money has been spent on a lawyer that does not seem to have done much for him, and so we hope to see Mitsubishi following the good example of the MnDOT.
Wired takes up Jack’s story
Our story about Jack (Mitsubishi abandons its employee) has been taken up by Wired, under a title of ‘Browser Hijackers Ruining Lives’. Journalist Michelle Delio summarizes thus: “Malicious programs called browser hijackers install a lot of nasty stuff on people's computers -- primarily hard-core, borderline-illegal pornography. Some victims are facing firings, divorces and even criminal prosecution.”
She quotes one security expert as saying "Some of the images were found in unallocated file space, and would have to have been placed there deliberately since cached images from browsing sessions wouldn't have been stored in unallocated space." But our original UK expert disagrees – “Cached images that had been deleted, either by the cache being cleared automatically or manually could definitely have been found in unallocated space. There is nothing magical about the cache - it is just a special folder with a size limit on it.”
The Register followed with the story.
Related stories and developments
A formal complaint has been made about Jack's lawyer to the Office of Lawyers Professional Responsibility in the US and we will follow up on that as reaction if any emerges. This is such a common problem that we hope to come up with a methodology for dealing with it.
In a separate development, we have a man ruined by malicious neighbours and the police who seized his PC while the whole town looked on. They found nothing and he is now prepared to fight back, so that story should be very revealing.
We are also getting information on what goes on in some of the US sex offenders programs, and will publish it when ready.
Jack’s story is now one of basic liberty
Brian Rothery
Our story about Jack and Mitsubishi appears to have become the most widely read account of possible browser hijack that results in images of child pornography being found on a hard drive, but it is now becoming a story about the difficulty in obtaining justice in the US. It was taken up by Wired, the Register, Security Focus and numerous discussion lists, and then recently spilled over into the mainstream US press.
Meanwhile some of the most knowledgeable people in the business have been reading it and giving us their opinions. The overwhelming view is that, whether or not Jack was fully squeaky-clean, his browser could have been hijacked, and the evidence sent to the police by Mitsubishi, who sacked and abandoned him, was seriously contaminated.
At this stage, the main issue in Jack’s story appears to be one of obtaining the basic liberty to be able to point out miscarriages of justice.
Let me try to spell it out. Jack was an immigrant with poor English. He was bullied into plea bargaining with a guilty plea, the threats used being that a far harsher sentence would result if he tried to plead innocence through accidental or unknowing possession of child porn. In addition, if he did not take the guilty rap he could implicate his teenaged son who had also used the laptop. His lawyer showed no interest in, or awareness of, any of the many issues, including the possibility of browser hijack and evidence contamination that we have uncovered with the help of other helpful people. That lawyer’s attitude appears to have been that “We all know what child porn is, so now let’s get on with the plea bargaining.”
Amongst the advice that we have since received, the most devastating has been that once you plead guilty in the US, you cannot withdraw it. What makes this all the worse is that we have had an offer of free expert advice from a UK company prepared to examine the hard drive, but we cannot get a US lawyer to activate it. Jack would need a free lawyer, as he spent all of his remaining money on the one who has already ‘acted for him’.
A complaint about this lawyer has been sent to the US Office of Lawyers’ Responsibility, and their incredible reply is below. We also contacted his local Congressman Martin Olav Sabo.
Congressman Sabo replies
Within days of this being published, Jack’s mother received a reply from Congressman Martin Olav Sabo. Here it is
Dear (Jack’s mother):
Thank you for contacting me to share the frustration you and your son, (Jack’s real name), are facing with his lawyer. I appreciate hearing from you
If you have not done so already, you may wish to contact the Minnesota Lawyers Professional Responsibility Board to file a complaint against (Jack’s) lawyer. The board, which administers and conducts oversight of Minnesota Lawyer Discipline System, may be reached at: (Address).
In addition, the Minnesota Bar Association (MBA) offers a free attorney referral service with participating private attorneys providing an initial consultation for a nominal fee. For more information or to receive a referral, please call the MBA at (address).
Thank you again for contacting me. I hope this information is useful.
Sincerely,
Martin Olav Sabo
Member of Congress
But Jack and his mother had already received a reply from the Office of Lawyers Responsibility on June 4, 2004. Here it is.
In the matter of the Complaint of
(Jack’s mother)
(Her address)
against (the named lawyer)
a Minnesota attorney
After reviewing the documents submitted by the complainant, the Director has determined not to investigate this complaint pursuant to Rule 8(d)(1), Rules on Lawyers Professional Responsibility. The reasons for the Director’s decision not to investigate this complaint are as follows:
Complaint Summary
Complainant raises several concerns and specific issues with respect to respondent's representation of complainant's son in his criminal matter. Complainant asserts that several individuals have reviewed respondent's representation and found it to be ineffective.
Reasons for Decision Not to Investigate
This complaint basically alleges that the attorney did not adequately represent a criminal defendant. Ineffective assistance of counsel claims are best raised in a post-conviction proceeding, as provided under Minn. Stat. $$590.01-.06, or by appeal, or through the federal courts, or through other post conviction remedies. Courts presume that attorneys' conduct falls within "the wide range of reasonable professional assistance." Strickland v. Washington, 104S.Ct. 2052(1984). The Minnesota Supreme Court, to which this office is accountable, in 1986 adopted the recommendation of its Advisory Committee that this office should not normally be involved in post-conviction claims of ineffective assistance of counsel unless a court first finds impropriety.
The director's office is limited to investigating complaints of unprofessional conduct and prosecuting disciplinary actions against attorneys. It cannot represent complainants in any legal matter or give legal advice. Complainant must retain an attorney if either legal advice or representation is desired.
Notice of Complainant's right to appeal
If the complainant is not satisfied with the director's determination not to investigate this complaint, an appeal may be made by notifying the director in a letter postmarked no later than 14 days after the date of this notice. The letter of appeal should state the reason(s) why the complainant believes the matter should be investigated. A Lawyers Professional responsibility Board member will review the appeal.
Editorial comment
Congressman Martin Olav Sabo appears to agree that Jack’s lawyer needs to be complained about and supplies a potentially useful piece of information that we can do this through the Minnesota Lawyers Professional Responsibility Board, which we are now asking Jack to do.
Don’t know whether to laugh or cry at the response from the Office of Lawyers Responsibility. They cannot get involved in post-conviction claims of ineffective assistance of counsel unless a court first finds impropriety. “The director's office is limited to investigating complaints of unprofessional conduct and prosecuting disciplinary actions against attorneys. It cannot represent complainants in any legal matter or give legal advice.”
But this is a beauty: “Complainant must retain an attorney if either legal advice or representation is desired.” We thought we were complaining about an attorney.
The time may have come when we will ask the lawyer if we can name him – so much publicity is now surrounding his performance, or lack of one.
Another independent expert opinion
This is a US woman who manages a web site dedicated to fighting spyware and hijacking.
“One of my most interesting research discoveries was SpyWiper, which revealed the technology behind browser hijacking. It's so advanced that it operates with hidden code and merely visiting a site is all it takes to download the code, unknowingly. It's even time delayed so you can't figure out where it came from when you're finally hijacked by it. If technology this advanced exists, then people like Jack could be easily accused of anything.
“I was a victim of this very same code. I sat dumbfounded as my browser was taken over by some unseen force, my screen was flooded with popups, including pornographic ones, my computer going nuts with the CD Rom drive door opening and closing on its own. Afterwards, trying to clean up the mess, I discovered programs I had never downloaded (adware) and strange files with pornographic icons. I have never visited a porn site.
“Also, a couple years ago, my relatively low-spam email address suddenly started receiving some pretty awful child porn invitation emails. I was shocked beyond belief and had no idea how my email address became their target. I tracked down the sender email address and it came from a world-wide highly respectable IT company. I contacted them by phone and forward them the emails. They were being spoofed through one of their employee's company email addresses. The company was horrified that their business email addresses were being used as relays to promote child porn.
“In a world of high-tech savvy, anything is possible. I don't think any court of law has any right to condemn anyone based on what they see as evidence unless it's been backed up by true computer professionals who can prove beyond a shadow of a doubt that the party is really guilty. No one can assume that I visit porn sites even if the files exist on my computer after a hijack. No one can assume that I have anything to do with child porn even if there are emails promoting it coming to my email account. No one can assume a reputable world-wide business is associated with child porn even if their company email addresses are being used to promote it with invitations.
“People come to us every day in email or in the forum, with sad tales of jobs endangered, marriages endangered, angry accusations at family members, begging for help and understanding. Wives don't understand when the computer is suddenly full of porn files. Neither do bosses. But we do and we know it's not always the user's fault. I don't see how in the world Jack could have been convicted based on deleted file images on the hard drive. My own hard drive has born records of deleted porn, deleted child porn emails, yet I'm innocent. I would think the only true conviction could come from actual credit card records of purchases. The courts are doing far more harm than good with cases like Jack's. It's a message to the true perpetrators that someone else will take the fall for their crimes.
“The government doesn't need to control the Internet. They're not qualified. They need to stay in the real world, with real documentation. If I purchase it online, then I'm probably guilty. If it's on my computer, it could be due to anything. Maybe I looked at it, maybe it was spyware that downloaded it, maybe a hijack placed it there. But I should be given the benefit of the doubt if it can't be proved in a concrete manner. I am innocent until proven guilty and in the high-tech internet world, that's a very grey area.
“I believe that Jack is innocent, not because I know the workings of spyware and drive-by downloads, or even because of his purchasing the computer on eBay only 4 weeks prior. My belief in his innocence comes from my studies of pedophiles. I did long, lengthy research on this when I assisted the FBI in capturing someone involved in this. There is a profile and I know the profile, and Jack doesn't fit it by a long shot.”
Message to Congressman Martin Sabo – June 30 2004
This is an edited version of Jack’s latest message to Congressman Sabo
Hello Martin,
I know that there is discussion of a new law in Congress, the Spyware law about the legality of using Spyware and browser hijackers on the Internet. Would you like to deliver my message to the sponsors of this law?
This is my message:
I would like to send you some links to publications about my criminal case. Would you like to review the materials and give your opinion on what it is possible for me to do now? The consequences of this are that it is hard now for me to live. But my case is getting public attention as an example of a miscarriage of justice. I could not defend myself, because I did not have enough money for a computer expert.
Now I have competent computer experts willing to work on a pro bono basis, who are defeating 75% of the cases they are involved in. This case may become high profile case. (Editor’s note – the possible retrial. His story is already very widely known.) I was forced to confess to the possession of child porn. My browser was hijacked while I was browsing the web. I was redirected to illegal sites against my will. Some illegal pictures were found on my hard drive, recovering in unallocated clusters, without dates of file creation/download.
I do not know how courts can widely press these charges on people to convict them, while the whole Internet is a mess.
My story and the subject involved can be seen in Wired news.
In The Register.
There is an article in the Washington Times, May 22, 2004 - The Washington Times.
In the The Globe and Mail.
My full story is at Inquisition 21st century.
Surprises from a nudist site
To Jack’s surprise and to ours, it has transpired that many of the images that were on both his criminal complaint and search warrant are available on an existing nudist web site. To protect both readers and ourselves we will not publish the specific URL, but we understand it belongs to a well-known naturist related organization operating under a ‘Body and mind’ web site title and Enature, also at www.enature.net.
Jack contacted them to tell them that some of their images were used to convict him, saying, “Almost all the pictures in the search warrant application were from sites like yours. If police find these kinds of pictures on your computer, you are dead. My case is getting public attention now as an example of a miscarriage of justice. I could not defend myself, because I did not have enough money for a computer expert. Now I have a computer expert willing to work on a pro bono basis. I was forced to confess to the possession of child porn. I got browser hijacked while browsing the web, and I was redirected to illegal sites against my will. Some illegal pictures were found on my hard drive only after being recovered in unallocated clusters, without dates of file creation/download.
“Is your site illegal? What happens if somebody orders one of your videos? A felony conviction?”
And they replied.
“Thank you for your e-mail. We have first class attorneys who are very familiar with this area of the law. Would you consider e-mailing or mailing a copy of the case? If so, we will see if we can help in gaining an appeal.
“Best wishes, Gary.”
After receiving Jack’s response, he wrote:
“Thank you for your reply. In reading the article (from this site), it does seem that you had a strong case. It is very common for people to plead bargain only to learn that the prosecution really had no case.
“I am sending a copy of your e-mail to an affiliate to see what ideas he has. Our attorneys are:
(He names three attorneys with addresses and emails)
“These are high end attorneys and charge $300 - $600 per hour. Without seeing the charges myself, I can't offer my assistance. However, you will find both of the above attorneys to be highly competent (though they are very busy and may not be able to take the case).
“All images at www.enature.net are legal everywhere in the United States. They have been reviewed by the above attorneys and several others, including prosecuting attorneys. Enature does not use pop ads, banners, adware, etc on any of its sites. We would certainly never have any link to anything pornographic.
“Very Best Wishes, Gary.”
Jack responded:
“Gary,
“Can you connect me with your attorney, so I can explain my case details? Attorney can decide if it is now possible to do something. (This bit deleted as it relates to Mitsubishi Electric).
All the information about my case you can find at (our URL).
“I live in (The town and State). I can send your attorney the case number. I also have the search warrant application. The police put about 20 pictures into the search warrant application. I do not think these were illegal pictures.”
Jack then wrote to one of Enature’s lawyers.
“Hello (Name)
“I received this email from Gary, e-nature. Would you like to review all the information about my criminal case of possession of child pornography? There has been publicity in some publications of very high level media, like Wired news, Globe and Mail, Washington Times, The Register. Also I now have a computer expert from the UK. His reply is attached below. Please tell me what you think. My opinion is we have a huge black hole in the law now. Nobody can fight charges of child porn possession. We are all in danger in this modern situation of demonization of sex crimes. Nobody is immune. Computer images possession has become the favourite cases for law enforcement because of easy convictions. Normal law procedures do not work in court, only hysteria and emotions. Once charged, you are guilty, especially if there is not enough money for the experts. The government must stop this. This practice is too far from the protection of children. I hope to hear from you. In case you do not have time, please send this information to somebody.”
We are now seeking permission to publish the reply from the attorney.
Editorial note: this is an extraordinary development. The owners of the web site from which most of the images that resulted in Jack’s sacking, imprisonment and ruin came from a web site whose owners say that they are legal and that they can be legally accessed in the US. They appear also to be offering help from their lawyers.
Help us with Jack’s Law
(Some repeats here as this plea is being published separately - please copy to friends with URL - http://www.inquisition21.com/article~view~7~page_num~3.html)
We need a Jack’s Law, and we need it badly now. Jack is down but not out, ruined at least for now after serving time for child porn possession, probably acquired by browser hijack. An immigrant to the US with less than perfect English, he was bullied through plea bargaining to accept a guilty plea. Abandoned by his employer Mitsubishi, who contributed to the almost certain contamination of the evidence used against him, and who informed the police on him, and neglected by what appears to have been a less than enthusiastic defence lawyer, he has fought back and is now helping others in a similar plight. Jack’s story may have broken all records for news of browser hijack and inadvertent possession resulting in illegal images or traces of them being on hard drives. We have lost track of the list of publications that recently ran the story.
The overwhelming message from the responses to Jack’s story was that whether or not his acquisition of the images found in unallocated clusters of his hard drive were there through accident or his own actions, no case could be made for certain against him or anyone else in the same situation, especially if they had used Windows IE. We are calling it Jack’s Law for now, but this is what it should achieve at the very least:
1. Unless there is credit card or other clear evidence that a person has accessed or distributed illegal images, the laws should state that no charges should be brought against, or PC and files seized, on the basis alone of images or their traces being found on a hard drive, so real is the possibility of hijack or inadvertent acquisition. We would prefer the law to state that possession and viewing alone not be a crime, such has been the extortion made possible by this legislation, but let us achieve the first step for now.
2. The child pornography laws should contain exceptions for bona fide research, including the investigation of real crimes against children, artistic and literary expression, and, above all, investigations of the concept of child pornography itself, of the legislation and its administration, and of the police and the various censors who manage it (including the current practice of stings and related extortion rackets). In Ireland and in a few other countries there is a defence of bona fide research, but it has never been tested and it is merely a ‘defence’ where one is still guilty until proven innocent and liable to ruin from the publicity generated by police leaks to the media.
We need experts in lobbying. We need a petition system, and above all we need to rally a huge number of people behind this cause. At stake is not just the issue of innocent people being ruined by false accusations of child porn possession, or all of us being afraid of what our computers may contain, but the exposure of the demagogues who are seeking power, and the future of both the Internet and our human imagination.
Please begin by copying this widely, especially to newspapers, magazines and online media. If you think you can help with a more organized campaign, please use the Contact in the menu on the left.
Jack regrets his plea bargain
This is how Jack describes his reluctant agreement to plea bargain.
"I think the problem with my confession of guilty was that the prosecutors had pushed case to trial without any thoughts about the possibility that computer experts might be used to establish whether I might have suffered hijack or other intrusion. When we did try to raise that possibility the judge answered NO to all requests. The prosecutor promised me a couple of years in prison, and then my lawyer came to me and said “You must decide in the next 5 minutes, because after that they call the jurors for trial'. It is 100% that you will get a conviction, be in no doubt about that.
"That meant that I would go to prison for couple years. This was the opinion of my experienced lawyer. If I went to prison with a child sex conviction, there the possibilities of being raped, bitten, or even killed. These were real, very real. So the pressure on me was like criminals pressing on their victims, a kind of extortion or blackmail. Do this or else! I am a political refugee from East Germany, and in my understanding, there are no differences between prosecution, court, police and criminals.
"So I need to find a good lawyer who wants to make a noise. If you know this kind lawyer, please let me know. People are silent in this country because being charged with any crime is very easy, but defence costs huge money. Most people do not have $15,000 for lawyer, which is all I paid, but this is not enough. I think $200,000 is not enough to defend yourself. So the police and prosecution enjoy abuse of power, like masters over slaves.
"Some people do not understand why I agreed to plea bargaining. They asking questions like why admit something you are not guilty of. Josef Stalin’s victims admitted to any crime just in exchange for an easy death. Also you probably read Orwell '1984'.
"I came here to the US as political refugee from the former East Germany, and, now like many other people in the US, I feel shame that all of this can happen in the US – supposed to be the greatest democracy in the world."
See one US attorney's views on Plea bargaining.
Jack's prosecutor is arrested
Hennepin County prosecutor and attorney for the city of Minneapolis, Julius Nolen and his wife, were arrested at their Minneapolis home Friday night on suspicion of using narcotics. Julius Nolen worked for Hennepin County for eighteen years on child abuse cases. Wife, Laura Nolen, has been employed as an assistant city attorney for more than ten years. She works as a community attorney in the Second Police Precinct and serves as a liaison between the community and city attorney's office. Three other people were also arrested at their South Minneapolis house.
Nolen began the flawed case that let to Jack’s conviction and near ruin. In a grand irony, the Nolens were also held on suspicion of child endangerment, which is common when children are in a home where a drug arrest has been made. These are the people empowered by the state and our new puritans to judge the morality of all of us.
Jack's story, which we first published here, may have set new records in publicizing the dangers of browser hijack or accidental acquisition of child porn images. Badly advised and penniless, he also naively plea bargained and was briefly imprisoned and branded a sex offender.
Help for the falsely accused – only $100- $150,000
On 11 May 2005, Jack, who is still struggling to clear his name and prove that child porn images could have been planted on his laptop when he worked for Mitsubishi, wrote to Dean Tong, Forensic Consultant in Florida, complaining that he would have needed $200,000 to defend himself.
He received the following reassuring message from defence champion Dean Tong:
“I consult on these cases for a living (here he gives his URL) and I could have handled your case for no more than $100K - $150K everything included. Now, it would cost you at least $40K - $50K to try and retain a false confessions expert, excellent post-conviction lawyer to file Petition for Writ of Habeas Corpus, et al, myself, et al.
Dean Tong, Forensic Consultant
10246 Hunters Haven Blvd.
Riverview, FL 33569
813-671-4190, Ph/Fax
813-417-5362, Cell
813-278-8356, National Pager
1-800-854-0735, Books/Interviews
DeanTong@aol.com, E-Mail
abuse-excuse.com, Website
Let us try to translate this. Dean Tong, who is not an attorney and says this in a disclaimer at the bottom of his email, is offering forensic consultancy. He could have handled Jack’s case ‘for no more than’ $100K - $150K, but it would be part of a case in which (somewhat vaguely) Jack would have to ‘try and retain’ a false confessions expert (what is that?) and an ‘excellent post-conviction lawyer’ (whom Jack has singularly failed to find anywhere), who would then retain Dean Tong.
If Jack had a headache after trying to read this, who could blame him? On a more positive note, Jack, who has received no personal justice has probably now done more for other victims who innocently acquired illegal images than any other person in the world through his continuing campaigning.
The lights are going out in the US
Jack’s story could serve as the US model of injustice where the state uses indiscriminate powers to crush an individual and deny his or her rights. Also over the two years or so that we have been following his story his experiences mirror our own growing pessimism and apprehension. Not only was his the first big US child porn (found on his company laptop by his employer Mitsubishi, who just called the cops), but it brought the greatest traffic to this web site and set off a dialogue in all the major online journals and in some mainstream media.
He has continued to fight and spread the word about the dangers of accidental acquisition of images and browser hijack, while still on the sex offender’s register, which prevents his getting any job and thus continues to criminalize him.
Imagine his frustration when recently he read that the very judge that had convicted him had suddenly experienced an epiphany which revealed that some child porn accusations may be unjust, for some of the very reasons that Jack was claiming, but was refused permission to speak about, and which his former lawyer did not want to be bothered with.
In September 2005, Hennepin county Judge Stephen Swanson dismissed a child porn case in response to representations from defence lawyer Jeff Dean on the basis that it was unconstitutional. He also agreed with Dean’s arguments that his defendant can not have fair trail, because he needs to prove his innocence. Guilty until proven innocence should be against the US constitution. Dean also argued in court that because the law requires judges to consider whether the evidence supports the allegation that the subject of the pornography is a minor, defendants are deprived of their right to a jury trial.
Beside a Star Tribune news story on September 21, 2005, reporting the success, attorney Jeff Dean placed an advert in large, bold type, announcing that a child pornography law had been found unconstitutional. "Do not let your clients plead guilty," read the advert.
Jack suddenly saw hope, for now it appeared that he could file for post conviction relief, as he appeared to have been made a felony convict under a unconstitutional law.
Equally exciting was that Jeff Dean appeared to be that rarest of defence lawyers – interested in his clients and in the law, an above all prepared to go where others dared not – to challenge the justice of certain child porn convictions.
Then as if through divine intervention Jack learned that Jeff Dean worked in an office next door to where he was trying to do contract work. He wrote us excitedly and we said go for it and sat back to watch developments.
After they met, Jack wrote us, “He told me I needed to invest money to clear my record, because I cannot find a job and am losing huge money. First he told me about $12,000, then reduced it to $9,000. I went to my mother and relatives and borrowed money. I already paid $6,000, and need to pay $1,000 each month. I had no choice. I am registered sex offender, and there will be new laws against sex offenders. Congress are going to create a federal database to include all 550,000 sex offenders with easy ZIP code search. Corrupt politicians are offering new draconian laws to cover their crimes.
“But how can I now be a sex offender and felony child porn convicted under an unconstitutional law? Even if there is no law, this is unclear (so maybe?) my judge will dismiss the case.”
Later
“Again Jeff Dean did nothing. I called him recently and he told me he did not file a petition. I am losing opportunities every day. Today I need to answer a very good IT company, but they can check my record. I cannot live this way, when police call around addressing me with their sex predator names.”
On September 23 he wrote:
“I do not feel good with this. The total legal costs will be $24,000. I have not worked for 3 years. This is about $120,000 in lost salary. My mother will give me $3,000, but you can understand my feeling. I am leaving my family without any money at all.
Jeff Dean promised to clear me saying that this is a good investment. But I am not sure. I cannot find a job with a criminal record. I have a feeling that he is an honest person. I already paid $5000 and need to pay $1000 each month. I do not know how long my contract with (XXX) will last. I’ve worked for 3 weeks (on latest phase). Right now I am building (XXX) computers, 7 at the time.
“I hope the court of appeal will not overturn this ruling so easy. What kind of law is this child porn law, when courts around the country ruled it unconstitutional. This law is gone in Minnesota now. Now will they rule this law constitutional again? This is not a game.
“I saw that DA Amy Clobuchar is going to run for a US Senate seat next year. Can you image this kind of US Senator from the Democratic party. We need to let all people know what is going on in Hennepin County.
David Berlind (a journalist) responded with the article I sent you. I promised Jeff Dean to promote his business and get some publications about him.
Jack
On October 5, Jack sent his story including references to the outlets that had re-published it to what he called ‘lead Washington Post journalist’, Alan Reynolds.
Hello, Alan.
A child porn law was declared unconstitutional in Hennepin County, Minnesota, USA' See http://www.startribune.com/stories/462/5626180.html
I would like to send you another story of legal abuse and some links to publications about my criminal case. I am a convict with unconstitutional Law. I hired lawyer Jeff Dean. I worked for Mitsubishi Electric Automation in Vernon Hills, IL, USA.
My case is getting public attention now as an example of miscarriage of justice. I could not defend myself, because I did not have enough money for a computer expert. I was forced to confess for possession of child porn. I got browser hijackers while browsing the web. I was redirected to illegal sites against my will. Some illegal pictures were found on my hard drive only after recovering in unallocated clusters, without dates of files creation/download. I do not know how courts can press widely on people to convict them, while the whole Internet is a mess.
This is my story in inquisition21.com. There is all the information about my case written by Irish writer Brian Rothery.
He got this response.
From: Alan Reynolds
Date: Oct 4, 2005 5:48 PM
Subject: RE: unconstitutional law
PLEASE take me off your email list. This is your problem, not mine. I'm sorry, but I just can't help.
AR
Editorial note from Ireland
Alan Reynolds (are you Irish?) Sorry, but this is your problem. Your country is going down the drain because of attitudes like yours. Brian Rothery, Editor.
End
Child pornography
Background reading
Mitsubishi abandons employee
Henry goes to prison
Dangers from your hard drive
Operations Ore and Amethyst are discredited
The Athlone story - State of malice
Irish judge in child porn allegations
Who did it? When child porn appears.
Operation Ore on the verge of collapse
Alabama man’s four year wait in Limbo
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