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Reporting Illegal Activity to Law Enforcement

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amathian
(@amathian)
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Topic starter
 

Hello,

I've always been curious When do I need to report a case to LE?

So I am thinking of two scenarios

1. I stumble across some sort of illegal data (lets say CP) – My thought is I stop what I am doing there and report it.

2. There is already suspicion of illegal activity (lets say again CP) – My thought is that I don't even take the case and tell them to go to Law Enforcement.

Are there any specific laws surrounding this? I would love some sort of reference.

 
Posted : 05/11/2016 12:21 am
sgreene2991
(@sgreene2991)
Posts: 77
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Not sure about any law that requires it, but we have a section in our contract that basically states that if we find any contraband of any sort the evidence and devices will be turned over to LE without consulting the client. The exception of course is if we are specifically looking for that contraband as part of our duties, then that falls in our scope.

 
Posted : 05/11/2016 12:40 am
amathian
(@amathian)
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Topic starter
 

Not sure about any law that requires it, but we have a section in our contract that basically states that if we find any contraband of any sort the evidence and devices will be turned over to LE without consulting the client. The exception of course is if we are specifically looking for that contraband as part of our duties, then that falls in our scope.

Yes and that is how we work, too. My question is based on suspicion. If we know that there is SOME chance of illegal activity – can we legally even touch the drive?

 
Posted : 05/11/2016 12:50 am
sgreene2991
(@sgreene2991)
Posts: 77
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For a suspicion? That would be down to preference, not a requirement.

Take for instance a case we did not too long ago. A wife suspected her husband of downloading and viewing child pornography. Police did not want to investigate because they did not have enough proof for a warrant and they don't have the resources (we verified all of this with the investigating officer before we even took possession of the device). We go through it, find the material, and then police want the case. At which point we give everything to them and they run with it. When we get to court, we had all the documentation that showed an internal timeline of events and our conversations with LE. Defense counsel threw a fit over the whole situation, but the judge upheld that if police turned the case down it was fair game. And of course we have the same protocols and tools as LE, so the initial investigation by us was found to be valid and admissible.

A good thing for you to do is maybe talk to your local prosecutor or police department and see what their opinions are on the subject. They might be able to give you a broader view about what is legal and not.

 
Posted : 05/11/2016 1:38 am
jaclaz
(@jaclaz)
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… took possession of the device …

Isn't this in itself is a very thin line?
I mean unless the husband managed to use a device actually owned by the wife … ?

jaclaz

 
Posted : 05/11/2016 1:33 pm
dan0841
(@dan0841)
Posts: 91
Trusted Member
 

Hello,

1. I stumble across some sort of illegal data (lets say CP) – My thought is I stop what I am doing there and report it.

2. There is already suspicion of illegal activity (lets say again CP) – My thought is that I don't even take the case and tell them to go to Law Enforcement.

From a moral perspective if the suspicion is based on 'evidence' then you have a duty to report it to LE IMHO. By 'evidence' I mean things such as

1) Wife has seen sexualised chat with minors on husbands computer……..
2) Witness X has seen what they believe is Child Abuse material on Ys computer.
3) Suspect x has told witness Y that he/she has viewed Child Abuse material in the past
etc etc

If the evidence is digital and you have found it as part of an examination….. then yes…. it definitely should be reported.

If the 'evidence' is that a client is just guessing that there 'may be' and does not have a suspicion based on evidence then that would depend on a case by case basis.

Better safe than sorry. To arrest someone in the UK you only need to have 'reasonable suspicion' with the emphasis on the word 'reasonable' (Ie More than just a hunch)

 
Posted : 05/11/2016 2:48 pm
armresl
(@armresl)
Posts: 1013
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I'll say what I've been saying my whole career.

I do a lot of criminal defense work. There is a line drawn by most police with a US v. Them attitude. The government would like you to report anything you see to them and let them decide on things. Not caring if the mere accusation of something ruins your life or not.

If you KNOW that something is CP through a hash set, by all means report it. If you think something is CP, then you are in a difficult position. If you are doing work on the civil side and report something or tell the client you have to stop working on an item because of possible CP, then you will likely never work for that client again.

In addition, word travels fast, and you will likely not work for anyone in that firms circles.

You are dealing with a term that by its mere utterance sickens people.

Nothing should be swept under a rug, but going willy nilly around saying I think this is CP can create all kinds of problems.

Another reason why I think hash sets are crucial for people in this business on both sides of the law. I've built up my business and reputation over 16 years in CF, no way that I fail to do the right thing in those circumstances. Some LE though just never get the memo that we are all actually on the same side. All I do is validate their findings or find something else on the drive which raises questions which they can probably answer.

 
Posted : 05/11/2016 8:24 pm
sgreene2991
(@sgreene2991)
Posts: 77
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… took possession of the device …

Isn't this in itself is a very thin line?
I mean unless the husband managed to use a device actually owned by the wife … ?

jaclaz

It's considered community property. Whatever you buy when you are married (in this state anyway) it is considered to be owned by both the husband and the wife, unless stated in writing elsewhere. So, her being in possession of it poses no issues on our end, and our local prosecutor had no issue with it either.

It's down to jurisdiction, that's why I told the OP that he needed to get with his local LE and prosecutors to see what he can do within the confines of legality. What flys here, won't necessarily fly in other places.

 
Posted : 08/11/2016 1:13 am
jhup
 jhup
(@jhup)
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[…]Not caring if the mere accusation of something ruins your life or not.

Agreed.

If you KNOW that something is CP through a hash set, by all means report it. If you think something is CP, then you are in a difficult position. If you are doing work on the civil side and report something or tell the client you have to stop working on an item because of possible CP, then you will likely never work for that client again.

In addition, word travels fast, and you will likely not work for anyone in that firms circles.

You are dealing with a term that by its mere utterance sickens people.

Nothing should be swept under a rug, but going willy nilly around saying I think this is CP can create all kinds of problems.

Another reason why I think hash sets are crucial for people in this business on both sides of the law. I've built up my business and reputation over 16 years in CF, no way that I fail to do the right thing in those circumstances. Some LE though just never get the memo that we are all actually on the same side. All I do is validate their findings or find something else on the drive which raises questions which they can probably answer.

There is a Catch-22 in this.

How is the small mom & pop shop going to check to identify that is CP?
How will they protect the victim, not duplicating the CP?
How will they protect themselves from accusation of not reporting CP?

Let's presume they get the hash of the image. Who do they send it to, specially in civil case?
What law enforcement will not demand immediate hand-over? CEORF, CEHS, LEO, NRDFI? All require leo/court credentials.

 
Posted : 08/11/2016 1:31 am
jaclaz
(@jaclaz)
Posts: 5133
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It's considered community property. Whatever you buy when you are married (in this state anyway) it is considered to be owned by both the husband and the wife, unless stated in writing elsewhere. So, her being in possession of it poses no issues on our end, and our local prosecutor had no issue with it either.

It's down to jurisdiction, that's why I told the OP that he needed to get with his local LE and prosecutors to see what he can do within the confines of legality. What flys here, won't necessarily fly in other places.

Yep ) , surely it depends on local Law, that is most probably also different in each of the nine "community property states", but even in them there are AFAIK exceptions (like something received as a gift or inherited)
http//www.nolo.com/legal-encyclopedia/separate-community-property-during-marriage-29921.html
but I was thinking also about the possible risk of some form of (indirect) computer trespassing, *like*
http//www.outsidethebeltway.com/appeals-court-rules-husband-can-be-charged-criminally-for-reading-wifes-email/
hence I called it a "thin line".

jaclaz

 
Posted : 08/11/2016 1:40 am
tracedf
(@tracedf)
Posts: 169
Estimable Member
 

In the U.S., "knowing" possession of child pornography is a crime and distribution is an additional crime (see 18 U.S.C. 2252). There is an affirmative defense available if you come into possession of the material unintentionally and then turn the material over to law enforcement. IANAL, but what this says to me is that if I encounter child pornography, I should contact law enforcement to turn it over. Period. Giving the computer/media back to the owner/client would be distribution of child pornography. Keeping it would be knowing possession.

I don't know where the line is if you see potential child pornography but can't confirm it (e.g. the person in the photos might or might not be 18 and you don't know the source of the material) but I don't think there's any gray area if the material is confirmed by a hash set, the person is pre-pubescent, or there is some other indication that the person in the material is clearly a minor.

Don't forget, there may be state laws as well. Having an existing relationship with local LE and an opinion from your own attorney would be really helpful. It might also be useful to include a clause in your contracts to put people on notice that any discovered child pornography, in any case, will be turned over to law enforcement.

 
Posted : 08/11/2016 6:46 am
armresl
(@armresl)
Posts: 1013
Noble Member
 

Most people on here will likely never work for themselves, and even fewer will do defense work.

That being said, there is no gray area. IF it is known CP, you turn it over, no questions asked. If you are unsure I cannot tell you the degree of liability that you open yourself to by turning over items you are unsure about. Let me put it another way. You better be paid up on your E+O insurance (if it even covers that) because you are going to lose everything if you turn something over, it's not CP and you are sued.

We are all on the same side. No one wants that junk out there. I wish more police/prosecutor's were of the mindset that we are all in this together.

In the U.S., "knowing" possession of child pornography is a crime and distribution is an additional crime (see 18 U.S.C. 2252). There is an affirmative defense available if you come into possession of the material unintentionally and then turn the material over to law enforcement. IANAL, but what this says to me is that if I encounter child pornography, I should contact law enforcement to turn it over. Period. Giving the computer/media back to the owner/client would be distribution of child pornography. Keeping it would be knowing possession.

I don't know where the line is if you see potential child pornography but can't confirm it (e.g. the person in the photos might or might not be 18 and you don't know the source of the material) but I don't think there's any gray area if the material is confirmed by a hash set, the person is pre-pubescent, or there is some other indication that the person in the material is clearly a minor.

Don't forget, there may be state laws as well. Having an existing relationship with local LE and an opinion from your own attorney would be really helpful. It might also be useful to include a clause in your contracts to put people on notice that any discovered child pornography, in any case, will be turned over to law enforcement.

 
Posted : 08/11/2016 6:58 am
jaclaz
(@jaclaz)
Posts: 5133
Illustrious Member
 

… if the material is confirmed by a hash set …

And then the point goes back to hashsets which are NOT publicly available
http//www.forensicfocus.com/Forums/viewtopic/t=14573/

So if someone non-LE is found with these hashsets, even if possession of them is not in itself illegal, he/she could be asked to explain how exactly they were acquired …

Being picky - as I am BTW - in the case summarized by sgreene2991 I can see a further possible issue, most probably it is just me being overcautious, but I think there is a big difference (for a non-LE) between "happening to find" some CP images during an investigation aimed at *something else* and actually investigating looking for CP images, no matter if the local investigator says it is OK.
I mean, even having something (in writing) from the local Prosecutor office would be - possibly - not completely "safe". ?

jaclaz

 
Posted : 08/11/2016 3:05 pm
hcso1510
(@hcso1510)
Posts: 303
Reputable Member
 

Just to add a little something based on what armresl mentioned. What if you have discovered photos that could easily be considered "Exhibitionist", or CP Anime?

Just my two cents, but personally I wouldn't care if your state had a community property law on the books or not. The word "suspicion", or something being "suspicious" is a pretty wide open. If a wife, girlfriend, or housekeeper actually saw something and could articulate what they saw I would seize the device immediately. You would then have to get a warrant to examine the device.

 
Posted : 08/11/2016 7:31 pm
armresl
(@armresl)
Posts: 1013
Noble Member
 

How would you deal with a potential bitter ex making things up, custody battles, a lying brother or sister.

Just to add a little something based on what armresl mentioned. What if you have discovered photos that could easily be considered "Exhibitionist", or CP Anime?

Just my two cents, but personally I wouldn't care if your state had a community property law on the books or not. The word "suspicion", or something being "suspicious" is a pretty wide open. If a wife, girlfriend, or housekeeper actually saw something and could articulate what they saw I would seize the device immediately. You would then have to get a warrant to examine the device.

 
Posted : 09/11/2016 5:32 am
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