Computer Search and Seizure Issues in Internet Crimes against Children Cases
Kreston, Susan S., Rutgers Computer & Technology Law Journal
Child sexual exploitation encompasses a broad spectrum of types of child abuse. For purposes of this article, the type of child sexual exploitation that will be primarily dealt with is computer-facilitated child pornography. However, other types of child sexual exploitation cases, such as prostituting children, on-line luring and abduction, and trafficking, will also certainly generate computer evidence. (1)
Child pornography is the permanent recording of the sexual abuse and exploitation of a minor. The best approach to combating this crime is a multi-disciplinary one, in which the investigator, prosecutor, and all other allied criminal justice professionals involved work together to best ensure that sexually exploited children are assisted by the criminal justice system. Working together as a team also ensures the best chance for bringing to justice the perpetrators of this crime. One of the most important areas of multi-disciplinary collaboration is in the drafting and execution of search warrants. This article will initially focus on what components should be found in a search warrant, then address the exceptions to the search warrant requirement, specifically concentrating on the topics of plain view, consent, private searches, exigent circumstances and parole and probation considerations, and conclude with an overview of federal privacy statutes that may impact on search warrant issuance and execution.
I. COMPUTER SEARCH AND SEIZURE ISSUES (2)
With the advent of computer technology, the production and storage of child pornography has changed radically. In the past, production and storage were expensive, technically difficult and often left a readily discernible trail for law enforcement to follow. With current computer technology, the creation of child pornography has been reduced to an easy-to-accomplish exercise, needing only common video cameras, video capture boards, digital cameras, or scanners and software tools to inexpensively and easily record and edit the product. The computer's capacity to store images in digital form makes it an ideal repository for child pornography. A single CD-R can store hundreds to thousands of images and thousands of pages of text. Hard drives can store hundreds of thousands of images at very high resolution. Thumb drives, Smart Cards, DVDs, CD-RWs, zip disks, and jazz disks, which can be easily hidden due to their small size and shipped anywhere in the world, can also store thousands of images.
The communication between pedophiles engaging in the business of child pornography has also been revolutionized by the nearly universal access to computers now enjoyed in the United States. (3) This communication allows contact to be made around the world quickly, privately, and anonymously. These advantages to computer interaction are well known and serve as a foundation of trade among pedophiles.
The ability to produce child pornography easily, reproduce it inexpensively, and market it anonymously (through electronic communications) has drastically changed the method of distribution. Child pornography can now be electronically mailed to anyone with access to a computer and a modem. With the proliferation of commercial services that provide electronic mail, anonymous re-mailing, chat rooms, and off-site storage facilities, computers have become a favored medium among child pornographers. (4) In view of the advancing technological aspects available to those who traffic in child pornography, traditional tools used in criminal investigations, such as the search warrant, must be adapted to respond to the new and emerging facets of this crime and to the unique issues that arise within a child abuse/sexual exploitation case.
II. SEARCH WARRANTS
The Constitution requires law enforcement to establish "probable cause, supported by Oath or affirmation," and must "particularly describ[e] the place to be searched, and the persons or things to be seized. …