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Prosecutors would rather drop cases than reveal child porn tool

"When protecting the defendant's right to a fair trial requires the government to disclose its confidential techniques, prosecutors face a choice: Give up the prosecution or give up the secret," an expert in computer crime law and former Justice Department lawyer told the nonprofit newsroom ProPublica recently.

That's because the right to fully confront all the witnesses and evidence against you is protected by the Sixth Amendment to the U.S. Constitution. That right wouldn't mean much if the defense simply had to take the prosecution's word for how a particular technique works.

When the prosecution wants to admit technical evidence, it is required to allow the defense to examine it. The defense needs to know how the technique works so it can see if it worked in this particular case. It needs to know whether mistakes could have been made and what safeguards were in place to prevent errors.

If the prosecution isn't willing to give the defense the technical details, the results are not admissible as evidence. Sometimes, that means the charges have to be dropped.

Ideally, the tools police and prosecutors use to get convictions would be fully transparent. Yet some prosecutors are dropping cases rather than allow the defense to examine the software that supposedly catches people downloading and sharing child pornography.

ProPublica found over a dozen cases dropped, some where the defendants appear innocent

Prosecutors in all 50 states and over 90 countries use software known as the Child Protection System (CPS) and/or similar programs in an effort to find people who download or share child pornography.

What CPS does, supposedly, is flag certain files on peer-to-peer file sharing networks. These files are presumed to be child pornography. When those files are downloaded, the software allegedly collects the IP address of the household that downloaded them. Investigators then get a warrant and seize the computers in that household looking for the flagged files.

One problem is that it may not actually work as described. ProPublica found at least two cases where the flagged files were never found on the defendant's computer.

ProPublica also found more than a dozen cases where prosecutors dropped the charges rather than let the defense know how CPS actually works. They did this even when judges were willing to seal the revelations from public view.

If CPS is really able to identify child pornography users, prosecutors should be willing to share how it works so we can all be sure it is not setting up innocent people for false accusations. We must also protect defendants from having to accept the prosecutor's word that they are guilty.

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