Hi Jason, I've read your postings on this topic for the last few months on the lists and I am really trying to understand where you are coming from. I have no direct knowledge of any of these cases you cite. I am also not in law enforcement, just a security consultant. These views are my own, not of my employer. Please allow me to ask a few questions (see inline) that I think are reasonable to further this discussion: Site Key (U.S.) -- tens of thousands of suspects' credit card numbers were found in the databases used by the alleged e-commerce child porn ring, and law enforcement's careless misunderstanding of the Internet and infosec (circa 1999) resulted in every single one of the suspects being investigated and thousands have so far been prosecuted and convicted. ML: Wouldn't it be prudent, really standard practice for law enforcement to investigate each lead out of a case like that? Since their number was in the database, there was at least some probability that it might be a legitimate case, and therefore enough to get a warrant to check it out. It would seem to be a failure of duty *not* to do this. Would you want your law enforcment to not follow up on every suspect on the murder of a close family member? Was your credit card number in the Operation Ore / Operation Site Key database? How would you know unless and until you've been arrested? ML: So are you saying that you believe a lot of innocent people have their number in the database? I certainly agree that it is possible (if not likely) that some credit card numbers might have come from dupes who had no idea it was being used. There could be some where relatives were used, maybe even credit card or identity theft. Still, I can't imagine there are a lot of them, or if there were a lot of stolen numbers, wouldn't that eventually be discovered? Perhaps evidence of some other fraud with the cards? Or a pattern that many of the numbers in the database were stolen? Over the last few years I have seen numerous cases in which the computer forensic evidence proves that a third party intruder was in control of the suspect's computer. More often there is simply no way to know for sure what might have happened between 1996 and 1999 with respect to the computer seized by law enforcement at the time of arrest years later. ML: I have as well - I agree that this happens a lot in hacking cases, and certainly is possible in a CP case. To this point, though, how likely is it that a large number of people accused of child porn have all been targets of skilled hackers? Or if not skilled hackers, than previously hacked machines where access was sold on the black market? I have not heard of any such thing being prevalent, but I am not all-knowing. So, while what you say is certainly possible - heck I could even try to frame someone by hacking them and planting Child Porn, it wouldn't be hard - I am not convinced that it is prevalent. For this to be true, then either there would either have to be a rash of intelligent hacker paedophiles, or a huge black-market industry that I haven't heard of (which is possible). ML: To your second point, you ask what might have happened to the computers between 1996 and 1999. I ask you - shouldn't this be well documented through chain of custody documents maintained by the law enforcement agencies doing the analysis? If the documentation was shoddy, or if in fact the machines were turned on, exposed to the internet, etc - wouldn't that be exactly what the defendant's lawyers could seize on to to get the cased dismissed or won? Couldn't you get a copy of the HD and prove with your own forensic analysis that they booted it and connected it to the Internet? ML: It seems as if this, and other, issues of yours are solved simply by fighting it out in the legal system. Where is the DEFENSE attorney in all this? Are people all getting incompetant defense attornies? Are they somehow being slighted within the system, such that they couldn't point out in court that the prosecution couldn't account for the evidence at all times? Isn't that a reasonable doubt? And therefore enough to get acquitted in a criminal case? If security flaws, porn spyware, or mistakes by an unskilled end user resulted, over the years, in some child pornography being downloaded to a suspect's hard drive, even in 'thumbnail' graphic formats and recovered only using forensic data recovery tools that carve files out of unallocated clusters, then the suspect is routinely charged, since the presence of child pornography on a hard drive owned by a person who is accused of purchasing child pornography is the best evidence law enforcement has to prove guilt of these so-called 'electronic crimes against children' -- crimes that are proved by the mere existence of data, where it matters not that a suspect did not and could not have known that the data existed on a hard drive that was in their possession. I ask you this question: why doesn't law enforcement bother to conduct an analysis of the computer evidence looking for indications of third-party intrusion and malware? Some people have indicated to me that sometimes law enforcement actually does do post-intrusion forensics; though this decision is entirely up to the prosecutor or forensic lab director, and if they don't put in the time to do this they still get their conviction so there is presently no incentive to spend hundreds of hours analyzing large hard drives searching for evidence of intrusion just in case one might have occurred. ML: I agree, law enforcement should conduct this analysis, preferably prior to getting the prosecutor to bring a case. But here again, isn't it really the job of the defense to conduct this investigation? Wouldn't the defense get a chance to bring in their own forensic person to do an investigation? There are plenty of talented analysts that could find malware, should it exist, and bring even more doubt on the prosecution's case. Granted, you might not get an image with all the pictures that were considered child porn, but you should get something. A substantial factor in the answer to this question is that it is nearly impossible to know what might have happened to a computer over the years, and most computers are used by more than end user to begin with. Not only is there no way to differentiate Every person convicted of an electronic crime against a child based only on evidence recovered from a hard drive that happened to be in their possession should be immediately released from whatever prison they are now being held. ML: Isn't that a little extreme? I am quite sure there were a good many folks who were flat out guilty. Were you privvy to each and every case's details? If not, how could you recommend this? I understand the idea that "it is better for 10 guilty men to go free than one innocent man go to jail" but here again, where is the defense? Who is appealing for the people? There should be an appeal process where they could have yet again a chance to contest the prosecution's case on a technicality such as "my machine was hacked". Is there some major error in the system that justifies letting known paedophiles go free? If so, I haven't yet heard it. Law enforcement must be required to obtain Internet wiretaps, use keyloggers and screen capture techniques, and conduct other investigations of crimes-in-progress, because the current approach to computer forensics being taught by vendors such as Guidance Software (www.encase.com) and others (who just happen to sell products designed to analyze and search hard drives) makes the outrageous assertion that a person can be proven guilty of a crime based only on data that is found on a hard drive in their possession. ML: how are these two things connected? Wiretaps are a different issue than forensics of storage media. How does what Guidance Software tells anyone change the protections of privacy (e.g. requiring a warrant) to do most wiretaps? There is simply no way for law enforcement to know the difference between innocent and guilty persons based on hard drive data circumstantial evidence. Something must be done to correct this misuse of computer evidence, and whatever that something is, it is clear that only an information security organization is going to be able to explain it to law enforcement and legislators. ML: I agree, there is no way to know for sure, which is why the prosecution has to make a case and present if convincingly. Computer data being what it is (largely circumstancial) the onus is on the prosecution to prove the case. Jurors have to attest, in criminal cases, to a high level of confidence in guilt. Again, where is the defense? ML: In fact, I would argue a somewhat different angle. While I agree that law enforcment does need to advance in understanding hacking incidents, I would argue that this is actually due to the relatively young state of the industry. This immaturity in the industry is *also* a detriment to law enforcement. I think that because there is so little standardization, and mutually agreed-upon best practices (as I am guessing you might agree) that in fact the defendent has the advantage in the criminal cases. Wouldn't it, in fact, be very easy to raise doubt in the cases of forensic investigators in a lot of cases? Wouldn't that shadow of a doubt of "my computer was hacked, it wasn't me" be a powerful tool with a jury? There seems to be a lot of doubt about the industry in general, and until there can be a common set of agreed-upon best practices for computer forensics and law enforcement, it actually makes the job harder for the cops. ML: Based on all of this, I'm not yet convinced by your arguments (though I look forward to clarification from you to possibly change this) that the system really is slanted that terribly agains the defendant. Unless there is some systemic problem that bypasses the intent of due process, I don't see how it is that much different from other types of crime in its prosecution. Regards, Mark Lachniet
