Dean Boland

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Stan Austin
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Dean Boland

Postby Stan Austin » Sun Jun 26, 2005 7:58 am

You might have read in today's Plain Dealer that Lakewood attorney Dean Boland was detained by the FBI on Friday and his home in Lakewood searched under the authority of a search warrant.

Mr. Boland has developed an expertise in digital photography. He uses that talent to show how photographs can be manipulated so that they in no way portray what they purport to illustrate. This is an important defense for those who are charged with having pictures depicting child pornography.

This defense is analogous to the use of DNA in recent years to conclusively exonerate those who have been falsely accused of crimes. This technology did not exist a few years ago.

Any technology which shows purported evidence or proof to be wrong should be welcomed and embraced.

Apparently, federal prosecutors rather concentrate on a win/loss record that ignores guilt/innocence. County Prosecuting Attorney William Mason is of the same attitude. Several months ago he complained that Boland's demonstrations were hampering prosecutions. He somehow forgot the fact that we depend on him to only prosecute on the facts.

I write this because these prosecutors, federal and local, are depending on a negative public reaction against Mr. Boland to chill his efforts and others who seek only the facts.

However, if we keep the spotlight on the the slimy and repulsive tactics of the prosecutors this ruse might backfire.

Also, I wish to stand by the side of Mr. Boland so that he knows that there are those who treasure openess and honesty.

Stanley D. Austin


Bryan Schwegler
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Postby Bryan Schwegler » Sun Jun 26, 2005 8:53 am

I guess before I made any judgement I'd like to know what he was being charged with? Do you happen to have a link to the PD article by chance?


dl meckes
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Postby dl meckes » Sun Jun 26, 2005 3:55 pm

Mr. Boland testifies that people digitally manipulate images?

Does this mean that Tom Hanks didn't actually meet LBJ in Forrest Gump?


Grace O'Malley
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Postby Grace O'Malley » Mon Jun 27, 2005 12:02 pm

I read about him last fall in the Plain Dealer. I remember thinking at the time that the focus on the defense lawyer was misdirected and should be placed on the law and the prosecutors office.

From what I understand, for a conviction the law requires that the image be of a real child, not just a rendering or fabricated digital image. Because of his (Mr Boland's) testimony, prosecutors have not been getting the convictions they want.

I would suggest that if it is a problem with the law as it is written, that communities take that up with the legislators and make the necessary changes in the law.

In the meantime, any person charged with a crime is entitled to a forceful and competent defense. Villifying the defense lawyer for defending a criminal is the sign of a lazy or incompetent prosecution team.

Is the lawyer who will be defending Sadam Hussein a terrorist because he is doing his duty as an officer of the court and providing legal representation?

Why do I get the feeling that there is some behind the scenes political stuff going on here?


Dean Boland
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Re: Dean Boland

Postby Dean Boland » Wed Jun 29, 2005 5:44 pm

Stan Austin wrote:You might have read in today's Plain Dealer that Lakewood attorney Dean Boland was detained by the FBI on Friday and his home in Lakewood searched under the authority of a search warrant.

Mr. Boland has developed an expertise in digital photography. He uses that talent to show how photographs can be manipulated so that they in no way portray what they purport to illustrate. This is an important defense for those who are charged with having pictures depicting child pornography.

It is also vitally important for the justice system at large. Banks, hospitals, corporations and others are increasingly reliant on digital images. If those images are permitted to be used without any demonstration of their authenticity, the potential for fraud is great.

This defense is analogous to the use of DNA in recent years to conclusively exonerate those who have been falsely accused of crimes. This technology did not exist a few years ago.

In several cases I am personally aware of, the government has, in fact, admitted they were attempting to use fraudulent evidence. Without digital imaging experts analyzing the evidence in these cases, individuals without any criminal inclinations whatsoever can easily be convicted.

Any technology which shows purported evidence or proof to be wrong should be welcomed and embraced.

Conservatives, of which I am one, and liberals should all agree on this statement.

Apparently, federal prosecutors rather concentrate on a win/loss record that ignores guilt/innocence. County Prosecuting Attorney William Mason is of the same attitude. Several months ago he complained that Boland's demonstrations were hampering prosecutions. He somehow forgot the fact that we depend on him to only prosecute on the facts.

I write this because these prosecutors, federal and local, are depending on a negative public reaction against Mr. Boland to chill his efforts and others who seek only the facts.

This is already occurring. Trust me, many have contacted me wondering how they should proceed, or if they should proceed, for fear of having their home searched as well.

However, if we keep the spotlight on the the slimy and repulsive tactics of the prosecutors this ruse might backfire.

Also, I wish to stand by the side of Mr. Boland so that he knows that there are those who treasure openess and honesty.

I appreciate those comments.

Stanley D. Austin


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Dean Boland
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Postby Dean Boland » Wed Jun 29, 2005 5:46 pm

Bryan Schwegler wrote:I guess before I made any judgement I'd like to know what he was being charged with? Do you happen to have a link to the PD article by chance?


Just to clarify, there are no charges yet and likely never will be. Richard Jewel, for example, the once presumed Atlanta Olympics bomber was investigated, had his home searched more than once and ended up not being charged. In fact, he ended up receiving a written apology from the FBI.


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Dean Boland
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Postby Dean Boland » Wed Jun 29, 2005 5:53 pm

dl meckes wrote:Mr. Boland testifies that people digitally manipulate images?

My testimony is simply this, a jury cannot merely visually examine a digital image and be able to determine whether it was manipulated or not. Prosecutors in these cases are understandably frustrated because they cannot determine if any of the images they are seizing are real. So, to deal with that problem, they are arguing to judges that they ought to be able to merely show the images to the jury and if the jury THINKS they're real, the defendant is convicted. While that is appealing and not really a big concer to those of us with children (including me and my wife) it spells real trouble for the rest of us.

Consider this, your neighbor doesn't like you. They capture images of you mowing the lawn, drinking a coke, whatever. They buy a digital image editing program from the store, manipulate those images with other innocent images of children and, you guessed it, send the CD to the Lakewood Police Department anonymously with information about who you are. Be sure, the police will be at your home and perhaps do more than just ask a few questions.

Or, the reverse. A relative of yours is murdered. You are certain, based upon circumstantial evidence, of who the murderer is. However, at trial, his mother shows up to testify that she found a CD of digital images of the suspect at Disney World on the day the murder occurred in Cleveland. The images show him sitting, reading the paper, USA Today, dated the date of the murder right in front of a well known theme park restaurant.

The prosecutor, of course, demands of the judge that no testimony regarding the images occurs unless someone can testify as to who took the images, when, what day, etc. But, the defense attorney just wants to put on the mother saying that she found the CD and she didn't take the pictures and has no idea who did.

Do you think the judge should merely "let the jury decide" if those images are authentic?

Use your imagination and the possibilities continue.

No one wants to be involved in child pornography cases. Not the lawyers, judges, staff, experts, etc. But, if the law is made here that unauthenticated digital images can just go to the jury for them to decide, everyone is at risk. That is the issue.


Does this mean that Tom Hanks didn't actually meet LBJ in Forrest Gump?


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Dean Boland
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Postby Dean Boland » Wed Jun 29, 2005 5:56 pm

Grace O'Malley wrote:
From what I understand, for a conviction the law requires that the image be of a real child, not just a rendering or fabricated digital image. Because of his (Mr Boland's) testimony, prosecutors have not been getting the convictions they want.

Exactly.

I would suggest that if it is a problem with the law as it is written, that communities take that up with the legislators and make the necessary changes in the law.

Several months ago I sent an email to 50 of Ohio's state representatives with exactly this suggestion and I believe I have figured out how to effectively eliminate the possession of even the fake images yet still not stomp on everyone's constitutional rights. It's really quite an easy solution that parallels the constitutionally acceptable requirement of gun registration. Only two responded and further contact with them has gone unresponded to. Do they really want to tackle the issue?

Why do I get the feeling that there is some behind the scenes political stuff going on here?


Well, we shall see if your feeling turns out to be prophecy. tick tock.


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dl meckes
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Postby dl meckes » Wed Jun 29, 2005 7:43 pm

Thank you, Mr. Boland for signing on to comment.

I have a tradition of sending cards to friends and family where I insert an image of my face into famous photographs, most recently into pictures of Lauren Bacall & Humphrey Bogart. I have replaced John Glenn in his Time magazine space shuttle cover photo and have "been" such people as Marilyn Monroe, Gloria Swanson, and Elsa Lancaster.

It does take some effort, but we have the capability to alter images pixel by pixel and pretending that it isn't possible is ridiculous.

The Internet and print publications bring us manipulated images every day. TV Guide once rather famously put Oprah's head on Ann Margaret's body for the cover of a publication. It is an indefensible assumption to trust that images are not altered unless there is proof of a secure chain of custody for the camera or memory card.


Dean Boland
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Postby Dean Boland » Wed Jun 29, 2005 8:02 pm

dl meckes wrote:Thank you, Mr. Boland for signing on to comment.

I have a tradition of sending cards to friends and family where I insert an image of my face into famous photographs, most recently into pictures of Lauren Bacall & Humphrey Bogart. I have replaced John Glenn in his Time magazine space shuttle cover photo and have "been" such people as Marilyn Monroe, Gloria Swanson, and Elsa Lancaster.

It does take some effort, but we have the capability to alter images pixel by pixel and pretending that it isn't possible is ridiculous.

The Internet and print publications bring us manipulated images every day. TV Guide once rather famously put Oprah's head on Ann Margaret's body for the cover of a publication. It is an indefensible assumption to trust that images are not altered unless there is proof of a secure chain of custody for the camera or memory card.


This is simply what I am saying in every case. Regardless of the type of case or which side is offering a digital image as evidence. If a prosecutor called to ask me to testify as to why a judge should not permit a defendant to use an unauthenticated digital image, I would testify exactly as I do for all other cases. The case subject matter is irrelevant. The authenticity of digital images should NOT be determined merely by permitting a jury to view them regardless of whether the defendant is facing terrorism charges, petty theft or whatever other crime you choose. Once you bend the rules to permit unauthenticated images to go to a jury for one defendant (say, a defendant charged with a particularly unpleasant crime), you change the rules for everyone using unauthenticated images and the race is on to the best evidence manipulator. Judicial chaos.


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Joe McClain
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Postby Joe McClain » Fri Jul 08, 2005 11:28 am

Dean Boland wrote:....the race is on to the best evidence manipulator.


I thought that's what our adversarial legal system is all about, trying to be the best manipulator of evidence. The digital aspect is just a new wrinkle.

Having said that, I'll note that I keep a folder on my computer called "skies" from which I regularly select a nice blue one with appropriately fluffy or threatening clouds to use in digital photos with gray skies, etc. Yep, I also screw with the saturation, etc. to make the skies look better.

But the topic is manipulation of images in kiddie porn, not making the sky over the Wren Building look nice. If someone robs a bank with a toy gun, how is it different from a real gun? I don't know the exact nature of these images or how they were prepared, but if, as I suspect, they contain the image of a real child Photoshopped into a sexual context, then there's something seriously wrong with the practice. The people who traffic in such created images differ from the people who deal in "real" kiddie porn images only in degree. Again, I don't know but I would suspect that aficionados of such stuff aren't particular about confining their selection to only manipulated images. (Do constructed pornographic images bear a kind of stamp analogous to the "dolphin-free tuna" pledge?: No children were actually sexually molested in these images which contain depictions of children being sexually molested.) I think that quite the opposite would be the case in real life--that the more discriminating digital pedophile would prefer the "real stuff."

I know, I know: clamping down on the fans of pedophilic erotic material means that sooner or later the FBI will be visiting Ken Warren to collect all the Nabokov and that Fellini movie whose name I forget. It's a slippery road to be sure, but slippery roads lead in more than one direction. For one thing, parents all over are feeling uneasy about their completely innocent baby-in-the-bathtub snapshots.

Let's not forget that our system places the burden of proof on the prosecution, so that we, the people, have to bear the cost of a debate among experts whenever the defense claims that the digitial images within Peoples Exhibit A are constructed, not authentic, unreal, mere expressions of the defendant's fantasy. And what constitutes "manipulation" and authenticity? What is a "sexual context"? Well, we are churning out lawyers who can define the fine points. The fog of legality needs to be cleared.

I have no problem with making possession and distribution of kiddie porn--"real" or created--a crime, prima facie. Where do we draw the line? How about right here? This isn't making Kirstie Alley look fatter or the sky look bluer or Forrest Gump showing his war wound to LBJ. This isn't about fabrication of evidence, either, as far as I understand. This is about children and children should have legal rights and protections that don't necessarily extend to adults.

I have nothing to say about the FBI's searching of Dean Boland's house other than to reinforce the point that, well, the FBI has been known to be spectacularly wrong before. I hope they are now.

Please note that my above remarks are limited to photograhic images of actual children in sexual contexts. As far as I'm concerned, you're welcome to your 30-gig erotic anime collection. (Just don't tell me about it. I don't want to know.)


Dean Boland
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Postby Dean Boland » Fri Jul 08, 2005 11:48 am

Joe McClain wrote:
But the topic is manipulation of images in kiddie porn, not making the sky over the Wren Building look nice. If someone robs a bank with a toy gun, how is it different from a real gun? I don't know the exact nature of these images or how they were prepared, but if, as I suspect, they contain the image of a real child Photoshopped into a sexual context, then there's something seriously wrong with the practice.


The practice you describe above is illegal currently. However, there are many other techniques to make a person who is 25 years old, appear 10 or more years younger. And, that is not really the issue in these cases, from a technological standpoint. It is simply this. If someone wanting to use a digital image as evidence does not know if the image has been altered, should they be permitted to have the jury decide if the image has been altered? My answer, no. Juries are incapable of determining, by merely visually examining a digital image, if it is has been altered. My opinion is that any evidence whose authenticity is unknown should not be admissible in court. No matter the subject of the case.

Joe McClain wrote:The people who traffic in such created images differ from the people who deal in "real" kiddie porn images only in degree.


I agree with that statement. I don't want the collectors of the real stuff or the realistic looking, but fake stuff, living next to me, coaching my kids soccer team, etc. That is not the issue from a jurisprudence perspective as I mentioned above.

Joe McClain wrote:(Do constructed pornographic images bear a kind of stamp analogous to the "dolphin-free tuna" pledge?:


No such luck unfortunately. But, I have already contacted Ohio legislatures with draft legislation that would create such a requirement for producers of these images making these images, effectively, illegal while not throwing the judicial system into chaos by having it admit digital images of unknown authenticity.

Joe McClain wrote:I have no problem with making possession and distribution of kiddie porn--"real" or created--a crime, prima facie.


I don't have any problem with this either. However, the U.S. Supreme Court in 2002 ruled that if the image does not contain an ACTUAL minor, it is protected by the First Amendment.

Their logic was that many adult porn materials purposefully have adult actors posing or "appearing to be" minors (i.e. someone under 17 years, 364 days old or younger under the federal law) and they were concerned the appearance of a minor would be regarding as their creating child pornography.

Joe McClain wrote:I have nothing to say about the FBI's searching of Dean Boland's house other than to reinforce the point that, well, the FBI has been known to be spectacularly wrong before. I hope they are now.


The FBI has also, reluctantly, admitted in several cases in which I have participated that they either a. have altered evidence they are attempting to use or b. have no idea whether their evidence is authentic at all and still would like the court to permit them to use it. Fine, for a child pornography person, but what about their case against your neighbor or family member or friend or you if it involves, bribery, embezzling, financial fraud, medical fraud, and many other areas that rely on digital images as evidence?


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Joe McClain
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Postby Joe McClain » Fri Jul 08, 2005 1:45 pm

Dean Boland wrote:However, there are many other techniques to make a person who is 25 years old, appear 10 or more years younger.

But are there techniques to make that 25-year-old appear 18 or 20 years younger?
Dean Boland wrote:And, that is not really the issue in these cases, from a technological standpoint. It is simply this. If someone wanting to use a digital image as evidence does not know if the image has been altered, should they be permitted to have the jury decide if the image has been altered? My answer, no. Juries are incapable of determining, by merely visually examining a digital image, if it is has been altered. My opinion is that any evidence whose authenticity is unknown should not be admissible in court. No matter the subject of the case.

This seems unsatisfactory and unneccessary. Unnecessary, because a defense attorney could come within shouting distance of reasonable doubt on the reliability of digital images just by exhibiting a handfull of supermarket tabloids. Unsatisfactory, because no digital images could be determined as authentic unless still in a digital camera or accompanied by some sort of affadavit. This means, of course, that digital images are useless, for practical purposes.
Jurisprudence has handled all sorts of innovations. (Recall the trial scene in Twain's Pudd'nhead Wilson in which Wilson introduces fingerprint evidence and instructs the jury, court and spectators in their value?) Fingerprints led to the point system familiar to viewers of crime drama. Polygraphs were inadmissible as evidence, but now seem to be returning. Blood type has limitations based on the percentage of the population bearing that particular type. Even DNA isn't foolproof, especially once you consider the human element and recall those stories of lab techs willing to accommodate the prosecution. Each innovation offers a handhold on reasonable doubt.
BTW: Is there any reliable way of establishing the authenticity of digital photos once they're out of the camera?
[/quote]


Joe McClain wrote:(Do constructed pornographic images bear a kind of stamp analogous to the "dolphin-free tuna" pledge?:

Dean Boland wrote:No such luck unfortunately. But, I have already contacted Ohio legislatures with draft legislation that would create such a requirement for producers of these images making these images, effectively, illegal while not throwing the judicial system into chaos by having it admit digital images of unknown authenticity.

It would seem to be very much in the interest of the producers and consumers of manipulated pediophilic erotica to institute such a seal themselves, with traceability from the final image to an affadavit and copy of the birth certificate of the 25-year-old model whose image was manipulated. Wonder why they don't do it themselves? The porn industry is thriving--surely they can spend a little on office supplies. Unless such a seal would damage the value of their product...
Dean, could you explain what sort of images your proposed legislation would make illegal?

Dean Boland wrote:However, the U.S. Supreme Court in 2002 ruled that if the image does not contain an ACTUAL minor, it is protected by the First Amendment.

Their logic was that many adult porn materials purposefully have adult actors posing or "appearing to be" minors (i.e. someone under 17 years, 364 days old or younger under the federal law) and they were concerned the appearance of a minor would be regarding as their creating child pornography.

That ruling is probably appropriate, if not particularly palatable. I wonder what portion of pediophilic erotica features young adults "appearing to be minors," versus the depiction of children at puberty or younger? How much younger can technology make an 18-year-old look? Again: Why not certify it as child-free erotica?

Dean Boland wrote:The FBI has also, reluctantly, admitted in several cases in which I have participated that they either a. have altered evidence they are attempting to use or b. have no idea whether their evidence is authentic at all and still would like the court to permit them to use it. Fine, for a child pornography person, but what about their case against your neighbor or family member or friend or you if it involves, bribery, embezzling, financial fraud, medical fraud, and many other areas that rely on digital images as evidence?


Dean, I'm not an attorney, but it seems like we are talking about two very different situations regarding digital images here:

A. Images introduced as evidence regarding an alleged crime that, in itself, has nothing to do with digital image technology. (A jpeg of Steve Davis and me stuffing the corpse of Jimmy Hoffa into a bag.) In this instance, the allegations would be supported by other evidence and testimony and the digital images weighed in the balance by the jury.

B. Images which, by their very possession/transfer, constitute the alleged offense. (kiddy porn) If it's up to the prosecution to prove the authenticity of the images (and it is--burden of proof), then it will become impossible to prosecute anyone for having kiddy porn unless authorities catch them making it.

I can't see how we can make one size fit all.


dl meckes
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Postby dl meckes » Fri Jul 08, 2005 3:12 pm

Unless the prosecutors can actually produce the camera, there's no real way to verify that digital images have or have not been manipulated.

You can produce negatives of manipulated images, so while the negatives appear real, they too may be altered.

We may have to look towards laws that convict on the intent to posess or some sort of conspiracy to posess illegal images.

Once an image has left the camera, there's no easy way to detect that it is what it appears to be.

One way to verify images would be to produce the person in the image to testify that the image has not been altered.

It is unsatisfactory that digital images are so suspect, but it is also unsatisfacory to convict you & S.D. for taking Hoffa out based on the image that alledgedly shows your involvement.


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