Dean Boland

[Joe McClain]

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.

dl's assessment of the technical aspects correspond completely to mine. So, concerning images of child erotica, what are we to do, since there is no way to authenticate the files? It seems we have two choices:
1. Accept the defendant's assertions that the files are have been manipulated (but not by him, of course). This seems to amount to giving collectors of internet kiddy porn a pass, unless you raid the studio.
2. Revisit the 2002 Supreme Court decision and make it illegal, prima facie, to posess/distribute kiddie porn and leave it up to a jury to decide--not whether the images have been altered--but whether the images depict children in a sexual context. Reasonable doubt will enter into cases in which young adults are depicted as sub-adults. (Well, maybe she IS over 18, etc.) Not a perfect solution, I'll admit, but better than number 1.

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.

Based SOLELY on the image? Yes. But the same would apply to a traditional photo without any corroborating testimony or evidence.

[Dean Boland]

But are there techniques to make that 25-year-old appear 18 or 20 years younger?

Yes. There are also techniques to take legal image of individuals at any age and make them appear to be something illegal. The point, overall, though is that digital images are not merely what they appear.

Unsatisfactory, because no digital images could be determined as authentic unless still in a digital camera or accompanied by some sort of affadavit.

Since the dawn of film photography, the requirements in court for the authentication (and use of) photographs have been simple. You need a witness to testify and that witness must be either (in order of preference) 1. the photographer who captured the image
2. someone present when the photograph was taken or;
3. someone present close in time to when the photograph was taken
Ohio and other states have many cases in which the courts have clearly said that without such a witness, a film photograph is excluded from a case. Seems to me that the much more easily manipulated digital images should be subject to no lesser standard than that.

Dean, could you explain what sort of images your proposed legislation would make illegal?

The draft language I have sent to legislators would recognize the Supreme Court has held that realistic, but not harming reach minors, images are legal. I don't like that, but it is the law. The solution to a ruling that lawyers don't like is not to argue for some relaxing of other rules to get around it. But, I digress. So, the solution, it seems to me, is to require those who want to produce and possess realistic looking, but fake images, be limited to only possessing such images provided they have been registered with the state. (Identical to gun registration). Then, anyone caught with images on their computer cannot argue they are not real minors, because if they are not registered with the state as "virtual" images, it is illegal to possess them. And, very few people, if any, will want to identify themselves by registering such images with the state. Practical result, all images of any kind are illegal to possess and an expert witness such as myself is not needed. More importantly, prosecutors will stop arguing to permit unauthenticated digital images to merely be viewed by the jury for a determination of their authenticity. That idea threatens you and the rest of society.

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.

Not so. Any image must be authenticated. I cannot be authenticated because other people heard you say you stuffed Hoffa somewhere. It can be authenticated by others that say, "we saw them stuff Hoffa in the trunk" and this picture is an accurate depiction of what we saw. That is no problem.

[Dean Boland]

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

They don't really need the camera at all. They need, the photographer or someone who was present when the photograph was taken. That'll do it.

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.

That would work, except you have to prove that the person could have possessed something illegal. Otherwise, you have an impossibility defense.

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.

I completely agree with this. The solution, however, is not to accept that in certain cases, with certain charges, the rules of authentication should not apply otherwise prosecutors cannot win. I have actually been asked that question on the stand as if it was a legal argument. "Mr. Boland, based upon what you testified to and demonstrated, we cannot prosecute this defendant because he merely downloaded images and has no way of knowing whether they are real?" To which I reply, "true." But the fact you cannot get the guy if the rules are followed is not a reason to allow an exception of the rule. I am sure there are basketball and football teams that would love that angle. "Look ref, if we only get the regular amount of time for the rest of our game, we might not be able to win. Can you just put 10 extra minutes on the clock to give us time to catch up?" No one regards that as appropriate in sports and it should not be deemed appropriate in our justice system.