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Watch What You Watch Online

Patrick J. McLain

By Patrick J. McLain

As a criminal defense attorney in federal and Texas state courts, I have dealt with numerous cases of allegations known as “crimes against children,” which include charges of receiving or sending images of child pornography. It is my experience that most of my fellow citizens, when they hear “child pornography” think “those disgusting men ought to go to jail for a long time” but the truth is, any one of us can be in danger of falling afoul of law if we view “adult content” online.

There is a lot of research on the effects of pornography viewing, and in my view, the conclusions on whether those effects are good or ill are largely driven by the worldview of those doing the research. However … it is certainly clear that the statistics point to one clear danger. A 2011 study of the 400 million Web searches between July 2009 and July 2010 revealed that:

  • 13% of all the searches were for erotic content.
  • The top search term for those searches was “youth.”
  • Sites that cater to these searches use terms like “barely legal” and “18.”

In its public pronouncements, the business which calls itself the “porn industry” states that they adhere closely to the federal statute 18 US Code Section 2257, which requires these online porn businesses to maintain personnel records on all their “performers” and ascertain, in using those records, that none of the performers or persons depicted in their pornographic images and videos are under the age of 18. I will tell you, anecdotally, as one who has represented many people in the porn industry, that is not the case. There is an abundance of websites which display pornography with persons under the age 18 for one obvious reason – money.

A similar danger is found in those who use peer-to-peer networks (P2P) to share files, including pornography files. To oversimplify, P2P involves using an application on a phone, tablet or computer to receive and send files to other storage devices, be it other phones, tablets or computers around the world or on servers. P2P has long been a means to also share porn, and often without being requested by the recipient. This is because when sending out a request to all the devices online and connected on a P2P, much like a search on an Internet browser, the results are literally hundreds, if not thousands, of responses, many of which will not correspond to what the requestor was seeking.

And therein lies the danger. Because child pornography can be unknowingly received in that way, it is possible that you will not know it is on your computer. Files which come via P2P usually have to go through an extraction process to view their contents. If you do not scrutinize all of the files you receive, you may have contraband on your electronic storage device until it is successfully and totally removed from that device.

How do I know all of this? I have defended scores of men, and even a few women, on charges of receiving, or sending child pornography, and I prosecuted many of them as a federal prosecutor or a trial counsel while on active duty in the U.S. Marine Corps. I have looked through hard drives and other storage devices in all of those cases, and this is what I see. Once a person engages in accessing, storing, and viewing pornography online, particularly if it is done frequently or in substantial amounts, the user will eventually receive child pornography, and it is not uncommon to do so unwittingly.

Today, multiple federal agencies – the Federal Bureau of Investigation, the Immigrations and Customs Enforcement Agency, the U.S. Secret Service and others – are pro-actively and aggressively striving to find, entice and investigate persons who are receiving or sending child pornography files online. Pornography viewing has all sorts of detrimental effects identified in social sciences research and discussed by those, such as clergy or counselors, who care for moral or spiritual welfare of all of us. But one clear danger of viewing adult content is the ever-present likelihood that they will come in contact with child pornography – leading to a risk of criminal prosecution, jail and a lifetime registration as a sex offender.

As in all criminal investigations, when confronted by law enforcement with accusations, be courteous, be careful, and be silent. Make no statements whatsoever to those agents and hire the best legal counsel you can find to protect you against these drastic legal consequences.


Patrick J. McLain, a retired Marine Corps military judge, has been in the practice of criminal and military law since 1990. His first jury trials were in the deserts of Saudi Arabia. He ended his government service as a federal prosecutor in Dallas, serving in the computer crime and general crimes sections. Patrick McLain represents clients in state criminal matters in Texas, federal criminal matters throughout the United States, and he has a worldwide military law practice. For a listing of his awards and recognition in government and private practice, and his accomplishments, go to www.patrickjmclain.com.