Expert Witness Dinged $300,000 for Making Fake Child Porn

Dean Boland. Photo: Courtesy of Dean Boland

An Ohio lawyer who serves as an expert witness in child pornography cases is on the hook for $300,000 in civil damages for Photoshopping courtroom exhibits of children having sex, a federal appeals court ruled Friday.

Attorney Dean Boland purchased innocent pictures of two juvenile girls from a Canadian stock-image website, then digitally modified them to make it appear as if the children were engaged in sexual conduct.

Boland was an expert witness for the defense in a half-dozen child porn cases and made the mock-ups to punctuate his argument that child pornography laws are unconstitutionally overbroad because they could apply to faked photos.

As a result, in 2007 he found himself the defendant in a deferred federal child-porn prosecution in Ohio, even though his exhibits helped clear at least one client of child-porn-related allegations. Now, a federal appeals court is upholding a $300,000 verdict in a lawsuit brought by the parents of two of the girls whose images Boland doctored.

“This $300,000 award undoubtedly amounts to tough medicine for Boland,” the 6th U.S. Circuit Court of Appeals ruled (.pdf) Friday. “When he created morphed images, he intended to help criminal defendants, not harm innocent children. Yet his actions did harm children, and Congress has shown that it ‘means business’ in addressing this problem by creating sizeable damages awards for victims of this conduct.”

Boland, a former state prosecutor, transformed a picture of a 5-year-old girl eating a doughnut into one of her having oral sex. Another photo was of a 6-year-old girl’s face placed on the body of an adult woman having sex with two men. He purchased the pictures from iStockPhoto, according to court records, and morphed them to help child porn defendants make a nuanced legal defense.

The parents of the children, who were not named in the case, lodged the complaint (.pdf) against him in 2007 after learning of the photo morphing from the FBI. Under the 1986 Child Abuse Victims Rights Act, each victim is entitled to a minimum $150,000 in damages.

Boland argued that he was immune from such a lawsuit because, among other reasons, he’d created the images for use in court, never distributed them, and that the First Amendment protected him.

But the court ruled that it was immaterial that Boland never displayed the images outside of court and never transmitted them electronically.

“The creation and initial publication of the images itself harmed Jane Doe and Jane Roe, and that is enough to remove Boland’s actions from the protections of the First Amendment,” the appeals court ruled.

The law under which the parents sued demands proof that the girls suffered “personal injury.” But Boland argued that the children didn’t know about the pictures, a point the appeals court said was immaterial.

“Even if Doe and Roe never see the images, the specter of pornographic images will cause them ‘continuing harm by haunting [them] in years to come,” the appeals court said.

Child-porn laws prohibit “knowingly” accessing child pornography. The morphed images were a bid to demonstrate that the law violated the First Amendment on “vagueness and over-breadth grounds,” because a defendant could not know whether what he was viewing was an actual or virtual image of a child having sex.

Boland did not immediately respond for comment.

Teenage Hacker ‘Cosmo the God’ Sentenced by California Court

Cosmo the God in a park near his Long Beach home. Photo: Sandra Garcia/Wired

The 15 year-old UG Nazi hacker known as Cosmo* or Cosmo the God was sentenced in juvenile court on Wednesday in Long Beach, California. According to Cosmo, he pleaded guilty to multiple felonies in exchange for probation, encompassing all the charges brought against him, which included charges based on credit card fraud, identity theft, bomb threats, and online impersonation.

Over the course of 2012, Cosmo and his group UG Nazi took part in many of the highest-profile hacking incidents of the year. UG Nazi, which began as a politicized group that opposed SOPA, took down a bevy of websites this year, including those for NASDAQ, CIA.gov, and UFC.com. It redirected 4Chan’s DNS to point to its own Twitter feed. Cosmo pioneered social engineering techniques that allowed him to gain access to user accounts at Amazon, PayPal, and a slew of other companies. He was arrested in June, as a part of a multi-state FBI sting.

Pivotal DNA Privacy Case Gets Supreme Court Hearing

Photo: Courtesy of Supreme Court

The Supreme Court on Friday agreed to review a major genetic-privacy case on whether authorities may take DNA samples from anybody arrested for serious crimes.

The case has wide-ranging implications, because at least 21 states and the federal government have regulations requiring suspects to give a DNA sample upon arrest. In all the states with such laws, DNA saliva samples are cataloged in state and federal crime-fighting databases.

Without comment, the justices opted to take on an April decision (.pdf) from Maryland’s top court, which said it was a breach of the Fourth Amendment right against unreasonable search and seizure to take, without warrants, DNA samples from suspects who have not been convicted.

The Maryland Court of Appeals, that state’s highest court, said that arrestees have a “weighty and reasonable expectation of privacy against warrantless, suspicionless searches” and that expectation is not outweighed by the state’s “purported interest in assuring proper identification” of a suspect.

The case involves Alonzo King, who was arrested in 2009 on assault charges. A DNA sample he provided linked him to an unsolved 2003 rape case, and he was later convicted of the sex crime. But the Maryland Court of Appeals reversed, saying his Fourth Amendment rights were breached.

Maryland prosecutors argued that mouth swabs were no more intrusive than fingerprinting, but the state’s high court said that it “could not turn a blind eye” to what it called a “vast genetic treasure map” that exists in the DNA samples retained by the state.

The court was noting that DNA sampling is much different from compulsory fingerprinting. A fingerprint, for example, reveals nothing more than a person’s identity. But much more can be learned from a DNA sample, which codes a person’s family ties, some health risks and, according to some, can predict a propensity for violence.

The issue before the justices does not contest the long-held practice of taking DNA samples from convicts. The courts have already upheld DNA sampling of convicted felons, based on the theory that those who are convicted of crimes have fewer privacy rights.

But the U.S. Supreme Court has previously ruled that when conducting intrusions of the body during an investigation, the police need so-called “exigent circumstances” or a warrant. For example, the fact that alcohol evaporates in the body is an exigent circumstance that provides authorities the right to draw blood from a suspected drunk driver without a warrant.

The justices are to hear the Maryland case in the coming months.

Canadian Supreme Court Invalidates Viagra Patent

Photo: Simon Willison/Flickr

The Supreme Court of Canada is invalidating Pfizer’s patent on the popular erectile-dysfunction drug Viagra for failing to openly disclose the drug’s active ingredient, as required by Canadian intellectual property law.

The 7-0 decision Thursday to open Viagra to competition ahead of its 2014 patent expiration underscores a major difference in how the Canadian and United States courts are interpreting patent laws.

Both nations have so-called “patent bargains” that require the disclosure of a drug’s chemical compounds in enough detail so that scientists can replicate it and learn from the invention, thus benefiting society. In exchange, the inventor, in this case Pfizer, gets the exclusive rights to market the invention for a limited period.

But “sufficiency of disclosure lies at the very heart of the patent system,” the Canadian high court ruled Thursday, and “adequate disclosure in the specification is a precondition for the granting of a patent.”

The court said Pfizer, based in New York, broke that bargain. The ruling came in a lawsuit brought by Israeli-based Teva Pharmaceutical Industries. The justices said Pfizer failed to disclose that sildenafil was the active compound, while other listed compounds in the patent were not effective in treating erectile dysfunction.

The decision by the Canadian court is at odds with U.S. courts, which don’t invalidate patents for the same reason.

A U.S. federal judge in Virginia upheld Pfizer’s U.S. patent for Viagra, which expires in 2019, in another lawsuit brought by Teva. Teva tried to invalidate the patent, arguing in part that the discovery for erectile dysfunction was not patent-worthy, and that Pfizer had withheld information from the U.S. patent office.

That same year, in another case, the U.S. Court of Appeals for the Federal Circuit ruled in a precedent-setting decision that patents may only be declared unenforceable if the withheld material affected the patent office’s decision to grant a patent.