Army Court of Criminal Appeals Rules that a Soldier cannot Legally Possess Digital Data Contained in Unallocated Hard Drive Space
Our newest blog contributor is Brian Pristera. He has active duty Army experience and teaches legal writing. He is an expert on military appellate law.
This is the perfect time for him to start contributing to our blog. The Army Court of Criminal Appeals recently reversed a conviction in a case that he knows well from the trial level.
About the case, Brian writes:
On 26 February 2016, the Army Court of Criminal Appeals (ACCA) decided the case of SSG Schempp in an unpublished opinion. At trial, SSG Schempp was found guilty of two specifications of possession of child pornography. SSG Schempp was using FrostWire, a file sharing program. Naval Criminal Investigative Services (NCIS) agents located SSG Schempp’s IP address online and identified his home address. Army Criminal Investigation Division (CID) conducted a search and seized, among other electronic devices, a computer and an external hard drive.
The computer and hard drive were forensically examined by CID. The computer contained suspected child pornography images in the active memory or allocated space of the hard drive. This means that the files were generally available to the user of the computer and were accessible to the user. The computer also contained some suspected child pornography images in the unallocated space, or portions of the hard drive that are not accessible without special forensic software. All of the images on the portable hard drive were located in the unallocated space. The files in the unallocated space were recovered using special forensic software called EnCase, which is not generally available to the public.
At the trial, the government digital forensic expert testified that SSG Schempp had no way of accessing the files that were located in the unallocated space. Nonetheless, the trial court convicted SSG Schempp of possession of the child pornography. “Possession” of child pornography requires that the possession be knowing and conscious. The ACCA found that SSG Schempp could not knowingly possess the images that were in the unallocated space because he had no way of knowing that the images were there and no way of retrieving them on the date alleged in the specification. Accordingly, all of the images located in the unallocated space (all of the images from the portable hard drive, and 8 images from the computer) were dismissed.
The Court ruled that SSG Schempp was not legally able to possess images that were located in the unallocated space.
The Court affirmed the remaining specification but reduced the number of pictures that SSG Schempp was convicted of possessing. The Court determined that a sentence rehearing is not necessary under the circumstances because there was not a dramatic change to sentencing framework.
The take-away from this case is that if the government charges possession of child pornography images located in the unallocated space of a hard drive, the evidence may be insufficient for a finding of guilty. If the charges allege possession on a certain date, and on that date the images were in the unallocated space, there is likely not sufficient evidence to support a guilty finding. Note however that ACCA made it clear that the charges could have been drafted differently to avoid this problem. If the charges alleged possession on the last known date that the images were accessible on the hard drive, then the evidence would have been sufficient to support a finding of guilty.