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Court of Appeals Affirms Conviction of City of Fond du Lac's Former Director of Human Resources on 14 Counts of Possessing Child Pornography on his Workplace Computer

 

"This case establishes that people who deliberately access child pornography online are violating the law, regardless of whether they decide to save a pornographic image to a hard drive. As the court of appeals recognized, possession of child pornography occurs as soon as a person seeks out and retrieves images of child pornography." Attorney General J.B. Van Hollen

 

MADISON - On May 28, 2004, Benjamin W. Mercer, then the human resources director for the city of Fond du Lac, repeatedly sought out and viewed child pornography by using the city-provided computer located in his office. In a unanimous decision today, the Wisconsin Court of Appeals affirmed Mercer's conviction on fourteen counts of possession of child pornography in violation of Wis. Stat. 948.12(1m).

 

Attorney General J.B. Van Hollen praised the court's decision. "We consider this to be an important and significant case that should help prosecutors in Wisconsin and nationally," Van Hollen declared. "This case establishes that people who deliberately access child pornography online are violating the law, regardless of whether they decide to save a pornographic image to a hard drive. As the court of appeals recognized, possession of child pornography occurs as soon as a person seeks out and retrieves images of child pornography."

 

The court of appeals' decision addressed for the first time in Wisconsin an important issue in prosecuting possession of child pornography in the court's words, "whether individuals who purposely view digital images of child pornography on the Internet, even though the images are not found in the person's computer hard drive, nonetheless knowingly possess those images" in violation of Wisconsin law [emphasis in the court's decision].

 

In all previous Wisconsin cases, forensic analysts found child-pornography images on the hard drive of the defendant's computer. In Mercer's case, however, the images had been deleted in a way that made them unrecoverable. But monitoring software installed by the city of Fond du Lac on employees' work computers (including Mercer's) automatically captured data about the computer's use and created a data log showing (among others things) every mouse click and keyboard stroke (including the key hit), the words in the browser's title bar at the time of the click or keystroke (indicating websites visited as well as specific pages visited and specific images viewed), and the time of those actions.

 

The logs for Mercer's computer showed (again in the court's words) that "Mercer had typed words such as 'preteens,' 'preteen super models,' 'preteen hardcore,' 'Lolita,' and 'Lolidus' into the Yahoo!, Google, and MSN search engines and hit the enter key or clicked enter to get search results for those words." ("Lolita" and variations on the word, such as "Lolidus," refer to child erotica.) The court summarized the monitoring log for Mercer's computer on May 28, 2004:

The computer user (Mercer) started at Yahoo!, then navigated to Perverts-R-Us (which, like Yahoo!, is a web portal to help a person navigate to and find other websites). Then the user clicked to enter "LOLITA NEWS: The Best Lolitas Here!" Lolita News contained a series of Internet magazines that people could click on and view. From there the user clicked to enter the magazine "Lolita LS-Flash," which showed up on the log as "Lolita-news.info/ls-flash.html." Then there was a click somewhere on LS-Flash that led the user to "Flash-005b.jpg," one of the charged images, and once the image was displayed the user clicked two more times within "Flash-005b.jpg." The next entry was back to "LS-Flash," and then back to Lolita News. Next the user clicked to enter "LS-BARBIE" and clicked again to view "lsbar-007b-044.jpg," went back to "LS-BARBIE," to view another image, "Barbie-008a.jpg," and then to another one of the charged images. The user clicked four times while on the "Barbie-008a.jpg" image.

Relying on testimony from the software engineer who created the monitoring software and explained its operation, on an in-court live demonstration of the monitoring software, and on printouts of identically named images that investigators subsequently retrieved from the Internet by revisiting the websites identified in the May 28 log, the Fond du Lac jury found Mercer guilty of fourteen counts of possessing child pornography.

In affirming Mercer's conviction, the court of appeals clarified the meaning of possession for purposes of Wisconsin's statute prohibiting possession of child pornography and established that the State can rely on evidence from monitoring software to convict a person of child-pornography possession even when the person successfully deletes the images from a computer. In addition, the court essentially rejected a "technological ignorance" defense to a charge of possessing child pornography:

At the end of the day, the common thread underlying Mercer's arguments is the hypothesis that computers are only knowable to the technically savvy and he--not being of that ilk--could not have had the technical know-how necessary to "possess" pornography. For example, he contends that he has no real expertise in the caching process. But, while it is true that some computer-related issues may require expertise, that simply is not the case in many situations. People do not cower and sit in a corner every time the word "computer" is mentioned. Computers are becoming more and more a fact of everyday life. Technology issues aside, the facts before the jury were very clear and easy to understand. The jury could infer that an individual, who searches for a term associated with child pornography on repeated occasions, should be aware that he or she is controlling the request that child pornography be sent to him or her. And when that individual sees that the selected website shows images of child pornography and continues browsing through that website with the ability to control those images, a jury could conclude that the individual knowingly possessed the material. In this case, Mercer's repetitive searches for and navigation within child pornography websites show that this was not a person doing a search for a benign topic who just happened to mistakenly click on a website featuring child pornography.

In effect, just as ignorance of the law does not excuse a violation of the law, professed ignorance of the operation of a well-established, widely distributed, and commonly used technology does not excuse a violation of the statute prohibiting possession of child pornography.

 

The Wisconsin Court of Appeals' decision in State of Wisconsin v. Benjamin W. Mercer, No. 2008AP1763-CR, appears on the court's website: http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=48502

 

Assistant Attorney General Michael G. Schaefer prosecuted Mercer in the Fond du Lac County Circuit Court. Assistant Attorney General Christopher G. Wren represented the State in the Wisconsin Court of Appeals.