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Take a basic legal concept — pretrial discovery — and a basic form of technology — computer data storage and retrieval. Mix the two together for 40 years and one would assume there would be a mature and well-precedented body of case law on both the criminal and civil sides of jurisprudence. But the dramatic disparity in the rate of evolution of law on this topic stretches the limits of credulity. Why the substantial divergence? The earliest days of network computing were dominated by a single method called “centralized computing” in which all data generated by the network resided in the centralized mainframe computer. The network’s end users sat at monitors called “dumb terminals” because they had no computing capabilities and could store no data. These workstations only permitted the display and input of data, all of which resided solely on the mainframe. Centralized computing permitted little creativity by individual end users on the network. Network administrators made virtually all the decisions, usually at the direction of the organization’s highest level of management, as to what functions, programs and services would be made available to the users. With the introduction of personal computing in the early 1980s, however, technology took the first steps toward making the method of network computing called “distributed computing” available to even the most unsophisticated users. Personal computers allowed the individual user the power to determine what functions the computer would perform, such as data processing, word processing and spreadsheets. The individual user also became the one deciding what data was stored on the hard drive. At the end of the ’80s, the next major step toward distributed computing arrived with the means to transmit data via modem. Electronic transmission gave individual users the opportunity to connect not only to distant individual computers but also to networks, such as the Internet or a company’s network. It provided users with great autonomy in accessing and using distant computers. The maturing of the Internet was the last major piece to the puzzle of bringing distributed computing into millions of homes and businesses. The earliest ancestor of the Internet, called the ARPANET, became operational in 1969, but it took decades for it to turn into the massive communication and computing force we know today. For example, the World Wide Web did not come into existence until 1991, and today’s most popular form of Internet communication, instant messaging, did not even exist then. The combination of these technological forces, the explosive popularity of the Internet and the development of affordable yet powerful PCs made distributed computing the overwhelmingly dominant form of computing. The realities of centralized computing greatly minimized the occurrences of what we now characterize as “computer crime.” With all computer data residing in one centralized location, it was easy for network administrators to supervise what data was going in and out of their mainframes. Perhaps an even greater factor behind the limited amount of computer crime occurring during the height of centralized computing was the incredible expense of such a network. Only mid- to large-sized businesses and organizations could afford such systems. These entities had little or no incentive to report criminal activity occurring over its networks to law enforcement, deciding instead to merely police its own. As computer access expanded to the general public, the ability to limit and control the occurrence of computer crime eroded. And as more of the world moves online — thereby blurring the traditional rules of geographical jurisdiction to police computer crime — society is only now beginning to address the enormous challenges of the next new major crime wave. Given the manner in which computer networking has developed, it was inevitable that civil law would greatly outpace criminal law, and once the development of this technology is understood, the explanation for the radical difference is clear. Centralized computing via a mainframe goes back some four decades. When large businesses and organizations encountered a variety of civil lawsuits, information stored on their computer networks became a valuable source of evidence in such litigation. Litigators quickly realized the use that could be made of a misguided internal memo, an ill-tempered draft or an offensive joke sent from one employee to another, all of which were stored somewhere on the network. Moreover, this type of evidence translated easily to the everyday experience of even the most techno-phobic lawyer. A writing is a writing is a writing, whether in handwritten, typed or digital form. Hence, the preservation letter and the subpoena for every imaginable backup copy on a business’s mainframe computer became the knee-jerk weapon in every civil litigation where one of the parties possessed a computer network. Pretrial discovery in the criminal arena, however, is still in its embryonic stage. The most significant reason for this delayed development is because the prosecution of computer crime is barely a decade old, with the majority of these arrests having occurred only in the past few years. Another factor is the surprising complexity of discovery issues in a criminal computer case. Other topics, such as search and seizure and trial admissibility of computer data, have parallel and readily understandable comparisons to criminal cases without technology. But when it comes to demanding discovery, the litigator in a criminal case often needs to have a working familiarity with technology to recognize what issues to pursue. One of the first discovery issues to have attracted the attention of criminal courts has arisen in child pornography cases. Most prosecutors are reluctant to provide the defense with a duplicate copy of a computer’s hard drive if it contains such depictions. The concern is that child pornography statutes in virtually every jurisdiction across the country make no exception for distributing the images to allow a defendant to prepare a defense. To provide defense counsel with a duplicate hard drive containing child pornography, arguably, subjects both the prosecutor and the defendant’s attorney to arrest. Some courts have already ruled on the side of denying the defense’s receipt of its own copy of the digital child pornography. In U.S. v. Kimbrough, 69 F3d 723 (1995), cert. den. 517 U.S. 1157, the Fifth Circuit U.S. Court of Appeals acknowledged that a literal reading of Federal Rule of Criminal Procedure 16 would appear to require copying the pornography for the defense. The court determined, however, that the rule could never have been intended to be applied in that fashion and denied the defense request. The Eighth Circuit’s ruling in U.S. v. Horn, F3d 781 (1999), is in accord. In State v. White, 2001 Del. Super LEXIS 513, a Delaware court interpreted its state’s version of FRCP 16 to require inspection of the defendant’s hard drive by the defense expert on the premises of a state agency designated by the prosecution from “day to day” until completed. Courts in other jurisdictions, however, have directed the prosecution to provide a copy of the computer data containing the child pornography depictions to the defense. In Westerfield v. Superior Court, 99 Cal.App.4th 994 (2002), the prosecution offered unfettered access to the computer in the confines of law enforcement premises and argued against giving the defense its own copy by noting California’s child pornography statute only contained an exemption allowing possession by law enforcement in the execution of its official duties. The court ordered the prosecution to provide a copy to the defense. In People v. Verbrugge, 2003 WL 193717 (Ct. of App., 2003), a Colorado court used a different line of reasoning to reach the same result: “The People’s [refusal] would deprive the defendant equal opportunity to examine the photographs under the same conditions as the prosecution and would frustrate the purposes of [Colorado's discovery provisions].” As computer evidence becomes more commonplace in criminal cases, discovery issues will increase in complexity. The imaginative arguments yet to be uncovered by both the prosecution and defense bars will cause interesting dilemmas for the bench to resolve in the coming years. Stephen V. Treglia is an assistant district attorney in Nassau County, N.Y., and chief of the technology crime unit. This article was originally published in theNew York Law Journal, aRecorder affiliate. • Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact News Editor Candice McFarland with submissions or questions at [email protected]or go to www.therecorder.com/submissions.html.

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