We have a child porn case where the computer definitely has porn but due to a long list of problems - we can't really place anyone in knowing possession or putting the porn on the computer. We know we don't have a case - but we don't want to return the computers. Anyone else handle this problem and what do you do? A seizure? How, what process?

[This message was edited by Pelikan on 09-17-08 at .]

Why not get consent from the "owner" for you to delete the offensive material before its return? He should agree, since the alternative would be to face arrest for possession of the child porn upon receipt of the computer. If not, you could file a forfeiture action under CCP Ch. 59 since the crime is a 2nd degree felony.

The concern is file recovery programs. I am not sure what is necessary to actively delete the material. You always hear how everything is recoverable.

I would use CCP 18.18(b), give notice to the person the computer was seized from to show cause why the criminal instrument (the computer) should not be destroyed and then destroy it after the hearing. My guess is that no claimant will show at the hearing! If they do I would ask the judge to admonish them about their 5th!

I regularly use a file deletion program called "Evidence Eliminator", which beats Encase and programs like it hands down. You're IT people can point you in the right direction. You can also find free programs on the web. Just remove the offending hard drive and slave it to a working computer. I would reformat the hard drive and then afterwards run the data elimination program.

You could also just degauss the hard drive, too. I would imagine your IT guys have one hanging around.

If you just destroy it someone can always claim in court that you failed to use a less intrusive means. Evidence Eliminator works 100% and the files cannot be recovered under any circumstances.

Use of Evidence Eliminator is also great evidence against a defendant. "Gee, I wonder what was on that computer, Mr. Defendant?"

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Originally posted by John Greenwood:
I would use CCP 18.18(b), give notice to the person the computer was seized from to show cause why the criminal instrument (the computer) should not be destroyed and then destroy it after the hearing. My guess is that no claimant will show at the hearing! If they do I would ask the judge to admonish them about their 5th!

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Excellent advice John!

Ignore R_Smith's post. Use the courts and the law to seek to destroy this criminal instrument and no one will be able to validly complain.

Be wary of taking legal advice from someone who posts with an anonymous name. That, is a receipe for disaster.

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Originally posted by R_Smith:
I regularly use a file deletion program called "Evidence Eliminator", which beats Encase and programs like it hands down. You're IT people can point you in the right direction. You can also find free programs on the web. Just remove the offending hard drive and slave it to a working computer. I would reformat the hard drive and then afterwards run the data elimination program.

You could also just degauss the hard drive, too. I would imagine your IT guys have one hanging around.

If you just destroy it someone can always claim in court that you failed to use a less intrusive means. Evidence Eliminator works 100% and the files cannot be recovered under any circumstances.

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You sure seem to know ALOT about deleting files, Mr. Smith.

I used to work for a large private firm and since I have a bit of an IT background one of my early tasks involved what to do with all the old computers that the firm would donate to schools and head start programs. Obviously you cannot have hard drives circulating that contain attorney / client info on them. So most firms would simply physically destroy the hard drive (via hammer or other large object) and then toss the old computers in the trash. The firm that I worked at was very large and computers were constantly being recycled / upgraded. It was felt that there must be a better alternative then simply smashing and toss them in the trash. So after myself and a couple of others did some research, we came up with the data wipe alternative. The program that I mentioned was purchased and it was tested against EnCase and other like programs. It worked great; thus, allowing the firm to donate hundreds of old PCs all across the country from its various offices that would have otherwise been tossed in the trash.

So, yes, I do know a lot about data destruction methods. There are many legitimate uses for such programs, as I mentioned above.

By the way, what does YOUR office do with old computers - smash and toss or data wipe and donate?????

It is clear that R-Smith has the luxury of never having to concern himself with the victims or consequences of crime. If he did he might have some understanding that very often the instruments of crime, be it a firearm used in a murder or computer that is used to re-violate children and re-publish sexual offense, need to be removed from society just as the perpetrators of those offenses.

As to the donation of obsolete computers; The motive of people seeking to donate computers to our County, local school district, Boys and Girls Club, etc., generally seems to be the desire to avoid the cost of hauling them to a proper recycling center. Not to mention the claim of a "charitable" donation!

[This message was edited by John Greenwood on 09-18-08 at .]

I am not trying to be personal here, but that line of reasoning just does not make sense. Taking someone's computer certainly is not going to stop them from reoffending (i.e. getting more porn). They simply get another one.

Once the porn is wiped off the computer, then it becomes just an ordinary computer like all of the rest. If you try to go to a judge and get an order for destruction all the defense has to do is point out that data destruction is the least intrusive means of accomplishing the state's objective in getting rid of the bad porn.

The computer isn't "evil" any more than a gun or a car is evil. It is an object. It does not need to be removed from society. Victims have nothing to do with it.

I'm not trying to be personal either, but boy I'm glad you are not a prosecutor.

Ah, but I am. Not everyone in the State of Texas has to agree with you or JB. Many of us have other ideas, too, you know, on how things should be. It has been said that the best way to reform a system is from the inside.

Hear, Hear, R Smith. Hear, Hear.

I used to be an attorney for Air Intelligence Agency and wondered why you coudn't just wipe the computer files, too.

Saves landfill space and keeps working computers viable.

Of course, we still keep cold war bombers built in the '50s functional, too.

I disagree with R_Smith on a number of issues elsewhere in the forum myself, but I see nothing in his posts here that doesn't make perfect sense.
Instead of 18.18, Greg, use Chapter 59. If the offensive data can be destroyed without destruction of what is an otherwise valuable asset, why not forfeit the asset, destroy the contraband, and use the computer for good rather than evil? After all, forfeiture proceedings are against the property, not a person, so you don't necessarily need to know who put it there. And anyone who would refuse to show up for a destruction proceeding will be just as likely to fail to respond to a forfeiture action.

No computer is worth anything by the time you finish litigating the case. Technology moves too fast.

A brand new hard drive could be purchased for much less than $100, especially if you order it online.

Also these "drive wipe" programs are used by many companies that have HIPAA healthcare or financial data. They could be liable if a BadGuy gets the data, even if the data was recovered from a machine donated to GoodWill. The computer down at Melbo's corner store probably has 10,000 credit card numbers in it and they need to be careful when they donate it to the church.

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Originally posted by JB:
No computer is worth anything by the time you finish litigating the case. Technology moves too fast.

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Unless it's an Apple.

At last, a reasonable statement in this thread.