HB 155: Prosecuting Technicians for Not Reporting Child Pornography
This bill passed the House 60-13 and passed the Senate unanimously.
Libertas Institute opposes this bill.
The production of child pornography is perhaps one of the most detestable of activities, and should be vehemently condemned. Those who traffic in this trade should be investigated and prosecuted to the fullest extent of the law. We should be very cautious, however, in passing well-meaning laws to address this issue that carry unintended consequences.
Such is the case with House Bill 155, sponsored by Representative Craig Hall. This proposal would create an affirmative duty on computer technicians to report any child pornography they encounter in the course of their work—for example, while servicing a client’s computer to remove anti-virus software. Those who fail to report child pornography they encounter may be punished with a class B misdemeanor.
Government should not be effectively deputizing innocent individuals who do not consent. That being said, most technicians likely are already reporting child pornography they encounter. No information has been provided showing that this is not already happening, absent a legal mandate to do so. Why, then, is the bill necessary?
Even worse, the bill creates unintended consequences that criminalize reasonable and innocent activity on the part of technicians. For example, it will be difficult for a technician who encounters pornography to discern whether the young person is under 18 if the individual is close to that age; many young adults may look like they are 16 or 17 years old. This creates an incentive to over-report to prosecutors, sweeping up people into the criminal justice system who possess pornographic images of a legal adult who consented to the activity. This will require individuals to unnecessarily employ defense attorneys, have criminal charges on their record, and have to seek expungement to avoid future consequences to this unfounded criminal charge.
Further, HB155 may lead to the prosecution of technicians who did not see the child pornography that prosecutors may claim they did. The “probable cause” standard is relatively low and allows for significant doubt, so while a conviction would be more difficult, an overzealous prosecutor may file charges even in the absence of any specific proof that the technician saw the child pornography and consciously chose not to report.
It also raises the question as to why this bill is necessary. To the extent that investigators identify a computer technician who failed to report a person in possession of child pornography, they will have already located the distributor or producer of the child pornography itself, and can therefore pursue justice. Prosecuting the technician is unnecessary.
We support efforts to address this important concern and protection vulnerable children from predators and pornographers. This bill simply takes the effort in the wrong direction.