Many companies run 24 hours a day, 7 days a week, 365 days a year, and rely heavily on computers and technology for their employees to do business.  While losing productive work time to web surfing and social media use by employees is a reality for most employers, the technology presents greater risks than whether an employee is spending too much time on the internet shopping or tweeting.  And not just those of the civil variety.

What if one employee sees child pornography on a co-worker’s computer?  Or maybe a company’s lawyers are doing an unrelated internal investigation in which all computers are frozen and searched for evidence of a problem, and that search leads to the discovery of child pornography stored on your company’s server, or on an individual’s hard drive?  What now?

Federal law makes it a crime to knowingly produce, distribute, receive, OR POSSESS with intent to distribute “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting of child pornography…”  No bad motive is necessary to obtain a conviction.  Mere knowledge is enough.  Worse, with child pornography, the possibility of further liability exists with each view, distribution or additional creation done with employer knowledge.

Of course, beyond the criminal dangers, if a company knows it has child pornography on its system and another employee sees the material, the obvious civil concerns arise, too.  For example, the company could face civil liability for sexual harassment.  And, it could face civil liability under a federal law which provides a possible money judgment to a victim of the child pornography who can show that the company possessed the pornographic images.

So now that we’ve reminded everyone of what should be the obvious legal dangers of child pornography, here’s a less-than-obvious, 5-step roadmap on how to confront this very real concern in today’s technologically-driven workplaces:

1)  First: avoid the situation in the first place.  Hire experts to install software that blocks access to all pornography sites from any of your company’s computers;

2)  Second: have clear computer system usage policies.  State that under no circumstances may corporate computers be used to view, possess, distribute or create anything that is inappropriate, including child pornography.  State that the company has complete access to all company-owned computers and their content, and then monitor the computers regularly. Make plain that the company has unlimited rights to discipline employees to the full extent of the law – up to and including immediate termination – for inappropriate or unlawful use of company computers, and that any suspected use of company computers for any inappropriate purpose may be reported to law enforcement;

3)  Third: monitor your computer system and employee use with random monitoring programs that can’t be anticipated, even by your sophisticated computer users;

4)  Fourth: create – and then educate your employees about – clear reporting procedures.  Tell your employees, in writing, that any suspicion of child pornography in the workplace must be reported immediately to management, who will then report it to federal, state, or local law enforcement.  Be sure that your procedures cover circumstances where the manager to whom such a report would normally be made is the child pornography possessor.  This is similar to the way your harassment policy should already be structured.  Also, be sure your IT people (who often will be the “first responders”) don’t do anything that would damage a law enforcement investigation, taint or destroy evidence, or “leak” juicy gossip to other employees;

5)  Fifth: finally, if you do become aware that child pornography exists on your computers or network, respond quickly. Get your lawyer involved immediately, so that law enforcement personnel can be notified ASAP.  If your corporate policies allow it and law enforcement approves, have your lawyers hire forensic consultants to search your entire network, servers, back up tapes, laptops, and home office hard drives owned by your company for any additional illegal material, and immediate share the consultant’s findings with law enforcement.  Institute appropriate disciplinary procedures against any alleged wrongdoer, and don’t forget to consider whether anyone knew about it but looked the other way;

At the recent swearing-in ceremonies of two Presidentially-appointed United States Attorneys, both of them mentioned in their remarks that child pornography would be a main focus for their prosecutors.  So, to quote the watch commander on the old TV show Hill Street Blues, “let’s be careful out there.”

Bill Wilmoth concentrates his practice in litigation, particularly in defending complex commercial and energy cases, securities cases, and health care cases. He also counsels clients in health care compliance audits, and in health care fraud and other white collar criminal investigations.
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» Read the full biography of Bill D. Wilmoth at Steptoe & Johnson


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