There is a developing area of case law surrounding child pornography cases. In the past few years, several possession of child pornography cases have turned on the “unallocated space” of computer hard drives, making this an important area of evidentiary concern. The following sections will provide an overview of the relationship between child pornography and unallocated space on computer hard drives.
How Does Illinois Define Possession of Child Pornography?
As provided in 720 ILCS 5/11-20.1(a)(6), child pornography refers to “film, videotape, photograph or other similar visual reproduction or depiction” of a sexual nature. In order to qualify as child pornography, the visual depiction must involve a minor child under the age of 18 or a person with a serious mental disability.
Under Illinois law, it is a crime to knowingly possess child pornography. Knowing possession must be voluntary and intentional. Stated otherwise, the alleged offender must seek out, store, or receive child pornography without removing the materials as quickly as reasonably possible. Moreover, the alleged offender must know or have reason to know that the visual depiction involves a child under the age of 18 or a person with a serious mental disability.
What is the Difference Between Allocated and Unallocated Space?
Allocated space on a computer hard drive refers to all regularly accessible files stored by the user. In essential terms, the user can access all files in allocated space using a normal file-browsing program. Files in allocated space are active, with all regular attributes. The user can access and retrieve these files using their computer’s standard file-browsing program.
If a computer user deletes a file, then that file moves from the allocated space to the unallocated space. This space on a computer drive is a holding zone for previously deleted files. Any data in unallocated space is stripped of most characteristics. An imprint of the deleted file remains, at least until the computer needs more allocated space. At that point, the computer automatically overwrites a section of unallocated space.
Files in this space are not available for access or retrieval using standard file-browsing programs. Specialized software is required because the files may be moderately or totally overwritten. That is why these files are often referred to as “lost files.” Though files in unallocated space generally retain certain characteristics, including name, creation date, and previous location.
How Does Unallocated Space Relate to Possession of Child Pornography?
As the Illinois Circuit and Appellate courts stated recently in People v. Gumila, child pornography in the unallocated space of a hard drive does not constitute actual possession. As the computer user is not able to access or retrieve lost files, it does not qualify as actual possession. Without additional evidence, lost files in unallocated space are not enough to support a conviction for possession of child pornography in Illinois.
At the federal level, the Ninth Circuit Court of Appeals adopted a similar perspective in U.S. v. Flyer, reversing a conviction for possession of child pornography. The Ninth Circuit focused on the fact that the child pornography materials were retrieved from unallocated space. The mere presence of such materials in unallocated space is not enough to support a conviction for possession of child pornography.
That being said, the Illinois Circuit and Appellate courts supported a finding of constructive possession in Gumila based on other direct and circumstantial evidence. Stated otherwise, other evidence can confirm possession of child pornography.
At both the trial and appellate levels, the courts admitted evidence of child pornography in the alleged offender’s web browsing history, favorite sites, and temporary web files. The courts also admitted testimony where the alleged offender confessed to viewing child pornography. Combining those two elements, the courts determined constructive possession of child pornography, even though the original files were in unallocated space.
