Melvin Ehrlich, a 52-year-old pediatric dentist, was arraigned in Framingham District Court Thursday on charges of illegal possession and distribution of child pornography. It is alleged that a technician discovered the pornography on Ehrlich’s computer in March and reported it to the police. The prosecutor claimed that Ehrlich had 29 images of nude and partially-nude children on a laptop used by the dentist, his 18-year-old son, and his wife. Ehrlich allegedly took the laptop to the technician because it had a computer virus. A doctor who shares an office building with Ehrlich told reporters that her granddaughter has been treated by Ehrlich for years and that the granddaughter never exhibited any indication that something might be wrong. Ehrlich’s pre-trial date is scheduled for January 11.
As a Massachusetts criminal defense attorney, the first thing I notice is that Ehrlich shared the computer with at least two other people. He did not have exclusive access to the computer, and it is unclear how the government came to target Ehrlich, and not his wife or teenage son, in the investigation as to who downloaded or distributed the alleged pornography. Another thing to note is that the government will have to prove that the alleged dissemination of the pornography was purposeful. Peer-to-peer file-sharing programs, such as Limewire, have made that much more difficult. Many users of such programs do not realize that by downloading a file, the user is also sharing the file in a universally accessible folder. File-sharing programs like Limewire have two functions. One is downloading files from other users. The other is making files on one’s own computer accessible to other users. Some of these programs automatically place any downloaded file in a “shared” folder. Often, users don’t fully understand these functions and inadvertently make their files available in the “shared” folder.
Finally, assuming that the police obtained a search warrant before conducting a search of Ehrlich’s laptop, there might be strong arguments for lack of probable cause or particularity if the images were described as they have been in news reports: images of “nude” and “partially nude” children. Not all images of children in states of nudity are pornographic. The First Amendment issues that arise in these types of cases are interesting. While child pornography is not protected by the First Amendment, the determination as to whether an image is child pornography necessarily involves a First Amendment ruling, and the presumption that an image is protected under the First Amendment applies with equal force when the police are seeking items believed to be child pornography. Therefore, according to the First Circuit at least, the determination as to whether there is probable cause for issuance of a search warrant requires “a look” at the images or a very detailed description of them. If the description in this case was simply “images of nude or partially-nude children,” then it probably would not be considered sufficiently detailed.