In United States v. Rubinstein, 2012 U.S. App. LEXIS 7890 (11th Cir. 2012), the Eleventh Circuit upheld convictions for transporting and possessing child pornography. On appeal, the defendant argued that online chat transcripts and a list of files generated by the computer's antivirus program should not have been admitted into evidence. The investigation began with connecting the defendant's screen name to his ISP and residence, and then searching his home. His computer and DVD contained hundreds of images of child pornography.
The Eleventh Circuit found that the chat transcripts "were relevant because they show that child pornography was exchanged and the sexual comments about children help establish that Rubinstein knowingly exchanged the illicit images." Additionally, testimony about how the program operated and how the list was created properly authenticated it.
With regard to the virus scanner list, the court found it to be relevant "because some file names on the list were suggestive of child pornography, tending to show that Rubinstein knowingly possessed child pornography."
The use of the file list is a little troubling, though two things are important to note: (1) actual images of child pornography were found, and (2) most people are not likely to name non-CP images with names that suggest CP content. But suppose I created a document on my computer called "how_I_hacked_the_government.doc". Should that name alone be used against me in a prosecution for hacking? It could be a fictional story - you can't know without the content. It just seems that this file list was unnecessary and should not be admissible in a case where the files are not actually recovered.
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