Federal workers suspected in child porn viewing not investigated

First of two parts.

A Federal Aviation Administration employee had 17 images of suspected child pornography on his taxpayer-funded work computer, yet the government allowed him to keep his job and ordered him to attend after-hours counseling on appropriate computer use.

Investigators never determined whether the images were, in fact, child pornography because the Transportation Department’s inspector general never took the images to law enforcement.

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The inspector general blamed the Justice Department, saying prosecutors had told them not to bother with cases in which people depicted may be younger than 14. The Justice Department says it has never issued that guidance, and analysts said the inspector general’s office appeared to be making prosecutorial decisions it didn’t have the authority to make.

Whatever the reasons, the bureaucratic bungling may have cost authorities a chance to rescue people from sexual abuse.

“This whole things is stunning and scary to me,” said Shea Rhodes, a former Philadelphia prosecutor and director of Villanova University’s Institute to Address Commercial Sexual Exploitation. “Doesn’t anyone want to know if these are, in fact, kids? If they are being harmed? Who has them? It makes my heart hurt to think about the number of kids who may not have been found because of policies like this.”

The 17 images of suspected child pornography were among nearly 200 pornographic images found on the worker’s government-issued hard drive in January 2017, according to a report obtained by The Washington Times.

The report does not name the employee, but he worked in the Washington office and the investigation was based on a complaint from the FAA’s accountability board.

An agent for the Transportation Department’s inspector general, which investigates illegal activity by its workers, took the suspected child pornography to the National Center for Missing and Exploited Children. He asked the center whether the photographs included anyone in its victim database, according to the report. The agent also inquired whether any of the people depicted were younger than 14.

The center said the images didn’t match anyone in its database and could not determine ages from the photographs, according to the report.

The agent closed the case, saying “the recovered images do not meet the criteria for child pornography” because the National Center for Missing and Exploited Children couldn’t provide more information.

Federal investigators and child safety advocates told The Times that was a stunning — and wrong — decision that could have left children endangered either by the pornographer or the employee.

“It is appalling that someone decided the sexual abuse of 15-, 16- and 17-year-olds isn’t serious enough to be reported to law enforcement,” said Mary Leary, a Catholic University of America law professor and a former federal prosecutor who has worked for the National Center for Missing and Exploited Children and the National Center for the Prosecution of Child Abuse. “I can only assume, in their eyes, 15-, 16- and 17-year-olds who are sexually abused don’t matter.”

The government appears to be facing a spate of child pornography cases. Reports reviewed by The Times found cases at the Nuclear Regulatory Commission, the National Archives and the Commerce Department. Some of those cases involved pornography on work computers, while other images or videos were stored on personal devices.

A March FBI raid on the apartment of former National Security Agency and CIA employee Joshua Schulte turned up at least 10,000 images of child pornography on his personal computer, according to court documents. Federal agents found the pornography while looking for top-secret documents and hacking tools that Mr. Schulte was suspected of leaking to WikiLeaks.

A worker for the Small Business Administration who brought his own computer into the office to watch pornography told investigators that he watched “all day long, even at work … in between his work and his lunch hour.” The worker said any pornography involving children was downloaded “accidentally.” He was fired, but prosecutors declined to pursue the case.

The Transportation Department inspector general’s handling in the FAA case is all the more curious because it pursued a case in 2014 against a Maritime Administration employee who trolled for online pornography with searches such as “Young+Girls+No+Panties” and “Boys+Penis+Puberty.”

The inspector general referred that case to the U.S. attorney’s office in the Northern District of California, but the office declined prosecution because no actual child pornography was found.

Also that year, the inspector general looked into Eric Worrell, a civil engineer at the Federal Highway Administration in Sacramento, after “hundreds of images of child erotica and child pornography” were found on his work computer. Prosecutors took that case, and Worrell was sentenced to five years in prison in March 2016. He was also required to register as a sex offender.

In another investigation, the inspector general found 400 sexually explicit images on an FAA employee’s work computer. The images appeared to include underage boys engaged in sexual acts, but the inspector general said it concluded that the people in the photos were adults, according to a report reviewed by The Times. It was not clear how investigators reached that determination.

An Illinois-based FAA employee, Richard Barnett was arrested in October and charged with producing and transporting child pornography. He pleaded not guilty last month. A second FAA worker, William Pothier of Exeter, New Hampshire, was convicted of possessing child pornography in January. In both cases, law enforcement seized personal computers, according to court records.

The Transportation Department inspector general’s office defended its actions in the case of the 17 images of suspected child pornography.

An investigator who spoke with The Times on the condition that he not be named said they were following guidance from the Justice Department’s Child Exploitation and Obscenity Section. The investigator said the section, through informal discussions, encouraged Transportation Department investigators to focus on only the worst cases of child pornography. He said those were cases involving penetration of prepubescent children, usually younger than 14.

But the Justice Department statement released to The Washington Times disputed that account.

“Child pornography is defined clearly in 18 U.S.C. 2256 as a minor (under 18) engaged in sexually explicit conduct (including the lascivious exhibition of genitals),” the statement said. “CEOS does not have the authority to interpret the statute imposing a reporting requirement on federal government agencies for allegations for child sexual exploitation and does not make attempts to do so.”

Federal law does make distinctions on age. Anyone who knowingly views or possesses child pornography depicting a prepubescent minor or a minor younger than 12 can face as much as 20 years in prison. The maximum sentence for child pornography depicting a minor older than 12 is 10 years in prison.

The Transportation Department inspector general couldn’t say why it was using a 14-year-old threshold when the law sets the higher penalty at age 12. The investigator also said he didn’t know when CEOS gave the guidance.

No matter what, the inspector general should have brought the case to prosecutors, said Charles McCullough, a former inspector general for the intelligence community. He said he would have asked the Justice Department for a letter explaining why it thought the case fell below the prosecution bar.

“If I am under the impression that this case doesn’t meet their threshold, I want the Justice Department to tell me that in writing,” he said.

Mr. McCullough said he couldn’t imagine prosecutors discouraging an inspector general from seeking their opinion.

“I never had an experience where the Justice Department told me not to come over there with a case,” he said. “There are a lot of factors that go into prosecutorial decisions, and it’s not the inspector general’s role to make those decisions. That belongs to the Department of Justice and the Department of Justice only.”

Analysts also said it was odd that the inspector general found the images troubling enough to seek answers from the National Center for Missing and Exploited Children but not prosecutors.

“They have images that makes them say this could be child pornography, so much so that they feel the need to check NCMEC’s national database,” Ms. Leary said. “It seems to me that you turn it over to law enforcement, who can follow the trail and determine if this is child pornography. This is a decision for law enforcement, not an employer.”

The center may not have even been able to do what the inspector general was asking.

Lindsey Olson, executive director of the exploited children division at the National Center for Missing and Exploited Children, said the center does not declare an image child pornography, nor does it confirm ages.

The center’s database, while a great resource, also doesn’t include every example of child pornography. Investigators are adding images and other information daily, and large pornography raids can take years to catalog. Some images may never even make it to the center.

Since 2002, law enforcement agencies have located and identified more than 10,500 children exploited for pornography, according to the national center. However, that is only a small percentage of the children who fall prey to commercial sexual predators. In 2015, the center reviewed more than 26 million sexual abuse images and videos and received more than 4.4 million tips.

About 40 percent of the children are between infancy and “tween years,” with the ages dropping significantly each year, the Justice Department said in a 2016 report to Congress. The Justice Department also estimates that nearly 300,000 children — across all ethnic and socio-economic backgrounds — are targets for pornographic activity.

Eric Weems, a spokesman for the inspector general, said the office conducted its own forensic analysis of the images and was unable to determine whether the images even met an 18-year-old threshold. Agents also scoured the employee’s internet searches and found no evidence that he trolled for child pornography.

Mr. McCullough said the inconclusive results are all the more reason to take the images to law enforcement.

“If this case caused me so much consternation that I had to do my own forensic analysis and go to NCMEC, I think the responsible thing is to involve the FBI and Justice Department,” he said.

Patrick Trueman, a former CEOS chief who now runs the National Center on Sexual Exploitation, said he never told an agency to withhold a report. But he said the Justice Department’s appetite for prosecuting such cases has diminished in recent years.

Adult pornography cases were prosecuted in the late 1980s and early 1990s, he said, but the number dropped as the internet sent instances of child pornography soaring to “astronomical” levels.

“I doubt the Justice Department can prosecute even a fraction of them,” he said.

A 2008 Department of Defense report found that several dozen of its current, former and contracted employees — some with top-secret or higher security clearances — accessed and purchased child pornography two years earlier, putting national security at risk. The cases were never prosecuted.

Mr. Trueman said he believes the government looked the other way because it was fighting wars in Iraq and Afghanistan, making those employees necessities.

“Why did the Justice Department stand pat on these cases?” he said. “The Bush and Obama administrations let this go. They need to be stronger in enforcing child pornography laws.”

Statistics show U.S. attorney’s offices do take a large percentage of the child pornography cases presented to them. The Internet Crimes Against Children Task Force, a national network of 61 regional organizations that include federal, state and local law enforcement agencies, referred 1,632 online child exploitation cases to U.S. attorneys in fiscal year 2015. About 76 percent of those cases, or 1,248, were accepted for prosecution.

Roscoe C. Howard Jr., a former U.S. attorney for the District of Columbia, said the images should have been presented to legal authorities, but he is not sure the outcome would have been different. The U.S. attorney’s office’s time and financial constraints require its prosecutors to pursue only cases they can win, he said.

“I would have absolutely looked at it, but I’d better be able to prove beyond a reasonable doubt this guy had underage porn,” he said. “I can’t hold a picture up to a jury and ask them how old they think this kid is because I’d never let one of my attorneys walk into a courtroom with a case that is a loser.”