Malware to blame for porn on state worker's laptop

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Child porn possession charges were dropped against a Massachusetts man after forensic experts proved his state-issued computer had been infected with malware.

Michael Fiola was fired from his job with the Department of Industrial Accidents (DIA) in March 2007 after it was discovered that his data usage was four times that of his co-workers and that his laptop contained a large amount of pornographic photos of young children.

In August, charges were filed, authorities said.

However, computer forensics expert Tami Loehrs, who was hired by the defense, found that the material was never downloaded or looked at by Fiola.

Instead, the computer lacked anti-virus protection which allowed virus and trojan-laden spam to come through, silently downloading images of incest and child porn on the machine.

Two computer forensic examinations authorized by the Suffolk County District Attorney's Office, which was prosecuting the case, agreed with Loehrs' assessment.

The case was dismissed, according to court documents, because the forensic review “has led the commonwealth [of Massachusetts] to conclude that the available evidence would not allow the commonwealth to meet its burden of proving the defendant's guilt beyond a reasonable doubt.”  

Loehrs told SCMagazineUS.com on Tuesday that if the District Attorney's office turned to a forensic exam immediately, Fiola could have avoided the long process of getting the case thrown out.

“Fiola was handed a laptop that had belonged to a previous user,” she said. “The laptop was given a new username, but changed nothing else. The software that manages the computers was never changed, so the [security] updates weren't being maintained. He was sent out into the field with a laptop that was unprotected.”

Alex Eckelberry, president of anti-spyware firm Sunbelt Software, compared Fiola's situation to that of Julie Amero, a substitute school teacher who had similar charges filed against her. Last summer, she was granted a new trial. No date has been scheduled.

“These cases are tragic,” Eckelberry told SCMagazineUS.com. “They speak to the culture of the law today. If you possess [porn], you're automatically guilty.”

And in the case of computers, Eckelberry added, that isn't necessarily the case.

“Just because something is on your computer, doesn't mean you put it there,” he said.

Cases involving child pornography are not uncommon, Jake Wark, a spokesman for the Suffolk County District Attorney's Office, said on Tuesday.

Finding the traces of spam on the computer are an important step for helping to determine a person's innocence, he said.
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