Are You Presumed Responsible for Porn Found on Your Computer

[Crispus]

I've got an employee of the federal government who was terminated because his superiors found a single pornographic file on his government issued computer. He has maintained that he has no idea how the file got on his computer and that he never intentionally download such a file. Also other employees had access to his computer. He was terminated based on a a charge of misuse of government computer/automation equipment.

He appealed his firing and had a hearing before a Merit System Protection Board Administrative Court Judge found that it doesn't matter that there is a possibility that someone else placed the file on the computer, or that a virus may have resulted in the file being on the computer or that he may have unintentionally downloaded the file. All that matters is that the file was on his computer (paraphrasing of course). In essence, this employee was found strictly liable for the possession of the pornography although there is no evidence that he actively misused a government computer to download porn.

It doesn't seem right that a person would be strictly liable for porn found on their computer when there isn't any evidence to support that the person intentionally or actively misused a government computer to download porn. By the Administrative Court's Judge reading of the charge, you would be guilty of misusing a government computer if someone sent you a pornographic file by e-mail and you never opened the file but it was stored on your hard drive.

Anyone ever seen a case like this? Know of anyone ever successfully arguing before the MSPB that they weren't responsible for the porn found on their computer?

BTW, first time posting so forgive me if I don't know the protocol.

[cdwjava]

How was the file discovered?

What does his union say about the issue?

Was he told who was logged on to the terminal when the file was downloaded?

When you say "porn" do you mean legal porn (in violation of policy), or kiddie porn (in violation of the law)?

I can tell you that it is not difficult to go in and find out when and how a file appeared. Assuming that the administration did even minimal checking, they might easily have found out when the download occurred and who was logged in.

[Crispus]

How was the file discovered? The file was discovered when he took the computer to the IT folks because the computer was acting up. The IT Guys found it (doesn't that suggest a virus!).

What does his union say about the issue? He isn't in a union. There is not union for his group.

Was he told who was logged on to the terminal when the file was downloaded? He was told that it was under his profile. But it was routine for people in his group to share login information for his profile. At least two other people had access to his password information (which is established on the record).

When you say "porn" do you mean legal porn (in violation of policy), or kiddie porn (in violation of the law)? One minute video file of Legal Porn. Definitely no kiddie stuff.

I can tell you that it is not difficult to go in and find out when and how a file appeared. Assuming that the administration did even minimal checking, they might easily have found out when the download occurred and who was logged in.

All they used were the file properties which gives information like "date created", "date modified" and "dated accessed". The interesting thing is that based on that information it is not even clear that the employee opened the file. (The Created on date and Access dates are exactly the same down to the second which is consistent with downloading and not opening a file.)

BTW, thank you for the quick response!

[Mr. Knowitall]

If you work for a unit of the federal government, I very much doubt that you are permitted to share your account with other employees. If you broke that rule, saying, "I shared my account with the person who downloaded the file" could turn out to be an "out of the frying pan, into the fire" defense.

Which of the two (or more) people who could access your account is willing to step forward and say, "It was me"?

[Crispus]

The other two employees admit that they had his password, but no one is claiming to have downloaded the porn. Though sharing credentials was in violation of policy, everyone involved will admit it was common for folks in the group to share credentials. Even the employees supervisor admits it.

[jk]

The other two employees admit that they had his password, but no one is claiming to have downloaded the porn. Though sharing credentials was in violation of policy, everyone involved will admit it was common for folks in the group to share credentials. Even the employees supervisor admits it.

Ok, so they say; fine, we'll accept your story but since you violated policy by sharing your password, you're fired anyway.

then what?

[Crispus]

Well then the question would be why didn't they fire all the other employees in the group who did the exact same thing? The one thing I have learned about the MSPB process is that there are strict procedures for firing folks and we could fight them if they tried to switch the charges like that.

[Mr. Knowitall]

You would certainly be free to try the "Everybody was doing it, so you can't fire me" defense if you were being fired for sharing your password. But you were fired for downloading porn and, unfortunately, the buddies you allowed to use your account are pointing their fingers at you.

[Booty Licious]

It does not work like that. They have to prove what they have charged the employee with misuse of equipment and specifically downloading porn. Any attempt to present a new charge what reset the process. The whole point is unlike an at will hiring or firing government employees have due process rights to protect their jobs.

[jk]

It does not work like that. They have to prove what they have charged the employee with misuse of equipment and specifically downloading porn. Any attempt to present a new charge what reset the process. The whole point is unlike an at will hiring or firing government employees have due process rights to protect their jobs.

"resetting" the process which is what, dismissing the current penalty and handing them a new write up with the new basis for the penalty? Doesn't sound like it would be hard to do.

as to specifically downloading a file; are you saying the government systems are so lax and vulnerable that they do not have a simple notification upon the downloading of any file? I would think the gov has settings such that it requires specific approval of any download. Could be wrong but anything less seems foolish.

without evidence of a virus (which in reality are generally more feared than what they deserve), something called res ipsa loquitur seems to apply. Even the courts accept it in many situations.