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The crime may be imaginary, but not the possible punishment
Over the years, gay journalist Bruce Mirken has talked on the phone, exchanged e-mail, and met with dozens of gay and lesbian youth. That's how he's researched acclaimed articles he's written, like a 1993 cover story for
the L.A. Reader about a teenage lesbian whose mother forced her into a Utah institution that says it "cures" homosexuals. But last July, an encounter with a troubled gay teen changed Bruce Mirken's life.
Mirken and the youth had exchanged messages for about a week in cyberspace, on America Online. The boy said he was 14, and suggested he was lonely and unhappy, and he proposed meeting in person.
When Mirken went to a park in Sacramento July 24th where the meeting was to occur, only the police turned up. The "boy"-- a creation of an undercover vice cop-- had never existed. Police arrested Mirken on two felony counts
of "attempted lewd conduct" with a minor, even though he agreed to see the "boy" for no other reason than talking.
"The charges are completely, totally false. They have absolutely no merit, period," says Mirken, whose writing appears widely in the gay press, including
The Guide, and has been published also in
newspapers such as the Miami Herald, the
Detroit Free Press, and the Orange County
Register.
For 12 hours Mirken was held at the Sacramento jail while he raised $100,000 bail. In the meantime, police raided the journalist's San Francisco apartment, ransacking it and seizing Mirken's computer
and address book.
Now, using high-tech tools to regenerate erased computer files, police claim to have recovered about a dozen sexually explicit images of youths from Mirken's hard drive. Bruce Nickerson, Mirken's
attorney, says the images had been sent unsolicited to his client by people with whom he had chatted on-line. "Every single one of these things were deleted within a matter of a few seconds upon receipt," Nickerson says. "That
should insulate Bruce legally, except that the law isn't up-to-date on what it means to 'knowingly possess.'"
Prosecutors have not decided yet whether to add "kiddy porn" charges to Mirken's rap, but the images have at least emboldened authorities to push further with a weak case.
Mirken communicated on-line for about a week with the undercover cop posing as a gay teen. "Every time Bruce would try to discuss things like school and other activities, the 'kid' would steer it back
toward sex," Mirken's attorney told The
Guide. The "boy" said he wanted to meet Mirken at a hotel, and asked him to bring along condoms and lube. But Mirken insisted on meeting in a public place, and came only with his
reporter's notebook. In his last e-mail, the "boy" said that he had been lying and was actually only 13-- an attempt by the cop to raise the stakes of the entrapment, since California law imposes much steeper penalties for sex
with persons under 14.
Police are expected to use the images to claim that Mirken had erotic intentions.
"This presents a shocking problem to all of us who are online and receive files: does simply deleting it protect us?" attorney Nickerson asks. "I believe it should but the law doesn't necessarily say that."
On both Windows and Macintosh computers, deleting a file does not actually erase it from a hard drive. The information remains on the disk, even though the space it takes up is designated as available,
if necessary, for over-writing with new data. Until that happens, the deleted data can be easily regenerated by police-- or anyone, using file-recovery software.
With these techniques, authorities can chart a computer user's activities going back months and years-- what e-mail they've sent and received, what Web sites they've visited, what images they've seen.
To fully erase data requires a program, such as Norton Utilities, that "wipes" the hard disk, by overwriting the same part of the disk many times with meaningless data. Even after one or two passes,
the previously encoded information can possibly still be retrieved, though at great expense. Security experts suggest five or more wipes of random data to really make deleted files unrecoverable.
If prosecutors do decide to press pornography charges, Mirken could face 15 years in prison for "possessing" images he never kept, on top of any sentence for "lewd conduct" never attempted with a boy
who doesn't exist.
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