Computer technician acquitted of downloading child sexual abuse material

A court has called on the House of Representatives to address legislative lacunae involving IT professionals after a computer technician was acquitted of downloading child sexual abuse material since it could have come through the data recovery process on clients’ electronic hardware.

Joseph Mary Fleri Soler was accused of downloading child sexual abuse material featuring children under nine in videos showing bestiality and gang rape. He was also accused of misusing electronic equipment.

Police superintendent Joseph Busuttil testified that the Cybercrime Unit alerted the Vice Squad to the case after the former were provided with a programme – GRIDCOP – by the UK police which traces IP addresses downloading child sexual abuse material. The police traced the IP to the accused, and established that from that IP child sexual abuse material was being downloaded via eMule a peer-to-peer program using torrents. 

Fleri Soler was arrested and all his electronic devices were seized.

In his first interrogation he did not reply to any questions.

Following a detailed report prepared by the Cybercrime Unit, he was interrogated a second time where he answered to the questions but stopped short of signing the statement.

Fleri Soler told the investigators that he worked on computers and did data recovery. He did not know who had downloaded the material featuring child sexual abuse. 

The investigation also showed that a search on eMule had looked for “pthc” or “pre-teen hard core”. The police analysed four hard disks. One contained child sexual abuse material classified as hentai. Another hard drive, which was not in an electronic device, contained photos and videos showing child sexual abuse material. The remaining two did not contain any.

The accused testified that he worked within the human resources department of the EU funds ministry. Before that, he was a teacher and part-time computer technician. He also worked with a company before setting up his own to fix devices. He continued to work as a computer technician but stopped doing data recovery once he was investigated in connection with this case.

He explained that as part of his work, clients would sometimes ask for the recovery of files which have either been lost or were on broken hard drives. He would extract the content and hand it to them on a CD. Data recovery could take hours and would be done at night. 

He also spoke about repairing defective hard drives due to viruses which open pop-ups informing the user that illicit material was being downloaded on the client’s hard drive. He explained that the work laptop was from the time he was a teacher. He used it to recover data for clients. He denied any knowledge about a file found on eMule and said he used the program to download music.

His ex-wife testified that he worked as a technician and a teacher, and together they had a shop selling electronics.

The woman said her ex-husband was a good technician and had a lot of clients who brought their devices to his home and left them there. She was unaware of whether the accused kept a list of the clients’ names and their devices.

The court observed that there was no evidence that the accused had committed the alleged offences. The prosecution did not prove its case.

It was not disputed that Fleri Soler was a computer technician and that he worked on hard drives from clients. The material came from data recoveries and there was content described as “orphaned files” and “unallocated clusters”. The orphaned files would come from deleted sources, while the unallocated cluster would be a deleted or orphan file that had been recovered from space on the disk that was not currently used by the file system. 

According to a court-expert’s testimony, this could only be recovered through forensic software.

The court noted that there was a possibility that while Fleri Soler was in possession of the material, it was not because of his own will but because it came from clients’ hard drives.

The court also noted that there was no indication to show that Fleri Soler  intended to commit the crime. For a court to find guilt, the act must have been the result of a guilty mind.

The court ruled that it was not proven that Fleri Soler downloaded the material.

From the court expert’s testimony it also emerged that IT professionals are not 'regularised,' leaving people like the accused exposed to offences which were actually committed by the owners of the devices.

Fleri Soler was therefore acquitted of both charges.

The court ordered that a copy of the judgment be sent to the Speaker of the House of Representatives and the Economy Ministry to address any legislative lacunae.

Magistrate Claire Stafrace Zammit presided. Lawyers Joe Giglio and Mattea Giglio appeared for Fleri Soler.