Rules for Thee But Not for Me

The hypocrisy of those that investigate and prosecute CSAM under the Adam Walsh Act

I didn’t want to believe it when a wrongfully convicted client told me that prosecutors played child abuse material in open court.

In front of the jury, no less.

I didn’t even want to believe it after I saw the evidence of this misconduct in their case.

Then I started looking for more examples. My client’s case had to be a one-off, you know, one of those cases where legends are born of the fruit dropping from the poisonous trees of misconduct, prejudice and error.

Q: (By Prosectuor Ms. Martin): Now, the other movie that you downloaded, can you tell us what the title of that movie was.

A. Yes, it’s 15-yo girl fingers 14-yo friend.mpg.

Q. Have you reviewed that movie as well?

A. I have.

Q. Can you play it for the jury, please.

(A portion of Exhibit 2 was played in open court.)

Then I saw that and my heart sank. It’s from U.S. v. Frakes, which I have written about previously. The prosecution played multiple files. In front of the jury.

I felt sick.

What purpose could there be to play a video of a child being raped in open court?

Maybe it was a State thing, so I looked in Tennessee. In this case, after defense counsel objects to CSAM being played:

THE COURT: I have ruled on this pretrial, Mr. Dougherty, it’s admissible. Your objection is overruled.

MR. DOUGHERTY: Thank you, your honor.

(VIDEO PLAYING)¹

The colour that had drained from my face was now rapidly returning. I felt my hands start to tremble.

Why would prosecutors do that?

“Rules for thee but not for me,” I seethed to no one.

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I’m not new to the world of child sexual abuse material (CSAM) investigations. Not by a long shot. I’ve volunteered countless hours. My former software company developed specific features for CSAM investigations. I gave presentations and training to organizations that specialized in carrying out CSAM investigations. We built dark web tooling to help make Tor hidden service information more widely accessible to CSAM investigators.

I feel like I need to say these things because I frequently have to defend myself against a variety of professional and personal slights when it comes to this verboten topic.

I did this work long before it was chic, and ages before it became a weird-ass, vigilante-pseudo-Christian thing. I don’t have any barbed wire tattoos, and I sure as fuck don’t “ooh-RAH” before doing evidence review. The less-than-kind, yet accurate, moniker of those that are adjacent to these folks is labelled “cop fuckers” by former NCMEC board member, Don McGowan. We’ll get to NCMEC and Mr. McGowan later, though.

In Canada, the law seems unsettled regarding when and how CSAM should be viewed by an officer of the Court.

There’s recent cases bubbling around Canadian courts that highlight the problem. On April 19, 2025, Lauren Scott for the CBC wrote, “A Manitoba judge says the court must consider showing a sample of child pornography during a May sentencing hearing for a man who has pleaded guilty to possessing the material.”

The decision cites other Canadian cases where there is an obvious moral, legal and ethical struggle to balance the need for accuracy in sentencing, understanding the severity of the offense, the right to a fair trial and the duty to protect the victims. It’s all a lot to balance once you list it all out.

Judge Bayly summarizes the litany of conflicting needs when stating:

[14] Without a doubt there is the potential that by viewing the CSAM in open court the children depicted therein could be re-victimized. The question becomes whether sufficient safeguards can be put in place to ensure that their dignity is protected. There should be safeguards put in place in relation to both the sample itself as well as the manner used to present it in the courtroom. In terms of the images contained in the representative sample, it should be compiled in such a way so that the images are not presented in an inflammatory or disproportionate way and that, if possible, the sample focuses on the images (or videos) that are most often accessed by the accused. Importantly, the sample must be presented in such a way that the public is not exposed to the images, the presentation itself should be as brief as possible and ideally, only the witness, the judge and counsel should be made privy to the images. No one else. This includes the accused.²

I still, respectfully, disagree, as a layperson with no legal training. My argument, echoed by others, is that text descriptions are more than enough for a learned judge or reasonable juror to understand the horrors contained in the images or videos. These text descriptions can be agreed upon jointly and almost completely eliminate any possibility of the victim being revictimized. Judge Bayly disagrees but does show, in my opinion, a balanced, nuanced, and arguably careful approach and emphasis on safeguards being in place to view the images themselves.

I just haven’t seen anyone actually asking the children, or establishing consent with their guardians, before pondering their re-victimization. For all the victim-focused discussion, this seems to exclude a discussion with the victim themselves.

Returning our gaze to the USA, a 2015 story by the NBC Bay Area Investigative Unit stated the obvious problem that can arise in the United States, “Every time law enforcement makes a copy of child pornography to give to defense attorneys in preparation of a criminal case in California they’re breaking federal law.”

As the NBC story states, there is federal law in the United States that, “…strictly forbids the copying of child porn for any reason, even if it’s for defense counsel preparing for a trial.”

That federal law is the Adam Walsh Act, named after the murdered son of John Walsh, who later became famous as the host of America’s Most Wanted. Walsh would go on, with Ronald Reagan’s support, to become a co-founder of the National Center for Missing and Exploited Children (NCMEC). Alongside John Walsh would be Noreen Gosch, the mother of Johnny Gosch, who went missing while delivering papers in Des Moines, Iowa on September 5, 1982.

But that was then, and this is now. Frequently, most modern associations made to NCMEC come from their CyberTip Line; both a reporting mechanism and a clearinghouse of tips for reporting the online exploitation of children. . If a CSAM image is uploaded to, say, your Dropbox account and flagged as CSAM, the generated alert is sent to NCMEC, which then coordinates sending the information directly to the appropriate law enforcement agency for action.

Yet, NCMEC is much more than just a clearinghouse for cyber tips. NCMEC has a lot of political power, and none but the foolish tend to want to stand in the way of the juggernaut responsible for ‘saving the children’. Yet, NCMEC doesn’t seem to want to, you know, protect all children. Just the ones that they want to, it seems, as NCMEC remained silent or otherwise uninterested in protecting trans kids, immigrant children locked up and separated from their parents, or otherwise deemed missing.

While there have been many criticisms of NCMEC in the past, the most scathing seem to be coming from the aforementioned Don McGowan, the former NCMEC board member. Don has been speaking out against the practices he saw at NCMEC that he felt were motivated not by child safety but by the political jet stream and its undulations. Don is also the one who gave us “cop fucker” as a way to describe the folks associated, and I do recommend listening to the interview in full.

How and when materials, including CSAM, or tips regarding the same, are distributed by NCMEC to law enforcement are largely governed by the Adam Walsh Act. I hope this has brought this all full circle for you.

One must ask, under the Adam Walsh Act, how can law enforcement not only just make copies of CSAM, make inflammatory comments regarding those materials, but then play them in open court? Surely NCMEC must have something to say about this?

If courts in Canada are struggling even to have a judge view the materials, and other courts are objecting to even making copies at all for defense counsel, how can it be that in other parts of the USA, prosecutors are doing live CSAM screenings in open court?

Rules for thee but not for me.

Even accidentally acquiring CSAM, as I have written about previously, can land an unwitting computer user in the middle of a fight for their life and freedom.

My god, how can we bar the testimony of firearms experts using the terms “match” or “same”, yet permit wholesale horrific displays of child rape, torture and abuse?

Rules for thee but not for me, you see.

The entire child protection “industry” is full of these cancerous contradictions.

Pull a thread at NCMEC and its origins and you find problems abound. You’ll trace the lineage to panic peddling, former-FBI agent, Ted Gunderson, no doubt. From Johnny Gosch to god-knows-what-else, Gunderson always had a pentagram, sex torture stories and a book to sell. In a beautiful twist, arguably one of the best research pieces done on Gunderson was by none other than Lucien Greaves of the Satanic Temple. It is worth the watch.

Pull another string on the board and one can’t help but puzzle at John Walsh himself. John is the lead advocate for this entire movement when he was having sex with Revé, when she was a minor and John was in his 20s.

This type of activity Mr. Walsh now, apparently, condemns, you know. While Don McGowan, in his TechDirt interview, provides a scathing view of the NCMEC, he does so while maintaining that John Walsh is, “…one of the greatest people I know…[and] one of the good men on Earth.”

Rules for thee but not for me.

1. https://www.documentcloud.org/documents/25467950-eetenn_2_08-cr-00033-jrg-dhi-transcript-trial-day-vol2pdf/#document/p77

2. R. v. Yankie, 2025 MBPC 33 (CanLII), <https://canlii.ca/t/kbk64>, retrieved on 2025-09-05.