What was Kirk Convicted of?
NE Count #2 - Accessing With Intent to View, in Violation of 18 U.S.C. 2252A(a)(5)(B)
NY Count #1 - Receipt, in Violation of 18 U.S.C. 2252A(a)(2)(A)
What was the Evidence for Kirk’s Conviction?
NE Count #2 - A fabricated (created for prosecution) and falsified (contained FBI generated data) “Visitors” table.
NY Count #1 - Browser Cache that must be carved to be seen.
What’s wrong with the Visitors table evidence?
First - procedurally - the FBI created & populated the table, so it is inadmissible at trial per FED. R. EVID 803(6) & 803(8).
Second - factually - the FBI populated the table with false evidence. IOW the two most important pieces of evidence contained in the table (session id and referring page) were falsified. Worse, the events couldn’t have happened (Read about it here) IOW, the alleged visit to TB2 never actually occurred.
Third - legally - the table doesn’t provide probable cause for any warrants (See: US v. Raymonda 2cd Cir. 2015).
What’s wrong with the Browser Cache evidence?
First - procedurally - browser cache has been deemed insufficient evidence to convict (See: US v. Stulock 8th Cir. 2002).
Second - legally - the browser cache had to be manually carved to be viewed. As such, it is deemed insufficient. (See: US v. Keefer 6th Cir. 2010).
Third - factually - for the reasons discussed in Keefer, browser cache is incredibly unreliable evidence as it can be populated in numerous ways without human interaction.