Maybe, maybe not.  Is Jared Fogle into kiddie porn? Should we hate him and only eat at Jimmy John’s? Should we give Jared the benefit of the doubt? But what about the fact that the F-B-freaking-I executed a search warrant on his home – ostensibly in relation to the child pornography prosecution of the guy who used to head up Jared’s charitable foundation.

Let me be the first to say that Jared may not be involved in any criminal activity at all and may in fact be an innocent casualty of someone else’s misdeeds.  While he may have had evidence in his home that the FBI was looking for, it does not mean he was aware of its existence.

When you first heard of this case, did you ask  How do police investigate child pornography cases?  If so, you may have the skepticism needed to see why Jared may not be guilty at all – because you are definitely onto something.  In fact, you may be asking some of the same questions I am.

What does the FBI search mean for Jared Fogle and Subway?

As a criminal defense attorney and former prosecutor who has handled many child pornography cases, two distinct things light up in my mind about the Jared situation.  First, law enforcement has not clarified whether or not he is a target of their investigation.  The second, is that the search is being done at Jared’s home a few months after the head of his charitable foundation was charged with possession of child pornography and production of child pornography.

On the one hand, people’s first reaction is that Jared must have been involved. Why else would the FBI search his home?  More importantly, why isn’t the FBI clarifying that he is not a suspect?

On the other hand, Jared may simply be in possession of computers, electronic equipment, and electronic storage devices (cd’s and usb drives) that the former head of his charity was given to use for legitimate work purposes – but which were abused by the former head.

Because I have seen this in other cases, I suspect that Jared may have had no idea what his former employee was up to (because people who download kiddie porn at work rarely let their bosses and co-workers know – crazy, right?!?)…  He also may have had no idea that the former employee abused his position of trust and hid child pornography on computers and other devices that he was given to do his job.

Equally, Jared may keep some of these devices in his home in the normal course of running the charity.  Countless business owners in this country have their garage full of work related equipment or maintain their own home offices that are cluttered with work usb sticks, dvd’s, cell phones, laptops, iPads, and the like.

However, the one unanswered question that bothers me most is:  Why hasn’t the FBI clarified that Jared is not a suspect?

The answer may be because they themselves do not yet know the answer.

As the FBI conducts a digital forensic analysis on the computers and other devices it seized from Jared’s home, it will look for logons, email activity, and other indicators (such as online banking, Facebook, and Twitter activity) to determine who was using the computer at the time child pornography files were accessed, opened, modified, deleted, etc. –  assuming child pornography is even found on those devices in the first place. Remember, all computers have an internal clock and calendar and keep detailed records of who, what, how, and when the computer was used.

If that evidence points to Jared, then he may become a target.  If the evidence points solely at the former charity head, Jared will not become a target.  If the evidence is inconclusive, then Jared will not become a target.

Other considerations include where and how child pornography may be stored on the computers and devices.  If they find a computer labeled “Jared’s Computer” where Jared has clearly accessed his own email, online banking, Facebook, Twitter, and the like, and it clearly has child pornography on it, say for example in large numbers on the home screen, then Jared will likely become a target.

If child pornography is found on a shared computer in a hidden, encrypted file, given some weird innocuous name that was accessed at times that do not connect with times Jared accessed his email, online banking, Facebook, Twitter, or the like, then Jared may not be in trouble.

Last Issue

There is one last thing that does bother me a lot about this case… that is, how did the FBI come to search Jared’s home?  Why do they think he has evidence in his house?  What has led them to that conclusion?

At this point there are only questions and no answers.

Is the former head of the charity cooperating with investigators?  Did he accuse Jared of being involved or having his own child pornography? Did he admit to investigators that he stored child porn on computers that are now stored at Jared’s house?

In the alternative, did the FBI discover a digital cookie crumb trail that led to Jared’s computers?  Such as Dropbox sharing where child porn was transferred from the former charity head’s computer to a Dropbox account down to Jared’s computer? Did the two men email child porn to each other? Did an IP address associated with Jared’s computer download child porn from a known child porn sharing website?

The possibilities are seemingly endless, but the question still remains.

When more about this case comes to light, we will be able to clarify what is really going on.  In the mean time, I suggest there is good reason to believe that Jared may in fact be completely innocent.  Then again, maybe I am wrong…