Last week, prosecutors dropped their year-old case after a state investigation of Michael Fiola’s computer determined there was insufficient evidence to prove he had downloaded the files.
“We could not meet our burden of reasonable doubt,” said Jake Wark, a spokesman for Suffolk County District Attorney Daniel Conley.
Michael Fiola, former investigator with the Massachusetts Department of Industrial Accidents (DIA), had been facing two-and-a-half years in prison after being charged last year with possession of child pornography.
An initial state investigation had come to the opposite conclusion, and authorities took a second look at Fiola’s case only after he hired a forensic investigator to look at his laptop.
What she found was scary, given the gravity of the charges against him: The Microsoft SMS (Systems Management Server) software used to keep his laptop up to date was not functional. Neither was its antivirus protection. And the laptop was crawling with malicious programs that were most likely responsible for the files on his PC.
Fiola had been an investigator with the state’s Department of Industrial Accidents, examining businesses to see whether they had worker’s compensation plans.
Over the past two days, however, he’s become a spokesman for people who have had their lives ruined by malicious software. He now works as an insurance salesman in North Scituate, Rhode Island
Following is an edited transcript of a telephone interview he gave to the IDG News Service.
Why did you need a laptop at the Department of Industrial Accidents?
We had a laptop basically to do our reports instantaneously. If I went to a business and found that they were out of compliance, I would log on and type in a report so it could get back to the home office in Boston immediately. We also used it to research businesses.
Had you used a work laptop before?
Fiola: Yes, this was a second-generation laptop. My [first] computer was stolen out of my vehicle outside of work in Boston in November 2006.
How long had you been using a laptop before this one was stolen in November?
About a year and a half.
Did you notice anything strange about this new laptop when you started using it?
Not at all. I’m not that computer-savvy a person. I’m more of a hunt-and-peck type of guy. I can get in, I can do my e-mail. You tell me to do this form, I can do this form, and that’s about it. I typically don’t search the Internet, I typically don’t go out and browse. I don’t play any games. I don’t go to chat rooms – never have, never will. I was basically using it for my job.
When did you become aware that there was a problem?
When they fired me in March.
What happened?
My boss called me into his office at 9 a.m. The director of the Department of Industrial Accidents, my immediate supervisor, and the personnel director were there. They handed me a letter and said, “You are being fired for a violation of the computer usage policy. You have pornography on your computer. You’re fired. Clean out your desk. Let’s go.”
They escorted me to my desk, they watched me clean my personal stuff out of my desk, they escorted me out of the building to my vehicle.
What was you reaction?
Shock. I said, “What are you people talking about? I don’t understand?” And they wouldn’t talk to me. They said, “We’ve been advised by our attorney not to talk to you.” It felt like the blood drained right from my body. I never expected anything like this to happen.
How did this affect your life?
It was horrible. No paycheck. I lost all my benefits. I lost my insurance. My wife is very, very understanding. She took the bull by the horns and found an attorney. I was just paralyzed, I couldn’t do anything. I can’t describe the feeling to you. I wouldn’t wish this on my worst enemy. It’s just devastating.
If you get in a car accident and you kill somebody, people talk to you afterwards. All our friends abandoned us. The only family that stood by us was my dad, her parents, my stepdaughter and one other good friend of ours. And that was it. Nobody called. We spent many weekends at home just crying. I’m 53 years old and I don’t think I’ve cried as much in my whole life as I did in the past 18 months.
So what do you think happened?
It was either a rogue hack … or after my computer was stolen, [the new computer] might have been loaded with the stuff, ready to go. I’m not accusing anybody, but if it was someone in the IT department who was doing this, [maybe they] never had a chance to take it off.
The criminal charges against you have been dropped. What about your job?
I will never go to work for them again. I would not work for a company that would not protect its employees. I feel they didn’t protect me. The SMS was disabled on that computer.
Has this changed the way you use computers?
Yeah it really has. I use a laptop now for work, but I do not go online until I go home. My days of surfing the Web are over, because I don’t wish this on anybody.
The case shows how easy it is for someone to be charged with illegal computer activity that they may know nothing about, said Fiola’s attorney, Timothy Bradl. “This type of thing could have happened to anyone with a work-issued laptop,” he said.
When the DIA issued Fiola his Dell Latitude laptop in November 2006, it was so badly configured that it may well have already been hacked, said Tami Loehrs, a forensics investigator hired by Fiola’s defense team.
The Microsoft Systems Management Server software on the laptop was misconfigured and was not receiving critical software updates, and the laptop’s Symantec antivirus software was either misconfigured or not working properly, she said.
“He was handed a ticking time bomb,” she said.
State IT staff examined Fiola’s laptop in March 2007 after they noticed that his Verizon broadband wireless usage was four times above normal. He was fired the same month, after the pornography was discovered.
DIA spokeswoman Linnea Walsh was quoted in the Boston Herald on Monday saying, “we stand by our decision,” but when reached by IDG News Service, she declined to comment on the matter, saying only “we don’t want to go there right now,” before abruptly hanging up the telephone.
Since his wife, Robin, was at one point hospitalized for a stress-related illness, Fiola is now facing health insurance payments in excess of his monthly mortgage. But he is unlikely to take his old job back, even if the DIA were to offer it, Bradl said. “I would think that theoretically he’d be entitled to his job back with back-pay, however he would never want to go back to work with such buffoons,” he said.
Because of the heinous nature of child pornography, prosecutors and investigators often rush to conclusions while investigating this type of crime, Loehrs said. “Because the content is so disturbing, everybody just loses all sense of reality.”
Take the case of Matt Bandy, who was 16 when police raided his house and charged him with possession of child pornography. The charges could have resulted in a 90-year jail sentence. Bandy eventually pleaded guilty to lesser charges, but computer experts believe that he may have been the victim of a worm that turned his PC into a “zombie computer” that was used by others to store the child pornography.
According to Wark, an initial state attorney general investigation of Fiola’s laptop concluded that he was likely responsible for downloading the pornography, while a second examination, conducted after Loehrs reported her findings, reached the opposite conclusion.
