Inadvertant Possession of Child Pornography
In our age of technological advancement, the Internet has become a driving force behind the widespread dissemination of child pornography. In particular, Peer-to-peer networks (such as Limewire)—a platform for sharing digitally formatted files—have come under scrutiny for unintentionally providing a medium for the illegal distribution of child porn. There are times where the justice system falters in the prosecution of child pornography offenses because of an inability to adequately regulate online activity. But there are also times when the system targets people whose conduct with respect to child pornography was largely or even completely unintentional. Peer-to-peer networks complicate the issues surrounding child pornography offenses because illicit materials can be unintentionally possessed and distributed via the networks. In these situations, criminal prosecution and the stiff penalties required may be disproportionate or inappropriate.
Child pornography is often deemed as the “sexual exploitation of a child” and is often viewed as a form of child abuse. In most circumstances, production of child porn is a felony under both state and federal law. Additionally, according to the Hastings Constitutional Law Quarterly, it is not only a felony to produce child porn, but it also felony under both federal and state laws to possess or distribute images showing, among other things, “lascivious exhibition of the genitals or pubic area” of persons under the age of eighteen.
In conjunction with the felony classification, the child pornography sentencing guidelines provide stiff penalties for “offenders engaging in the production, possession, or distribution of child pornography.” Under 18 U.S.C.A. § 2252 (a)(2),(b)(1), receiving just one picture carries a mandatory minimum sentence of five years. The distribution of child pornography also carries a mandatory minimum of five years imprisonment but can be punished up to twenty years. And, in the case of repeat offenders, prison sentences can double the sentencing minimums. Jelani Jefferson of the Richmond Journal of Law and Technology writes that the sentencing guidelines treat computer possession “in the same manner that it treats traditional possession drug crimes—by increasing enhancements based upon quantities of illegally possessed items.” Thus, the sentence increases based on the number of child pornographic materials the defendant possesses on his/her computer. As indicated by Jefferson, in the federal justice system “the common thread between all of these punishments is a steady increase in punishment, often without much explanation and even less study.”
The Child Pornography Prosecution Act of 2007, codified at 18 U.S.C.A 2251, explains that “child pornography is readily available through virtually every form of Internet technology, including web sites, email, instant messaging, Internet Relay Chat, newsgroups, bulletin boards, and peer-to-peer networks. The technological ease, lack of expense, and anonymity in obtaining and distributing child pornography over the Internet [and especially through peer-to-peer networks] has resulted in an explosion in the multijurisdictional distribution of child pornography.” Because the Internet is a well-recognized method of distributing goods and services across state lines, the transmission of child pornography using the Internet constitutes transportation in interstate commerce, often creating grounds for the exercise of either state or federal jurisdiction.
In the computer context, peer-to-peer networks present an especially unique dilemma in the prosecution of Internet-based child pornography offenses. Peer-to-peer networks are largely decentralized and participants make a portion of their resources (such as processing power, disk storage or network bandwidth) directly available to other network participants. Users involuntarily become suppliers and consumers of resources, as opposed to the traditional client–server model where only servers supply, and clients consume. In some situations, there may be no question that the computer activity at issue is a crime. However, where unintentionally transferred files are downloaded on a user’s computer through peer-to-peer networks, issues arise about whether the crime was committed by the computer user or involuntarily by the computer program and the criminality of the user’s actions becomes less clear.
Beryl Howell of the Yale Journal of Law and Technology illustrates an example of the unintentional possession and distribution of child pornography in a case where a teenager had gone searching for adult erotic material, which he downloaded off a peer-to-peer network. Included in the downloaded materials were child porn images that many other network users then located and downloaded from his home computer. The teenager was unaware of the option “buried in the peer-to-peer software” to prevent subsequent uploading and did not change the default settings. As a result, his computer became the distribution hub for many other users by pointing to files available for sharing, including child porn.
In this case, Howell notes that the teenager “technically did not have all of the child porn files on his computer—which would have been enough for a felony—but he had an index pointing to other locations with child porn, making him an online distributor. This also made his machine a much bigger target for law enforcement looking for online child porn distributors.” As evidenced in this case, peer-to-peer file sharing programs can make essentially passive “possession” activity into a crime of distribution.
A person need not actually view the material to be criminally prosecuted. Howell points out that courts have upheld convictions for possession of child pornography for viewing illegal images accessed online “even where forensic examination of the computer reveals that child porn images were not manually downloaded or saved but…were stored only in a temporary internet file on the computer.” In fact, Howell notes that “the child porn possession laws have become so strict that forensic examiners and even attorneys have to be careful not to have such images in their possession.” Luckily for the teen involved in the case outlined above (whose name remains undisclosed), he was not prosecuted. A thorough forensic examination of his computer revealed that he did not actively engage in the distribution of child pornography. Nonetheless, there have been cases where inadvertent distribution by peer–to-peer users has resulted in convictions for the same type of activity that this teenager engaged in. (See United States v. Tucker, 305 F.3d 1193, 1198 (10th Cir. 2002), cert. denied, 537 U.S. 1123 (2003) (conviction upheld for possession of files automatically stored in a browser cache because defendant’s “habit of manually deleting images from the cache files established that he exercised control over them”)
Ill-defined legal lines and heavy penalties exacerbate the problems surrounding child pornography prosecutions in cases where knowledge and intent are at issue. Howell indicates that “the law treats child porn essentially like heroin” where mere possession constitutes the crime. Problems arise however, from the rapid developments of new technologies that exceed what the law foresees. Stiff penalties imposed by current laws for the possession of child pornography in situations where it can be inadvertent and unintentional suggest an injustice of our present system of regulation. While the knowing possession or distribution of child porn is harmful criminal behavior deserving of severe condemnation and criminal prosecution, the rigidity of current laws may also unfairly target innocent individuals who are engaged in lawful online conduct.
[Blog and research by CMG intern Ara Basmajian]