Child Pornography, Possession of

Possession of Material Depicting Sexual Conduct by a Child
Possession of Child Pornography

Florida Statute 827.071(5) makes it a third degree felony to possess material depicting sexual conduct by a child, or as it is commonly called, possession of child pornography. Remember, we are talking about possession here, not the production of such images.  Naturally, production of child pornography is more severe than the already severe penalties imposed for mere possession. 

At this point, I probably don't have to tell you how severe the punishment is on child pornography cases.  Several studies have been done on the harsh sentences handed down on child pornography cases, and one study by the U.S. Sentencing Commission discovered that only murderers and kidnappers receive harsher sentences than those who possess child pornography.  Think about that.  How about actual child molestation?  Nope, they get lower sentences on average.  How about aggravated battery cases which cause serious bodily injury?  Nope, possessing child pornography is still more serious in terms of average prison lengths.  And, contrary to urban myths, the recidivism rate for non-producing child pornography offenders is no better or worse than the general criminal population (See United States Sentencing Commission, Federal Child Pornography Offenses, December 2012).

There is as yet no effective way for individuals to protect themselves from the capture of child pornography on their computers. For that reason, innocent conduct (owning a computer, for instance), can lead to a conviction under this statute. Because Florida Statute 827.071 was enacted well before computerized child pornography was an issue (1985), the statute is not designed for such technology and has not been interpreted as yet by Florida courts to any meaningful extent.

Almost all of the child pornography prosecutions in Florida proceed from their genesis in a search warrant, a warrant issued by magistrates who aren’t informed of the realities of modern day computers, and these warrants are based on nothing more than the allegation that the pornography is on the computer.  To make matters worse, law enforcement is receiving unverified information from websites and ISP's, and these tips are often all they need to enter your home.  No human verification necessary.  For more details on the low standards of tip reliability in these cases, check out my article "The Witch Hunt for Child Porn".   To law enforcement, the very real possibility that child porn may be on a computer without the knowledge of the home owner is immaterial.  Knowledge is an element of the crime, but seemingly of no concern to the police.  Even if the Accused can later point out these facts in his defense--it is long after the police have barged into his home and taken away all of his electronic equipment and who knows what else.

A CRIME COMMITTED WITHOUT EVEN KNOWING IT

Before going any further, it might be helpful to understand the basic problem. Owners and users of computers do not have total control over what winds up stored in their computer. And, strangely enough, there is nothing owners or users can do to fully protect themselves from child pornography being placed on their computers without their knowledge or assent. Given this set of circumstances, the only way a law abiding citizen can protect himself from committing acts proscribed by 827.071 is never to have a computer (is that even possible?). It is nothing less than shocking that an innocent person can be charged with knowing possession of child pornography when it is recognized in both the technical and the legal world that this can happen.

If law enforcement and the courts approached the concept of possession of this material by demanding that the defendant be proven to have both intentionally witnessed the images and intentionally retained them, there might be less cause for alarm. But, as will be shown further on, this is not the case, either in state courts or federal. Most computer users do not possess knowledge that includes the myriad of technical functions that occur, or could occur, while browsing and accessing the Internet. As a result, numerous possibilities exist which explain the presence of unwanted material on a computer and which are totally consistent with a lack of bad intent by the user. So the owner of the computer if he uses it at all can “possess” child pornography without having any interest in it. Worse, even if he’s aware of the problem, he can’t effectively prevent it from happening. It appears as though just the act of viewing child pornography on a computer constitutes “possession” of the child pornography.

GUILTY OF POSSESSING SOMETHING NEVER VIEWED?

To further illustrate the insanity of Florida’s possession of explicit materials law, imagine a potential drug buyer meets his connection and is shown a bag of marijuana. He looks at it in the dealer’s hand and ponders buying it, but changes his mind. Is he guilty of possessing it? Does a shopper when viewing items in a store unlawfully possess them? One might think at this point, certainly the law would consider this accidental acquisition as what it is rather than attaching to it traditional concepts of “possession” which might convict someone with no other evidence than the material is now somewhere in his computer. This viewing/possession problem was cited by the dissent in Commonwealth v. Diodoro, 932 A.2d 172 (Pa.Super. 2007), noting the following example:

“If a person intentionally enters the Philadelphia Art Museum to view Cezanne’s bathers, one would not say that the person ‘possesses or controls’ the painting. Why should it be different if a person visits the museum’s website, philamuseum.org and clicks on the part of the site that shows images of the same Cezanne bathers?”

And in United States v Falso, 544 F.3d 110 (2d Cir. 2008), the defendant’s ability to view child pornography on a website he visited was insufficient even for probable cause where there was no allegation that he had actually “accessed, viewed, or downloaded the child pornography.” And, as one might equally question Florida’s Statute 827.071, the dissent then asked,

“If appellate courts from other jurisdictions struggle with the issue, how can this Court reasonably say that the language in our statute is clear enough to provide a layperson with fair warning that the mere viewing of child pornography on a computer screen is a crime?”

After all, “viewing” something, like our marijuana buyer viewing the weed but deciding not to buy it--is that the equivalent of “possessing” it?  Intentionally viewing child pornography was written into the possession statute in 2012.  But still, the law doesn't take into account how a computer operates internally. When a website is viewed, the images are automatically saved to an internet “cache” file (a storage mechanism designed to speed up the loading of web pages). Cache storage on a computer, intentional or unintentional, can as easily exonerate the computer user or convict him, depending on what jurisdiction he might be in or the philosophy brought to bear. It is possible, if not probable, that the Florida Legislature didn’t consider the issue at all since this statute was enacted in 1985, long before the contents of computers were being searched for pornography in “photograph(s)” or other “representation(s)” as stated in the statute.  Indeed, an image may be in a cache file that was never actually "viewed" by the Accused.

EVIDENCE OF CHILD PORN IN A BROWSER CACHE NOT ENOUGH TO PROVE POSSESSION OR VIEWING

In United States v Stulock, 308 F.3d 922 (8th Cir. 2002), the defendant was acquitted of possession charges based on evidence he had viewed the images and the computer then automatically downloaded them onto his browser’s cache. See also, United States v Lacy, 119 F.3d 742 (9th Cir. 1997) (trial court erred in not instructing that the defendant must know that the hard drive and disks contained child pornography to be guilty of possession of pornography), Barton v State, 648 S.E.2d 660 (Ga.App. 2007) (reversing conviction when there was no evidence defendant took any affirmative action to save the images on his computer cache file or could have known, filed or accessed those files; possession requires affirmative action by defendant to save or download the images or know that the computer is saving the files)

ACCIDENTAL POSSESSION OF CHILD PORN (issues of intent)

As the bumper stick says, Stuff Happens. What if a defendant accidentally acquires child pornography? The most obvious reaction if the computer user wanted to get rid of it would be to delete it. While it has become common in affidavits for search warrants to include the ability of law enforcement to retrieve deleted images, this doesn’t address a completely innocent act by an unsophisticated user to delete them because he doesn’t want them.  Most individuals with day to day computer skills would assume that to delete means just that. Does deleting it mean it is retained because law enforcement forensic computer experts can retrieve it even though the user can’t? How can one possess something that’s lost to him? Having considered these different perspectives, the court in State v Jensen, 173 P.3d 1046 (Ariz.App. 2008) said,

“The arguments posited by each side on this issue have merit. The view that knowing possession requires an affirmative act on the part of the defendant to save the image or at least knowing that the computer is saving it seems consistent with the Arizona definition of knowingly possessing an item requiring a voluntary act on the part of the defendant giving him dominion and control over the items. In contrast, it could be contended that once a defendant knowingly receives such an image, the defendant has the ability to control it by downloading it, printing it or otherwise saving it.”

The court then determined that, regardless of possession, the defendant had received the material because he “actively searched for those types of images on the computer over an extended period of time, resulting in nearly 25,000 hits for websites containing certain key phrases and combinations of words often associated with child pornography and “exploitation of minors.” But seeking something is not equivalent to possessing it. Would a drug addict be convicted for seeking drugs?

Interestingly, the notions of involuntariness and intent have emerged in cases already cited as pertinent to possession of child pornography. Possession of “cyberspace” intangibles necessarily borrows from concepts that lawyers have drawn from in more understandable contexts. Our visceral understanding of criminal justice is that a defendant, in order to be found guilty, should necessarily be shown, at some level, to know and intend that his act be illicit. If one finds a book in the library and its contents are pornographic, one would assume the book is lawful since it’s found in the library. If one sees something on television, one assumes that watching it isn’t unlawful.  Unfortunately, Florida law doesn't follow such logic, as simply viewing child pornography is illegal.  To the average person, finding child pornography on this highly public medium would suggest that it’s not unlawful to look at it. And in this medium, possession, meaning of essentially invisible digital information, is at best an abstraction. We would expect that someone who is subject to criminal punishment would be shown to have voluntarily committed the proscribed act. Florida’s statute, however, says nothing of voluntariness or intent in connection with possession of this material. We know that the legislature never anticipated these issues because they didn’t exist at that time. The average person who puts his trash out expects that it will be taken away and that’s okay because he doesn’t want it. The apparently innocent act of deleting computer information, however, one entirely consistent with involuntary possession, can be used as evidence against a defendant.  Computer forensic programs like Forensic Tool Kit (FTK) permit law enforcement to discover deleted files and search terms that cannot be accessed by the computer user (unless, of course, he has access to an $8,000 program like FTK).

THE LOGIC BEHIND MAKING IT ILLEGAL TO "VIEW" SOMETHING

Hypothetically, evidence shows that a man has unlawful drugs in his pocket. It would be hard for him to argue that he didn’t know drugs were in his pocket. Of course the State doesn’t need to prove facts other than that the defendant had them in his pocket because the likelihood of his not knowing their presence is too remote to seriously consider. But in the case of material on a computer, the possibility of the defendant not knowing of its existence is not at all remote. It’s, in fact, very possible and could happen to anyone with a computer. And if someone took those illegal drugs and threw them away, he’d have every right to assume they’re no longer in his pocket. The same is not necessarily true of Florida’s possession of child pornography statute, whereby a computer forensics team can retrieve deleted/unwanted/accidental materials, and transform them into evidence of guilt.

The court in State v Hurst, 2009 WL 580453 (Ohio.App. 2009) posed this hypothetical,

“If a person walks down the street and notices an item (such as child pornography or an illegal narcotic) whose possession is prohibited, has that person committed a criminal offense if they look at the item for a sufficient amount of time to know what it is and then walks away? The obvious answer seems to be ‘no.’ However, if the person looks at the item long enough to know what it is, then reaches out and picks it up, holding and viewing it, and taking it with them to their home, that person has moved from merely viewing the item to knowingly possessing the item by reaching out for it and controlling it.”

While this is a valid hypothetical, it fails to address that same person on the street who stops to look at the contraband but doesn’t know what it is, picks it up and recognizes it as contraband, and then throws it away. Is that person culpable? The obvious answer seems to be “no.” And what about intent? Is that same person who has no intent to possess the item guilty of its possession nonetheless? Again, the obvious answer seems to be, “no.”

TRANSMISSION OF CHILD PORNOGRAPHY

The above issues also creep into transmission of child pornography charges.    The reason for this is simple: peer-to-peer internet sites like limewire and eDonkey permit the general public to download items off of your computer without your knowledge.  Should you have child pornography on your computer, the general public would be able to download that as well--all without your knowledge.  Recently a transmission case was overturned by the appeals court for that very reason, as peer-to-peer networks do not require any affirmative action on the part of the computer owner in order to "transmit" the pictures.  In the case of Biller v. State, the court overturned a transmission of child porn conviction because the defendant was unaware that the police had downloaded the pictures from his computer via limewire. 109 So. 3d 1240 (Fla. 5th DCA 2013).  For more information on this case, check out my article "Transmitting Child Porn Case Overturned".  The court in Biller noted that the definition of "transmit" requires some act on the part of the defendant, more specifically, "the act of sending and causing to be delivered any image".  Merely having computer files available for download via eDonkey or Limewire does not meet that definition.

PROMOTING A SEXUAL PERFORMANCE BY A CHILD

The charge of promoting a sexual performance by a child is found in Florida Statute section 827.0731(3) and the crime is committed when a person, "knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age."  The question then becomes, what is a "performance"?  Well, its "any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience."  Now, those last four words pack a lot of meaning, because the production of child pornography may only constitute a "possession" charge but for the words "exhibited before an audience." 

This issue of what constitutes exhibition "before an audience" can get tricky.  Fortunately, we citizens are supposed to be given the benefit of the doubt when statutes are somewhat vague, and that "rule of leniency" can be found in Florida Statute section 775.021(1).  In the recent case of Jenrette-Smith v. State, the appeals court completely ignored this Florida statute, and completely ignored the definition of the crime listed above, in arriving at their unjust decision.  114 So. 3d 427 (2d DCA 2013).  To get more details on this interesting case, click on my article entitled "Judge Bends Over Backwards to uphold Child Porn Conviction".

There isn’t enough space on my website to run through all the issues that surround child pornography cases in Florida. However, it is important to have someone fighting for you that understands the detailed nature of child pornography accusations. Please, please, please, do NOT speak to the police about such accusations without first contacting a local criminal defense attorney. Don’t wait to see what the police, government, and prosecutors are going to do to you, call me so that I can help you defend these accusations. Thanks.

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