Controlling Child Pornography

This post is about a Pennsylvania statute that seems to create a fifth child pornography crime. As I’ve noted, there are – or I’ve assumed there are – four child pornography crimes: manufacturing child pornography, distributing child pornography, possessing child pornography and accessing (looking at) child pornography. The Pennsylvania statute adds what MAY be a fifth option: controlling child pornography.

The case is Commonwealth v. Diodoro, 970 A.2d 1100 (Supreme Court of Pennsylvania 2009). It began when on “November 20, 2003, the Ridley Township Police Department obtained a search warrant for appellant Anthony Diodoro's personal computer and seized the computer from his residence in Delaware County.” The forensic examination of the computer revealed that it “contained approximately 340 images of suspected child pornography and thirty additional images that were known to be child pornography.” Commonwealth v. Diodoro, supra. Diodoro was arrested and charged with 30 counts of child sexual abuse by violating 18 Pennsylvania Consolidates Statutes § 6312(d).

Section 6312(d) provides as follows: “Any person who knowingly possesses or controls any book, . . . photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.” As the Pennsylvania Supreme Court noted, “under Section 6312(d), a defendant may be convicted of sexual abuse of children for the mere knowing control of child pornography.” Commonwealth v. Diodoro, supra.

Diodoro pled not guilty and went to trial. At trial, Pennsylvania Trooper Peter Salerno

testified to the specifics of his forensic examination of appellant's computer. Trooper Salerno explained that he searched the images and web history on appellant's hard drive using forensic software, which revealed . . . web pages pertaining to child pornography websites, and 370 images relating to child pornography that were stored in the cache files or unallocated space of the hard drive. . . . Salerno testified that finding the images of child pornography stored in the cache files indicated that someone accessed the child pornography websites and by clicking the “next” button or a specific image, accessed and viewed the various images. . . . Salerno also noted that because of the large quantity of images stored in the cache files, it would have taken an individual a considerable amount of time to go through the images.

Commonwealth v. Diodoro, supra. The prosecution and defense stipulated that the images (i) depicted “female children engaged in prohibited sexual acts” and (ii) “were viewed by [appellant] on his computer while he was searching the World Wide Web for images of females under age [sixteen].” Commonwealth v. Diodoro, supra.

Diodoro was convicted and appealed, arguing that the evidence was not sufficient to support his conviction. His primary argument seems to have been that the evidence did not show he “controlled” the images. The first appellate court to consider his argument

focused its . . . analysis . . . on the term `control’. . . . [It] determined that the `ordinary, everyday meaning’ of the term . . . was: `. . . . [The ability to exercise a restraining or directing influence over something.’ . . . The [court] held that, in addition to . . . seeking out and viewing child pornography, `[h]is actions of operating the computer mouse, locating the [websites], opening the sites, displaying the images on his computer screen,’ at which time he had the ability to download, print, copy or e-mail the images, `and then closing the sites were affirmative steps and corroborated his . . . control over the child pornography.’ The majority found additional evidence of appellant's control . . . [in] Officer Salerno's testimony, wherein he explained that the sheer volume of child pornography stored in appellant's `cache files indicate[d] that someone, after accessing the particular [websites], had to click the “next” button on the screen to view successive images.’ Thus, [it] concluded that the totality of the circumstances was sufficient to support the jury finding that appellant's conduct constituted knowing control of child pornography under Section 6312(d).

Commonwealth v. Diodoro, supra. The Pennsylvania Supreme Court agreed to review the lower court’s decision. In his argument to that court, Diodoro claimed that “for the Commonwealth to establish that he had the power and intent to exercise control over the images of child pornography found on his computer, [it] was required to prove that he had knowledge of the existence of those images on his computer.” He also argued that because the statute did not define “control,” he was not on notice that “intentionally accessing and viewing child pornography via the internet-sans the intent to download, copy or send the images-constitutes `control’ of such material under Section 6312(d).” Commonwealth v. Diodoro, supra.

In analyzing his arguments, the Pennsylvania Supreme Court explained that the statue creates two crimes: “the Commonwealth need not establish that a defendant possessed child pornography to prove a violation of Section 6312(d) if the Commonwealth can prove that a defendant knowingly controlled child pornography”. So controlling child pornography is different from possessing child pornography.

The Pennsylvania Supreme Court analyzed the arguments of the two sides and the evidence in the case, and then held that Diodoro “controlled” the images:

An individual manifests . . . control of child pornography when he purposefully searches it out on the internet and intentionally views it on his computer. . . . [T]he viewer has affirmatively clicked on images of child pornography from different websites and the images are therefore purposefully on the computer screen before the viewer. Such conduct is clearly exercising power and/or influence over the separate images of child pornography because the viewer may, inter alia, manipulate, download, copy, print, save or e-mail the images. It is of no import whether an individual actually partakes in such conduct or lacks the intent to partake in such activity because intentionally seeking out child pornography and purposefully making it appear on the computer screen -- for however long the defendant elects to view the image -- itself constitutes knowing control. The use and operation of computers are not the novelty they once were. Control via a computer is little different from the control one exercises by viewing a book or a magazine-whether one purchases the tangible image or not. . . . Section 6312(d) should not and cannot be read to allow intentional and purposeful viewing of child pornography on the internet without consequence.

Commonwealth v. Diodoro, supra.

Based on the court’s analysis, it seems pretty clear that Pennsylvania’s “controlling child pornography” crime is the accessing child pornography crime I wrote about in an earlier post. As I explained in that post, the federal child pornography statute was amended to add accessing child pornography as one of the crimes it encompasses.

In an earlier post, I noted that a bill had been introduced into the Nevada legislature that would add an accessing crime to that state’s child pornography statutes. The bill passed the legislature and on June 9 the Governor signed it, so it’s presumably gone into effect by now.

Nevada’s new statute defines the access crime as follows: “Any person who, knowingly, willfully and with the specific intent to view any . . . visual presentation depicting a person under the age of 16 years engaging in or simulating sexual conduct, uses the Internet to control such a film, photograph or other visual presentation is guilty of” a felony. Nevada Assembly Bill 88, 2009 Nevada Laws Ch. 471.

Another part of the Nevada bill creates a civil cause of action for someone who was used to make child pornography. Such a person can sue anyone who promoted the child pornography, possessed it or used “the Internet to control the film, photograph or other visual presentation, with the specific intent to view the film, photograph or other visual presentation.” Nevada Assembly Bill, supra. I’m not sure what the rational of this provision is. I assume children used in child pornography can already sue those who created it and distributed it, under some theory, so this section must be meant to spread the liability net wider. I’m not sure how effective the cause of action against people who viewed the child pornography is going to be, though.

Getting back to the Pennsylvania statute, I’m not sure why the legislature went with “control” instead of “access” (or “view”). Logically, “control” implies a greater level of involvement than does “access,” so maybe that notion was part of the reason why they focused on control. If the Pennsylvania legislature had gone with “access,” it might have made things simpler; it would have been impossible, or at least much more difficult, for Diodoro to argue that he hadn’t “accessed” the images than it was for him to claim he hadn’t “controlled” them.

So if any state legislators are considering adding the fourth child pornography crime to their criminal code, I’d respectfully suggest they go with the access or view option.