File-sharing and Child Pornography: Two Views

I’ve done a couple of posts on police officers using file-sharing software like Limewire or Kazaa to find child pornography on people’s computers. The issue I was dealing with in those posts was whether law enforcement’s using Limewire or Kazaa to access files on someone’s hard drive is a search under the 4^th Amendment.

This post is also about file-sharing software and child pornography, but it focuses on a different issue: whether putting child pornography into a folder that can be accessed via file-sharing software in and of itself constitutes “distributing” child pornography.

As I explained in an earlier post, most countries that outlaw child pornography use 3 crimes to do so: possessing child pornography, distributing child pornography and manufacturing child pornography. Section 2252A(a)(1) of Title 18 of the U.S. Code makes distributing child pornography a crime:

Any person who knowingly transports . . . using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mails, any visual depiction, if . . . such visual depiction involves the use of a minor engaging in sexually explicit conduct; and such visual depiction is of such conduct.

The mental state – the mens rea – of the crime is therefore “knowingly,” which means “the defendant realized what he/she was doing and was aware of the nature of his/her conduct, and did not act through ignorance, mistake or accident.” Federal Criminal Jury Instructions of the U.S. Court of Appeals for the Seventh Circuit 4.06. The issue that has come up in the U.S. and the U.K. is whether putting images of child pornography into a folder that is accessible via file-sharing software constitutes “knowingly” distributing child pornography. I’m going to compare how courts in each country dealt with this issue.

We’ll start with the U.K. In R. v. Dooley, [2005] EWCA Crim 3093 (Court of Appeal 2005), Dooley was charged with violating the Protection of Children Act of 1978 by having images of child pornography in his possession “with a view to their being distributed . . . by himself or others”. Protection of Children Act of 1978 § 1(1)(c). Under § 2 of the Act, a person is “regarded as distributing an indecent photograph or pseudo-photographs if he parts with possession of it to, or exposes or offers it for acquisition by, another person”. The case arose after police searched Dooley’s home and seized a computer, on which they found Kazaa and “many thousands of indecent images of children, many of which he had obtained via Kazaa.” R. v. Dooley, supra. The Court of Appeals noted that “only six of the images” were found in Dooley’s “My Shared Folder.”

The prosecution argued that by putting images into that folder, Dooley violated § 1(1)(c) of the Protection of Children Act. Dooley’s lawyer said he didn’t violate it because

downloading of images from KaZaA will often take many days. . . . Rather than just download a few images, the appellant would download a very substantial number of images. The images . . . could not effectively be accessed by others until . . . the `My Shared Folders’ had the completed image. . . . [I]t was his `specific intention’ to remove the . . . image from the `My Shared Folder’ to some other part of his computer, where it could not be seen by others. Because of the large number of images that were downloaded, it took him time to do that.

R. v. Dooley, supra. The prosecution said the images had been in the folder for 10 days, and the court found this meant “they were available to be accessed” by those who were using Kazaa and were so inclined. The trial court found that because Dooley used Kazaa (and in effect joined “a computer club knowing its purpose is to make material downloaded by you accessible to all members”), he downloaded the images “with a view to” their being distributed by others. R. v. Dooley, supra.

Dooley appealed, arguing that the prosecution had to prove that one of the reasons he left the images in the folder was “to enable others to access” them; since the trial court apparently did not apply this standard, the Court of Appeals vacated the conviction. The trial court had commented that “if a person charged with this offence did not know that as a result of using the particular software there was a likelihood of the image . . . in the `My Shared Folder’ being accessed by others then he would have a good defence” to the charge. R. v. Dooley, supra. On appeal, Dooley’s lawyer said that since this wasn’t made clear to Dooley, he pled on the premise that the prosecution didn’t have to show he knew that by leaving images in the file he was violating § 1(1)(c) of the Act. The Court of Appeals found that Dooley’s plea was no good because it was based on a misunderstanding of what the prosecution had to prove to convict him.

Here’s how an American court dealt with a similar issue: Derek Schade was charged with distributing child pornography under § 2252A(a)(1). Like Dooley, Schade used file-sharing software (Bearshare); police got a warrant and searched his computer after an undercover officer “downloaded a child pornography video file through the Bearshare network in part from Schade’s compute.” U.S. v. Schade, 2009 WL 808308 (U.S. Court of Appeals for the Third Circuit 2009). Police found “numerous child pornography files on the computer, both movies and still images”. U.S. v. Schade, supra.

Schade went to trial and was convicted of “transporting . . . a visual depiction of a minor engaging in sexually explicit conduct in violation of” § 2252A(a)(1). He appealed, claiming the evidence at trial was not sufficient to establish the charge because “there is no way of knowing which portion of the downloaded file was contributed by his computer, and thus whether that portion actually depicted a minor engaged in sexual conduct.” U.S. v. Schade, supra.

I actually think that’s a pretty interesting argument in and of itself, but the Court of Appeals dismissed it because Schade was charged with transporting child pornography and with aiding and abetting the transport of child pornography. The court therefore held that the argument failed because “at the very least Schade is liable as an aider and abettor. His computer contributed some part of a video that showed a minor engaging in sexual activity.” The Court of Appeals found that it would be “eminently reasonable for the jury to have concluded that Schade aided and abetting the transportation of a visual depiction of a minor engaged in sexual activity by making the child pornography file available” on his computer, where it could be utilized “by another user of Bearshare seeking to download the complete video.” U.S. v. Schade, supra.

Now we get to the knowledge issue, which is similar to the issue the Dooley case. Schade also argued that “there was insufficient evidence to show that he knew the child pornography files on his computer could be downloaded by other Bearshare users.” U.S. v. Shade, supra. Since § 2252A(a)(1) makes it a crime to “knowingly” distribute child pornography, he could not have been lawfully convicted if the prosecution didn’t prove beyond a reasonable doubt that he knew the child pornography in his shared files could be downloaded by other Bearshare users. Not surprisingly, the Court of Appeals rejected this argument, as well:

[T]here was evidence . . . showing Schade was notified while downloading the software for Bearshare that it would allow others to upload files from his computer, and he even changed the default settings for file-sharing. Furthermore, Schade testified that he himself used Bearshare for file-sharing. . . . [W]e cannot conclude that the jury was unreasonable in determining from this evidence that Schade intentionally kept child pornography files in the `My Downloads’ folder and knew that doing so would allow Bearshare users to access and upload them.

U.S. v. Schade, supra. The prosecution had presented evidence that when he installed the Bearshare software, Schade was “shown a screen notifying him that he would be sharing files located in that folder and had left that setting in place, while changing the default setting regarding the sharing of partial files.” U.S. v. Schade, supra.

A Texas court reached a similar conclusion. Ruben Wenger was convicted of distributing child pornography via file-sharing software. Wenger v. State, 2009 WL 1815781 (Texas Court of Appeals 2009). He appealed, claiming the evidence at trial didn’t prove beyond a reasonable doubt that he “knowingly disseminated the files in question.” Wenger v. State, supra.

He lost for two reasons: One is that in a recorded interview with police, Wenger said he “knew Shareaza shared his files: he said he assumed users downloaded files from him and that the purpose of Shareaza was to allow users (like Detective Ried) to `pull files from members’” like himself. Wenger v. State, supra. The other reason is that at trial a detective with computer forensics expertise testified that at some point, Wenger had “change[d] the default Shareaza settings so that the program did not automatically share” his files. Wenger v. State, supra. That rebutted a claim Wenger made in the recorded interview with police: that he didn’t know how to `share and not share” files. The court therefore found that a jury could reasonably infer that Wenger knew “knew Shareasa was sharing his downloaded files and knew how to prevent” it from doing so.