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September 3, 2014

Third Circuit panel splits over whether placing child porn in shared folder constitutes distribution

A Third Circuit panel today split on an interesting question of computer crime law involving child pornography.  Here is how the majority opinion in US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) gets started:

David George Husmann placed various images of child pornography in a shared computer folder connected to a file sharing network. Based on that conduct, a jury convicted him of three counts of distributing child pornography.  At trial, the government did not present evidence that any person had actually downloaded or obtained the materials that Husmann made available.  The issue we address is whether the mere act of placing child pornography materials in a shared computer folder, available to other users of a file sharing network, constitutes distribution of child pornography.  We conclude it does not.  A conviction for distributing child pornography cannot be sustained without evidence that another person actually downloaded or obtained the images stored in the shared folder.  Accordingly, we vacate Husmann’s conviction under 18 U.S.C. § 2252(a)(2) and remand for resentencing.

And here is how the dissenting opinion, per Judge Van Antwerpen, gets going:

I cannot join my colleagues in the narrow definition of “distribution” they would apply to child pornography cases.  George Husmann was convicted by a jury of three counts of distributing child pornography pursuant to 18 U.S.C. § 2252(a)(2).  Husmann placed images of child pornography into a shared folder accessible to all global users of the peer-to-peer (“P2P”) file sharing program 360 Share Pro.  Once in the shared folder, a search term and a click of a mouse allowed access to these images by any user on the system.  My colleagues definition of “distribution,” under 18 U.S.C. § 2252, would create a system in which a person who intentionally posted child pornography on the Internet, knowing it is accessible to hundreds, if not millions, of individuals, is not “distribution.” This is certainly not what Congress had in mind and following the majority’s approach, the crime of distribution would not be complete until a police officer downloaded the image.  This is a distinction without merit.  Given the plain meaning of the term, the intent of Congress, the advancement of technology, as well as a series of recent sentencing cases, the placing of child pornography into a shared file accessible over a peer-to-peer file sharing network, alone should constitute “distribution.”  Husmann took all the necessary steps to make a product available to the public in a publically accessible location, and whether or not a party took that product is irrelevant to both the purpose of § 2252 and to his role as distributor.  For that reason, the conviction of Appellant George Husmann for “distribution” under 18 U.S.C. § 2252 should be upheld.

September 3, 2014 at 04:42 PM | Permalink

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Comments

Judge Van Antwerpen’s dissenting view—that "distribution" includes making a file accessible to others, regardless of others' actual access—does not withstand scrutiny. If I stand on a street corner and offer to sell drugs, but nobody buys, I have not yet distributed to anyone. I could not be prosecuted for drug distribution. Similarly, if my job is to distribute 100 fliers advertising my employer’s business, and I return with all 100—having found no takers—I cannot claim that I nonetheless distributed the fliers. That Van Antwerpean mangling of “distribution” wouldn’t fly with my boss. It shouldn’t fly in the context of criminal law, especially given the dictates of the rule of lenity.

Posted by: Adam Shajnfeld | Sep 3, 2014 11:33:17 PM

Adam,

Let's twist the scenario a little. What if you took those 100 flyers, went to the nearest street corner, and then threw them into the air and walked away? Because putting a file in a shared folder is more analogous to that example than the one you gave. It's not incredible to me to say that you distributed the flyers with such behavior. Now your boss would be unhappy if you did that and would probably say, "that's not what I meant," but in a hyper technical sense you distributed the flyers. You tossed them into the air in a public space and whether anyone reads them or not doesn't change the fact they were distributed.

Posted by: Daniel | Sep 4, 2014 3:18:22 AM

Daniel,

I have to disagree with your analogy a little bit. Placing files in a shared folder is much more like going to the street corner and placing 100 flyers in a newspaper rack or box much like the free auto and real estate trade booklets. Placing the flyers there knowing others can take them isn't quite the same as knowingly distributing them to others. There is no way to know they are being distributed without direct observation and I'm pretty sure the statute in question here requires the distribution must be done "knowingly". On top of that I also think in context "distribute" is defined as transferring possession of something from one person to another person. Placing something in a box isn't transferring possession to another person.

Posted by: Rich | Sep 4, 2014 10:39:50 AM

I think the dissenting justice may be laboring under a misapprehension of P2P filesharing, leading to his disagreement. From the opinion:

My colleagues definition of “distribution,” under 18 U.S.C. § 2252, would create a system in which a person who intentionally posted child pornography on the Internet, knowing it is accessible to hundreds, if not millions, of individuals, is not “distribution.”

Posting, in common parlance, means to upload a file to a remote server for access by others, such as posting a message to a BBS or newsgroup. If Hussman had, in fact, uploaded child pornography to a newsgroup, then I think even the majority opinion would be in agreement that he would be guilty of distributing child pornography irrespective of whether anyone actually downloaded the offending files.

But this is different. He did make the files available, but they never left his computer (or, at least, the United States did not present evidence that the files ever left his computer). At least that's my take.

Posted by: Guy | Sep 4, 2014 12:37:56 PM

There's more people sitting in jail RIGHT NOW over this nonsense. With most P2P programs, you cannot download unless you share. That is the nature of the beast with this software.

The sentencing guidelines have tried to parallel drugs with porn to much and this is the end result. The so-called "distribution" should be deemed inadvertent, unless of course the defendant had a dedicated folder chock-full questionable content.

Posted by: Lance Mitaro | Sep 4, 2014 1:37:55 PM

Rich,

You analogy is the better one. But it doesn't change the point. Why should whether or not person A distributes something depend on the behavior of Person B? I think that drugs here confuse the issue because drugs, unlike traditional media, aren't usually left just lying around for people to pick up. But let's use your example of the newspaper rack. What if a truck delivered papers to a newspaper rack but no one ever bought any of them? The newspaper would still get charged for the delivery or have to show a charge on their balance sheet for "distribution".

Now, Lance perhaps has point that the internet is categorically different. That as opposed to a drug deal or even a traditional newspaper distribution system the internet and the computers that make it up are inherently more free-wheeling than our traditional notions. The problem is that although I am sympathetic to that POV it has been foreclosed by SCOTUS in cases like Grokster.

Posted by: Daniel | Sep 4, 2014 6:01:48 PM

The dissenter should have changed his name after he got off Ellis Island and realized that the clerk interposed his name with the name of the town in Amsterdam from which he embarked. This apCray about making a crime of having some item on a computer without proof of intent to use that item for some nefarious purpose is insane. If the defendant's computer was seized by the police then who is in possession of the item on the computer now? They are guilty too of possession of child porn. Why not? If they ride up the elevator with the computer and he child porn on the computer in their possession then they are guilty of elevator possession and who gets the shaft?

Posted by: Liberty1st | Sep 5, 2014 5:38:05 AM

What if your kid buys a computer at Goodwill and it has porn on it? Are you liable for possession of child porn because the computer is in your home?

Posted by: Liberty1st | Sep 5, 2014 5:39:45 AM

Daniel,

I don’t know that your analogy is a closer one, though it is food for thought at the very least. Placing files in a shared folder is akin to constructing a stand on the street corner in which the newspapers are displayed (and will return with you if nobody takes one). Anyone can come and obtain your product, but they have to come and get it, it remains in one place, and is not used if nobody comes. Here, that product—the pornography—remains on one’s own computer, and only leaves that computer if another person actually downloads it. And, unlike your modified analogy of a newspaper truck delivering to a stand, for pornography there is only a single stand, it is located on the person's own computer, and there is no delivery from the computer to the stand, as the stand is the computer.

I could more readily understand a charge of distribution if one dropped pornography on the doorstep of every neighbor on the block—that seems like distribution, even if no one takes the bait—but not in the usual P2P scenario. And given that distribution triggers a harsh, 5-year mandatory minimum, I would think the rule of lenity, and fairness, should dictate a narrower conception of “distribution.”

Adam

Posted by: Adam Shajnfeld | Sep 5, 2014 9:36:58 PM

One would think that the legislative bodies create a new punitive category that transcends possession, but doesn't qualify for distribution. "Make available" would be the most accurate designation I could come up with.

Posted by: Eric Knight | Sep 7, 2014 10:02:34 AM

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