File sharing permits the public or private sharing of computer data in a network that allows multiple people to read, view, modify, copy, print, or write in the same file. Child pornographers frequently utilize file sharing to share and receive electronic images, videos, and audio files of explicit child sex material.
These exchanges are primarily occurring between what’s called “peer-to-peer” (P2P) networks. These networks have surpassed the historical methods of exchanging child pornography: instant messages, emails, bulletin boards or chat rooms. For example, one study last year found that just one year of online child pornography trafficking via computers in the U.S. on the Gnutella peer-to-peer network involved 244,920 computers which shared 120,481 child pornography files (note 1).
In 2011, D. G. Husmann was on federal supervised release for a 2005 child pornography conviction when the U.S. Probation Office received a software alert indicating that his computer had visited pornographic websites. A probation officer was dispatched to Husmann’s Elizabethtown, Pennsylvania residence where he caught the probationer in the act of viewing a young girl in a bathing suit. Believing the image was stored on a flash drive in a USB port of Husmann’s DVD player, the probation officer seized that flash drive and three others nearby. After finding pornographic images on the flash drives, the probation officer referred the matter to the FBI.
The law enforcement agency launched an investigation, beginning with obtaining a search warrant for Husmann’s residence. While at the residence, the agents interviewed Husmann who readily admitted he had downloaded, saved and viewed the images on the flash drives seized by the probation officer. The FBI seized several computers, as well as other computer-related items, and assigned them to Agent Donald Price for forensic analysis. Price found over 4,000 images of what the Government described as “child erotica.”
The Government eventually identified 65 still images and an hour-long video “as child pornography.” Price also found “two file sharing programs” on one of the computers—Limewire and 306 Share Pro. The latter program maintains an “extensive log file” about when a user shares a file. The agent found a “shared folder” of child pornography files on the program which had been accessed on several dates. The agent, however, could not determine 1) when the files were downloaded to the shared folder or 2) if the files were “ever downloaded to another machine.”
A federal grand jury indicted Husmann on seven counts: three counts of distribution of child pornography, three counts of receiving child pornography, and one count of possession of child pornography. On the first day of Husmann’s trial in March 2013, the Government dismissed the three counts of receiving child pornography at which time Husmann’s attorney moved to have the remaining four counts dismissed because the Government did not have sufficient evidence that Husmann “was the person who uploaded the files in question, since the four other people who lived with him had easy access to the computer and flash drive at issue (note 2)” The jury disagreed. It found Husmann guilty of the four counts (3 distribution, 1 possession), and the trial court on June 10, 2013 imposed four concurrent 240-months terms of imprisonment.
On September 3, 2014, the Third Circuit Court of Appeals was called upon to answer the question of “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.” Such an inquiry must necessarily begin with the criminal statute involved. In this case, the federal child pornography distribution statute, 18 U.S.C. § 2252(a) (2), states:
“Any person who … (2) knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce … by any means including computer … if—(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct, and (B) such visual depiction is of such conduct … shall be punished as provided in subsection (b) of this section.”
The problem with the statute is that Congress did not define the term “distribute.” When a statute does not define a key term, reviewing courts will consider the dictionary definition of the term, the statutory context of the term (meaning the term or word must not be read in isolation), and the case law (precedents that permit the court to context the statute). After conducting a thorough analysis under this three-prong criteria and turning to other federal circuit decisions for guidance, the Third Circuit reached this conclusion:
“Based on the ordinary meaning of the word ‘distribute,’ the other provisions criminalizing child pornography offenses, and the decisions of our sister circuits, we hold that the term ‘distribute’ in § 2252(a)(2) requires evidence that a defendant’s child pornography materials were completely transferred to or downloaded by another person. Of course, knowingly placing child pornography in a shared folder on a file sharing network remains a criminal offense …”
As an example, the appeals court pointed out that § 2251(d) (1) (A) still prohibits offers to distribute child pornography, but said an offer “…isn’t distribution. In the end, our interpretation of ‘distribute’ … might affect the government’s charging decisions, but it does not handicap the government’s ability to prosecute child pornography offenses.” Simply put, the government must show that child pornography files in a shared folder were downloaded by another person, or transferred to that person, to constitute distribution (note 3).
The Third Circuit vacated Husmann’s three distribution convictions but left his possession conviction intact. The court’s decision will result in a substantially lower sentence for Husmann, but what impact it will have on defendants serving distribution sentences handed down in the Third Circuit before the decision remains uncertain.
1. “Measuring a year of child pornography by U.S. computers on a peer-to-peer network” by Janis Wolak, Marc Liberatore , and Brian Neil Levine.
2. United States v. Hausman, No. 13-2688, Third Circuit Court of Appeals (Sept. 3, 2014)
3. While not explicitly making the same holding, the Fifth Circuit last year upheld a distribution conviction because there was evidence that an FBI agent actually downloaded a child pornography video in a defendant’s shared folder.