Defense-Favorable Child Porn Opinion on Distribution

This wikilog article is a draft, it was not published yet.

by: Ryan • September 3, 2014 • no comments

Third Circuit opinion. The issue is whether putting images in a "shared" folder constitutes distribution under federal law. Under Oregon law, that particular theory of ECSA I is "possession with intent to distribute."

Key quote:

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.

The opinion may not help as much when, as noted, the defendant is charged with possession with intent. On the other hand, as those of you who have handled these cases no, often the act of making the images eligible for sharing is inadvertent, because of default settings of certain peer-to-peer networks the defendant may be unaware of.