Transmitting Child Porn Case Overturned

Every era in human history has its version of a witch hunt. In the late 1600’s, colonial Massachusetts put many people to death via hanging, or burning at the stake, because these folks “confessed” to being witches. In my view, part of what qualifies any government activity as a “witch hunt” involves examining the large gap between the punishment and the crime. Burning at the stake for being a witch is but one example. Twenty years in prison for possessing child pornography, that’s today’s example. Yes, our government would probably sanction burning at the stake for child pornography, if they could get away with it. And bear in mind, we’re talking about child pornography that doesn’t–necessarily–involve child victims that are currently alive and well. These child victims may have long since passed into the afterlife, yet their images continue to send scores of citizens to prison every day (well, maybe not every day).

The punishment for child pornography is steep. Possession of child pornography can send a citizen to prison, even though the child victims in the pornography are no longer living, or even identified. So, based upon the fact that a citizen viewed a few pictures on the internet–that momentary viewing may lead to years and years of prison. That meets my definition of a witch hunt, plain and simple. I’m not talking about the suspects that are actually photographing these children. That’s another story, and that’s another charge. I’m not talking about the folks that are featured on NBC’s To Catch a Predator–that too is an entirely different charge.

Any discussion of viewing lewd pictures of children on the internet would not be complete without explaining how one’s computer can take such pictures and create additional charges. You see, many people now have “cloud” computing. There is, for example, an Apple product called “iCloud”. With this program, Apple will upload all of your pictures onto the “iCloud”. If you lose your iPhone, simply buy a new one, and download all of your pics from the iCloud back onto your phone. It’s simple, easy, and quick. But if those pictures constitute child pornography–can you be convicted of transmitting child pornography? Well, the recent case of Biller v. State addresses this very issue. 109 So. 3d 1240 (Fla. 5th DCA 2013).

Biller pled to 15 counts of possession of child pornography, and one count of transmission of child pornography by electronic device. The accusation involving the transmission of child stems from the fact that Biller permitted his entire computer to be accessible via Limewire. The Limewire service permits anyone to access your computer files, much in the way services like Dropbox permit limited file sharing in the “cloud”. The definition of “transmit” states that Biller must commit “the act of sending and causing to be delivered any image” via the internet. But, Biller did not transmit an image via Limewire. In fact, it was the government that downloaded the child porn from Biller’s computer via Limewire. As such, is Biller guilty of “transmitting” the images to law enforcement via Limewire? No.

When the police downloaded child porn from Biller’s Limewire account, Biller had no real knowledge that they (or anyone) retrieved his images. The State contends that opening up one’s computer to Limewire services is, in effect, violating the spirit of the law. Fortunately, the appeals court wasn’t buying what the State was selling, and they resorted to Webster’s Dictionary in their rejection of the State’s position, finding that the “definition of the word ‘send’ is, ‘to cause to go or be carried.’” Id. at 1241. Even though the appeals court found the State’s position to be reasonable under the circumstances, the good news is that we Americans enjoy a privilege known as “statutory lenity”. In essence, this principle stands for the proposition that “when a criminal statute is susceptible of more than one construction, we are compelled to construe the statute most favorable to [the citizen]”. Id. As such, the court overturned Biller’s conviction for transmission of child pornography.

A couple of side notes here. Notice how many counts Biller pled to? 15? That’s pretty common, on a plea, though in many of these cases the State will bring 100+ counts. Start adding up that many counts, and you’ve got mandatory prison just based on the number of points racked up. And, going to trial on such a case will be brutal. Can you imagine the jury viewing the first image of child pornography? Then the second image? Then the third image? Then the fourth image? Then the fifth image? Then the sixth image? Then the seventh image? Ouch. And, even if a defense expert can testify that some of the images do not constitute child pornography (it happens, sometimes these are 18 year old–legal–females that happen to look younger than they are), it is pretty common for the State to simply have several other–uncharged–pictures which they can then slip right into the count that was once occupied by the possibly legal image. So, after paying an expert tons of money to evaluate the age of the “children” in the pictures, you may still end up with the same number of counts. Biller’s criminal defense attorney also fought to declare the possession of child pornography statute unconstitutional and void for vagueness. I agree that this statute should be declared unconstitutional, so I think the defense attorney was on the right path here, but the appeals court denied this portion of the appeal. After all, what judge during the Salem Witch Trials had the gonads to stand up while someone is burning at the stake, and tell everyone something isn’t right?