Knowing Possession of Child Pornography: The Danger of File Sharing Programs

Possession and distribution of child pornography are the two main offenses encountered in the federal system.  Possession of child pornography is defined under 18 U.S.C. §2252.  To obtain a conviction under this section, the government must prove the defendant: 1) knowingly possessed an image, 2) the image depicted a minor (person under the age of 18), and 3) the minor was engaging in sexually explicit conduct.  A defendant who is found guilty of simple possession faces a sentence of 0-10 years in federal custody.  Distribution of child pornography is defined under 18 U.S.C. §2252A.  To obtain a conviction under this section, the government must prove the defendant: 1) knowingly mailed, shipped or transferred an image, 2) the image contained a minor engaging in sexually explicit conduct, and 3) the defendant used a means of interstate commerce in conducting the transfer.  A defendant who is found guilty of distribution of child pornography faces a sentence of 5-20 years.

In a previous post, we discussed current case law surrounding knowing distribution under 18 U.S.C. §2252A.  In this post, we will analyze the details of how the government proves knowing possession under the simple possession statute and common defenses to negate the knowledge element.

There are three main areas of concern when analyzing whether a defendant knowingly possessed child pornography under 18 U.S.C. §2252: 1) whether the defendant had knowledge child pornography was being downloaded to his computer, 2) whether the defendant can be liable for child pornography on another’s computer in the home, and 3) whether the defendant falls under the “prompt deletion”  defense under 18 U.S.C. §2252(c).

Defendant was unaware the file contained Child Pornography

File sharing programs have provided an easy way for persons to download movies, music, software, pictures and other large files.   These file sharing programs allow a user to download various items from other people’s computers who are attached to the network.  Some users understand the logistics of file sharing programs, and others are completely unaware of how a peer to peer system works.  The more knowledgeable users can take advantage of others by mislabeling files and embedding various videos within seemingly legitimate downloads.

Anyone who has used a file sharing program knows about the issue of mislabeled files.  A user may search for their favorite song, download the file, and later find out it is a completely different song or a video unrelated to the original file label.  Normally, this is a minor nuisance.  When it comes to child pornography, it can lead to federal charges.

We have had cases where a user searched for a specific item and downloaded a zip file.  A zip file can contain numerous programs, pictures or movies embedded within the location.  Once unzipped on the user’s computer, the various files are downloaded and placed in folders throughout the user’s hard drive.  Sometimes the locations of the newly downloaded files are obvious.  Other times, the files are buried within folders which are not regularly accessed by the user.

If some of those embedded files contain child pornography, the user would be in possession of child pornography on the hard drive of his computer.  The questions is whether these facts lead to knowing possession as envisioned by 18 U.S.C. §2252.

The short answer is, no.  A person must know the file they are downloading is child pornography before a conviction under the federal statute is appropriate.  The problem arises in convincing the government of these facts.  The government is unlikely to believe a person with 100 child pornography images accidentally placed them on his computer.  The task for the defense attorney is to provide evidence which affirms how the images arrived on the defendant’s computer and shows the defendant had no knowledge of their arrival.

This is where a forensic expert can be vital in defending clients charged with possession of child pornography.  A forensic expert will be able to locate the files, and hopefully, locate their source.  The expert should be able to conclude the files came from one zip file downloaded on a specific date.  Then the forensic analyst can determine whether the files were ever opened on the computer.  If the child pornography images were never accessed, the likelihood of an unknowing possession goes up substantially.  No sane person would download child pornography intentionally and fail to look at the files.

The third area for forensic analysis involves reviewing the label of the original zip file and the search terms used to obtain the file in the file sharing program.  If the analysis shows the defendant searched for “Fargo”, and downloaded a file named fargo.zip, there is no indication the defendant was actively seeking child pornography through the file sharing program.  With a complete analysis, the defense attorney will have evidence showing an unknowing possession.  This should eliminate a key element in the government’s case.

Though not the norm, unknowing downloads do happen with some regularity.  People have used the internet to take advantage of others since its advent, and this danger should be a caution to anyone using a peer to peer network.  Some people accidentally download viruses, and others, could be facing a lengthy legal battle in federal court.

Constructive Possession of Child Pornography Inside a Defendant’s Home

Most people live with a friend, spouse or other family members.  Many of these same people share computers and other devices within the home.  If a search warrant is executed at a home with multiple residents, the government must show who within the home had knowledge of the child pornography, and access to the images, to prove knowing possession.

The Fifth Circuit has ruled the discovery of contraband inside a home with multiple occupants is insufficient by itself to charge each resident.  The government must present additional evidence of the defendant’s knowing dominion or control of the contraband. United States v. Terrell, 700 F.3d 755 (5th Cir. 2012).  This concept is inherent in the knowledge required under 18 U.S.C. §2252.

This area of law is often a concern for persons who live with someone who has downloaded child pornography.  If a person downloaded child pornography to the family computer, the liability should only extend to the person who knew the child pornography was present on the computer and had access to the files.

The government can prove this in various ways, including showing the file is only accessible when logged in as a particular user, interviewing the residents for information regarding computer use at specific times, and tracking the unique IP addresses on computers within the household.

In practice, this issue is often dealt with by information gathered during the execution of the warrant.  Most times, the possessor will advise federal agents they downloaded the contraband to save the other members of the household.  Though it is always inadvisable to discuss anything with agents prior to hiring an attorney, the defendant’s urge to clear a family member is often overwhelming.

However, if no information is gathered at the scene, the government will have to prove which resident knew of the child pornography and had access to the files.  This can be a cumbersome task without witness participation.

Affirmative Defense of “Timely Deletion”

Under 18 U.S.C. §2252(c), it is an affirmative defense to possession of child pornography if the defendant took reasonable steps to destroy a child pornography image or reported the matter to law enforcement.  To prove this defense, the facts must show the defendant: 1) possessed less than three matters of child pornography, 2) promptly, and in good faith, and without retaining or letting someone other than law enforcement view the material, either: A) took reasonable steps to destroy each depiction of child pornography or B) reported the matter to law enforcement and afforded the agency access to the file.

There are multiple posts online dealing with the steps which should be taken if child pornography is accidentally downloaded on your computer.  This affirmative defense lays out those steps.  This affirmative defense is not for persons who downloaded multiple files containing child pornography and later wishes to delete them from their hard drive.  The prompt, and good faith, sections of the statute ensure the defense will only be viable in those situations where a person accidentally accesses child pornography on their computers.  But nonetheless, it is an important consideration for all defense attorneys who retain clients with a potential knowledge issue.

Thorough Investigation Required to Challenge the Knowledge Element

The proliferation of the internet, and peer to peer networks, has created a dangerous environment.  Less sophisticated users can accidentally obtain various unwanted files and programs during downloads.  These accidental downloads can lead to federal prosecution under 18 U.S.C. §2252.

However, a truly accidental download can be defended by leaning on the knowledge requirement in the statute.  It is not enough for the government to show a computer you own, or have access to, contains pictures of child pornography.  They must show the defendant knew the pictures were on the computer prior to successful prosecution.

Through forensic analysis, and use of the statutory affirmative defense, a defense attorney can establish the facts necessary to challenge the knowledge element. To establish these facts, it is imperative a complete and thorough investigation is conducted on the defendant and the device which holds the contraband.  This investigation should aim to establish key facts, including the software used, the search terms used to find the file, the names of the files downloaded, the number of images on the computer, the location of the images on the hard drive, whether the files have been deleted, when any files were deleted, and the number of users who can access the computer.  If a defense attorney can establish the defendant failed to seek child pornography, and the source of the contraband was a mislabeled file, there is a viable defense to possession of child pornography charges.  This defense is built by attacking the knowledge element within the government’s burden of proof.

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