Defendants accused of distributing child pornography face more serious charges than those accused of possession alone. That’s why many defendants are disappointed to discover that appeals courts routinely uphold distribution charges against people who shared child pornography via a file-sharing program, even when they didn’t actively distribute it or even know that the file-sharing was on. That was the case in United States v. Richardson, in which the Fifth U.S. Circuit Court of Appeals upheld a distribution conviction against Bennie Richardson IV of Texas. Richardson argued unsuccessfully that he didn’t distribute child pornography by keeping it in the “shared” folder attached to the peer-to-peer file-sharing software LimeWire. He also unsuccessfully challenged a sentence enhancement for using a computer in committing this crime.
Richardson was caught sharing child pornography by a Houston-area police officer looking for illegal materials on LimeWire. The police followed up with a search warrant for Richardson’s home, where they found him actively downloading adult pornography via LimeWire. LimeWire downloads files by default into a “shared” folder, though users can download files elsewhere; anything in the shared folder can be downloaded by others. Richardson told police he knew he was sharing the materials in the shared folder, that he knew common child porn search terms and that the computer was only used by him. He and prosecutors ultimately agreed to stipulate certain facts and hold a bench trial solely on the issue of whether Richardson’s behavior constituted distribution. He was ultimately convicted of both possession and distribution and sentenced to a total of 151 months in prison.
On appeal, Richardson argued that his conduct did not amount to distribution, because the plain meaning of distribution is delivery. He did not take active steps to transfer possession of the child pornography, he argued; rather, he downloaded the materials and permitted them to stay in the shared folder. This, he argued, is more like leaving magazines around than delivering magazines to a specific address. The Fifth disagreed. It has already ruled several times that peer-to-peer file sharing can constitute distribution for Sentencing Guidelines purposes, it said. Furthermore, it was persuaded by its sister circuits’ rulings on the issue, citing with approval a Tenth Circuit case with a similar fact pattern and argument on appeal. That opinion concluded that making the material available is adequate evidence of distribution, and the Fifth Circuit agreed. It went on to reject Richardson’s argument that a sentence enhancement for use of a computer was double-counting because the underlying crime also involved a computer, saying there’s nothing in the statute that prevents double-counting.
The “use of a computer” enhancement may soon be abandoned, regardless of whether it is correctly applied in this situation. As defendants, judges, prosecutors and cyber crime attorneys like me know very well, almost all child pornography crimes nowadays are committed via computer. This sentence enhancement may have made sense when it was written, but it is now so redundant that the U.S. Sentencing Commission’s recent report on reforming child porn sentencing has called for its elimination, saying it inflates sentences unnecessarily. While file-sharing software wasn’t addressed in the Commission’s report, I believe that issue could benefit from some updating or clarification as well. Most courts have ruled that experienced, knowledgeable users are distributing if they use the shared folder, but the rules should make it clear that people should not be prosecuted if they don’t understand how file-sharing works.
![]()
![]()
![]()
![]()
![]()
↧