Friday, October 07, 2016

The File-Sharing Program, “Sending” and “Transmission” of Child Pornography

This post examines two decisions by appellate courts in Florida. We will begin with Smith v. State, 190 So.3d 94 (District Court of Appeal of Florida, Fourth District 2015) (“Smith v. State #1”). The court began the opinion by explaining that
Smith pleaded guilty in August 2011, to twenty counts of transmitting child pornography to an undercover officer via the internet. See § 847.0137, Fla. Stat. (2010) (`Transmission of pornography by electronic device or equipment prohibited’).

The information alleged twenty counts as follows:

DUNCAN JASON SMITH on or about April 13, 2010, in the County of Palm Beach and State of Florida, did transmit child pornography, as defined in section 847.001, Florida Statute, knowing or having reason to know it was child pornography, to another person in Florida or in any other jurisdiction, or from any jurisdiction outside of Florida to any person in the State of Florida, contrary Florida Statutes 847.0137(2) and (3). (3 DEG FEL)

Factually, Smith used a file-sharing program that was designed to allow one-on-one access to stored data. Smith loaded pornographic images into a specific computer file. Authorization was required to gain access to it. Smith sent a `friend’ request to a Palm Beach County undercover detective, which authorized the detective to access certain of Smith's files that Smith had chosen to share with other users. The detective downloaded various images of child pornography from these files. Apart from the “friend” request, Smith did not know that the files were actually downloaded. 

Smith was arrested, and in a post-Miranda statement admitted that he had been trading in child pornography for ten years. Through a negotiated plea, Smith pled guilty to the charges and was sentenced to clusters of five-year sentences, some of which were run consecutively, to constitute a ten-year sentence. This was to be followed by fifteen years of sex offender probation.
Smith v. State #1, supra.
The Court of Appeals explained that after Smith’s
conviction and sentence, the Fifth District decided Biller, in which it held that a defendant who used a similar process of file-sharing could not be guilty of transmitting child pornography, because he did not send the pornography, within the meaning of the statute, by using file-sharing. Smith then filed a motion for post conviction relief, claiming in part that, because Biller found that transmission by method of file-sharing was not a transmission within the meaning of the statute, he was denied due process by being convicted of a non-existent crime. The trial court denied relief. We affirm, disagreeing with Biller.
Smith v. State #1, supra (emphasis in the original).
The Court of Appeals went on to explain that
Section 847.0137 makes it a crime to transmit child pornography:

[A]ny person in this state who knew or reasonably should have known that he or she was transmitting child pornography, as defined in s. 847.001, to another person in this state or in another jurisdiction commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 847.0137(2), Fla. Stat. (2010). That same statute defines `transmit’ as:

[T]he act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons or places over or through any medium, including the Internet, by use of any electronic equipment or device.

§ 847.0137(1)(b), Fla. Stat. (2010).
Smith v. State #1, supra.
The court outlined the Biller court’s ruling and explained why it did not agree with that ruling:
In Biller, the Fifth District was confronted with whether the definition of “transmit” included the use of a similar file-sharing arrangement, as occurred in this case. Just as here, Biller had placed the pornographic images in a shared folder of a file-sharing program and had given authorization to access the folder to sheriff's agents. The court noted that the legal issue it addressed was whether the pornographic images were `sent’ within the meaning of the statute. Relying on statutory lenity, the court concluded that to `send’” within the statutory definition required a purposeful act by the defendant. It reasoned:

The State concedes that Appellant did not affirmatively dispatch the images using a function on his computer. Indeed, Appellant had no knowledge that agents retrieved the images. The State posits that Appellant essentially sent the files because he maintained them in a shared folder and knowingly allowed other Limewire subscribers to access them. Conversely, Appellant argues that `send’ means a purposeful act to deliver the files, rather than the mere allowance of access to the files.

One definition of the word `send’ is, `to cause to go or be carried.’ Webster's New World College Dictionary 1305 (4th ed. 2001). This definition supports Appellant's construction of the statute, although the State's proffered construction is not unreasonable. Under statutory lenity principles, however, when a criminal statute is susceptible of more than one construction, we are compelled to construe the statute most favorable to Appellant. § 775.021(1), Fla. Stat.

Biller, 109 So.3d at 1241. The court reversed appellant's convictions.
Smith v. State #1, supra.
The Court of Appeals for the Fourth District explained that
We disagree with Biller 's interpretation of the statute. The Fifth District focused only on the word `send’ in construing the statute. When we consider the entire language of the statute, we conclude that the use of the file-sharing program, where the originator affirmatively grants the receiver access to his files, who can then download the pornographic images over the internet through an electronic device, constitutes `transmission’ of pornography.

The statutory definition of `transmit’ requires an act of `sending and causing to be delivered.’ § 847.0137(1)(b), Fla. Stat. (2010). The Fifth District used the dictionary definition of `send’ as `to cause to go.’ We will not disagree that is one of many related definitions of `send.’ But the second phrase in the statute is equally important. `Cause to be delivered’ has been defined in connection with a federal mail fraud statute as requiring reasonable foreseeability of delivery:

Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes' the mails to be used.

Smith v. State #1, supra.
The Fourth District Court of Appeals then articulated its reasoning, and its ruling, in this case:
[i]n the context of transmission using the internet, when the originator creates the shared file folder and specifically authorizes others to download the contents of that folder, he is `sending’ information in the form of the `friend’ request and is `causing’ the pornographic images to be delivered to another. It is reasonably foreseeable that the pornographic images will be accessed and downloaded. Thus, under the statute, Smith created the shared file space populated with pornographic images; he `sent’ the `friend’ request to the undercover detectives, thereby granting them access; and he reasonably could foresee that they would access the folder and download the images, thus `causing’ them to be delivered to another. Indeed, in his subsequent statements he admitted to trading in pornographic images, which also means that delivery is contemplated. Thus, he `sent and caused to be delivered’ the pornographic images. The use of the phrase `cause to be delivered’ in the statute negates the construction that a person must himself deliver the files to another person, such as by attaching them to an email.

That the Legislature intended the definition of `transmit’ in section 847.0137(1)(b), Florida Statutes (2010), to be broader than merely purposely sending images to an individual can be gleaned from a comparison of the definition of `transmit’ in section 847.0138, Florida Statutes. That section prohibits `[t]ransmission of material harmful to minors to a minor by electronic device or equipment[.]’ In that statute, `transmit’ is defined as `to send to a specific individual known by the defendant to be a minor via electronic mail.’ § 847.0138(1)(b), Fla.Stat. (2010). Thus, where the Legislature wanted to restrict `transmission’ to the act of sending something directly to an individual by e-mail, it knew how to define the term narrowly. It did not create such a narrow definition in section 847.0137(1)(b), Florida Statutes. Consequently, we see no need to apply the rule of lenity to section 847.0137. Kasischke v. State, 991 So.2d 803, 814–15 (Florida Supreme Court 2008) (noting that the rule of lenity is `a canon of last resort’).
Smith v. State #1, supra.
The opinion concludes with the following: 
Because we conclude that the exchange of the pornographic images through the use of the file-sharing program constitutes `transmission’ within the meaning of the statute, we affirm the order denying post conviction relief. 
Smith v. State #1, supra.
That, though, was not the end of the issue.  Smith filed a `motion for post conviction relief, arguing that his use of a computer file-sharing program did not constitute transmission’ with the Fifteenth Judicial Court, Palm Beach County, which the court denied. Smith v. State #2, 2016 WL 4702108 (Supreme Court of Florida 2016).
After the County Court denied his request, Smith appealed his conviction to the Supreme Court of Florida, which began its analysis of the issue he raised on appeal by reviewing what had happened with the case in the other courts. Smith v. State #2, supra.  The Supreme Court then began its analysis of the issue in question by explaining that
`Because the conflict issue involves the interpretation of a statute, this Court's review is de novo.’ Polite v. State, 973 So.2d 1107, 1111 (Florida Supreme Court 2007). `The object of statutory interpretation is to determine legislative intent.’ Crews v. State, 183 So.3d 329, 332 (Florida Supreme Court 2015). `To discern legislative intent, this Court looks first to the plain and obvious meaning of the statute's text[.]’ W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 9 (Florida Supreme Court 2012). This Court has consistently recognized that “[w]hen the statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Borden v. E.–Eur. Ins. Co., 921 So.2d 587, 595 (Florida Supreme Court 2006) (quoting Daniels v. Fla. Dep't of Health, 898 So.2d 61, 64 (Florida Supreme Court 2005)).

Section 847.0137 makes it a crime to transmit child pornography:

[A]ny person in this state who knew or reasonably should have known that he or she was transmitting child pornography, as defined in s. 847.001, to another person in this state or in another jurisdiction commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 847.0137(2), Fla. Stat. (2010). That same statute defines `transmit’ as:

[T]he act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons or places over or through any medium, including the Internet, by use of any electronic equipment or device.

§ 847.0137(1)(b), Fla. Stat. (2010).
Smith v. State #2, supra.
The Supreme Court went on to explain that
Smith argues that he did not commit the act of `sending and causing to be delivered’ child pornography within the plain meaning of the statute and, in the alternative, that the statutory definition of `transmit’ is ambiguous. We disagree. The statute unambiguously prohibits the conduct for which Smith was convicted. Smith sent child pornography images to an electronic `place; by loading them into a specific computer file and, through his use of the file-sharing program, made those images accessible to third parties for whom access was authorized. Smith then sent a `friend’ request to a third party which authorized the third party—through the file-sharing program—to obtain access to the place to which the images had been sent. By those purposeful acts, Smith caused the delivery of the images to the third party to take place.

We thus agree with the Fourth District that Smith `sent and caused to be delivered’ child pornography under the statutory definition of `transmit.' \Smith, 190 So.3d at 97. What Smith did is the electronic equivalent of placing a locked box filled with pornographic photographs on his front porch, telling a `friend’ that there is something on the front porch he might want to see, and sending the friend a spare key to the locked box. In such hypothetical circumstances, although it might be said that Smith did not directly send and deliver those photos to the friend, it is undeniable that once the friend obtained access to the photos, Smith had indeed caused the delivery to the friend of the photos which he previously had sent to his front porch. Accordingly, we hold that the use of a file-sharing program, where the originator affirmatively grants the receiver access to the originator's child pornography files, constitutes the transmission of child pornography under the plain meaning of section 847.0137.

Biller erred by applying the rule of lenity to section 847.0137 based on an unreasonably cramped reading of the statute. Smith correctly declined to apply the rule of lenity to section 847.0137.
Smith v. State #2, supra.
The Supreme Court therefore held that Smith
`committed the act of `sending and causing to be delivered’ child pornography by using the file-sharing program, disapproving Biller v. State, 109 So.3d 1240.
Smith v. State #2, supra.  So, Smith lost.

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