Yesterday a man from Framingham, Massachusetts was arraigned on charges that he was in Possession of Child Pornography and for Distribution of Child Pornography. The charges stem from an investigation that started in July and that was conducted by the Massachusetts State police. The article in the Metrowest Daily News states that the investigating officer was searching the internet for these illicit images and used a program to determine the origin of download for the materials. The results suggested to the officer that the man’s computer was the source of the photos. At the arraignment hearing prosecutors offered that when confronted with the allegations the defendant denied having any computers. He further denied using peer-to-peer file sharing programs. A Search Warrant was applied for and granted. Officers raided the defendant’s home and found a laptop with a large quantity of Child Porn on it. He was released on a modest bail. Right now charges are pending in the Framingham District Court.
I very often I have clients retaining me on Distribution of Child Pornography Cases in Massachusetts. Those who did in fact download the illicit material, either deliberately or inadvertently, are baffled when they are charged with distribution. They make clear that they never distributed the material to anyone and that a forensic examination of their computer will prove this. Well, what they do not know is that by accessing the material through file sharing programs or peer-to-peer networking they are in fact in violation of the Massachusetts and Federal Child Pornography Distribution laws. Now how can that be? File sharing as we know it today started with Napster, about ten or twelve years ago. Researchers believe that there may be as many as eighty million people in the United States who use file sharing programs in some way or another.
Peer-to-peer file sharing or P2P permits people to download files, games, music videos and more from other computers that are connected or “peers”. What happens however is that now others can access that material from your computer. For legal purpose, at least right now, that constitutes distribution in Massachusetts and in Federal Court.
So what are some defenses to cases like this one? Certainly the defendant’s intent can be argued to a jury. That a person intended to download only or simply “possess” the material is a decision that the jury can make. After all, distribution must be made knowingly. If the district attorney cannot prove that the person using a peer-to-peer program knew that his actions constituted distribution then an acquittal might be possible. Proving knowledge rests on many factors that may or may not be present in this case. What experience did he have with computers? This can be determined not only from the testimony of witnesses who are aware of his proficiency but also from an examination of his hard drive. What is actually on the hard drive? Was the defendant selling this material online? Was he engaged in chats that alerted people to the location of this material? Remember that the article states only that the state trooper conducting the investigation learned that Conley was downloading the materials. The forensic report for the hard drive in this case will answer many of these questions and to some extent guide the defense efforts.
The Law Offices of Stephen Neyman is in the business of defending the accused. Call us now if you are in trouble or have been accused of committing a crime. We are at 617-263-6800. You can email us as well.