Sentencing Guidelines Meet the Modern Internet

Internet chat systems have been around as long as the internet itself. The first communication between computers on Arpanet, the precursor to the Internet, was basically an instant message.

Robust internet chat systems that operated in real time were developed in the 1980s through BBS (Bulletin Board Systems) that were only sporadically connected to the Internet. (Some BBS systems operated as independent computers that could be accessed by dialing up the system through a modem that ran at very low speeds; other BBS systems operated as independent systems that did not have steady connections to the Internet: users could call up the BBS at any time and post messages or play text-based games, and once a night or once a week the BBS would access the internet to download messages from the broader internet.)

Photographs could not be exchanged, first because no consumer computers allowed for the capture of photographs, and second because connection speeds were so slow that as late as the mid 1990s it could take minutes to download a single gif or jpeg.

At most, adult or child pornography fell into two categories: ASCII (text-drawn renditions) akin to what sometimes are today used on twitter, and fantasy stories. In addition, BBS and Usenet (an old form of message boards) might serve to put people in touch with one another for the purpose of sexual contact.

Possession under 18 USC 2252

By and large, the exchange of pornography before the 1990s occurred via magazines (such as Hustler, Playboy) for adult pornography, and underground, illicit newsletters for the sharing of illegal child pornography or to arrange illegal meetings between adults and children.

In that context, the United States Sentencing Guidelines, first authorized in 1984, were developed with sanctions increasing to a maximum number of 600 images (the highest level). Back when images were shared as single photographs that had to be mailed, sharing 600 or more images was time consuming and difficult, and was distinguishable from sharing 10 images. While each are equally illegal, the Guidelines authors rightly viewed the sharing of 600 images as evidence of a deep commitment to illegal conduct that warranted draconian punishments.

Today, it takes a couple of seconds to download 600 images of any type from a website or over BitTorrent, and given the structure of BitTorrent sharing systems, a person can inadvertently download images where they have no intent to possess child pornography.

Consequently, where federal law punishes the mere possession of child pornography with penalties up to 10 years per count, the sentencing guidelines (USSG Sec. 2G2.2) add five points under subsection 7 for possession of 600 images or more. Additional punishments apply for images or movies that contain especially young or especially sadistic photographs.

Distribution under 18 USC 2252

Distribution or receipt of illicit content can be separately punished under 18 USC 2252 with statutory maxes, in general, of 20 years per count. The laws, written for the most part before the advent of the Internet, can be inadvertently violated in certain cases.

Imagine a scenario in which a person intends to download adult pornography from a peer-to-peer (of BitTorrent) based system. The person types in search terms, and multiple potential file names appear on the screen. The person selects a couple hundred, and goes to bed planning to look at the photographs at some later date.

Assuming normal installation software settings, the content will be automatically re-shared. That’s fundamentally how BitTorrent works and why it’s called “peer-to-peer.” Since most people do not modify the settings, they may automatically be re-sharing what they downloaded. Given that the believed that they were downloading adult pornography, they may not necessarily be concerned. But if in selecting the files to download, they have downloaded child pornography, serious criminal ramifications may follow.

Receipt of illicit material – also a 20 year max per count – can work similarly. Clicking on links by mistake or out of curiosity will be enough to violate the law. Each instance is potentially a 20 year max criminal charge.

Does Deleting the Content Help?

The answer is, deleting the content could arguably invite additional criminal charges: Obstruction of Justice, for instance. If you believe may have violated the law, you should disconnect the computer entirely from the Internet, and consult a criminal defense lawyer immediately. There are steps you can take, but be very careful about doing something in a panic that could land you in a heap of trouble. As the old saying goes, sometimes the “coverup is worse than the crime.”

How Does Law Enforcement Know?

The tracking and investigation into offenders is actually not complicated at all. With respect to peer-to-peer sharing, law enforcement has a number of tools at its disposal. Files are sometimes coded or even named, and then tracked so that law enforcement can track who is downloading and re-sharing the content via BitTorrent.

In addition, the FBI has been known to set up “honey pot” websites or computers on the Web or on peer-to-peer nodes with the aim of attracting people whose activities can be monitored, tracked, and ultimately documented for prosecution.

The FBI or Department of Homeland Security (DHS) can sometimes watch individuals for years before making an arrest.

Law enforcement also monitor chat groups or message boards including Internet Relay Chat (IRC, an early version of chatrooms that is still in operation), Yahoo Groups, and Usenet newsgroups, another old version of message boards.

The monitoring can occur by actually running bots or staffing the channels with agents who respond to requests for illicit content. Or the monitoring can occur at the server level with or without the consent of server operators who allow access to law enforcement. Since no court has ever found that private messaging on chatrooms or IRC is protected by Fourth Amendment privacy rights, and since sometimes one of the parties is an actual government agent, the defense of illegal government spying carries almost no water in court.

What Can I Do?

Serious crimes demand a serious defense. First, and obviously, stop all illegal conduct and disconnect all affected computers or devices from the internet. Second, consult with a good criminal defense lawyer who understands the law and the technology. Third, do not destroy evidence. Talk to an attorney.

By stopping the illegal conduct before the knock comes on the door – and it eventually will if you continue, and may even come if you stop – you increase the chance of non-prosecution or a reduced punishment because you basically signaling implicitly that you are not a predator who can’t stop without going to prison.

In addition, with the advice of an attorney, you may decide to go to counseling with a therapist or psychiatrist who specializes in sex offense-related disorders. The counseling is private and, in most cases, confidential. If the police later show up at your door, your attorney may be able to respond by showing that whatever, problem you might have had, your issues are being addressed.

Finally, you should not speak to law enforcement without your lawyer present, and never consent to the confiscation of computers, harddrives, Network Attached Systems (NAS), or jump drives. If police come with a search warrant, they may still be able to seize the items and you should not obstruct those efforts. But never consent either in writing or verbally to the confiscation or search of these items, and don’t provide passwords to these items without first talking to your attorney.

Penalties

I’ve described some of the penalties above. They are harsh, including maxes of 10 or 20 years per count depending on the offense. In addition, depending on the state, you may invite prosecution in your area even if the federal government does not decide to prosecute.

Finally, these crimes carry with them mandatory sex offense registration at the federal level. In North Carolina, where I am a Board Certified Specialist in State and Federal criminal law, violation of state crime – called Sexual Exploitation of a Minor – requires registration for 30 years, with review after the first 10 years.

Offenders often report that the sex offender registry system is even worse than prison, because it restricts where you can live, work, and hang out. It is a modern day version of the Scarlet Letter, resulting in ostracism from normal society.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.