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Transmission of Child Pornography

Florida Appellate Court rules keeping child pornography in Limeware sharing network folder does not violate Florida law against sending child pornography over the Internet.

In the case of Biller v. State, 38 Fla L. Weekly D705c (Fla. 5th DCA March 28, 2013), the Florida Fifth District Court of Appeal reversed a conviction for transmission of child pornography by an electronic device as prescribed by Fla. Stat. § 847.0137(2).

The defendant was utilizing a peer-to-peer sharing network known as Limewire to download pornographic images of children onto his home computer. The files were obtained from other subscribers to Limewire who permitted access to their files. One of those users of Limewire was the sheriff's department who went onto the defendant's computer and retrieved images from the accessible folder via the Internet. It was based upon the sheriff's retrieval of the child pornography that the crime of transmitting child pornography was based.

§ 847.0137(2), Fla. Stat. defines transmit as "the 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."

The legal issue confronting the District Court of Appeal was whether allowing access to files on an individual's computer through a sharing network, constitutes sending the images to another person.

The state conceded that Biller did not affirmatively dispatch the images using a function on his computer. He did not even know that the sheriff's department had retrieved the images. The state's position was that the defendant essentially sent the files because the files were maintained in a shared folder which allowed other Limewire subscribers access and the ability to download.

The court noted that the case came down to a matter of interpretation of the statute and in particular the word "send." The court noted the Webster's New World College Dictionary for the definition which is "to cause to go or be carried." The state contended that "send" under the statute, applied to the defendant's conduct.

The Fifth District Court of Appeal's applying the rule of lenity when interpreting criminal statutes that are subject to more than one construction was compelled to construe the statute in the light most favorable to the appellant and therefore reversed the conviction for transmitting child pornography, and adopted the defendant's definition of "send."

This is an important decision which will be of value to those defendants who are caught in such a sting by law enforcement utilizing the Limewire sharing network.