Computer Crimes: Peer to Peer (P2P) Programs: Criminal Liability Lurks
This article is primarily about the peer to peer (P2P) viewing of child pornography over the internet. In today’s computer age child pornography prosecutions at both the State, including Florida, and Federal level have exploded in large part because of P2P downloading and uploading. It is quite possible for someone to sit in their living room and out of simple human curiosity look at photographs that if detected by law enforcement would result in them being imprisoned for many years. There are also those who are pedophiles with vast collections of child pornography who use P2P programs. The purpose of the article is not to judge who is or is not a pedophile or judge the reason why someone may look at illegal material. It is simply to inform those who use these programs of the extremely serious legal consequences for viewing such material through P2P program software.
Severe Criminal Consequences
Federal prosecutions have increased exponentially in the last five to ten years. Receipt of Child Pornography carries with it a five year minimum mandatory prison sentence to be followed by a period of supervised release or probation in addition to forever being labeled a sexual offender with all of the collateral consequences of such a designation. The base term of imprisonment level will increase tremendously based on the number of photos, the nature of the photo – in fact, in the criminal system the level will be increased if a computer is used! If the photo (or movie) has been “uploaded,” which is how all P2P programs operated, a charge of distribution may be filed which carries a five year minimum mandatory federal prison sentence. In Florida State Courts possession of each photograph that fits the definition of child pornography carries with it a five year maximum prison sentence. So if a person uses a search query like “girls having sex,” and allows the program to download photos or movies that may include those identifying words, and lets the program work overnight, by the morning they probably will have downloaded thousands of illegal images of underage children engaged in sexual activity. This can be the situation even if the person’s intent was to only download adult material. There are a very limited number of defenses to these crimes.
Law enforcement, at both the State and Federal levels, and often times working as TASK forces together, will focus on a particular movie and, using their software find every computer through the user’s IP address that downloaded the material and then obtain the individuals records from the Internet Provider giving them the name and address of the person in whose home the computer is located that downloaded the illegal materials. This information forms the probable cause for a judge to authorize a search warrant of the person’s home that enables law enforcement to then execute and generally seize all computers, cameras, flash drives, CDs, lap tops, I pads, or Smart phones. Subsequently, law enforcement does a forensic evaluation to determine the extent of the person’s involvement with child pornography.
Many people cooperate with law enforcement and provide a full statement at the time of the seizure not fully realizing that possession of such materials will, in many cases, result in a lengthy prison sentence and forever being labeled a sexual offender. Furthermore, both in Florida and the Federal Systems, penalties for possession, receipt and/or distribution of child pornography has more than quadrupled in the last ten years. It is not uncommon today to see a person who has a successful career, is a community leader, has little or no prior criminal history, and had never in any manner abused a child receive a fifteen to twenty year sentence!
More Public Awareness is Needed
I have no doubt that if the public were more aware of the consequences of downloading material that, but for the computer, they would never look at, the number of child pornography prosecutions would decline tremendously. Many people look at illegal material for the same reasons why we, as human beings, slow down to look at a car wreck, out of curiosity or an obsessive/compulsive driven need. Most psychologists agree that people who merely look at child pornography on the internet do NOT act out and are not pedophiles. However, this article is not designed to explain why such people may look at or collect such materials and I am certainly not qualified to diagnose someone’s motivation for doing so.
My advice to people is not to use these programs in any manner, even for downloading music, which in itself may be theft or copyright infringement.
What is Peer to Peer Software (P2P)?
Peer-to-peer (P2P) file sharing began in 1999 with the introduction of Napster, a file sharing program that had central servers that linked people who had files with those who requested music albums or songs. The central index server was meant to index all of the current users and to search their computers. When someone searched for a file, the server would find all of the available copies of that file and present them to the user. The files would be transferred between the two private computers. One limitation was that only music files could be shared. Because this process occurred on a central server, however, Napster was held liable for copyright infringement and shut down in July 2001. It later reopened as a pay service.
After Napster shut down, the most popular peer-to-peer programs were Gutnella and Kazaa; today there are many others. One P2P that has massive world wide use is E-Mule. Many people from around the world download child pornography, child erotica and legal adult pornography from this and other sites. While Napster connected users through a centralized server, these new services connected users remotely directly to each other. These services also allowed users to download files other than music, such as movies and games.
The user downloads the free software and chooses a folder on his or her hard-drive on which to store downloaded material. Again, there is no central server or directory that stores the media on the current P2P programs. People who want a particular album, movie or game would place a search word or “search query” through the program and the software searches through other individual’s computers for the title requested. These files when found are then directly downloaded from the folders of other users’ computers, many of whom aren’t even aware they are actually distributing materials. Not to sound redundant, but the sought after materials are transferred directly from the computer of one user to another, hence the name 'peer-to-peer' (P2P).
Does Possession Occur when Material is Merely Viewed on a Computer?
Once the media is viewed on the screen of the computer it is downloaded onto a person’s hard drive and the user is considered in possession of whatever they chose to download. The “mechanics” of how a P2P actually works is unknown to many users; it just seems like a good way to get movies or music for free regardless of copyright infringement issues. Many people using these programs don’t understand that they are actually distributing the media being “uploaded” by other users. Some programs, unbeknownst to many users, allow a user to disable the upload feature. These P2P programs became an easy way to for users to download materials, many of which are illegal and many of which, if discovered by government law enforcement agencies, would result in the computer users arrest and subjects them to enormous, life changing criminal liability.