Florida Supreme Court Finds that File Sharing Program is “Transmission” Under Child Pornography Statute

With the progress of technology, sometimes the criminal justice system has a difficult time staying up-to-date and relevant with the various ways in which technology can be used to subvert the law. Usually the law is one step behind the criminal behavior and as a technological practice becomes more pervasive, the law follows behind to help eradicate misconduct. Sometimes, the law may be changed or updated by the criminal justice system, where the courts and judges are able to interpret a law to include these new technological processes by which to skirt the law, and thereby expanding the definition of what makes something illegal. Going through the legislature and/or going through the criminal justice system are both efficient ways in which the law can keep up with technology.

If you or a loved one has been arrested for a crime associated with the use of a new technological practice, it is important to speak with an experienced criminal defense attorney. Please contact West Palm Beach criminal defense attorney William Wallshein for a confidential consultation.

“Transmission” as Defined in Florida Statute

Florida recently expanded the definition of “transmission” regarding the crime of transmitting child pornography to others. The traditional definition of “transmission” in the law, refers to the actual action of sending and delivering any sort of image, video, information, or data between or among the owner of the data and recipients, regardless of whether of whether it is transmitted

through the Internet, the mail, or through the use of any electronic device or equipment.

Florida’s Supreme Court Evaluation of the Definition of “Transmission”

According to the Florida Supreme Court, the Legislative intent regarding the parameters of the crime of child pornography is to keep definitions as broad as possible to better protect the victims of the crime. In this case, the criminal defendant believed that he was not criminally responsible under this statute for the transmission of child pornography because he never “transmitted” the images in the manner that was defined in the statute. According to the facts of the case, the defendant used a file-sharing program that would allow others to access the files that are on his computer through a “friend request” that would provide a password to access the hard drive’s files.

The criminal defendant put forth that because there was no physical act of “transmission,” he was not breaking the law. However, the court found that because the criminality of the case relied on the statutory interpretation of the language, it would be up to the legislative intent to determine what the Legislature meant to by apply under the definition of “transmission.”

Florida Supreme Court Holds Legislative Intent is Broad and Includes File Sharing

The Florida Supreme Court held that it was the Legislature’s intent to include file sharing and its programs as part of the definition for transmission. The Court held that the defendant had loaded the pornographic images to an electronic location and then through the file-sharing program, permitted third parties to access this location by sending them a “friend request.” In other words, the court likened the actions of the defendant to placing pornography in a locked box on the property of a third party and then telling the third party that the box is out on his front porch, and sending along a spare key to access the locked box’s contents. In this way, the Florida Supreme Court was able to capture new technology - the file sharing program - under the child pornography “transmission” definition because the Florida legislature had the intent of keeping the plain meaning definition wide enough to fully protect the victims of this crime.

Please contact West Palm Beach criminal defense attorney William Wallshein for a confidential consultation.