Crimi
nals are taking advantage of technological advancements to obtain and distribute child pornography. There are networking programs known as “peer-to-peer” (P2P) that allow for distribution and sharing of digital media. In a recent case, a Mr. Maddox installed a “free” peer-to-peer file sharing program from the Internet, known as ARES. Law enforcement is quite aware that these P2P programs are a common means of obtaining and sharing child pornography.
When ARES (and similar P2P network programs) is downloaded it automatically installs a folder identified as “My Shared Folders”. Other users of the network can then access, view and download any digital media files stored in the “shared” folder of ARES users. When an ARES user downloads content from the “shared” folder of another ARES computer, the content downloaded will always be stored in the shared folder. The user must move the downloaded files out of the shared folder if he wants to prevent downloads of the content by other users who have access via ARES.
In Maddox’s case, police in Cobb County, Georgia were investigating ARES peer-to-peer file sharing within their county. Based on file descriptions, police identified an IP address within the county holding suspicious “shared” files. The police suspected the files contained child pornography, and downloaded five files, utilizing their own ARES account. Sure enough, upon inspection of the downloaded P2P content, these five files contained child pornography. The police got a grand jury subpoena for the ISP provider to produce the subscriber name and billing address. Mr. Maddox was busted.
Maddox was convicted of distribution and possession of child pornography. Maddox challenged the subpoena and the legal concept of his being charged with distribution when the content receiver was the police utilizing the ARES program.
The Georgia appeals court had no problem finding that Maddox was “distributing child porn”, even though it was the police who were trading files. Maddox contended he wasn’t “distributing”, but the Appeals Court simply looked at Webster’s Dictionary: the definition of distributing includes “to deliver, spread out, to disperse”. Maddox was automatically doing all these things when using ARES, which is the very nature of the P2P network.
Though this was a police fishing expedition, the Georgia Court held that where an individual knowingly makes materials available to take and these materials are in fact taken, distribution occurred. The Georgia Court relied on a 2007 Federal case, U.S. v. Shaffer, which held
Although the defendant may not have actually pushed pornography on other users of the peer-to-peer file sharing program… he freely allowed them access to his computerized stash of images and videos and openly invited them to take or download these items… A reasonable fact finder would find that the defendant welcomed people to his computer and was quite happy to let them take child pornography from it. Id; 742 F. 3D 1219, 1223
A possible difference in the Federal Shaffer case was the agent did not go on a pornography fishing expedition; the Homeland Security agent appears to have accidentally stumbled upon the files shared. The Georgia Court had no problem that the police were on a pornography fishing expedition. This should strike terror in the digital hearts of any file sharers using such peer-to-peer programs as Maddox was.