SECURITY SETTINGS IN FILE-SHARING SOFTWARE MAY LEAD TO UNINTENDED SHARING OF CHILD PORNOGRAPHY

Peer-to-peer or P2P file-sharing software allows computer users to remotely share files, including images and videos, with other users across the world with the same software installed. It may seem harmless, but it can get you into a lot of trouble – including criminal trouble – if you are not careful about your privacy settings.

Whether you were using Limewire, Shareaza, BitTorrent, Kazaa or another file-sharing program, making sure that your security settings are properly set may save you from dealing with the North Carolina or federal authorities. Without properly setting up your P2P software to keep private files private, you may unintentionally end up sharing content that was meant for no one but yourself. If that content contains illegal child pornography, you can quickly find yourself facing serious distribution of child pornography charges rather than simply possession charges.

Why Are File-Sharing Programs Prone To Cause Problems?

The many layers that it takes to properly set sharing settings in P2P software make it difficult for a user to know whether he or she has turned off sharing of images, videos or other files. The University of Indiana’s Information and Security Policy outlines how to turn off file-sharing in Limewire. It takes three steps and each one seems to, independently, be enough to stop sharing capabilities. If you have taken only one step, you may be unknowingly sharing illegal images or copyrighted works with others.

In Tools>Options, you must:

• Delete all folders from the sharing category
• Uncheck “allow partial sharing” within Uploads >Basic
• Set the number of uploads per person and max uploads at 0 in Uploads>Slots

These are just the current steps for stopping file-sharing in Limewire. New layers may have been already been added and, after updating any P2P software, these settings may have been reset to the default of allowing all file sharing.

Simply based on the number of steps that a user must take to secure his or her computer, it’s not difficult to see how an inadvertently downloaded image of child pornography can easily, and unknowingly, turn into the basis for a distribution charge.

What Is Considered Possession Or Distribution Of Illegal Porn?

In order to prove the crime of possession or distribution of child pornography in North Carolina, the state must prove that:

• You knew the images, photos, videos, etc., showed a child under age 18 in sexually explicit manner
• You possessed the porn or allowed the child porn to be distributed to others

North Carolina law says that it is enough that you considered an image to be of a child, regardless of his or her actual age, to be criminally charged with the distribution of child pornography.

Several courts have ruled that having child pornography in the shared folder of file-sharing software is enough to maintain a conviction for distribution of child porn, even without any actual attempts to distribute it. When a file-sharing program is left open to other users, a person who has pornographic material in his or her own possession may be considered a distributor of pornography if others are allowed to access the material through a P2P network.

Charging And Sentencing For Distribution Versus Possession Of Child Pornography

Both North Carolina and federal criminal law differentiate between possession of child pornography and distribution of child pornography. In North Carolina, distribution of child pornography is considered second-degree sexual exploitation of a minor, a Class E felony. Sentencing for a distribution charge with no other criminal history is presumptively between 20-25 months, or about two years.

Possession of child pornography, on the other hand, is considered third-degree sexual exploitation of a minor, a Class H felony. The presumptive sentencing ranges for possession with no other criminal history is five to six months in prison, with the possibility of supervised release rather than prison time.

In the federal criminal justice system, child pornography offenses are severely punished. A conviction for the receipt of child pornography carries a mandatory five-year minimum sentence. Both possession and distribution of child pornography average an eight-year-prison sentence but often are 15 years or longer and the sentences seem to keep getting longer. In 1997, a federal child pornography sentence averaged about 21 months. In 2010, the average sentence in a child porn case was 118 months.

Charged With Distributing Porn Via A P2P Network?

If you have been charged with a federal crime for possession or distribution of child pornography, one strategy that your defense lawyer may consider is trying to remove your case from the federal system back to state court. Based simply on the sentencing differences of state and federal child porn charges, your best defense strategy may be to attempt to keep the case a state law, versus federal law, case.

An experienced sex crimes defense attorney in your area can help you understand the charges you are facing, the potential consequences of a guilty plea or conviction and devise a defense strategy to minimize the effects of a mistaken download or distribution of sexually explicit material of children.