State v. J.A. – First Degree Rape
Article provided by A. Patrick Roberts of Roberts Marcilliat & Mills PLLC PLLC
Matthew White admits he was surfing the Internet for pornography two years ago – not a crime for a then-20-year-old American male. However, CBS reports that White downloaded child pornography onto his computer; he says he did so accidentally while looking for college aged women on LimeWire. LimeWire is a peer-to-peer (P2P) sharing network that allows users to share files, including music, movies, games and pictures, with one another.
White claims that when he discovered the files he had accidentally downloaded, he quickly erased them, saying that the child pornography did not appeal to him. About one year later, FBI agents were able to recover the deleted images from his hard drive when his family allowed the agents to examine his computer.
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According to Wired.com, tens of millions of people use P2P sharing networks and LimeWire alone boasts 50 million monthly users. The LimeWire program grants access to the Gnutella file-sharing network, which is the actual P2P network. It is comprised of many users and, because there is no central server for the files, LimeWire does not review or control the material in the Gnutella network. While LimeWire does attempt to filter out certain illegal or objectionable content via user requests, users are responsible for the content they place on or download from the network.
P2P networks have long been used to allow access to images or music, whether or not copyright protected. The Federal Trade Commission warns that file sharing may result in unknowingly allowing others to copy private files or accidental virus download or involuntary pornography download. LimeWire allows users to activate a Family Filter or set filters based on keywords, file type, or IP address. It says of the Family Filter, that any such feature is “imperfect at best” and that not all content will contain the necessary details or information to allow filtering.
The default setting on the Gnutella file-sharing network is for documents downloaded from the network to continue to be shared on the network. Users must disable this default in order to have files downloaded off the network remain private.
The U.S. General Accounting Office was requested to determine the ease of access to child pornography over P2P networks and the risk of inadvertent exposure to pornography, including child pornography, of juvenile P2P users. It found that child pornography is both easily found and downloaded from P2P networks. Using 12 keywords known to be associated with child pornography in one search, the GAO identified 1,286 titles and file names; 543, or roughly 42 percent, were associated with child pornography images. In another search using three keywords, a Customs analyst downloaded 341 images, of which 149, about 44 percent, contained child pornography.
The study found a significant risk of inadvertent exposure of juvenile users to pornography, including child pornography. Even innocuous keywords likely to be used by juveniles, such as cartoon characters or celebrity names, retrieved images that included child erotica (7 percent) and child pornography (1 percent).
The U.S. Court of Appeals for the Ninth Circuit has ruled that a warrant is not required for the authorities to view and download files traded on P2P networks. The court said that the defendant was clearly aware that LimeWire is a file-sharing program that allows the public at large to access files in his shared folder unless he took steps to avoid it. Because a warrant is only required if a search violates a reasonable expectation of privacy, the court found that no warrant was required.
Wired.com says that an FBI agent logged into LimeWire and performed a search using the keyword, “Lolitaguy,” which the court said was known to be associated with child pornography. With a proprietary software program that identifies and flags known images of child pornography, the agent used one of LimeWire’s features to download seven of 240 files being shared on the defendant’s IP address, four of which turned out to be child pornography.
Defendant Charles Borowy claimed the agents violated his Fourth Amendment rights, saying he had a reasonable expectation of privacy because he thought he had turned off the share feature. However, he pled guilty to the child pornography charges and was sentenced to 45 months in prison. The deal allowed him to seek an appeal whether the search and seizure of his computer files were unlawful.
A conviction for possession of child pornography can carry up to a 20-year prison sentence. Upon the advice of his public defender, White is pleading guilty in the hopes of getting a three-and-a-half-year sentence. In addition, he would serve 10 years of probation and would be required to register as a sex offender for the rest of his life.
The FBI could not comment on White’s case but reportedly said that users who download child pornography accidentally need to call the authorities immediately. CBS says that Internet searches reveal a large number of complaints from people who say they have accidentally downloaded child pornography through LimeWire.
Anyone believing they have mistakenly or accidentally downloaded illegal material should contact a lawyer immediately for advice on their rights, obligations, and how to proceed.
Roberts Marcilliat & Mills PLLC, with offices in Raleigh, Charlotte, and Wilmington, offers aggressive criminal defense to anyone facing false accusations of a sex crime, being investigated for possession or distribution of child pornography, or who has been formally charged with a sex offense. We offer a free consultation. Contact our office today to schedule an appointment.
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State v. J.A. – First Degree Rape
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State v. J.A. – First Degree Rape
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