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P2P and child porn

I downloaded a couple of movies one time - the Bourne Supremacy was one of them, I think - without, ahem, paying for them, using a program called Vuze.  It's what's called a P2P (peer-to-peer) network; you can download stuff from other people's computers, and they can download stuff from yours.  I got a notice from my service provider telling me I'd done that and to stop, so I did.

Then a couple of months later I got another notice from my email provider telling me I'd done that and to please stop.   That's when I realized:  the program automatically placed anything I downloaded into a particular folder on my computer where it could be accessed by others.  Even though I wasn't downloading any more, the files were still sitting in that folder, and could be accessed by anyone else using the software.  That's how the movie people who monitor that sort of stuff found me.  If I'd moved the movies to some other folder, they wouldn't have.

Limewire is another peer-to-peer network.  It's a favorite for people who download music, movies - and child porn.  And it works the same way:  if you download a file, it automatically places it in a folder which can be accessed by other people.  Except if you do that with child porn, you don't get a notice from your service provider. 

You get indicted for distributing child pornography.  

In Ohio, possession of child pornography is a 4th degree felony; distributing it is a 2nd degree felony.  That's a bump from a maximum 18-month sentence to 8 years.  "Distributing" also sounds a lot worse, and that plus the potential of consecutive sentences means you could do some very serious time.  There are a couple of judges up here who routinely hand out 15 or 20-year sentences for that.

You can do some serious time in the Federal system for that, too.  But district court judges, especially in the 6th Circuit, are expressing reluctance to impose stiff sentences on people whose "distribution" of child pornography may be completely inadvertent.  Last year a jury in Federal court here convicted Ryan Collins of distributing child pornography.  The Sentencing Guidelines would have allowed a 27-year sentence, and the prosecution wanted twenty.  Judge James Gwin gave Collins the statutory minimum of five.  (That was based largely on Gwin's poll of the jury after conviction:  the average sentence they felt was appropriate was 14 months.) 

Judge James Graham of Ohio's Southern District went Gwin one better.  He sentenced Richard Bistline, a 67-year-old stroke victim who'd been convicted of possessing 305 images and 56 videos of child porn, to one day in Federal custody and 10 years of supervised release.  The government appealed, and the 6th Circuit bounced it back, finding the sentence substantively unreasonable.  So Graham handed down the same sentence, tacking on three years of electronically monitored home arrest, and said, "If I have to send somebody like Mr. Bistline to prison, I'm sorry, someone else will have to do it. I'm not going to do it."  The 6th Circuit took him at his word, reversing again and ordering the case reassigned.  A different judge sentenced Bistline to 12 months in prison.

The Sentencing Guidelines for child pornography were developed long before the advent of P2P programs, which have become the conduit through which the vast majority of child porn offenders receive their material.  One study in the 2012 U.S. Sentencing Commission report indicated that 85.3% of child pornography distribution convictions that year involved P2P programs. On that basis, the Commission suggested that Congress revise the child pornography sentencing scheme.

Good luck with that.  Here's a headline that nobody ever read:  "Senator introduces bill to reduce child pornography sentences."  If there's going to be reduction, it's going to be from the courts.

Or even the prosecutors.  Back in 2010, the FBI logged onto a P2P network and identified 12 files on Nicholas Durbin's computer which they believed contained child porn.  The obtained a search warrant, and found "several hundred to 1,000 images" of child pornography on his computer, and more on several electronic storage devices.  He pled guilty, and was looking at a guidelines range of 97 to 120 months.  He got one day, with credit for time served, and five years of supervised release.

So the government appealed, right?  Wrong; they'd agreed to the sentence.  Durbin had Asperger's syndrome, and the government's sentencing memorandum noted that people with autism spectrum disorders have limited intimate relationships.  Plus, Durbin had no prior criminal record and was sincerely remorseful.

You can pretty much count on that being an outlier, though.

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