Internet File Sharing Constitutes Distribution in Child Porn Case

New Jersey’s Appellate Division recently held in State v. Lyons, __ N.J. Super. __, 2010 N.J. Super. LEXIS 227 (App. Div. Nov. 30, 2010) that Defendant Richard Lyons’ placement of child pornography in a shared online folder constituted an offer and distribution of child pornography in violation of N.J.S.A. 2C:24-4b(5)(a). Lyons’ computers contained videos of children engaged in sexual activities, including one that a detective discovered and downloaded when he accessed a shared folder on Gnutella, a peer-to-peer file sharing network, accessible via LimeWire software program. In his statement to police, Lyons admitted that he:

• was very familiar with computers and the Internet;
• understood that the file-sharing program LimeWire would result in any file he downloaded going into a shared folder for others to obtain;
• knew he could have changed LimeWire’s default setting so that sharing was not the default, but he “just forgot;” and
• knew that possessing, viewing and distributing pictures or videos of children under the age of sixteen constituted a crime.

The Appellate Division framed the question before it, which had never been addressed in a New Jersey published opinion, as follows: “[W]hether the State presented some evidence to the grand jury that defendant knowingly committed at least one of the statutorily prohibited actions with the material on his computer as charged in each count.” In analyzing this novel question, the court examined the genesis of the child pornography statute, noting that in the past fifteen years the statute has been amended to include “computer programs” and “computer files” in the list of prohibited materials and to include the “Internet” as a prohibited means of distributing such illegal materials. The court also examined the relevant portion of N.J.S.A. 2C:24-4b(5)(a), which makes it a second-degree crime to “knowingly” give, provide, publish, distribute, disseminate or offer “through any means, including the Internet” any “photograph, film, videotape, computer program or file” of a child engaged in a prohibited sexual act.

Reversing the trial court’s dismissal of two counts of the indictment, the Appellate Division rejected Lyons’ arguments that (1) he did not knowingly violate the statute because he claimed he had not engaged in any “overt actions” in furtherance of the illegal activity and (2) his failure to change the default settings on his computer was a “mere omission” devoid of any criminal intent. The Appellate Division determined that Lyons had the requisite “knowing” mental state as defined by N.J.S.A. 2C:2-2b(2), which equates knowledge with awareness of the existence or probability of circumstances or an awareness that it is “practically certain” that specific conduct will cause a specific result. According to the court, Lyons acted with “complete awareness” that the materials in his LimeWire shared folder were available to “all other users of the network” as well as with the “awareness” of the “practical certainty” that his conduct would “result in another user viewing and downloading his materials,” and thus the court rejected any distinction between active and passive conduct with respect to providing access to contraband.

Lyons is significant because it demonstrates that one cannot hide behind “shared files” or “default settings” to escape liability when a criminal statute prohibits knowing acts that relate to distribution of prohibited materials or things. After Lyons, passive conduct or default settings cannot constitute a defense from liability where it is the result of knowing neglect or knowing disregard of the technicalities of file sharing.

For a related article regarding “cached” web files serving as evidence in a New York child pornography case, the reader is referred to “Cached” Web Files May Serve as Evidence in Child Pornography Case, E-Discovery Law Alert, November 22, 2010.