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jackiecook 10/25/2013

Transmitting Child Porn Case Overturned

October 4, 2013 by The Law Office of John Guidry ll

"When the police downloaded child porn from Biller's Limewire account, Biller had no real knowledge that they (or anyone) retrieved his images. The State contends that opening up one's computer to Limewire services is, in effect, violating the spirit of the law. Fortunately, the appeals court wasn't buying what the State was selling, and they resorted to Webster's Dictionary in their rejection of the State's position, finding that the "definition of the word 'send' is, 'to cause to go or be carried.'" Id. at 1241. Even though the appeals court found the State's position to be reasonable under the circumstances, the good news is that we Americans enjoy a privilege known as "statutory lenity". In essence, this principle stands for the proposition that "when a criminal statute is susceptible of more than one construction, we are compelled to construe the statute most favorable to [the citizen]". Id. As such, the court overturned Biller's conviction for transmission of child pornography.

http://www.orlandocriminaldefenseattorneyblog.com/2013/10/transmitting-child-porn-case-o.html

Nakohichi 10/26/2013

That's a good thing but... my son had to plead guilty to accidentally downloading cp thru LimeWire and it was in Orlando. They threatened to charge him with distribution, he plead to possession. He still went to jail and hes still going to be on the sex offender list. They'll just find something else to threaten people with.

LadyLost 10/27/2013

Same with my fiance.. Forced to take a plea, got 5 yrs prison, 10 yrs s.o. probation, and a life time on the registry.

aladdin4d 10/27/2013

Biller was actually charged under Florida statutes and this decision defines "transmit" within the Florida statute he was charged with. One argument that was not raised was the legality of law enforcement downloading CP. According to Federal standards, all CP is contraband and it's probably not legal for law enforcement to initiate any image transfer during an investigation.

Nakohichi 10/27/2013

They watch cp all the time. They have people watch them and write down the description in detail. The shrink will watch the whole cp. So, the feds can watch cp and it's legal.. but accidentally download it and see 2 seconds of it.. your life is ruined.

Nakohichi 10/27/2013

It disgusts me that most of those involved with my son's arrest watch cp and it's part of their daily lives. They're into it so I guess they figure everyone else is into it.

aladdin4d 10/27/2013

Nakohichi, this isn't to argue with you so please don't take it that way. You're right about what is going on but that doesn't mean it's ok or even close to what is supposed to happen. What is supposed to happen when law enforcement comes into possession of CP is that it is handled as contraband just like narcotics. It is to be secured and any handling of it is to be done in a secure environment Any transporting of it should also be secured and the only transmission legally allowed is the secure transmission to another law enforcement agency , the prosecution or to the National Center for Missing and Exploited Children. The NCMEC is the ONLY agency in the country with the statutory authority to handle CP in any other manner.

When CP is seized it is supposed to be transmitted to the NCMEC for victim identification purposes and cataloging. They say whether a given image is CP or legal. This is supposed to happen every time and it isn't.

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