A Method for Careful Study: A Proposal for Reforming the Child Pornography Guidelines
Author(s): Troy Stabenow
pages 129 -130

B. Introduction of New Materials Enhancement

The Supreme Court recognizes that child pornography images "are a permanent record of the children’s participation [in illegal sexual acts] and the harm to the child is exacerbated by their circulation."
This idea bears additional thought. In one sense, every time an image (of a child’s past abuse) is viewed, it constitutes a perpetuation of the crime. Unlike many strident prosecutors, however, I would suggest that this harm may often be largely theoretical or remote. Once thousands of offenders have seen a set of images, "one additional person possessing the images makes little difference to the victim and is much less harmful than the initial posting of an image to the internet."
For example, if child M, now an adult, is unaware that an offender saw her image, his viewing the image is not a proximate cause to any trauma she experiences. Instead, the trauma (other than that of the underlying sexual act itself) primarily comes from the fact that M has no way of knowing which (if any) people she passes on the street may have seen and delighted in the images of her past abuse. Her fear is grounded in "the knowledge that ‘the images are forever in cyberspace, able to resurface at any time.’" That fear exists in perpetuity, regardless of whether any new offenders ever view her image. The harm begins as soon as those images get onto the Internet, and the associated fears can never be put totally to rest. For that reason, society can acknowledge that a special harm is created by the first person who sends a set of images out into the ether of the Internet. Using the example of Mr. A from the newsgroup, if he takes the new images Mr. B sent him privately and redistributes them throughout the newsgroup, he bears a heightened moral culpability. He did not create the images and he was not the first one to distribute them, but he is the one who ensured that they would always be out there. For that reason, I would support a Commission effort to consider carefully wording an enhancement that recognizes this specially culpable act.
recognizes this specially culpable act. Practically, this enhancement is not going to occur often. However, digital metadata is not limited to just file size and creation date. Embedded in most digital photographs are a treasure trove of data, including when a picture was taken, the time of day, the camera used, and so forth. Furthermore, when detectives do identify child victims, it is my experience that they exhaustively search e-mail accounts, chat logs, and so forth in an effort to track any flow of those files. In many circumstances, detectives can identify how the evidence got onto the Internet. I have personally participated in a number of cases in which we could positively identify the offender who initially released images to the Internet. Taking all of this information into account, I would support consideration of an enhancement worded, "If the offense involved the
initial introduction of materials onto the Internet, increase by __ levels." An application note would then clarify, Initial introduction does not require that the defendant was a party to the production of the materials. Initial introduction describes those circumstances in which the defendant was the first individual to disseminate the materials to persons unknown in a manner preventing authorities from tracking, and destroying all images. An offender may receive the files by e-mail but still qualify as the initial introducer of the images if he is the first to post them in a news-group, on a peer-to-peer distribution network, etc., because it is this act that results in dissemination to parts and persons unknown, and (perhaps) impossible to discover. The government must present clear evidence that the files in question have never been previously posted onto such a source.

What it sounds like to me is he wants to add a "clause" that would increase punishment for the initial person who posts the pornography. I don't think the point is that ONLY the initial person posting should be held accountable. I think that what he is saying is that he/she is MORE liable for the damage. He's saying that if someone receives an image in an email, for instance, and that person then posts the image to a website, even though that image may have been sent through email to 100's of people by more than one person, becuase it was sent through private email, it has not been distributed to unknown persons in which, theoretically, anyone could see. So even if the image were sent to hundreds of people privately through email, and the 856th person to recieve the email then posted the image online, it would be the 856th person who would receive the additional punishment, not the person who initially sent it in the email, because it was private until that one person made it public. I don't think it says though that the initial person or anyone who downloaded it on their computer should be without consequence though. (I hope that made sense!)

Troy Stabenow helped with my husband's case. He is out to get the laws change for sure! He helped get my husband from a guideline sentence of 20 years to 3 years from the judge. He is all about culpability!

i have read this twice, sent it to my son and recommend it to anyone facing these charges as it covers just about everything concerning c.p., the laws as well as the ugly history of the laws. if there is a legal fund to hire him to represent us on a federal level i would certainly contribute.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1996664

In my state that clause already exists in a way. Possession and distribution/manufacturing are treated differently. If my husband's computer had not automatically placed the cp he downloaded (because he thought he was a hotshot hacker) into a fileshare on his computer, where anybody could download it without asking, he would have been in a lot less trouble. Because accidentally distributing cp doesn't get rid of the charge. He'd be a Tier 1 instead of a Tier 2, and our lives would be a lot easier.

lailatov - My husband was the same way. Thank God he did lower his upload speed on LImewire, not because he was looking for cp, but it increased the download speed for his music, software, movie and video downloads. It would have taken someone days to upload a single image of anything and weeks for a song or video, so no distribution. He just thought he was so smart doing mass downloads without looking at anything until after it was downloaded. 1000 files downloaded in about 6 days, 29 files of cp mixed in. He got charged with receipt instead of possession because he pissed off the US Attorney by applying for a gun permit before he was indicted.

Hi Idilling.....
My son was charged with receipt, with an enhancement because of Limewire & file sharing. Although he NEVER resent or shared any files with anyone, just because Limewire was setup with its default in place, the prosecutor got an added 5yrs...!! What was the real kicker was, in his plea before the court, the prosecutor's FBI forensic computer guy stated in court that there was NO evidence of transmission. BUT..... lo & behold, when my son re-appeared for the judge for sentencing ( thinking between 5-10yrs), the prosecutor asked & received to have yet ANOTHER FBI computer guy testify saying that they had now ran "some" tests on my son's laptop, and it "might" of showed someone who "may" have attempted to upload from my son's computer (even without him knowing it..) On cross from my son's attorney, he asked the witness.."Okay..if u think it was sent or shared to whom?? Answer: dosen't know.."Where did it go?--Answer: don't know--- "Okay, IF it was accessed, at WHAT TIME was it accessed??--Answer: again, we don't know?? "Okay, so...you don't know who accessed it, you don't know from where it was accessed, and you don't know WHEN it was accessed...yet you think it "may" have been, according to your tests? Answer: yes....So, because of this outstanding computer forensic work...my son got 15yrs....nothing but a shell game my friends!!!!!