Appeals court sides with prosecution in Kazaa porn case

Judges deny defendant's effort to overturn guilty plea over files found on P2P network

If someone stores files that are clearly identifiable as child pornography in a folder that can be searched for and accessed by other users on a file-sharing network, is he or she essentially publishing a notice offering to illegally distribute the images?

According to a ruling issued January 17 by the U.S. Court of Appeals in St. Louis, the answer to that question is a definite "yes." A panel of judges at the court rejected an appeal filed by a St. Joseph, Mo., resident named Walter Sewell, who was seeking to overturn a conditional guilty plea that he entered last year in a case involving the precedent-setting use of a 1986 law to prosecute the Kazaa user.

In its ruling, (Download PDF)the appeals court agreed with arguments made by the prosecutors in the case that the descriptions of the files in Sewell's Kazaa folders constituted an offer to distribute the child porn images -- despite a contention by Sewell that the descriptive fields were already filled in when he himself downloaded the images via Kazaa.

Sewell, a pharmacist, acknowledged during the case that he had downloaded the pornographic images to multiple home and office computers and then shared the images with other people on Kazaa's peer-to-peer network. He was given a mandatory 15-year minimum sentence, without chance of parole, after pleading guilty to a charge of publishing a notice of child pornography as well as a lesser charge of distributing child pornography.

Prosecutors charged Sewell with violating a specific section of a 1986 statute -- officially, Title 18, United States Code, Section 2251(d)(1)(A). That section of the law criminalizes behavior in which an individual knowingly notifies or advertises to others any images depicting child pornography. It was approved by Congress in response to concerns about the exchange of child pornography over the Internet, in particular via online bulletin boards.

The statute has been used in the past to go after individuals posting child porn advertisements on Web sites and bulletin boards. In the Sewell case, the prosecutors charged that the manner in which he used Kazaa to download and share the pornographic images amounted to a violation of the 1986 law.

Don Ledford, a spokesman for the U.S. Attorney's Office in Kansas City, Mo., said via e-mail this week that the case "marks the first time a defendant was charged with publishing a notice for child porn as a result of using a file-sharing program." He added that the same prosecution strategy "is now being followed in other [federal court] districts around the country."

Sewell's use of Kazaa to download and distribute the child porn images was discovered by an undercover FBI agent in November 2003. After being confronted with the evidence against him, Sewell pleaded guilty to charges of possessing and distributing child pornography.

But he filed a motion seeking to have the much more serious charge of publishing notice of child pornography dismissed. His filing argued that the information presented by prosecutors in their indictments didn't show that an offense had taken place as described under the 1986 child porn law. After the trial judge denied the motion, Sewell agreed to plead guilty to the publishing notice charge on the condition that he be allowed to appeal the judge's decision.

Court documents show that in making their case against Sewell, the prosecutors first described how files that are placed in or downloaded to a Kazaa user's shared folder include attached fields for describing the files and their contents. The descriptive fields include entries such as filename, title, category and type. The words and descriptions contained in such fields are what enable Kazaa users to search for and locate files that they're interested in downloading.

The descriptions of the files in Sewell's shared folders clearly indicated that they contained child pornography, the prosecutors said. As examples, they pointed in court filings to labels such as "pedo13trydad," "pedo_little girl kiddy child" and "pedo_lolitas_kids" that were attached to files on his computer.

Sewell knew that Kazaa gave other users the ability to search for and read the filenames and descriptive field information, the prosecutors alleged. As a result, they said, he in effect was publishing a notice offering to "display, distribute and reproduce" the pornographic images via interstate commerce. They added that an individual indicted under the 1986 statute need not necessarily have written the notice -- in this case, the descriptive fields -- himself.

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Jaikumar Vijayan

Computerworld
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