Taken aback by the aggressive drive of the police against child porn, criminal defence laywers are to seek a ruling from the U.S. Supreme Court against awarding stiff mandatory prison terms for those who make available child pornography on file-sharing sites.
At issue is a new interpretation of a 1986 law, amended in 2003 under the Protect Act, intended to curb child-porn advertising.
Consequent on the amendment, anyone convicted of publishing "notice" offering to distribute kid porn across state lines is liable for a 15-year-term.
Last year, Walter Sewell, a 43-year-old pharmacist from Missouri, was sentenced under the act to the automatic 15-year prison stretch after downloading and sharing sexually explicit images over the Kazaa file-sharing network.
"It's an innovative use of the statute," said Don Ledford, a spokesman for prosecutors in the Western District of Missouri, in Kansas City. "We were the first district in the country to use the statute that way to get the 15-year mandatory minimum."
Kazaa is an open system, meaning the authorities can easily learn a user's identity from his internet protocol address by subpoenaing the internet service provider. In Sewell's case, the FBI made the case.
"Prior to the internet playing such a dominant role among pedophiles and child sexual exploiters, publishing a notice for child pornography might have meant classified advertising or a notice online in a chat room or message board offering to sell child pornography," Ledford continued. "What's innovative here is the Kazaa software itself generates that notice."
In 1986, Congress approved the statute under which Sewell was prosecuted, and it originally carried a mandatory 10-year minimum sentence. The sentence was increased in 2003 to 15 years without the possibility of parole.
The law was adopted to counter illegal smut advertising in the traditional sense. Still, even three decades ago, Congress was concerned about preventing the exchange of pornographic materials through computers.
Although Kazaa did not exist in 1986, Congress specifically mentioned one of its technological forebears, computer "bulletin boards," as being a source of an illicit child-porn trade.
Eric Chase, a California attorney representing Sewell, argues, "He's getting more time than people actually molesting kids," says "He didn't make it. He didn't sell it. He didn't even buy it."
Chase, however, conceded that his client was guilty of distributing child pornography, but which carries only a five-year sentence.
Sharing of child porn files shouldn't qualify as advertising under the law and therefore shouldn't be subject to the mandatory 15 years, he argues.
But last week, the 8th U.S. Circuit Court of Appeals upheld Sewell's sentence and conviction. It ruled Jan.17 that "Kazaa's purpose is to allow users to download each other's files, and the purpose of the descriptive fields is to alert interested users to the content of downloadable files."
The files were named "Pedo 12-14yr.jpg," "PBC Bro's given it to Mom&Sis" and "Underage Pornography Erotica," among others, the judgement noted.
While Chase is to move the US Supreme Court against the decision, U.S. attorneys throughout the country are preparing to arraign others found sharing child porn like Sewell