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How Long Do Downloads Last?

The Sixth Circuit decided on Thursday that someone who paid nearly $80 to join a child pornography site can have that fact used against them as part of the facts justifying a finding of probable cause for a search warrant related to child pornography on his computer. This is probably not surprising when put this way, but a debate erupted between the majority and dissenting opinions based on the question of whether the membership was “stale” for due process purposes. The majority held that even though the defendant had joined the site for just one month, and that his membership had ended 14 months before the warrant was issued, the membership was not legally stale. The dissent felt strongly that this was too remote both in time and in amount (one month) to justify a search fourteen months later. The case is U.S. v. Frechette (6th Cir., September 8, 2009) [pdf].

The debate between the majority and dissent is an interesting one, and has potential implications beyond child pornography. Essentially, the dissent was focused closely on fine distinctions in earlier precedent, while the majority took a broader approach based on the nature of digital goods. According to the majority, someone who is willing to pay to join a site that is clearly providing child pornography (and there was no question that this is the kind of site that the defendant joined) is likely to keep the material found on the their computer for long periods of time. According to the Court:

Unlike cases involving narcotics that are bought, sold or used, digital images of child pornography can be easily duplicated and kept indefinitely even if they are sold or traded. In short, images of child pornography can have an infinite life span.”

The majority also noted that even if deleted, evidence may exist for long after deletion. The dissent countered that the holding expands Circuit precedent and inappropriately relies on a single, short-lived action of the defendant to justify invading his privacy. According to the dissent, paying to join a child pornography website may not even violate laws against possession of child pornography because, “It appears to be an open question whether viewing child pornography on the Internet is, in itself, a crime” (citations omitted). The dissent quoted one such case, United States v. Tucker, as offering “no opinion on whether mere viewing of child pornography on the Internet, absent caching or otherwise saving the image, would meet the statutory definition of possession.” The dissent then extended the analysis to the following:

Consider a factually identical scenario in a different context: Would this court approve a search warrant for all the computers in a home based on an affidavit that contains only one particularized fact–that someone who lived at that address obtained a one-month membership to a website that allows its members to listen to music in violation of copyright law? If the answer to this question is “yes,” there are not enough officers in the nation to enforce the countless warrants that magistrates may now issue to search college dorm rooms and homes across America. If the answer is “no,” as it should be, and as I suspect it would be, one must ask why the two cases with materially indistinguishable facts result in two very different outcomes.

The dissent concluded that it was the subject of the digital files–child pornography–that shaped the majority’s outcome, quoting the district court’s language that the constitution must protect “the least of us.”

While I share some of the dissent’s concerns regarding drawing implications from pure online actions, I think it generally misses the thrust of the majority’s opinion. Why would the same reasoning not apply to a potential copyright infringer? Because contrary to the dissent’s conclusion, the situations are materially different.

Namely, possession of copyright materials is not automatically a crime, while possession of child pornography is. Most of us probably have copyright protected files on our computers and in our homes. For most people, these will be be legitimate, legal files: mp3s ripped from CDs the person owns or purchased from an authorized online seller (such as iTunes). We can at least not assume that every person has illicit copyright protected files on their machine without some proof that this is so (in the form of scientific surveys). The evidence searched for might be there, but it’s not certain that you will find or be able to identify the illegal evidence and differentiate it from non-evidence.

Following up on this point, mere possession of child pornography is a crime. Someone who is likely to pay money (not simply obtain access for free, for example, through registration) to access child pornography is likely to maintain evidence of the crime that is likely to follow from that crime on their computers. Sure, it might be reasonable to assume that someone who joins “The Pirate Pay” wants to illegally download copyrightable material, but such a decision might imply other, legal purposes, as well, purposes that could not easily be ignored in an affidavit. The person may have heard of the Pirate Bay litigation, wanted to learn more, and wrongfully assumed that they needed to register to read about it. An additional explanation might be that the person joined the Pirate Bay looking for particular content that he or she did not find, and thus, no crime occurred (can you “attempt” to violate copyright law?). Implications similar to these are probably not fair given the content of the splash screen to the pay-child-porn site involved in the Frechette case (as described by the Court), and I don’t think the majority went too far when it recognized the reasonable implications of the Defendant’s decision to join the site.

I remain interested in the judicial line of reasoning that questions whether “mere” viewing of child pornography does not equal “possession” under criminal law. It’s an area that intrigues me, given that “viewing” means that images have been downloaded to the computer’s hard drive (there is no technology that I am aware of for truly “streaming” images so that no cached copy is made). At least for images, from a practical technical perspective, the person in “control” of a computer “possesses” those images when they are viewed “on” the Internet, but it’s clearly not that easy for criminal law purposes. I need someone who knows criminal law to chime in here; any takers?

Note: I unintentionally published this post when I had intended to “preview” it; I did some quick editing to make it readable and remove clear errors, but if you’ve read it on a feed-reader, you might have gotten the wrong version. Apologies for that, one of the dangers of posting in-between trying to get kids to bed on a Saturday night.