In an opinion written by Justice Canady rendered last week, the Florida Supreme Court held that making a file accessible to others in a file-sharing program constitutes “transmission” under Florida’s child pornography laws. The crime in question is codified in Section 847.0137, which makes it a third degree felony for any person “who knew or reasonably should have known that he or she was transmitting child pornography” to another person.
Peer-to-peer file sharing networks differ from ordinary electronic communications in that they allow users to share files passively by placing them in shared folders where others can access them. Unlike sending an e-mail, files stored in a shared folder are sent automatically by the program when another user requests them. The line between “possessor” and “purveyor” of child pornography in this setting is exceedingly thin, because the recipient can download files without any input from the original possessor once the files are in a shared folder.
The decision, Smith v. State, resolves a split between the Fourth and Fifth District Courts of Appeal over the meaning of “transmission” in this context. In 2013, the Fifth District decided a case called Bilier v. State, which held that making files available in a file-sharing program did not constitute transmission. The Fifth District arrived at this conclusion by looking at the definitions section of the statute, which defines transmission as “[T]he act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons. . .”
The Bilier court found ambiguity as to whether file sharing programs fit this definition. It applied a doctrine of statutory construction called the rule of lenity, which states that ambiguous criminal statutes must be interpreted in the manner that most favors the defendant. It held that placing files in a shared folder was not “transmission,” since it did not involve an affirmative act of sending the files.
The Fourth District, and ultimately the Florida Supreme Court, disagreed with Bilier’s interpretation. Justice Canady found that the Bilier court placed too much emphasis on the word “send” and did not adequately consider the alternative “causes to be delivered” language in the statute. He described file sharing services as the electronic equivalent of placing a locked box filled with pornographic photographs on your front porch, telling a friend about the contents of the box, and then sending them a key to open it. In that scenario, you might not be sending the photos, but your actions would certainly cause them to be delivered to the friend.
While the Florida Supreme Court’s decision left little room for doubt as to its reading of the statute, the facts of Smith may ultimately limit its application. The defendant in that case, sent a “friend request” to the recipient, which allowed the recipient to access the files contained in the defendant’s shared folder. Justice Canady was cognizant of this fact when he crafted the opinion’s holding, noting that “the use of a file-sharing program, where the originator affirmatively grants the receiver access to child pornography placed by the originator in files accessible through the file-sharing program,” constitutes transmission. Thus, the opinion leaves open the possibility that the rule on lenity may still play a part in future file-sharing cases where the defendant’s actions are more passive: such as placing files in a public shared folder or where the file sharing software is configured in such a way that all downloaded files are automatically placed in shared folders accessible to others.