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Monday, October 18, 2004

11th Circuit decision on child porn possession and interstate commerce

The 11th Circuit sadly concluded that the conviction of a convicted child pornography possessor had to be overturned. He was found to have more than 140 images of child pornography on a CD. But becasue they could not be traced to actual Internet download, the court of appeals determined that the appropriate test for interstate commerce (and therefore, federal action) had not been met.

When the Internet is implicated, the requisite test is satisfied.

Unfortunately, if other courts of appeal follow this decision, and at least for the duration in the 11th Circuit, if someone trades in child pornography and keeps the images on a CD, rather than on his computer's hard drive, and manages to either remove traces of the downloads from his computer hard drive or transfers them from another computer with Internet access, federal child pornography charges cannot be brought.

Luckily, most states outlaw child pornography possession. Until this decision is reviewed by the U.S. Supremem Court (assuming an appeal is sought), prosecutors may be better off charging the perpetrators with violation of federal and state laws.

I do not yet know if this particular man can be charged with state child pornography possession claims, or whether he walks free.

it's not always easy working within a constitutional system when you want to put the bad guys in jail and throw away the key.

As I frequently lecture others, we should find ways to get the results we need within the parameters of the constitution. we can usually do that. Monday morning quarter-backing is easy. But we need ot make sure that we have covered all bases when these criminals are charged so they don't walk away on a technicality.

the court expressed that it was saddened to reach this decision.

Parry

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