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Federal court ruling may thwart online child porn investigations

Posted: Sunday, November 7, 2010 12:00 am

Howard Fischer, Capitol Media Services

A new federal appellate court ruling involving a Tucson man could throw roadblocks in the path of police and prosecutors trying to catch and convict people of sending child pornography over the Internet.

In a unanimous decision, the 9th Circuit Court of Appeals said people cannot be convicted of transporting such images unless there is evidence that the actual files crossed state lines. A file sent from and received within Arizona does not qualify.

The judges said the fact that someone used a computer connected to the World Wide Web -- and that the "packets'' of information may have crossed state lines is insufficient.

Dennis Burke, the U.S. Attorney for Arizona, said his office is reviewing the decision to see how it will affect future prosecutions. But Burke indicated his disappointment.

"Federal child pornography laws are an effective tool to combat the sexual exploitation of children,'' he said. [Please what part of the Constitution gives the Feds the power to combat the sexual exploitation of children?]

Burke noted, though, that Congress has altered the child pornography laws since this investigation started in 2003, making it a crime to send child pornography through any "facility of interstate commerce.'' He suggested this new language could overcome the basic premise in this case that there is no federal authority over crimes that occur in only one state.

This case started when an FBI agent working out of her Tucson office was conducting an undercover investigation over a file-sharing program. There, she found someone identified as "azgymguy2'' in two "chat rooms'' with names that suggested those in discussions had files with photos of naked male teens.

After typing in a "trigger'' that allowed her to directly contact the user, she was able to download 13 files from him, three of which were identified as being photos of underage males.

The sender was later identified as Jason Wright. Agents raided his home and took possession of his computer.

Wright argued that the items found on that hard drive actually belonged to his roommate, who subsequently disappeared. A jury acquitted him of several charges but convicted him of two: possession and transportation of child pornography.

He subsequently appealed.

Prosecutors conceded that the images at issue never traveled outside of Arizona from the time they were sent from Wright's computer until they were received by the FBI agent. But government attorneys argued that isn't legally necessary.

They said the statute requires only that they be "transported in interstate commerce by any means, including computer.'' More to the point, they said the mere use of the Internet to send the images qualifies.

Judge Milan Smith Jr., writing for the court, said he and his colleagues were not buying that.

"A defendant's mere connection to the Internet does not satisfy the jurisdictional requirement where there is undisputed evidence that the files in question never crossed state lines,'' he wrote.

The court also rejected arguments by prosecutors that Wright never would have been able to connect with the FBI agent in the first place had they not met in a chat room. And Wright's attorney acknowledged that communication did cross state lines.

But Smith said the legal focus has to be on the files themselves, not the fact of his willingness to send them in the first place.