Prof. Berman at sentecing law and policy invites our attention to an interesting new decision from the Third.
US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) .
We all of us have an a client who is charged with distribution of CP because they were using a P2P program such as Limewire, and where the automatic settings placed information in the “shared” folder. Because the information is in the shared folder it is accessible to others who search Limewire and come across it. Actually many clients have been caught through the FBI or some other enforcement agency trolling Limewire for such information.
The opinion in Husmann makes much of the “intentional” placing of CP in the shared folder. But does not address the way in which the program, by default places everything in the shared folder. Normally the use needs to affirmatively change the settings for downloads not to go in the shared folder. The opinion assumes the subject files were deliberately placed in the shared folder making them accessible to others.
So, you have a client who downloads CP via a P2P program, doesn’t realize about the automatic settings upon execution of the P2P software, and there is NO evidence that someone queried and received CP from that client’s account? In Husmann the investigators went through the various logs to see if they could find any evidence of another computer connecting and downloading, but weren’t able to find such evidence.
Currently in the Third the person may not be convicted, see Husmannn. It’s a 2-1 decision with a strong dissent. It’s only the Third.
Can you use the rationale from Husmann to defeat a conviction for distribution. Keep in mind that he court was construing the definition of “distribution” under the federal statute. And if it’s not distribution is it an attempted distribution.
All in all an interesting read for the all to common CP case.