By Vince Imhoff, Esq. and Ori Blumenfeld

Child pornography, has become more prevalent and widespread in the past five years than ever before. With the emergence and explosion of the cyber-world and the rise in the use and the accessibility of the Internet, those who have a desire to view child pornography have easy access to do so. Even though various companies that provide Internet access go to great lengths in effort to remove such pornographic sites, often times it is to no avail. The prevalence of uncontrollable pop-up sites containing these disturbing images has thwarted this effort to control pornography, thus giving those who choose to view these sites, easy access to do so.

Opening Child Pornography Email

Suppose a child pornography email is sent to an account holders junk mail folder. Now, suppose that the person who received pornographic email mistakenly opens it, and in attempts to delete it, a common human error made by many known as a mis-click. Once this email is mistakenly opened, a message appears on the account holders computer screen, and in the body of the email, stating, THIS IS AN FBI STING OPERATION AND YOU HAVE BEEN CAUGHT ATTEMPTING TO VIEW CHILD PORNOGRAPHY YOU WILL BE CONTACTED SHORTLY BY A FBI AGENT.

If the email account holder can show that their inadvertent action caused them to open the child pornography email, rather than their subjective intent to do so, then they should be able to use this fact as part of their defense if charged with a crime relating to this action. More specifically, the email account holder should show that they did not have the requisite mens rea, or state of mind, to be charged with a crime relating to the viewing of child pornography. The email account holder should prove that they neither requested nor purchased the email containing the pornographic images that were sent to them and thus should not be charged with a crime.

In addition to using the fact that the email account holder lacked the requisite subjective intent needed to be charged with a child pornography offense as part of their defense, the holder of the account can raise yet another complete defense to lack of required elements; namely lack of possession. More specifically, when someone receives an email but does not open it, other issues arise: – Does this mean that they have acquired possession of the email and its contents? – Is possession established only if the email is opened and/or read and internalized? – At a more extreme level, does possession of an email begin at the moment it is sent from one party to another; the action of sending the email creating automatic possession of the email by the party receiving it? – Between the time sent and the time received, who is in fact in possession of the email? – Is knowledge of the contents of an email established once the email is received by the email account holder, or is knowledge established when the email account holder engages in the volitional act of opening the email and viewing its contents? – What is the status of an email account holder who has received an email that has a subject line referring to child pornography, but has not yet opened the email? – Can you equate such receipt of pornographic material with possession of pornographic material?

Determining Possession of Child Pornography

Before one may be charged with possession of child pornography, the issue of what it means to be in possession of, along with the listed issues need to be determined. For the sake of the hypothetical at hand, there is a presumption that the owner of the email was not in actual possession of the child pornography, due to the inadvertent opening of the pornographic email. Various federal statutes state that in addition to the requisite mens rea element, possession of the material is required in order to be convicted of viewing child pornography. Someone opening an email that was sent without any identifying features in the subject header can equal someone sticking a note in someone elses pocket without their knowledge. Moreover, actual specific knowledge of the possession of child pornography is required.

Possible Defenses for Charges of Child Pornography from Unwanted Email

In the aforementioned hypothetical, the email account holder did not have the intent to view the child pornography and can raise this as a defense. Nevertheless, even if the requisite mens rea can be proven by the prosecutor, the email account holder who received the pornographic material did not have actual possession of the email. Specifically, the email containing the pornographic images was sent to the email account holders junk mail folder, which was set up to receive unwanted emails.

Once the email was sent to the email account holder, an argument can be made that the email account holder also cannot be convicted on a strict liability charge due to the fact that they not only did not meet the intent and possession elements required for conviction, but similarly, they did not request nor purchase such material. The email account holder should be able to argue that they were not the owner of the email whether or not they opened it, even though it appeared in their inbox since the email was not requested.

Although the owner of the email account opened the email out of curiosity resulting from the fact that the account holder did not know whom the email was from or what it contained, the email account holder could raise the defense of entrapment against the FBI. Such a defense may be raised, since the FBI was attempting a sting operation on victims who had no intent or desire to possess the material requiring conviction of the crime. Entrapment is a defense to a crime; it is not a negation of the crime for which one has been charged. The defense of entrapment, however, cannot be established until a crime has been committed. Since this was an unsolicited email that the owner of the email did not subscribe to, the FBI will be found to have overreached their powers in an effort to catch people in the act of viewing child pornography and thus a countersuit may arise by the email account holder.