Court: Web Downloads Not Necessarily ‘Interstate Commerce’

Q Boyer
DENVER — In a ruling that departed from a previous holding by another federal court, the 10th U.S. Circuit Court of Appeals ruled that merely demonstrating that a defendant used the Internet is not sufficient to prove that the defendant engaged in “interstate commerce.”

The decision arose from an appeal filed by William Schaefer, a resident of Kansas who was convicted on a single charge each of receiving child pornography and possession of child pornography in violation of 18 U.S.C. § 2252(a)(2) and 18 U.S.C. §2252(a)(4)(B), respectively.

According to information obtained through an investigation by the Kansas City office of the Immigration and Customs Enforcement agency, Schaefer used his computer and credit cards to subscribe to child pornography websites. When authorities searched Schaefer’s home, they found two CDs that contained a total of 11 child porn images, and evidence of child porn images in unallocated clusters and temporary Internet cache files on Schafer’s computer.

Although Schaefer admitted to using the Internet to seek out child porn images, prosecutors did not present evidence directly tying the images on the CDs to Schaefer’s Internet use, and he was not charged with possessing or receiving the images contained in his computer’s temporary Internet cache.

Following his conviction by bench trial (Schaefer waived his right to a jury trial), Schaefer appealed his conviction on the basis that the “government failed to offer evidence to show that any single visual image he received or possessed traveled across state lines,” as required by the statute under which he was convicted.

In its ruling, the 10th Circuit noted that each section of the statute in question “requires the government to establish that in committing the offense a visual image ‘has been mailed, or has been shipped or transported in interstate or foreign commerce . . . by any means including by computer,’” and held that since the government did not meet that burden, Schaefer’s conviction must be overturned.

“Ultimately, the decision to uphold or overturn Mr. Schaefer’s convictions turns on whether an Internet transmission, standing alone, satisfies the interstate commerce requirement of the statute,” the court wrote in its decision. “Mr. Schaefer asserts that § 2252(a)’s jurisdictional provisions requires movement across state lines, and it is not enough to assume that an Internet communication necessarily traveled across state lines in interstate commerce. We agree.”

In evaluating the legislative history of the statute at issue in the case, the court noted that in 1988, Congress amended the statute to include the phrase “including by computer,” in order to indicate that using a computer to transmit digital depictions between jurisdictions should be treated in the same way as using the U.S. mail system to send paper copies of photographs between states.

What Congress did not intend by including that phrase, the 10th Circuit held, was to suggest that any use of a computer, or of the Internet, by a defendant automatically represents engaging in “Interstate commerce.”

“We do not construe this amendment as indicating that Congress intended for use of a computer, without more, to satisfy the statute’s jurisdictional requirements,” the court wrote in its decision. “The phrase ‘including by computer’ specifies a method of interstate movement; the government must still establish that any computer-related movement crossed state lines…. the government was required to prove that any Internet transmissions containing child pornography that moved to or from Mr. Schaefer’s computer crossed state lines. The government failed to do so.”

The 10th Circuit acknowledged that its ruling contradicted a previous ruling by the 3rd Circuit, in which that court held that “given the interstate character of the Internet, a connection to a website server or request for an image from a server via the Internet invariably involves data moving in interstate commerce.” With respect to that holding, the 10th Circuit wrote that it “must respectfully disagree.”

In coming to its ruling, the 3rd Circuit “overlooked the limiting jurisdictional language that Congress employed, i.e., the ‘in commerce’ language,” the 10th Circuit wrote in its ruling.

“In effect, [the 3rd Circuit court] recast the jurisdictional requirement of the child-pornography statute into one that could be satisfied by use of an ‘interstate facility,’ and determined that the Internet was such a facility,” the 10th Circuit wrote. “Consequently, it did not insist on proof that the particular child-pornography images crossed state lines, only proof that the defendant ‘downloaded those images from the Internet.’”

Attorney Rob Apgood told XBIZ that he thought the 10th Circuit’s ruling in the Schaefer case was correct in its analysis of the law.

“This was a highly fact-specific ruling,” Apgood said. “The government failed to prove an element of the case. There has to be proof beyond a reasonable doubt of every element of the crime before a conviction will be sustained, and the government just failed to prove the interstate element here.”

Apgood said that he thought the question was “ripe for adjudication by the Supreme Court,” because of the split between the 10th and 3rd Circuits on the issue of whether Internet use, in itself, can be construed as evidence of interstate commerce in cases where interstate transport of materials is an element of the alleged crime.

Read the court's decision