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The last three posts have dealt with teen sexting and the detrimental, often draconian, consequences that Louisiana law deals out. A teen can become a registered sex offender by dating and texting a girl at his high school. Costs and consequences of sex offender registration are too numerous to discuss in this post but suffice it to say that a felony conviction combined with being a registered sex offender wreaks havoc on one’s ability to find a place to live, get a job, and/or meet a significant other. Registered sex offenders cannot use social media, which includes Match.com, e-harmony, Facebook, Twitter, Instagram, LinkedIn . . .

Consider this:

Adele (15 yrs, 11 months) is dating Lance (17 yrs, 1 month). They attend the same high school. They send nude photos to each other using their iPhones. They use their iPhones and an iPad to record themselves having sex.

Lance’s older stepbrother John (23) attends a local college and works full time. Lance and John live in the same home. John and Lance are on the same AT&T internet plan. John and Lance’s iPhones, iPad, and Macbook are set up to share files on iCloud. John subscribes to a file-sharing peer-to-peer (P2P) service so that he can illegally download movies and music from the internet. This software makes any photo, movie and music file on his computer accessible to others on the “P2P” network.

John is not especially computer-savvy. John does not know that nude photos and videos of Lance and Adele are on his computer (he has tons of video and movies on his computer).

John leaves his Macbook at the library one day and it is turned over to campus police to determine its proper owner. Campus police look through recent computer files to determine the owner and find nude pictures of a teenage girl on the iCloud drive. They turn the computer over to local police, who apply for and obtain a warrant to search the computer to find its owner along with any additional evidence that may be on the device.

John is arrested for the contents of his computer.
A. With what statutory violations may he be charged? What about Adele and Lance?
B. What defenses does John have ?
C. What about his “right to privacy” on the computer? Is the police search legal?

A. John is not only possessing but is distributing (via his Peer-to-Peer software) child pornography. Every movie and photo file on his computer is being shared through the program, so Lance and Adele’s sexual exploits are available to other users on the P2P network. John is in violation of Pornography Involving Juveniles (14:81.1), a felony, and he will likely be charged with multiple counts. Each count carries a minimum of 5 years to a maximum of 20 years without benefit of probation, parole, or suspension of sentence and a max fine of $50,000. He will be required to register as a sex offender for 15 years if he is convicted of this offense.

Interesting note about 14:81.1C(2): Possession of three or more photographs, images, films, videotapes, or other visual reproductions and possession of any type of file sharing technology or software shall be prima facie evidence of intent to sell or distribute.

Lance and Adele are close enough in age legally engage in sexual activities. However, they’re not allowed to film it because they are producing child pornography: As La. R.S. 14:81.1 states, “Whoever engages in the … production of pornography involving juveniles shall be fined not more than fifteen thousand dollars and be imprisoned at hard labor for not less than ten years or more than twenty years, without the benefit of probation, parole, or suspension of sentence.”

Lance, 17, will be charged as an adult with this very serious offense. It is unlikely that Adele, 15, will be charged with “producing child pornography” (though she could be). If convicted, Lance will be required to register as a sex offender.

A wide swath of discretion is given to the arresting officer to make the charge and to the prosecuting attorney to choose which charge to pursue.

Adele has violated La.R.S.14:81.1.1, the misdemeanor “Teen Sexting” statute. She is under the age of 17 (as the statute requires) and she “knowingly and voluntarily use[d] a computer or telecommunication device to transmit an indecent visual depiction of [her]self to another person” and is thus in violation of the law. She will go to Juvenile Court and get a slap on the wrist. This very statute was created to make sure she isn’t charged with producing child porn (meanwhile, Lance gets charged with it). Lance cannot hide behind this statute because he’s over 17.

B. John (a grown man) owns a computer, subscribes to a P2P network, and on the computer, there are inappropriate photos and videos of a 15-year old girl. His defense? He had no idea these photos and videos were on his computer. He was not knowingly in possession of the contraband. The believability of this defense? Depends.
i. Can he afford to pay an attorney and a computer forensics expert tens of thousands of to prove that he never accessed the files from his device? Probably not. Let’s assume he can:

– Will a favorable report from the forensics expert be
sufficient to convince the District Attorney’s office to
drop the charge? Probably not – they will tell John’s
attorney “let’s see if the jury believes your expert.”
– Facing years of jail time as a convicted sex offender,
will John be willing to get in front of a judge and jury
and tell them he had no idea these items were on his
computer? Highly unlikely.

C. John’s child-pornography-riddled computer is no different than an unlocked briefcase full of cocaine and cash — he has no right to privacy on a computer left behind at a library. Let’s assume that John’s attorney successfully tries a Motion to Suppress on the basis that the search was illegal (even though a strong argument exists that the police had sufficient probable cause to get a search warrant after the librarian saw and reported child pornography). The attorney keeps out all evidence obtained during what he contends is an illegal search of John’s computer.

Meanwhile, law enforcement runs a search on the P2P network to which John subscribed. They see John’s IP address and can tell that child porn files (Lance and Adele having sex) have been distributed from John’s computer to other P2P users. Law enforcement can obtain a different search warrant for John’s computer based on this evidence, legally search it, and prove that he violated 14:81.1.

John’s lawyer then gets another big retainer from John’s family and files another Motion to Suppress to keep out the “fruit of the poisonous tree” . . .

and now we are getting too far into the weeds.

Thanks for reading, and please forward this along to teens and parents of teens, and anyone else who may be interested in the mind-blowing consequences that arise when the teenage brain teams up with technology and violently collides with Louisiana law.