In U.S. v. Vadnais, the 11th Circuit found that a file sharing program does not support a five level sentencing guidelines enhancement and reversed the sentencing. Another panel reached the same conclusion in U.S. v. Spriggs three days earlier involving the software Shareaza 2.0. Vadnais’ 240 months sentence for receiving child pornography included a guidelines enhancement under sentencing guidelines §2G2.2(b)(3)(B), which provides for the enhancement if the offense involves a distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value.” Vadnais obtained his illicit images over the internet by using LimeWire, a peer-to-peer file sharing software.
Analyzing the sentencing guideline issue, the 11th Circuit noted the commentary defines the 5 level enhancement of 2G2.2(b)(3)(B) as ‘any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” A “thing of value” can include the receiving child pornography “bartered” or in exchange for other child pornography. On this basis, the five level enhancement could apply to a defendant engaging in this activity. Vadnais argued that using the peer-to-peer file sharing software in a way that allowed others to obtain child pornography files from his shared folder did not support the enhancement.
The opinion spends time analyzing how peer to peer software works. The software networks are so named because they allow computers to communicate directly with each other without going through central servers. The software permits users to search for files located in the shared folders on other computers. When found, the requesting user can download the file directly from the other computer. The 11th Circuit found that the LimeWire software encourages users to share files. Its default settings make all files that a user downloads through LimeWire available to other LimeWire users to download.
The 11th found that that simply using a peer to peer program is not itself sufficient to trigger the five level enhancement. The five level enhancement requires some evidence, direct or circumstantial, that at defendant reasonably believed he would receive something of value by making his child pornography available for distribution on a peer to peer network. There must be as showing of a connection between the defendant’s distribution and his receipt or expectation of receipt. The government argued that the fact Vadnais did not turn off the file-sharing feature – making his files available to others – showed that Vadnais did expect to receive additional child pornography. In other words expecting more child pornography through file sharing was a thing of value. The court did not buy in. LimeWire users can share file but are not obligated to do so in order to receive or download files from other users. At best, the evidence shows that Vadnais made his files available to other users by turning off his default system to prevent users from obtaining his files. Vaidnais could have obtained files from others without having to share any of his files.