Child pornography laws exist on both the federal and state level. Violations carry serious penalties upon conviction; even first-time offenders may be sentenced to up to 30 years in prison. However, while there are long-established laws making it illegal to possess, produce or distribute child pornography, social media is making it more difficult to determine what exactly constitutes possession, production or distribution.
Many states are now extending the application of child pornography laws to the minors that the laws intend to protect. The selfie phenomenon has led to minors taking sexually explicit photos of themselves and sharing them on social media. Established laws do not account for this possibility, but many federal and state courts are leaning toward a broad application of online child pornography laws. Therefore, if a minor takes a nude selfie and sends it to someone online, both the sender and receiver may be subject to prosecution for child pornography.
Another aspect of social media that is changing the legal landscape of online child pornography is sites that do not require images to be downloaded. Some sites can store caches of images on the internet, making it unnecessary for viewers to download the images to their personal computer. Others, such as Snapchat, will auto-delete images a few seconds after distribution. For states like Massachusetts that require one to possess – and not merely view – illegal images, prosecution can be more difficult in these types of cases. For example, in a 2012 New York Court of Appeals case, the court held that merely viewing child pornography cache images online does not constitute ‘possessing a sexual performance by a child’ under existing law.
Although many state laws do not yet reflect complete adaptation to the age of social media, some are beginning to expand child pornography laws to incorporate more offenses. A judge in the New York Court of Appeals case disagreed with the majority, opining that knowingly viewing child pornography on the internet should constitute criminal conduct. Given the evolution of both technology and the law, those accused of federal crimes – especially those facing allegations involving online child pornography – should be apprised of the most current state of the law and the defenses available for their particular case.