Ninth Circuit holds that storing CP in shared folder is distribution, FBI must disclose EP2P software to defendants

In United States v. Budziak, No. 11-10223 (9th Cir. 2012), the Ninth Circuit held that storing child pornography in a shared folder for peer-to-peer networking without proof of distribution can, nonetheless, be considered distribution. The decision echoes that of three other circuits' opinions - United States v. Chiaradio, 684 F.3d 265, 281-82 (1st Cir. 2012); United States v. Shaffer, 472 F.3d 1219, 1223 (10th Cir. 2007); and United States v. Collins, 642 F.3d 654, 656-57 (8th Cir. 2011).

The Ninth held "that the evidence is sufficient to support a conviction for distribution under 18 U.S.C. § 2252(a)(2) when it shows that the defendant maintained child pornography in a shared folder, knew that doing so would allow others to download it, and another person actually downloaded it."

On appeal, the defendant argued that he had disabled sharing in the software, but he had presented no such evidence at trial. The government, however, had presented evidence to the contrary.

Budziak did sufficiently argue that the trial court improperly denied him access to the FBI's EP2P software used to find child pornographer sharers on the Limewire network. As a result, the case was remanded for the district court to determine if discovery could have affected the outcome.