Whether use of a file sharing program constitutes the transmission of CP is a question that the Florida Supreme Court may have to give a final answer on, as the District Courts of Appeal are in Conflict.

File sharing programs are popular for downloading music, movies and even pornography. Well over a decade ago, when Napster was one of the first to come out, file sharing programs became popular as a way to find stuff online. Users could browse files in “shared” folders on other people’s computers and download them in minutes. As internet connections became faster, that became seconds and with two clicks of a mouse you can download someone’s entire catalog of music… or porn in seconds.

What many users didn’t know (or consider), is just as you could browse other people’s folders, other users could browse yours. So what’s on other people’s computers could be accessed by you and what’s on your computer can be accessed by others.

Technology often creates scenarios that are unforeseeable before they come along.

Let’s say “Joe” uses drugs recreationally (for medicinal purposes, of course). He smokes a bit, gets a craving for Doritos and runs to the 7-11 to buy some snacks, leaving a bag of marijuana sitting on his coffee table. Since he’ll only be gone for a few minutes, he doesn’t bother locking the door to his apartment. While he’s out, a neighbor smells some lingering smoke and enters Joe’s apartment to “make sure there’s no fire”. While he’s inside he helps himself to some of Joe’s pot and leaves. Joe has no idea someone was in his place – he probably didn’t even realize any of his pot was missing.

Does this scenario turn Joe from someone who uses drugs for personal use into a drug distributor?

Technology would! In the case of pornography and file-sharing programs, most users (especially years ago) had no clue or never considered that they could be considered distributors of CP or be charged with transmission or trafficking of CP through the use of these programs. After all; there’s generally no monetary gain (you’re not selling it), the file doesn’t go missing from your computer so you don’t know anything has been taken, you have no idea who the other person is and in most cases it’s taking place in the background so you have no idea that someone’s helping themselves to something on your home computer. Default settings on these programs are usually set to share folders, so you don’t even know that you’ve “left your door unlocked”.

The Florida courts are unclear as to whether someone can be charged with distribution under this scenario.

In 2013, the 5th District Court of Appeals in Biller v. State, 109 So. 3d 1240, 1241 (Fla. 5th DCA 2013) held that use of a file-sharing program does not constitute transmission within the meaning of the statute.

Just last month the 4th District Court of Appeals decided otherwise. In Smith v. Florida, No. 4D 14-438 [March 25, 2015] the Court concluded that the exchange of the pornographic images through the use of the file-sharing program constitutes “transmission” within the meaning of the statute. A direct conflict with the 5th DCA.

What this means is the decision will ultimately have to be decided by the Florida Supreme Court for a definitive answer.