Court Error Abuse of Discretion.

• Author: Hawkins, Derek
• Position: United Stats of America v. Thomas J. Owens

Byline: Derek Hawkins

7th Circuit Court of Appeals

Case Name: United Stats of America v. Thomas J. Owens

Case No.: 20-3189

Officials: FLAUM, KANNE, and SCUDDER, Circuit Judges.

Focus: Court Error Abuse of Discretion

It is criminal "distribut[ion]" of child pornography within the meaning of 18 U.S.C. 2252(a)(2) to knowingly make a file containing child pornography available for others to access and download via a peer-to-peer filesharing network. See United States v. Ryan, 885 F.3d 449, 453 (7th Cir. 2018). The government has developed an investigative practice where it employs a confidential software program to participate in the peer-to-peer network and detect and download child pornography files shared therein. Once a file is downloaded and its illicit contents verified, the government ascertains the IP address of the sharing user, contacts the Internet service provider to identify the residence associated with the IP address, obtains a search warrant, and seizes the suspect's electronics. Often, the downloaded file is then located on the suspect's device, and the government can verify that the file was indeed made available for downloading. Yet sometimes the file cannot be located on the device or there are questions about the defendant's sharing settings.

In the case before us now, Thomas Owens was arrested and charged with the distribution and possession of child pornography after a government investigator used such a program, Torrential Downpour Receptor ("TDR"), to download a video file containing child pornography from a folder shared via the BitTorrent network at an IP address later associated with Owens. Nonetheless, a forensic...