Mere Viewing Child Pornography, Is it a crime under Florida Law?

January 10, 2008 by David S. Seltzer

An “electronic communication” is defined as “any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, electromagnetic, photoelectronic or photooptical system.” Wiretap Act, 18 U.S.C. §2510(12).

Statutory language must be given its plain and ordinary meaning, unless words are defined in statute or by clear intent of legislature. Green v. State, 604 So.2d 471 (Fla. 1992). Plain and ordinary meaning of word in statute can be ascertained by reference to dictionary if necessary. Id.

According to www.dictionary.com, transmit is defined as:

1) to send or forward, as to a recipient or destination…
2) to send a signal by wire, radio, or television waves…
3) to cause (light, heat, sound, etc.) to pass through a medium…
4) to convey or pass along (an impulse, force, motion, etc.)…
5) to emit…

A website transmits electronic documents to servers, where the documents are stored. If a user wishes to view a website, the user requests that the server transmit a copy of the document to the user's computer. When the server sends the document to the user's computer for viewing, a transfer of information from the website to the user has occurred. Although a website document does not go directly or immediately to the user, once a user accesses a website, information is transferred from the website to the user via one of the specified mediums. Therefore, a website fits the definition of “electronic communication.” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (C.A. 9th Cir 2002); see generally Preston Gralla, How the Internet Works (1999).

In Konop, a website was created and maintained by Konop where he posted information relating to his job, mostly criticisms. Konop gave access to the website to users by requiring a username and password, and disseminated that information to people he wanted to have access. Two (2) unauthorized people gained access to Konop’s website by using the username and password from authorized users. Konop filed suit alleging a violation of the Wiretap Act and Stored Communications Act. The Court found that even though a website qualifies as transmission of electronic communication, the Wiretap Act was not violated because it was acquired from electronic storage. Konop, at 878.

Therefore, under Konop accessing a website, is transmitting a website, as a copy of the website is being transmitted to the user’s computer for viewing/storage. Therefore, under Florida law, one may be charged for simply viewing child pornography, without actually possessing the image.