United States District Court, D. Kansas
FINDINGS OF FACT AND CONCLUSIONS OF LAW
JULIE A. ROBINSON, District Judge.
Defendant Brian Laub was charged in a three-count Superseding Indictment with several violations, including one count of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2). The other counts were disposed of prior to trial and Count 1 is the only remaining count before the Court. A bench trial was held on February 2, 2014. This decision represents the Court's findings of fact and conclusions of law pertaining to Count 1, for distribution of child pornography.
I. Findings of Fact
John McElyea, an FBI task force officer, employed a computer program designed for law enforcement officers to track individuals who use peer-to-peer file sharing applications, such as Shareaza 220.127.116.11, to share visual depictions of minors engaged in sexually explicit conduct ("child pornography"). Defendant Brian Laub installed Shareaza to locate and download images of child pornography for his possession.
Officer McElyea, through a keyword search for the term "lsm, ", determined that an IP address assigned to Defendant contained forty-four files that were responsive to the search term. Officer McElyea testified that based on his training and experience, nearly all forty-four filenames, which contained references to an age under eighteen years old (e.g. "9 yo, 14 yo, or the word preteen, pedo or ptsc"), were filenames indicative of child pornography.
Officer McElyea downloaded ten image files and one video file from Defendant's computer. Officer McElyea then viewed all of the files that he downloaded. Officer McElyea testified that, based on his training and experience, all but one of the files that he downloaded from Defendant's computer constituted child pornography.
There is no direct evidence that Defendant, by email, postings or otherwise, transmitted, delivered or distributed child pornography to another person. And, Shareaza did not allow Defendant to distribute images by placing files into other users' folders. Rather, Shareaza allowed sharing by allowing other users of peer-to-peer file sharing networks access to the contents of Defendant's shared folder. This is how Officer McElyea gained access to the child pornography in Defendant's possession, through Defendant's shared folder in Shareaza. Officer McElyea did not have any special access to Defendant's files beyond the access of other users. All forty-four images were located in a shared folder that was available to McElyea and other users of peer-to-peer file sharing networks.
Officer McElyea referred the investigation to Detective Craig Enloe of the FBI Kansas City Division. On February 2, 2012, Detective Enloe interviewed Defendant. Defendant admitted that his collection of child pornography included images and three to four videos. At one point, Defendant estimated that he had downloaded over 1, 000 images but later told Officer Enloe that he had likely downloaded fewer than 1, 000 images. Defendant stated that he was unaware that other users could access and download the files that were contained in his shared folder on Shareaza. Officer McElyea testified that he could not confirm whether Defendant received a notification when McElyea downloaded the files from Defendant's shared folder.
A DVD-R was seized from Defendant's home; and, according to Defendant, he copied the child pornography files to the DVD-R as backup, in the event that his computer crashed.
There are multiple steps involved in installing Shareaza 18.104.22.168. Fifteen screen prompts require users to actively select an option, such as clicking "Next, " to advance to the following screen. The "Welcome to Shareaza!" screen prompt informs users that the "QuickStart wizard" will help them "Choose which files to share" and "Connect to your choice of P2P networks." The next screen prompt reads as follows:
P2P networks are only as good as the people who use them. All of the content available for download is being shared by another user.
You do not have to share content to use Shareaza, however some software will behave differently to users who are not sharing anything.
Please indicate which folders, if any, you wish to share. Simply click the Add button to add a new folder.
This screen prompt twice explains that the decision to share the content is the user's choice. To complete the installation process, users are also required to accept a license agreement for the software, users are given the option to select from multiple peer-to-peer networks to access from Shareaza, and users are informed of the process required to change their settings. While many screen prompts already have a default option highlighted, users are always required to click a button to ...