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Computer Pornography

Chapter 847, F.S., entitled “Obscenity,” contains a variety of provisions that proscribe offenses related to pornography and minors. Section 847.0135, F.S., entitled the “Computer Pornography and Child Exploitation Prevention Act” sets out several different felony offenses related to using a computer to exploit a child including computer pornography under 847.0135(2) and the transmission of child pornography under 847.0137(2).

Florida Statute Section 847.0135(2) provides in relevant part:

1. A person is prohibited from:
• Knowingly compiles, enters into, or transmits by use of computer;
• Makes, prints, publishes, or reproduces by other computerized means;
• Knowingly causes or allows to be entered into or transmitted by use of computer; or
• Buys, sells, receives, exchanges, or disseminates; 
2. Any notice, statement, or advertisement of any minor’s name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for purposes of facilitating, encouraging, offering, or soliciting sexual conduct of or with any minor, or the visual depiction of such conduct.

Offenses under Florida Statute Section 847.0135 are charged as a third degree felony. A third degree felony is punishable by up to five years imprisonment and a $5,000 fine. ss. 775.082 and 775.083, F.S.

Transmission of Child Pornography

Section 847.0137, F.S., provides that any person in Florida e who knew or reasonably should have known that he or she was transmitting child pornography to another person in this state or in another jurisdiction commits a felony of the third degree. s. 847.0137(2), F.S.

Any jurisdiction other than Florida who knew or reasonably should have known that he or she was transmitting child pornography to any person in this state commits a felony of the third degree. s. 847.0137(3), F.S.

For purposes of these offenses, the term “transmit” is defined as “the act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons or places over or through any medium, including the Internet, by use of any electronic equipment or device.” s. 847.0137(1)(b), F.S.

The section further specifies that it may not be construed to prohibit prosecution of the transmission of child pornography under any other law, including a law providing for greater penalties; that a person is subject to prosecution in Florida if he or she lives outside of Florida if he or she violates the prohibition against transmitting child pornography to any person in this state; and that the section does not apply to subscription-based transmissions such as list servers. s. 847.0137, F.S.

Recent Case Law in Computer Pornography Cases 

The Fourth District Court of Appeals (DCA) recently held that such offenses cannot be separately charged based upon each image of child pornography because the statutory language establishing the offenses uses the modifier “any,” rather than “a” or “an” before the term “image” and other proscribed items. Therefore, only one offense may be charged even though a violation may involve hundreds of images or other proscribed items. State v. Losada, No. 4D14–2098, 2015 WL 5603461 (Fla. 4th DCA Sept. 24, 2015).

The Fifth DCA recently held that use of a file-sharing program to share child pornography does not constitute prohibited transmission within the meaning of s. 847.0137, F.S. Thereafter, the Fourth DCA held that such file sharing is prohibited within the meaning of that statute and certified conflict with the Fifth DCA. The Florida Supreme Court has granted review.

In response, the Florida legislature has proposed amendments to the statute to clarifying that the sharing of child pornography through file-sharing programs constitutes a prohibited transmission under the section. The Florida legislature also proposed amendments to the statute to add  “interconnected network” as an example of a medium over or through which child pornography may not be transmitted. 

This article was last updated on Friday, October 28, 2016.