How Many Is Any: Interpreting Sec. 2252A's Unit of Prosecution for Child Pornography Possession

Individuals convicted for possession of child pornography should not receive drastically different sentences based solely on the statute under which they are convicted. Yet courts interpret the current statutory scheme in this way.Depending on which of two statutes a prosecutor chooses to bring charges under, and on which circuit has jurisdiction, the same defendant could receive one count of possession-or ten counts or one hundred counts. This discrepancy results from a slight difference in phrasing between two near-identical statutes: 18 U.S.C. § 2252(a)(4)(B) and § 2252A(a)(5)(B). Under § 2252, a defendant may only be convicted of one count of possession for all illicit materials simultaneously possessed in one place, and sentencing is tailored to the number of images possessed, among other factors. Under § 2252A, however, individuals can be convicted of a separate count for each physical storage device or each type of storage medium utilized. Both statutes are currently in effect, leading to the potential for widely disparate punishments for similar levels of possession.Based on the application of various canons of construction, this Comment argues that § 2252A does not authorize separate punishment for separate devices or storage media types simultaneously possessed in one place. Furthermore, this Comment argues that it is neither fair nor productive to penalize a defendant for choosing a certain organizational system rather than for the underlying crime of possessing child pornography.IntroductionImagine an individual has ten images of child pornography stored on a desktop computer. How many crimes of possession has he committed? Has he committed ten crimes of possessing one image each? Or, has he committed only a single crime of child pornography possession? Next, imagine that the individual moves one image onto an external hard drive and another image onto a second external hard drive. Has he now committed two crimes, one for each type of storage medium {i.e., one count for the external hard drives and a second count for the original computer) ? Alternatively, has he committed three crimes, one for each physical storage device {i.e., one count for each drive and a third count for the computer)? Should a different and harsher punishment result merely because the individual moved two images from one device to another? Depending on the jurisdiction and statute involved, the answer to how many crimes have been committed may be any of the above.1With the rise of the Internet, the child pornography market has surged, making it increasingly difficult for law enforcement to identify and prosecute individuals involved in the child pornography industry.2 To make matters more difficult, advances in technology, such as the ability to digitally alter electronic media, can frustrate the government's ability to prove that an actual minor is depicted in a given image or video. For example, images of adults can be digitally altered to make the adults appear younger, innocent images of children can be digitally altered into sexually explicit images, and computer-generated images can be made to look like child pornography even though no real children were involved in their creation.3 Such imagery, deemed "virtual child pornography,"4 has become the target of recent legislation.Federal law criminalizes possession of virtual child pornography in 18 U.S.C. § 2252A, which targets offenses involving actual and virtual child pornography.5 Section 2252A(a) (5) (B) prohibits the knowing possession of "any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography."6 Section 2252A is almost a mirror image of an older statute that is still in effect and targets only actual child pornography: § 2252.7 Section 2252(a)(4)(B) prohibits the knowing possession of " 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction . …