No sentence enchancment for using a peer to peer file sharing program for downloading child pornography

In U.S v. Spriggs, Spriggs pled guilty to receipt of child pornography and sentenced to a five level enhancement for distribution of the illegal images for the receiving or expecting to receive something of value under USSG §2G2.2(b)(3)(B). Spriggs kept his child pornography collection in a peer to peer file sharing program called Shareaza 2.0. that could be accessed by other Shareaza users. Spriggs also downloaded the child pornography using the Shareaza program. The default settings on Shareaza 2.0 automatically provided for reciprocal sharing and required extra steps if a user did not want to share files with others using the program. The copy on Sprigg’s computer was rigged to allow peers to download files from his computer. The sentencing judge reasoned that Spriggs distributed the child pornography with the expectation that he would receive either more child pornography or could down load it faster. Law enforcement tried but was unsuccessful in its attempt to download the defendant’s files. There was no evidence showing that other users downloaded files from Spriggs child porn collection.
The 11th Circuit found that Spriggs’ distribution of child pornography is not enough to apply the 5 level enhancement under USSG §2G2.2(b)(3)(B). The distribution must be for the receipt or expectation of receipt of a thing of value. Though the 8th Circuit has applied the enhancement when using the file sharing network to distribute and access child pornography files, the 11th Circuit disagrees with that result. File sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares files. Files are free. The mere use of a program that enables free access to files does not, by itself, establish a transaction that will support a five-level enhancement.

The 11th Circuit refused to follow an 8th Circuit’s decision finding that file sharing programs gave the defendant and expectation of value. Spriggs’ hope that a peer would reciprocate his generosity does not amount to a transaction conducted for “valuable consideration.” There was no evidence that Spriggs entered into a transaction with another user in which he shared his child pornography to gain access to another person’s child pornography. Without evidence that Spriggs and another made a promise with each other to share their illicit collection of images on the file sharing program, this was not a transaction whereby Spriggs expected to receive more pornography. The fact that Spriggs expected to receive faster downloading capabilities when he shared his files was a transaction between he and the software developer but this was not a “for value transaction” between Spriggs and other child porn collectors. There was no evidence that there was downloading priority given to Shareaza 2.0 users which would then allow someone like Spriggs to download child pornography faster. The record did not support a conclusion that Spriggs entered into a child pornography distribution transaction with the expectation he would receive a thing of value.