Police blotter: Teens prosecuted for racy photos

What: Teenagers taking risque photos of themselves are prosecuted for violating child pornography laws.

When: Florida state appeals court rules on January 19.

Outcome: A 2-1 majority upholds conviction on grounds the girl produced a photograph featuring the sexual conduct of a child.

What happened, according to court documents:
Combine unsupervised teenagers, digital cameras and e-mail, and, given sufficient time, you'll end up with risque photographs on a computer somewhere.

There's a problem with that: Technically, those images constitute child pornography. That's what 16-year-old Amber and 17-year-old Jeremy, her boyfriend, both residents of the Tallahassee, Fla., area, learned firsthand. (Court documents include only their initials, A.H. and J.G.W., so we're using these pseudonyms to make this story a little easier to read.)

On March 25, 2004, Amber and Jeremy took digital photos of themselves naked and engaged in unspecified "sexual behavior." The two sent the photos from a computer at Amber's house to Jeremy's personal e-mail address. Neither teen showed the photographs to anyone else.

Court records don't say exactly what happened next--perhaps the parents wanted to end the relationship and raised the alarm--but somehow Florida police learned about the photos.

Amber and Jeremy were arrested. Each was charged with producing, directing or promoting a photograph featuring the sexual conduct of a child. Based on the contents of his e-mail account, Jeremy was charged with an extra count of possession of child pornography.

Some more background: Under a 1995 ruling in a case called B.B. v. State, the Florida Supreme Court said that a 16-year-old could not be found delinquent for having sex with another 16-year-old.

"The crux of the state's interest in an adult-minor situation is the prevention of exploitation of the minor by the adult," the majority said at the time. The court ruled that a Florida statute punishing sex between teens was "unconstitutional as applied to this 16-year-old as a basis for a delinquency proceeding."

The same applies to Amber and Jeremy. Even though he is a year older than her, he is still a minor in Florida.

In other words, under Florida law, Amber and Jeremy would be legally permitted to engage in carnal relations, but they're criminals if they document it.

Amber's attorney claimed that the right to privacy protected by the Florida Constitution shielded the teen from prosecution, an argument that a trial judge rejected. Amber pleaded no contest to the charges and was placed on probation, though she reserved her right to appeal her constitutional claim.

By a 2-1 vote, the appeals court didn't buy it. Judge James Wolf, a former prosecutor, wrote the majority opinion.

Wolf speculated that Amber and Jeremy could have ended up selling the photos to child pornographers ("one motive for revealing the photos is profit") or showing the images to their friends. He claimed that Amber had neither the "foresight or maturity" to make a reasonable estimation of the risks on her own. And he said that transferring the images from a digital camera to a PC created innumerable problems: "The two computers (can) be hacked."

Judge Philip Padovano dissented. He wrote that the law "was designed to protect children from abuse by others, but it was used in this case to punish a child for her own mistake. In my view, the application of this criminal statute to the conduct at issue violates the child's right to privacy under Article 1, Section 23 of the Florida Constitution."

Excerpt from Wolf's majority opinion:
As previously stated, the reasonable expectation that the material will ultimately be disseminated is by itself a compelling state interest for preventing the production of this material. In addition, the statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment...

Appellant was simply too young to make an intelligent decision about engaging in sexual conduct and memorializing it. Mere production of these videos or pictures may also result in psychological trauma to the teenagers involved.

Further, if these pictures are ultimately released, future damage may be done to these minors' careers or personal lives. These children are not mature enough to make rational decisions concerning all the possible negative implications of producing these videos.

In addition, the two defendants placed the photos on a computer and then, using the Internet, transferred them to another computer. Not only can the two computers be hacked, but by transferring the photos using the Net, the photos may have been and perhaps still are accessible to the provider and/or other individuals. Computers also allow for long-term storage of information which may then be disseminated at some later date. The state has a compelling interest in seeing that material which will have such negative consequences is never produced.

Excerpt from Padovano's dissent:
If a minor cannot be criminally prosecuted for having sex with another minor, as the court held in B.B., it follows that a minor cannot be criminally prosecuted for taking a picture of herself having sex with another minor. Although I do not condone the child's conduct in this case, I cannot deny that it is private conduct. Because there is no evidence that the child intended to show the photographs to third parties, they are as private as the act they depict...

The majority concludes that the child in this case did not have a reasonable expectation that the photographs would remain private. To support this conclusion, the majority speculates about the many ways in which the photographs might have been revealed to others. The e-mail transmission might have been intercepted. The relationship might have ended badly. The boyfriend might have wanted to show the photo to someone else to brag about his sexual conquest. With all due respect, I think these arguments are beside the point. Certainly there are circumstances in which the photos might have been revealed unintentionally to third parties, but that would always be the case.

That the Internet is easily hacked, as the majority says, is not material. The issue is whether the child intended to keep the photos private, not whether it would be possible for someone to obtain the photos against her will and thereby to invade her privacy. The majority states that the child "placed the photos on a computer and then, using the Internet, transferred them to another computer," as if to suggest that she left them out carelessly for anyone to find. That is not what happened. She sent the photos to her boyfriend at his personal e-mail address, intending to share them only with him.

The method the child used to transmit the photos to her boyfriend carries some danger of disclosure, but so do others. If the child had taken a printed photograph and placed it in her purse, it might have been disclosed to third parties if her purse had been lost or stolen. If she had mailed it to her boyfriend in an envelope, it might have been revealed if the envelope had been delivered to the wrong address and mistakenly opened. As these examples illustrate, there is always a possibility that something a person intends to keep private will eventually be disclosed to others. But we cannot gauge the reasonableness of a person's expectation of privacy merely by speculating about the many ways in which it might be violated.

The critical point in this case is that the child intended to keep the photographs private. She did not attempt to exploit anyone or to embarrass anyone. I think her expectation of privacy in the photographs was reasonable. Certainly, an argument could be made that she was foolish to expect that, but the expectation of a 16-year-old cannot be measured by the collective wisdom of appellate judges who have no emotional connection to the event. Perhaps if the child had as much time to reflect on these events, she would have eventually concluded, as the majority did, that there were ways in which these photos might have been unintentionally disclosed. That does not make her expectation of privacy unreasonable.