Skype image is a "computer depiction" under Pennsylvania child porn law

A live-streaming Skype session with a young teen turned into trouble for the defendant in the case of Commonwealth v. Levy, as he was convicted of several child-related offenses for his computer chats. Several questions were raised on appeal, including whether streaming video, such as Skype, is considered a "computer depiction" under Pennsylvania law, and whether sending a computer link via email can be considered dissemination of sexually explicit material to satisfy a conviction under the law.

Court's interpretation of new computer terminology

The Levy court acknowledged that some modern terms are not specifically defined in Pennsylvania's criminal statutes, and turned to other sources in determining if the defendant's acts came under the prohibitions. In explaining Skype, the court described it as "akin to the telephonic communications foreshadowed by Dick Tracy and the Jetsons, (permitting) individuals to use webcams to see each other while conversing over the internet."

Webster's Dictionary was the next stop by the court in deciding that the common and approved usage of "depiction" includes the use of Skype, and that the "showing" or "representation" of an image on a computer screen is a "depiction" under the law. Since the court had already decided that watching each other masturbate came under the legal definition of a "prohibited sexual act," it followed that the defendant's computer "depicted" a 15-year-old girl masturbating, violating the law. The court stated that interpreting "depiction" to exclude images on computer screens would circumvent the legislative intent to protect children against exploitation and abuse.

Comparison with other states' terms

Where terms have not yet been interpreted in a state's own laws, often courts will look to other states for assistance. The defendant offered examples of the New York and California legislatures' use of more specific terms in their similar criminal laws, such as "live or recorded telephone messages," "commercial online service" and "computer communication service," maintaining that if Pennsylvania's General Assembly had intended to include Skype within the definition of a "computer depiction," it would have used terms like the other states.

The court did not agree with that logic, stating that even if other states used more specific or different terminology, the live images portrayed on the computer screen still came within the common, approved definition of "depiction" as used to establish criminal culpability under the circumstances of this case.

Is a link to pornographic materials a "dissemination" under the law?

The defendant again turned to definitions in the criminal statutes to argue that simply sending a link to a pornographic site by email is not a "dissemination of sexually explicit materials" because the link itself did not constitute "material", as it does not fit within any of the items in the definition, and is more like the title of a book, movie, or magazine.

The court pointed to the immediacy of a link, it only taking one click to provide access to the material on the website, and compared it to inserting a flash drive, or inserting a VHS drive into a VCR, or unwrapping a porn magazine from its mailing wrapper; these steps which must be taken to view porn do not take the items out of the definition of "explicit sexual materials."

This defendant was not successful in his arguments to the court, but making sure the acts of a person amount to a crime under state laws is essential in any criminal representation. A dedicated and experienced attorney familiar with how criminal laws are interpreted can assist in this important inquiry.