Mr. Kuniansky has defended numerous child pornography cases in both federal and state court. With the advent of the internet and peer to peer file sharing programs (such as Limewire and Frostwire), child pornography is readily available and shared among those with a interest in viewing and/or collecting child pornography. The government is unable to catch those creating child pornography, so they go after those collecting child pornography. The government has become very sophisticated in their methods of catching those involved in collecting. Photographs on a computer are similar to fingerprints. Law enforcement has fingerprints of known child pornography photographs that are distributed over the internet. These known photographs contain images of minors that have been identified by name and age. The government is able to use special software to scour the internet for computers with peer to peer programs that contain these known images. The government is then able to determine the IP address for the computer and subpoena the internet service provider to identify the name and address of the account holder. The government then obtains a search warrant to search the residence (or office) and seize computers and hard drives. As a result, the government is able to know what child pornography images are on the computer before they even execute the search warrant.
When the government executes the search warrant, they question those present to determine who is the person using the offending computer. They then question that person and say, “We already know what is on the computer, and that you are the one using the computer. It will go easier on you if you just tell us why you are collecting those images.” In many cases, they obtain a confession. If no confession is obtained, the primary defense utilized is that the Defendant was unaware of the images on the computer, which must have been downloaded by someone else that had access to the computer. A secondary defense is that the Defendant is not guilty of distribution (which carries much harsher penalties than possession), because he was unaware the default setting of the peer to peer program allowed for the images to be distributed.
The penalties for those found guilty of possessing and/or distributing child pornography are extremely serious. Often, much can be done to reduce the sentence through a sentencing memorandum setting forth reasons both factually and legally why the Court should give a lesser sentence than the harsh guideline range recommended by the Federal Sentencing Guidelines.