by Matthew L. Mitchell
Scenario: An employer’s Information Technology department performs a routine software update on an employee’s office computer. During the course of the maintenance, an Information Technology professional discovers what appears to be child pornography saved on the hard drive.
This nightmare scenario raises several very difficult questions for the employer:
- Should the matter be resolved through internal discipline procedures, or should (or must) the employer involve local police or other law enforcement authorities?
- What should the employer do with the offending images or materials?
- Should the employer conduct a further investigation?
The answers to these questions depend on a rapidly evolving body of case law and statutes, including statutory mandates that impose specific, affirmative duties on employers who discover child pornography in the workplace. Employers must be aware of their duties and responsibilities, and be prepared to act when violations occur. Failure to adhere to these mandates may subject employers to significant penalties and criminal sanctions.
Possession of Child Pornography Is a Crime
Under both Massachusettsand federal law, it is a crime to “knowingly possess” child pornography. See M.G.L. ch. 272, §29C ; 18 U.S.C. § 2552. As such, if child pornography is discovered in the workplace or on company computer networks, the employer is in violation of these laws. Under the federal law that criminalizes possession of child pornography, 18 U.S.C. § 2252, an employer that discovers child pornography in the workplace may limit its liability if it “promptly and in good faith” (a) destroys the offending materials; or (b) informs a law enforcement agency that it has discovered illegal child pornography and affords that agency the opportunity to access the materials. See 18 U.S.C. § 2252(c). This “safe harbor” may, however, be at odds with other statutory and regulatory mandates. For example, as discussed below, there are federal and state statutes, potentially applicable to some employers, which expressly prohibit the destruction of evidence of child pornography.
In addition, most jurisdictions, including Massachusetts, recognize that willful or deliberate ignorance is tantamount to actual knowledge of the wrongdoing. See, e.g., United States v. Guerrero, 114 F.3d 332, 343 n. 12 (1st Cir.1997) (“Where ‘the facts suggest a conscious course of deliberate ignorance,’ a jury is warranted in finding the defendants’ deliberate ignorance of criminal events, which is tantamount to knowledge.”) (internal citations omitted). Accordingly, if an employer has reason to suspect that an employee is storing child pornography at the worksite or within employer’s computer systems, the employer may not avoid liability by simply ignoring the situation. Rather, depending on the circumstances, the employer may have a duty to investigate the employee’s activities, including searching its computer files or monitoring employee’s computer usage, and taking prompt remedial action if offending material is discovered. This duty may trump any privacy rights of the employee. See, e.g., Doe v. XYZ Corporation, 887 A. 2d 1156, 1158 (N. J. Super. 2005) (“[An] employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee’s activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties. No privacy interest of the employee stands in the way of this duty on the part of the employer.”).
Under both Massachusettsand federal law, penalties for knowing possession of child pornography include substantial fines and prison sentences. See M.G.L. ch. 272, § 29C (imposing state prison terms of up to 5 years, and fines up to $30,000 for knowing possession of child pornography); 18 U.S.C. § 2252 (imposing up to 20 year prison sentences for knowing possession of child pornography).
A Duty to Report?
There are several federal and Massachusettsstatutes that may impose affirmative duties on Massachusettsemployers to report child pornography to law enforcement authorities. For example, federal statute 18 U.S.C. § 2258A requires “whoever, while engaged in providing an electronic communication service or a remote computer services. . ., obtains actual knowledge of any facts or circumstances [concerning child pornography] . . . [must] provide to the CyberTipline of the National Center for Missing and Exploited Children . . . a report of such facts and circumstances. . .” 18 U.S.C. § 2258A. If the “facts and circumstances” of child pornography include physical materials, such as images, data, or digital files, those materials must be preserved in a “secure location,” and made available to the appropriate authorities upon request. 18 U.S.C. § 2258A(h). For purposes of the statute, the term “electronic communication service” is defined broadly as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510. On its face, the statute appears to apply its mandatory reporting requirement to any employer that provides e-mail access to its employees. Although some commentators suggest that the scope of 18. U.S.C. § 2258A is limited to Internet Service Providers (such as Comcast or Verizon), this limitation has not been addressed in regulations or case precedent.
Also, under Massachusetts General Law Chapter 119, §51A, certain “mandated reporters,” such as school or hospital employees, are required to report suspected incidents of child abuse and neglect to law enforcement authorities.
In addition to these statutory mandates, employers have been found liable for common law negligence for failing to report child pornography found on a work computer. In the New Jerseycase of Doe v. XYC Corporation, a mother, on behalf of her daughter, brought a negligence action against her husband’s employer, seeking to hold employer liable for the husband’s use of workplace computer to access pornography and send nude photographs of the daughter to a child pornography site. Although the employer was on notice that the husband was using work computers to access pornographic websites, the employer did not investigate the husband’s behavior or report his conduct to authorities. In reversing summary judgment in the employer’s favor, the court held that the employer “had a [common law] duty to report Employee’s activities to the proper authorities and to take effective internal action to stop those activities, whether by termination or some less drastic remedy.” See XYC Corporation, 887 A. 2d at 1168.
In sum, employers must be prepared to promptly report incidents of suspected child pornography to law enforcement authorities.
The Need to be Proactive
Although it is critically important for employers to understand the appropriate actions to take after discovering child pornography, it is equally important to adopt policies and procedures that limit the likelihood of such illegal material entering the work place. A fundamental tool in this regard is an effective media policy that addresses employee use of workplace computer equipment and systems. Such a policy should:
- Restrict employee computer use to authorized work-related activities and limited personal use that does not interfere with work activities or burden the employer’s computer system;
- Notify employees that work computers, e-mail accounts, and internet activity may be monitored by the employer, and that employees have no expectation of privacy in information stored on such equipment or transmitted through such services;
- Notify employees that the employer reserves the right to monitor employee usage of company computer equipment and systems; and
- Inform the employee that illegal use of the company’s computer systems may be reported to law enforcement authorities.
Employers should also be committed to enforcing the policy. When an employer suspects or becomes aware of an employee’s misuse of company computer systems, the employer should engage in a prompt and thorough investigation. If the investigation reveals inappropriate employee conduct, the employer should take remedial action. As discussed above, such action may involve subjecting the employee to internal disciplinary procedures or, if circumstances warrant, reporting the employee’s conduct to the appropriate authorities.
Although the statutory and case precedent on this issue continues to evolve, a clear principle has emerged: employers may not ignore employee conduct that may involve child abuse or child pornography.
Matthew L. Mitchell is a partner at Holland & Knight LLP. Mr. Mitchell represents businesses and educational institutions on a broad range of employment, student, and compliance related matters.
by Michael J. Pelgro
Possession of child pornography now makes up an increasing proportion of the crimes charged in federal district courts. Hardly a week goes by without a fresh news story concerning a person charged in federal court because his computer contained child pornography images. As for all federal crimes, sentencing in child pornography cases is influenced by the United States Sentencing Guidelines (“Guidelines”). The Guidelines were promulgated in November 1987 by the United States Sentencing Commission (“Commission”), a bipartisan agency established by Congress in the Sentencing Reform Act of 1984. The Commission’s mandate was to construct, and revise annually, mandatory Guidelines encompassing all federal crimes, with a goal of ensuring certainty and fairness, and avoiding unwarranted disparities, in federal criminal sentencing decisions. In 2005, the Supreme Court decided United States v. Booker, which rendered the Guidelines advisory. United States v. Booker, 543 U.S. 220, 261-63 (2005). No longer mandatory, but backed by the Commission’s study and expertise, the Guidelines continue to play a “central role” and provide “gravitational pull” in federal sentencing. The primary guideline for child pornography cases, §2G2.2, however, has been criticized as “an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.” United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010). This guideline resulted from Congressional dictates, rather than the Commission’s traditional “empirical approach,” an unusual history that has generated widespread judicial and commentator disagreement with the sentencing ranges recommended by this guideline.
The controversy is reminiscent of the longstanding criticism of the 100:1 ratio that Congress used in determining minimum mandatory penalties in cocaine cases. In the mid-1980s, fueled by the perception that crack cocaine was more addictive and more dangerous than powder cocaine, Congress directed that five-year and ten-year minimum mandatory prison sentences apply to quantities of crack cocaine 100 times less than powder cocaine. The Commission followed the same proportionality in fashioning the crack cocaine guidelines, thus mandating lengthy federal prison sentences in cases involving small amounts of crack cocaine. Judicial and commentator backlash against this 100:1 ratio caused the Commission to reassess the fairness of the penalties and the assumptions on which they were based, which in turn led Congress to abandon the 100:1 ratio in the Fair Sentencing Act of 2010, thus allowing the Commission to lower the crack cocaine guidelines.
Now, in a similar groundswell, an increasing number of federal judges are speaking out against the child pornography guideline and, in this post-Booker sentencing era, are refusing to follow its recommended imprisonment ranges. This backlash is now causing the Commission to study the guideline and the assumptions on which it is based. These developments suggest that Congressional action may be forthcoming.
II. The History of the Child Pornography Sentencing Guideline
While the Supreme Court’s landmark Booker decision rendered the Guidelines advisory, the Court has made clear that they remain “the starting point and the initial benchmark” in the federal sentencing process and that they “deserve some weight in the sentencing calculus, as they are ‘the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.’” Much time and attention is still devoted in federal court to the proper calibration of the Guideline imprisonment ranges precisely because federal judges continue to give weight to them and often defer to the Commission’s historical expertise in fashioning recommended ranges of imprisonment.
The Commission’s usual empirical approach was not followed, however, in the development of the child pornography guidelines, which were substantively revised to increase penalties nine times in the 22 years following their promulgation in 1987. The Commission was not allowed to play its traditional institutional role in fashioning recommended imprisonment ranges for such offenses. Rather, Congress took over the process, “prompting the Commission to respond to multiple public laws that created new child pornography offenses, increased criminal penalties, directly (and uniquely) amended the child pornography guidelines, and required the Commission to consider offender and offense characteristics for the child pornography guidelines.” Id. at 54. Courts and commentators have remarked on Congress’s unique exertion of its authority and influence in the development of the child pornography guidelines. As one commentator put it, the child pornography guidelines were not “the product of an empirically demonstrated need for consistently tougher sentencing” but rather were “largely the consequence of numerous morality earmarks, slipped into larger bills over the last fifteen years, often without notice, debate, or study of any kind.” The result is a guideline — §2G2.2 — that recommends years of imprisonment for all child pornography defendants, no matter their “history and characteristics” or the “nature and circumstances of the offense.” 18 U.S.C. §3553(a)(1).
A. The Amendments
When the Guidelines were promulgated in 1987, possession of child pornography was not a federal crime. Section 2G2.2 encompassed the crimes of transport, distribution, and receipt of child pornography; it set the Base Offense Level (“BOL”) at 13. The BOL determines the proposed length of a sentence before consideration of any aggravating or mitigating factors. In November 1990, Congress passed a statute which criminalized possession and directed the Commission to increase penalties for sexual crimes against children. Thus began a years-long process involving Commission study and proposals to achieve proportionality in punishment and Congressional rejection of the proposals in favor of increased punishment across the board.
In 1991, for example, the Commission proposed setting a lower BOL (10) for the similar crimes of receipt and possession of child pornography. In response, Congress insisted that the crimes of receipt, transportation, and distribution remain in the same guideline and that the BOL for those crimes be increased. It also directed the Commission to create a separate guideline for possession (§2G2.4) with a higher BOL (13) than that recommended by the Commission and with an enhancement for possession of 10 or more items.
A similar back-and-forth took place in 1995, when the House of Representatives passed a proposal to increase the BOL to 15 and to add a use-of-computer enhancement for possession offenses. The amendment, passed over the Commission’s objection, did both. This enhancement increases the imprisonment range in virtually every child pornography case now prosecuted in federal court.
In 2003, Congress passed the PROTECT Act, directly amending the Guidelines for the first time. Insertion of the Feeney amendment into the popular Amber Alert bill dramatically changed the child pornography guidelines by creating 5-year minimum mandatory sentences for trafficking and receipt, raising the statutory maximum for possession from 5 to 10 years, and directly amending the possession guideline (§2G2.4) to add an escalating enhancement based on the number of images. Despite objection by the Commission and others, including a former United States Attorney, the PROTECT Act and the Feeney amendment (which was debated in Congress for just 20 minutes), became law in April 2003.
To remedy the ensuing confusion and harmonize sentences for receipt and possession offenses, the Commission proposed in 2004 consolidating the possession guideline (§2G2.4) with the transport, distribution, and receipt guideline (§2G2.2). These amendments took effect in November 2004. Now a single guideline — §2G2.2 — encompasses possession, receipt, and trafficking offenses.
III. Judicial Reaction To The Child Pornography Guidelines
Courts have recognized that the Congressionally-manipulated guideline has resulted in unusually severe sentences in many child pornography cases. With the flexibility allowed by Booker, courts are giving little or no deference to the child pornography guidelines, concluding that they do not reflect the Commission’s traditional empirical approach and do not further the sentencing objectives embodied in 18 U.S.C. §3553(a). Federal judges are giving little or no deference to the child pornography guidelines, relying for support on judicial treatment of the crack cocaine guidelines.
In Kimbrough v. United States, a 2007 crack cocaine case, the Supreme Court reaffirmed Booker and held that a sentencing court has the discretionary authority to disagree with the policy embodied in a guideline if it determines that the guideline’s recommended imprisonment range is “greater than necessary to serve the objectives of sentencing.” Kimbrough v. United States, 552 U.S. 85, 91 (2007)(quoting 18 U.S.C. §3553(a)). The Court observed that the Commission’s adoption of the 100:1 crack/powder cocaine sentencing ratio in the drug guideline was based not on empirical research, but on the minimum mandatory sentences dictated by Congress. Therefore, the Court ruled, a sentencing court may impose a sentence below the guidelines. Similarly, in Spears v. United States, the Court explained in 2009 that a court may sentence below the crack-cocaine guidelines based solely on a policy disagreement with the guidelines even where a defendant presents no special mitigating circumstances warranting a below-guideline sentence. Spears v. United States, 555 U.S. 261, 263-64 (2009)(per curiam).
Kimbrough and Spears paved the way for sentencing courts to depart from the guidelines in all cases, providing flexibility to sentence on a more individualized basis. Courts have, as a result, begun to reject or give little deference to §2G2.2. In United States v. Dorvee, relying on the unique history of Congressional involvement in amending the child pornography guidelines, the Second Circuit affirmed a below-guideline child pornography sentence, observing that §2G2.2 “is fundamentally different from most and that, unless applied with great care, can lead to unreasonable sentences that are inconsistent with what §3553 requires.” Dorvee, 616 F.3d at 184. In United States v. Grober, the Third Circuit affirmed on Kimbrough grounds a variant child pornography sentence based on the view that §2G2.2 “leads to a sentence that is too severe in a downloading case.” United States v. Grober, 624 F.3d 592, 596 (3rd Cir. 2010)(quoting United States v. Grober, 595 F.Supp.2d 382, 394 (D. N.J. 2008)). After reviewing §2G2.2’s history, the Court concluded that “the Commission probably did the best it could under difficult circumstances but to say that the final product is the result of Commission data, study, and experience simply ignores the facts.” Grober, 624 F.3d at 608 (quoting United States v. Diaz, 720 F.Supp.2d 1039, 1045 (E.D. Wis. 2010)). While the First Circuit has yet to issue a similar type of opinion, it has observed that Kimbrough applies to the child pornography guidelines, which are “harsher than necessary.” United States v. Stone, 575 F.3d 83, 89-94 (1st Cir. 2009).
Many district courts across the country have similarly opined, expressing variations on the view that §2G2.2 is “seriously flawed and accordingly entitled to little respect,” with federal judges declaring that §2G2.2 “is just as flawed as the crack guideline” or that a sentencing judge is “entitled to reject it entirely.” Federal district judges in Massachusetts have not yet issued similar written opinions but have imposed below-guideline sentences in child pornography cases, expressing their disagreement with the severity of §2G2.2. The latest Commission statistics on federal sentencing decisions reflect the reality that federal judges across the country are increasingly using their Kimbrough authority to impose below-guideline sentences in child pornography cases. 2011 Sourcebook of Federal Sentencing Statistics (available at www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2011/SBTOC11.htm ) (last checked May 25, 2012).
Like the crack cocaine guidelines, the child pornography guidelines have generated negative reaction based on the unique level of Congressional involvement in their development. In response, after producing a comprehensive report documenting the history of these guidelines, the Commission has made the study of this serious crime, and the appropriate punishment of it, one of its top priorities in 2012. It is ultimately up to Congress, however, to address the perceived disproportionality of these guidelines, as it eventually did with crack cocaine. Given the strong emotions and revulsion among the public about this crime, it is unclear at this time whether Congress will do so. In the meantime, the controversy rages on in federal courtrooms here in Massachusetts and across the country.
Michael J. Pelgro is a Partner at Perry, Krumsiek & Jack, LLP in Boston, where he specializes in criminal defense, internal investigations, and civil litigation. He spent several years as a state and federal prosecutor and was Chief of the Drug Unit at the U.S. Attorney’s Office in Boston.
 U.S. Sentencing Commission, Transcript of Public Hearing on Federal Child Pornography Crimes at 6 (Feb. 15, 2012)(Introductory Statement of The Honorable Patti B. Saris, Chair) (available at www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20120215-16/Agenda_15.htm ) (last visited May 25, 2012).
 United States Sentencing Commission, Prepared Testimony of Judge Patti B. Saris, Chair, United States Sentencing Commission, Before the Subcommittee on Crime, Terrorism, and Homeland Security, United States House of Representatives at 1 (Oct. 12, 2011) (available at www.ussc.gov/Legislative_and_Public_Affairs/Congressional_Testimony_and_Reports/index.cfm) (last visited May 25, 2012).
 Gall v. United States, 552 U.S. 38, 49-50 (2007); Rita v. United States, 551 U.S. 338, 349-50 (2007); United States v. Martin, 520 F.3d 87, 90 (1st Cir. 2008)(quoting Gall, 552 U.S. at 46)).
 United States Sentencing Commission, Report on the History of the Child Pornography Guidelines at 54 (Oct. 2009) (available at www.ussc.gov/Publications/Offense_Types/index.cfm/20091030_History_Child_Pornography_Guidelines.pdf) (last visited May 16, 2012) (hereinafter referred to as “Commission Report”).
 T. Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines at 3 (2009)(available at www.fd.org/navigation/select-topics-in-criminal-defense/common-offenses/child-pornography-and-other-sex-offenses ) (last visited May 25, 2012) (hereinafter referred to as “Stabenow Article”).
 Commission Report at 10 and fn. 45; Stabenow Article at 3-4.
 Commission Report at 17; Stabenow Article at 4.
 Commission Report at 38-39; Stabenow Article at 18.
 See also United States v. Twitty, 612 F.3d 128, 131-32 (2d Cir. 2010)(vacating sentence on plain-error review where district court mistakenly believed that it could not consider a broad, policy-based challenge to the child pornography guidelines); United States v. Dattilio, 2011 WL 4485165 at *6 (6th Cir. 2011)(holding that a district court disagreeing with the child-pornography GSR for policy reasons may reject that GSR based on that disagreement); Henderson, 649 F.3d at 963 (holding that, “similar to the crack cocaine Guidelines, district courts may vary from the child pornography Guidelines, §2G2.2, based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.”). See generally M. Hamilton, The Efficacy Of Severe Child Pornography Sentencing: Empirical Validity Or Political Rhetoric, 22 Stan. L. & Pol’y Rev. 545, 559-73 (2011)(collecting and discussing cases); Note, Congressional Manipulation Of The Sentencing Guideline For Child Pornography Possession: An Argument For Or Against Deference, 60 Duke L.J. 1015, 1032-35 (Jan. 2011)(collecting cases).
 The Court noted that a Sentencing Commission survey “found widespread dissatisfaction with §2G2.2” in that 70% of responding judges who sentenced defendants after Kimbrough and Gall “reported that the Guidelines range for possession was too high.” Id. at 606-07.
 See also United States v. Apodaca, 641 F.3d 1077, 1082-83 (9th Cir. 2011) (observing that several circuit courts “have criticized the Guidelines-recommended sentence for possession-only offenders … as being unduly severe” and that “an increasing number of district courts have refused to follow the Guidelines and have departed downward when sentencing possession-only defendants”).
 In affirming the sentence in a transportation of child pornography case, the Court added a “coda” that “[w]ere we collectively sitting as the district court, we would have used our Kimbough power to impose a lower sentence.” Id. at 97.
 United States v. Donaghy, 2010 U.S. Dist. LEXIS 77007 at *6-7 (E.D. Wis. 2010)(collecting cases); Diaz, 720 F.Supp.2d at 1041-42 (collecting cases); Phinney, 599 F.Supp.2d at 1040); United States v. Beiermann, 599 F.Supp.2d 1087, 1104 (N.D. Iowa 2009). See also United States v. Cameron, 2011 WL 890502 at *6 (D. Me. 2011)(“This Court joins other courts which have expressed unease with §2G2.2 and the escalating impact of its enhancements.”); United States v. Zapata, 2011 WL 4435684 at *3 (N.D. Ind. 2011)(“[J]udges across the country have declined to impose sentences within the range recommended by Guideline §2G2.2.”); Gordon v. United States, 2011 U.S. Dist. LEXIS 72592 at *7, 10-11 (S.D. N.Y. 2011)(granting §2255 petition to vacate child pornography sentence on the ground that the court committed a fundamental defect resulting in a miscarriage of justice in assuming that more expertise underlay §2G2.2 than was the fact).
 See, e.g., United States v. Paul Proulx, Crim. No. 11-10274-JLT (Court rejected GSR of 51-63 months’ imprisonment in favor of sentence of 5 years’ probation with home detention in possession case); United States v. Shalin Bhavsar, Crim. No. 10-40018-FDS (Court rejected GSR of 41-51 months’ imprisonment in favor of sentence of 3 months’ imprisonment in possession case based, in part, on Congress’ “unique” involvement in the development of the guideline); United States v. Lawrence Follett, Crim. No. 10-10316-GAO (Court rejected GSR of 51-63 months’ imprisonment in favor of sentence of 18 months’ imprisonment in possession case based, in part, on view that a sentence within the GSR would be greater than necessary to accomplish the goals of §3553(a)); United States v. Simeon Stefanidakis, Crim. No. 10-10174-WGY (Court rejected GSR of 151-188 months’ imprisonment in favor of sentence of 84 months’ imprisonment in transportation case); United States v. Johnny Pires, Crim. No. 08-10063-RWZ (Court rejected GSR of 135-168 months’ imprisonment in favor of minimum mandatory sentence of 60 months’ imprisonment in receipt case based, in part, on belief that §2G2.2 is “arbitrary and unreasonable”); United States v. Tyler Helbig, Crim. No. 08-30052-MAP(Court rejected GSR of 30-37 months’ imprisonment in favor of sentence of 5 years’ probation in possession case).