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The Ninth Circuit Vacates a Restitution Award in a Child Pornography Case

Joshua Kennedy was flying into Seattle from overseas. Customs searched his laptop and found child pornography on it. The appeal of his conviction was decided today by the Ninth Circuit today in United States v. Kennedy, presenting a really interesting take on the scope of federal restitution — and the kind of harm that comes from the transportation of child pornography.

As an aside, let’s stop there for a second. Did you know that the government can search you at the border (meaning, basically, anywhere Customs has a checkpoint)? Searches of computers at the border are way more common than I suspect most people suspect. Legal challenges are being mounted.

The searches of laptops at the border are invasive. And they don’t require probable cause. Customs can search everything on your iPhone anytime you fly back from overseas. They don’t need a reason. They can just take your phone and search it. Surely the amount of our personal lives that we keep on our computers and phones counsels in favor of rethinking this rule at some point. Is there a greater threat to national security, or whatever, if I email myself a file from Paris than if I put it on a thumb drive and carry it through Customs?

Anyway, back to the restitution issue.

Mr. Kennedy was convicted of transporting child pornography. The government asked the district court to impose a restitution order, because two of the women who were depicted in the images that were found on his computer. The government submitted evidence that having their earlier abuse viewed by strangers has been very damaging.

Psychologists presented evidence of the harm they’d suffered. One of the women said every time a victim notice came from a US Attorney’s office she would have a panic attack (one would hope that she could simply take her name off of the notification list, but I know the federal victim notification laws are complicated).

One woman asked for $3 million. The other asked for $227,000.

The district court gave them $1,000 for each image they were in, basically throwing its hands up on how to figure out what the measure of damages for a situation like this should be.

The Ninth Circuit reversed. The Court noted that to succeed in a claim for restitution, the government has to show that the defendant’s conduct was a cause of the harm that was suffered by the victim. So, here, the women seeking money would have to show that Kennedy’s possession of their image caused them to be harmed.

The Ninth Circuit said, basically, no way. The women were harmed, to be sure, but Kennedy’s possession of the images wasn’t known to them — if he hadn’t possessed them, they would have been no better off. That he did possess them rendered them no worse off. So, because his possession didn’t change the quantity or quality of harm suffered by the women, Kennedy didn’t cause the harm.

It’s a compelling theory of causation, I think, and it resolves what was developing into a thorny issue of public policy. Restitution in situations like this have been kind of a hot area in the press lately. This guy seems to have built a whole practice area on it. The New York Times has written about the controversy.

I can’t wait to see how long it takes for the Supreme Court to reverse, or Congress to amend the statute.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

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