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It may be called the World Wide Web, but the government cannot automatically equate Internet use with movement of photos of child pornography across state lines, the 10th U.S. Circuit Court of Appeals has held. The Sept. 5 decision breaks with two other circuits, the 3rd and 5th, which simply assumed that the interstate character of the Internet means a connection to a Web site server invariably involves data moving in interstate commerce. Judge Jerome A. Holmes ordered the reversal of the conviction of William Schaefer for receipt and possession of images of the sexual exploitation of children. Holmes, joined by Judges David M. Ebel and Timothy M. Tymkovich, wanted more than proof that Schaefer used the Internet. The government failed to offer any evidence to establish the requisite jurisdictional nexus of a movement across state lines to show interstate commerce. Schaefer’s use of the Internet alone is not sufficient, the court said. The government must show the images moved between states. “Simply stated, we decline to assume that Internet use automatically equates with a movement across state lines. With respect to such interstate movement, the government must introduce sufficient evidence to satisfy its burden of proof,” wrote Holmes in U.S. v. Schaefer, No. 06-3080. The government maintained that the evidence was sufficient because the compact disks containing child porn found in Schaefer’s Topeka, Kan., home were re-writable, thus able to accept downloaded images from the Internet. They contained foreign-language movie clips of child porn and an image of one girl was familiar to police as having been on the Internet in other investigations. Howard A. Pincus, Schaefer’s appellate attorney from the Denver federal public defender’s office, declined to comment while the government still has the opportunity to seek reconsideration. The U.S. attorney’s office in Topeka did not return a message left requesting comment. A circuit split Holmes said the panel disagrees with the 3d Circuit’s decision in U.S. v. MacEwan, 445 F.3d 237 (2006), and the 5th Circuit’s ruling in U.S. v. Runyan, 290 F.3d 223 (2002). In MacEwan, the 3d Circuit held that given the interstate character of the Internet, connection to a Web site or server must involve data moving in interstate commerce. Holmes said the 3d Circuit overlooked “in commerce” language used by Congress and recast jurisdiction in the child porn statute to be satisfied by use of an “interstate facility,” and that the Internet was just such a facility. The 5th Circuit’s Runyan case assumes, without discussion, that use of the Internet may be equated with a movement in interstate commerce in child pornography cases. The panel also distinguished Schaefer’s case from the 1st Circuit in U.S. v. Carroll, 105 F.3d 740 (1997). The Carroll case held that transmission of photographs via the Internet was “tantamount” to moving them through interstate commerce. Tymkovich, in a separate concurring opinion, noted that, “given the architecture of the Internet, it is vanishingly remote that an image did not cross state lines. Another case may well be a candidate for judicial notice of this issue,” he wrote. The government did not request judicial notice in this case.

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