Under federal law, child pornography is any “visual depiction” of a minor who is engaging in “sexually explicit conduct.” A visual depiction can be a photo, video, or even a digital image. A minor is anyone under the age of 18. “Sexually explicit conduct” can include a wide range of sexual activity, including intercourse, masturbation, and exhibition of the genitals or pubic area of any person. Nudity is explicit conduct if it is sexually suggestive.

It's illegal under 18 U.S.C. § 2252 to produce, distribute, receive, or possess any child pornography. Under federal law, it's also illegal to knowingly search for and view child pornography, even if the images are deleted.

A conviction for federal child pornography carries severe penalties, including ten years in federal prison for knowingly possessing child pornography and up to 20 years if the minor depicted in the images is under 12 years old. Distribution or receiving child pornography carries a 5 to 20-year prison sentence.

If you have a prior conviction, the penalties will substantially increase.  There are also fines and restitution payments to the victim, and a child pornography conviction in federal court will require registration as a sex offender.

Federal Agents with a Search Warrant

A lot of times in a federal child pornography case, the federal government, along with other agencies, comes to a client's house, serves a search warrant at that house, and seizes and searches computers, cellphones, or any other personal devices that could store child pornography.

They will then sit down and take a statement from the client, asking who owns the computers and who's on the computer, and also discussing any child pornography that might be found on the computers.

Obviously, when they come in, they're coming in having obtained some information, so they're going to investigate your home while they're in there and try to get any information from you so they can try to incriminate you once they are able to download whatever they find on your computer, cellphone, or other devices.

As far as how long it's going to take, it really depends on how difficult it is to access any potential child pornography.  For example, if they could just go on your computer right there and find child pornography — it's not encrypted, and it's not deleted — it's easy to find, then a lot of times they may arrest you on the spot or fairly quickly.

If, on the other hand, it's not clear whether there's more child pornography on your computer or any child pornography on your computer, that can take some time. Now, they will have to send your computer, cellphone, or any other device to one of their forensic analysts for examination.

Probably, if that were the only computer that they had, it wouldn't take them very long to analyze it.  They might do it within a day or so.  That being said, hundreds of computers and devices are being sent for analysis.  It's a process.  It takes time.

So, you're likely to get placed behind the backlog by this sheer volume of work the forensic analysts have when it comes to investigating sex crime cases, child pornography, and the like.

Defenses to Federal Child Pornography Charges

Another question becomes what you can do while waiting for that process to take place, and obviously, the easy answer is to hire an attorney.  What I have you do is come in.  We review how the police may have initially accessed your residence to conduct the search.

What information did they provide the magistrate judge who issued the search warrant to be able to justify it?  They can't just enter anyone's house for any reason.

You've actually got to have a justification for it.  So, that's one of the things we're going to discuss because we may want to attack the search warrant in a child pornography investigation, and say that anything that is found as a result of the search warrant, if the search warrant is unlawful, cannot be used against the defendant.

So, that's one thing you can do.  Get to an attorney and have your attorney evaluate whether or not it was a good search in the first place, and then obviously, your attorney — at least I will — reach out to the agents involved with the case, find out what's going on, find out if there's a prosecutor involved with the case.

If there is, I will call them, introduce myself, and start discussing the matter with them so that they know you're represented and have an attorney. If there is anything related to you that needs to be handled, that can be coordinated through your attorney.

You don't want them just showing up to your house or work and arresting you and embarrassing you in front of your family or co-workers or wherever else they decide to grab you.  I coordinate that all the time, and also if they do find child pornography on your computer, instead of them just coming and arresting you, we can go to court.  We can meet the prosecutor there and attempt to argue for your release from custody.

There are many reasons why you should have an attorney. Your case and circumstances will be very specific, so I encourage you to come and sit down with me.

We will get a game plan together.  We will figure out exactly how to deal with the child pornography investigation and protect all of your rights and interests.