Is It Legal to Own Computer Files of Child Pornography In Florida ?

In State v. Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997), sheriff office investigators examined the defendant's multiple computer hard drives which contained data in files organized in various subdirectories. There were a number of different types of files, including programs, text files, and image files. The defendant's image files contained numerous images of child pornography that "appeared similar to a photograph on a screen." Pursuant to rule 3.190(c)(4), the trial court dismissed 32 counts of the information which charged the defendant with felony possession of child pornography in violation of subsection 827.071(5). In so ruling, the court adopted the defendant's argument that the language of subsection 827.071(5) does not prohibit possession of pornographic images stored on a computer hard drive. Upon review, the fourth district reversed, ruling that a pornographic computer image of an actual child constitutes "a photograph, representation, or other presentation, the possession of which is punishable as a third degree felony under subsection 827.071(5)" of the Florida Statutes. The court reasoned that a computer image is encompassed by the plain and ordinary meaning of the phrase "representation or other presentation" as defined in the dictionary and as commonly understood. Id. at 437. the court further ruled that the computer images "may" qualify under subsection 827.071(5) as copies of photographs. Pertinent to the issues raised in the instant appeal, the court noted in a footnote that the only expressed legislative intent behind enacting section 827.071 was to make "the possession of one single depiction illegal." Id. at 438 n. 6. In closing, the court ruled that the trial court had erred in dismissing the counts of the information "arising from violations of that subsection." Id. at 441.