Proof That An Internet Communication Necessarily Traveled Across State Lines

In a case involving the transmission of child pornography in interstate commerce, circuit declined to take judicial notice sua sponte under FRE 201(c) that the Internet transmission of charged pornographic images went between states to satisfy the jurisdictional element of 18 U.S.C. § 2252A, in United States v. Schaefer, 501 F.3d 1197 (10th Cir. Sept. 5, 2007) (No. 06-3080), prompting a statutory change to clarify the scope of the jurisdictional requirement, making the assumption about the connection between the Internet and Interstate and Foreign Commerce tenable

Before it was amended in 2008, 18 U.S.C. § 2252A required that the prosecution show that a particular pornographic image had been mailed, shipped, or transported “in interstate commerce or foreign commerce.” As a result, at least in the Tenth Circuit, “it [wa]s not enough to assume that an Internet communication necessarily traveled across state lines in interstate commerce” so that when a particular image had been downloaded from the Internet, this was sufficient to prove that the charged image "must have traveled across state lines." Schaefer, 501 F.3d at 1200-01. Notably, other circuits disagreed and on October 8, 2008, Congress responded by amending § 2252A to "make clear that such an assumption will be tenable in future cases." See David M. Frommell, Note: Pedophiles, Politics, and the Balance of Power: The Fallout From United States v. Schaefer and the Erosion of State Authority, 86 Denv. U. L. Rev. 1155 (2009).

In the Tenth Circuit case to which Congress responded, defendant Schaefer was charged with receiving and possessing child pornography in using his computer and credit cards to subscribe to websites containing images of child pornography, which were found on the defendant’s computer and CDs in his possession. However, at the defendant’s bench trial, “[n]o evidence … explained where Mr. Schaefer obtained the [child pornographic] visual depictions found on the CDs or who placed the images on the CDs. Moreover, no evidence indicated where the websites Mr. Schaefer accessed were based, where the websites’ servers were located, or where Mr. Schaefer’s Internet provider’s server was housed…. The court did not fully elaborate in its ruling as to how the government satisfied the jurisdictional prong of [18 U.S.C.] §§ 2252(a)(2) and (a)(4)(B) - that the ‘visual depiction had been mailed, shipped, and transported in interstate or foreign commerce by computer or other means.’” Schaefer, 501 F.3d at 1199. Upon his conviction, the defendant appealed, contending the government produced insufficient evidence on the interstate nexus required by the statute and that there was a “complete absence of proof at trial that the images he possessed and received traveled across state lines.”

The Tenth Circuit reversed and remanded, finding that the evidence on the jurisdictional nexus (that there be a movement across state lines of the prohibited material) was insufficient. As the circuit noted, “use of the Internet, standing alone, was not sufficient to establish that the child-pornography images at issue moved across state lines.” Schaefer, 501 F.3d at 1198. The circuit noted that “it is not enough to assume that an Internet communication necessarily traveled across state lines in interstate commerce.” The circuit found a plain failure to present sufficient “evidence for the jurisdictional requirement under §§ 2252(a)(2) and (a)(4)(B).” Schaefer, 501 F.3d at 1201 n.7, The circuit cogently stated the problem:

We hold that the government did not present sufficient evidence to support the jurisdictional nexus of the § 2252(a) provisions at issue. They require a movement between states. The government did not present evidence of such movement; instead, the government only showed that Mr. Schaefer used the Internet. We recognize in many, if not most, situations the use of the Internet will involve the movement of communications or materials between states. But this fact does not suspend the need for evidence of this interstate movement. The government offered insufficient proof of interstate movement in this case.
Schaefer, 501 F.3d at 1201.

The circuit suggested the interconnectivity could make it likely that any transmissions would involve the “interstate and international architecture and operation of the world wide web.” Schaefer, 501 F.3d at 1201 n.8 (citing Reno v. ACLU, 521 U.S. 844, 849 (1997) (“The Internet is an international network of interconnected computers.”)). However, the circuit declined to “assume this intuitive fact (i.e., a movement via the Internet of child-pornography images between states) on the record before us.” The circuit concluded that because the government did not ask the circuit to take judicial notice of movement via the Internet of transmissions between states, it would not do so sua sponte. “As to judicial notice, we recently declined to use the doctrine in a case involving computer technology. Although judicial notice may be taken sua sponte, Fed. R. Evid. 201(c), it would be particularly inappropriate for the court to make broad assumptions about the Internet absent notice to and comment by the parties.” Schaefer, 501 F.3d at 1201 n.8 (citing United States v. Andrus, 483 F.3d 711, 721 (10th Cir. 2007) (refusing to “take judicial notice that password protection is a standard feature of operating systems”)).

As noted above, Congress redressed the problem by clarifying that it was using the full scope of its powers. It changed the provisions of 18 U.S.C. § 2252A (2006), which at the time of the defendant's conviction had read: “Any person who knowingly mails, or transports or ships in interstate or foreign commerce by means, including by computer, any child pornography ....” After October 8, 2008, the provision would read: “[a]ny person who knowingly mails, or transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any child pornography ....” (emphasis added). In fact, the Tenth Circuit later made clear that it considered its holding in Schaefer as “limited to its facts-the government's say so was not enough to prove that the Internet operates in interstate commerce, no matter how obvious.” United States v. Vigil, 523 F.3d 1258, 1266 (10th Cir. 2008).

Federal Rules of Evidence