In the case of A.H. vs. the State of Florida, two teenagers were prosecuted and convicted under child pornography laws in a situation that brings up questions about privacy and how laws should be adapted to new technologies and extreme circumstances. In this case, A.H. who was 16, and J.G.W., who was 17, photographed themselves engaged in sexual acts. A.H. then went on to e-mail these pictures to J.G.W.’s private e-mail address. By doing this, the courts charged each with one count of producing, directing or promoting a photograph or representation that they knew to include the sexual conduct of a child, in violation of section 827.071(3), Florida Statutes. Section 827.071.(3), prohibits one from producing, directing or promoting a photograph or representation that the person knows to include sexual conduct of a child.
The defendants claimed that since they were the ones that took the photographs, and because the photographs were not shown to a third party, that their right to privacy was protected and that they reserve the right to expect this privacy to be protected. Florida’s right to privacy is a fundamental right that requires evaluation under a compelling state interest standard. However, before the right to privacy attaches and the standard is applied, a reasonable expectation of privacy must exist. Whether an individual has an expectation of privacy depends on a careful evaluation of the situation.
There were a number of factors that led to the Florida courts to determine that the teens had no expectation of privacy. First, the fact that the teenagers took the photographs to keep as a permanent record cleared all expectations of privacy. Second, the teens had no reasonable expectations that these pictures would never be shown to a third party, whether by accident or because of bragging rights because they are young and naive. Also, the court held that even if they had a reasonable expectation of privacy in the photos, the State had a compelling interest in seeing that the content of the photos, namely, minors engaged in sexually explicit activity “is never produced.” The courts ruled that prosecution of the two teenagers, regardless of their ages, was the best way of continuing this interest.
This case brings up issues of privacy and how to handle cases such as this. The courts basically decided that it was an issue of privacy more than and issue of child pornography. Because the courts decided that the defendants had no legitimate expectation of privacy, they determined that they were distributing child pornography, despite the fact that they were minors and the photographs were not intended to be viewed by anyone but themselves. The courts also said that not only can the two computers be hacked, but by transferring the photos using the net, the photos may have been and perhaps still are accessible to the provider and/or other individuals. Computers also allow for long-term storage of information which may then be disseminated at some later date. On the other hand, if these photographs had been obtained or are ever obtained by hackers, this could be an invasion of the defendants privacy since the pictures were not intended for anyone but themselves.