Court of Appeals: Child porn law applies to cloud storage

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A Crow Wing County jury convicted a man for possessing child pornography of a minor under 14 years of age. Although he argued that Minnesota law did not apply to possession of the material in a Google cloud account, the Minnesota Court of Appeals was not persuaded.

In 2021, the National Center for Missing and Exploited Children received tips from Google about suspected child pornography downloaded in Minnesota. After the Minnesota Bureau of Criminal Apprehension was notified, it subpoenaed Google. Google identified the Google cloud account, and internet service Spectrum provided the IP address that uploaded the photos. Jim Duramax Whitcomb in Crosby, Minnesota, was identified as the account subscriber.

After a search of Whitcomb’s home, no seized devices contained child pornography. However, Google provided information about the cloud account. There were two folders in the cloud account, one of which mainly contained adult pornography. The second folder contained mostly child pornography, as well as sexually explicit photos of Whitcomb and nonexplicit photos of his stepdaughter.

Whitcomb was charged with 12 counts of possession of pornographic works involving a minor under 14 years. The jury found Whitcomb guilty of all 12 counts.

Whitcomb challenged the conviction.

Under Minn. Stat. § 617.247, subd. 4(a), it is impermissible for a person to possess “child sexual abuse material on a computer disk or computer or other electronic, magnetic, or optical storage system or a storage system of any other type.”

Whitcomb maintained that the Google cloud account was not a “storage system of any other type.” Whitcomb’s chief argument was that, when the Legislature drafted this portion of the statute, cloud storage was not publicly available. Therefore, he maintained, the Legislature could not have intended that cloud storage counted as a “storage system of any other type.”

In an opinion released Jan. 20, the court disagreed.

“Instead of dissecting the statutory language itself to ascribe multiple reasonable interpretations to the language selected by the Legislature, Whitcomb instead argues that the Legislature could not have intended to include cloud storage within the definition of a ‘storage system of any other type,’ given the state of available technology at the time this language was added to the statute,” wrote Judge Jennifer Frisch.

She noted that his arguments about the availability of cloud computing were “not germane” to the issue of interpretation.

Frisch determined that the statute was not ambiguous, noting that the Legislature included the language of other types of storage systems. Citing prominent definitions of cloud computing, which all discussed storage, the court found that cloud storage was a “storage system of any other type.”

Whitcomb also argued that he did not constructively possess the Google cloud account. However, the court pointed to the IP address associated with his home, that the account was accessed from his workplace, and that Whitcomb stated that he was curious about child pornography and that the curiosity was problematic for him.