Snapchat Photos Don’t Constitute “Virtual” Physical Presence–People v. White

The defendant was a high school teacher and coach. She sent photos to one of her students, WB, via Snapchat. The court says WB and the defendant never discussed the photos. The court describes the photos as “somewhat risqué” because they featured her partially uncovered breasts. Using a separate phone, WB took photos of the Snapchat photos (this avoided Snapchat’s notifications for screenshotting).

The state prosecuted the defendant for sexual exploitation of a child (Illinois Criminal Code Sec. 11-9.1(a)) on the theory that the defendant exposed herself in a child’s “virtual presence” (a statutorily defined term). The court says virtual presence occurs when:

software, such as webcam video software, creates an ‘environment’ in which the child is virtually in the defendant’s presence….the legislature has in mind a computer artifice that apes physical presence: a webcam video or something like it. To meet the description of “ ‘[v]irtual presence,’ ” the software has to “create[ ]” a you-could-be-there “environment.”

The court says photos on Snapchat don’t satisfy this requirement:

They were merely the digital equivalents of Polaroids, only more ephemeral….Snapchat did not create the illusory environment of presence that the legislature had in mind by its use of the term “virtual presence.” Unlike Zoom, for instance, which is the video communication app that we used for oral arguments in this case, the Snapchat app that defendant and W.B. used was not a stand-in for physical presence.

As a result, the court overturned the defendant’s conviction. The court doesn’t discuss whether other crimes might have applied or why the prosecutors chose to fit the facts into this crime.

This ruling addresses a classic Internet Law topic: the distinctions between “virtual” and “physical” activity and when those matter to the legal outcomes. The court doesn’t unpack the assumptions underlying the legislature’s extension of the crime to “virtual” presence, but apparently synchronous interactions are required. Even then, I wonder if virtual synchronous interactions are equivalent. For example, virtual interactions lack the implied threat of immediate violence or compulsion that exist in physical space.

This ruling possibly conflicts with State v. Decker, which held that texting a dick pic constituted criminal sexual conduct, i.e., “masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.” The court found sufficient “presence” because the defendant sent the photo in the context of an active chat thread. Perhaps this case can be distinguished because there didn’t seem to be an active chat thread; or because the statutory definition of “virtual presence” differed from the “presence” definition in Decker. It’s also possible these cases reached different results based on varying norms about the importance of physicality in these crimes. As the White court implies, if sending Snapchat photos is covered by this crime, then it’s likely the crime would extend to showing “somewhat risque” “polaroids” to a third party in physical space.

Case citation: People v. White, 2021 IL App (4th) 200354 (Ill. App. Ct. March 25, 2021)

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