Sidney Myers, a 20-year-old South Carolina man, had procured a powerful handheld device built in a foreign country, a device which allowed him both to transmit a bomb threat and to create child pornography. The device was an HTC smartphone, and his use of the phone has now branded Myers a lifelong sex offender and landed him an 18 month federal prison sentence. His public defender claims that the “facts of this case have never been seen in our jurisdiction and likely will not be seen again,” but in the smartphone age, perhaps the facts no longer seem as unusual as they once would have.

Problems began when Myers met a young woman in a club. According to Myers’ lawyer, the woman told him that she was 18—though in reality she was just 16. They began dating, which led to sex, which led to videos of sex, all taken on Myers’ smartphone with the woman’s full consent. (Two different government press releases on Myers say he had either five or six such videos on his phone; the exact number is unclear.)

That age difference didn’t matter, legally, when it came to having sex. “It should be noted that under both South Carolina and federal law, the age of consent is 16, so it was legal for them to have sex whether she was 16 or 18,” wrote Myers’ lawyer in a court filing. But the age difference did matter when it came to recording the act. Because the girl was a minor, the images were child pornography under federal law, even though they involved a consensual relationship and someone above the age of consent.

Myers didn’t share the videos with anyone, which is typically how such cases end up in the judicial system; he didn’t even transfer them off his phone. The videos would have remained private mementos had Myers not had a truly terrible idea on November 2, 2011.

The bomb threat

He had spent the previous night at the girl’s home, with the consent of the girl’s mother, and he wanted to spend more time with her. As Myers’ lawyer describes the moment, “The two of them came up with a plan for [the girl] not to go to high school that day. On impulse, Mr. Myers called the office at her school and reported a bomb threat.” In fact, investigators would later find that he had called twice, claiming that six bombs were on the school grounds of Eau Claire High School.

"Possessing explicit cell phone images of underage subjects is a very bad idea that will send you to jail."

Schools and investigators take a serious view of such threats, and it didn’t help that the school was hit with several bomb threats from unrelated individuals over the next few months (one involved hoax devices at the school, which were serious enough to involve federal, state, and local bomb squads). So the FBI Joint Terrorism Task Force (JTTF), the Columbia Police Department, and the South Carolina Law Enforcement Division together opened an investigation, which took six months to find its various targets. One of the targets was Myers, who had taken steps to block his phone number but who was still located thanks to phone company records.

On May 2, 2012, Myers was arrested for making the threat and confessed—which wouldn’t have been so bad on its own. An isolated hoax threat would likely have led only to state court charges but, in searching Myers' smartphone, investigators found the 12 minutes of sex videos. In that fusion of a bad decision (the bomb threat) and a poor knowledge of the law (sex with a 16-year-old is fine, video is not), Myers had exposed himself to something far more serious. He became a federal defendant, charged with “production and possession of child pornography.” His cell phone was a child porn production tool that “had been mailed, shipped, and transported in interstate and foreign commerce in that it was manufactured outside the state of South Carolina” and which therefore elevated the issue to the federal level. Between the bomb threat and the child pornography charge, Myers faced up to 10 years in prison and $250,000 in fines—for each charge.

Myers pleaded guilty on July 20, 2012, but his public defender pleaded with the judge for a relatively light sentence. Her basic argument was simple: the bomb threat was quite obviously a terrible thing to have done, but the laws around child pornography had not been drafted with such situations—or such technologies—in mind.

“In that Mr. Myers and the young lady had a consensual relationship, and as such she consented to being videotaped during sex, there does not exist any coercion that is typically seen in these types of cases,” she wrote in court documents. “The intent of the parties was merely to have sex and videotaping it appeared to be an afterthought. Significantly, the purpose and intent of the sex acts was not so that it could be videotaped and shared. The Sentencing Commission did not envision this type of factual scenario in setting high guidelines for this offense and Congress likewise did not pass harsh laws to punish teenagers acting foolishly. These laws were written to punish the exploitation of children and no such exploitation occurred here.”

Such clashes between laws written in an earlier time—when production and reproduction of content required industrial machinery or huge amounts of money or significant effort—and the tech available even in today's entry-level smartphones have become depressingly common. (One has only to look at how laws meant to deter commercial copyright infringement operations, for instance, have been directed at individual users, making any potential loss in court a life-altering event.)

The US Attorney for South Carolina, Bill Nettles, didn’t address the complexities of the case in his public statement after the plea deal. Indeed, in his view, it was quite a simple matter. “The security of South Carolina’s citizens in our public buildings will not be compromised. The US Attorney’s Office will aggressively prosecute those who threaten our citizens—particularly school children—no matter how ill-conceived the threat. Additionally, this case should make clear that possessing explicit cell phone images of underage subjects is a very bad idea that will send you to jail.”

“The most perplexing case”

But the judge in the case saw more shades of gray. According to a McClatchy-Tribune reporter who attended Myers’ sentencing hearing on February 7, 2013, Judge Joseph Anderson called it “the most perplexing case I’ve had in a long time.” While the government’s presentencing report called for a lengthy sentence, the judge said that he had “a problem with a sentence that long with the facts of this case,” noting that it would cost nearly $200,000 to lock Myers up for almost a decade.

Anderson gave Myers an 18 month sentence on each count and allowed the sentences to be served concurrently. He also allowed Myers to self-report to prison and, when the Bureau of Prisons wanted to put him more than 600 miles from his home, the judge intervened again to prevent it. He also gave more time for Myers, a leg amputee who has difficulty traveling, to report to prison; his due date was this week.

At his sentencing, Myers apologized in a note, saying, “I know my actions and decisions weren’t the best but I deeply regret the choices that I have made. These past few months gave me the opportunity to sit back and reflect on my choices. Over the past ten months I realized how my choices didn’t only affect me it affected the people who care around me to [sic]… My mistakes were so out of my character an [sic] if I could rewind the hands of time I would of [sic] never made the decisions I made.”

But he can’t—and the hands of time will tick off 18 months before Myers is free again. Even then, he will remain a registered sex offender for life, affecting his ability to get a job and to find housing.