Having Your Digital Cake, and Eating It

Via Volokh, a 9th Circuit panel decision suppressing evidence in a child porn case for violating the Posse Comitatus Act:

BACKGROUND

In late 2010, NCIS Special Agent Steve Logan began investigating the distribution of child pornography online. Several months later, from his office in Georgia, Agent Logan used a software program, RoundUp, to search for any computers located in Washington state sharing known child pornography on the Gnutella file-sharing network.

Agent Logan found a computer using the Internet Protocol (IP) address 67.160.77.21 sharing several files identified by RoundUp as child pornography.  [RoundUp identified such files by comparing the “SHA-1 hash values” of files being offered for download – unique identifiers that do not change when a file name is altered – with values already known to be associated with child pornography.]   He downloaded three of the files, two images and a video, from that computer. After viewing the files, Agent Logan concluded that they were child pornography. Thereafter, Agent Logan made a request for an administrative subpoena for the name and address associated at the time of the downloads with the IP address. He submitted his request to NCIS’s representative at the National Center for Missing and Exploited Children, which turned the request over to the Federal Bureau of Investigation (FBI). The FBI sent an administrative subpoena to Comcast. Comcast responded by providing Dreyer’s name and address in Algona, Washington.

After receiving that information, Agent Logan checked a Department of Defense (DoD) database to determine if Dreyer had a military affiliation. He found that Dreyer had no current military affiliation.3 Agent Logan then wrote a report summarizing his investigation and forwarded it and the supporting material to the NCIS office in the state of Washington. That office then turned the information over to Officer James Schrimpsher of the Algona Police Department.

Many years ago, relatively early in the personal computer age, someone (maybe this guy) discussed a hypothetical legal argument against a porn prosecution for material found on a computer.  The argument was that an electronically stored digital computer file did no constitute an “image” under the relevant statutes.

Obviously, this argument eventually went nowhere as a legal matter.  But it has a odd parallel in the government’s current argument that its interception, recording, and storage of the electronic communications of American citizens doesn’t constitute “collection” for 4th Amendment purposes because those communications have not been rendered “useable” by, you know, opening them in Windows Media Player or Picture Viewer.  As a matter of logic, either possession of computer files ought not be prosecutable until the state has proven that a particular individual opened the files, or the government’s definition of “collection” is without merit.

I will note in passing that, while the decision of the 9th Circuit appears to be sound as a matter of law, the opinions seem to misstate the technical facts of the case.  All the judges write several times that the NCIS conducted “surveillance of all computers in the entire state of Washington.”  If this were true, it would raise obvious 4th Amendment problems, but in actuality Agent Logan searched only those files being shared by a peer-to-peer file sharing program, by which its users presumably forfeit any “reasonable expectation of privacy”.  But that should cause its users enough worry, seeing as how most of those files are likely in technical violation of copyright laws, which the government has prosecuted before.