Porn conviction tossed over military’s surveillance role

[alp227]

Source: SF Chronicle

Michael Dreyer, who lives near Seattle, was convicted and sentenced to 18 years in prison in 2012 for possessing and distributing child pornography that police said they found on his computer. On Friday, a federal appeals court overturned his convictions because of the unlikely — and illegal — source of the investigation.

The U.S. Navy. To be specific, an agent of the Naval Criminal Investigative Service in Georgia who had a high-powered software program and used it in 2010 to search computers throughout the state of Washington for evidence of child pornography. When the program picked up two child porn images and a video, the agent contacted the FBI, which tracked down Dreyer’s name and address. The naval office then got in touch with local police, who obtained a search warrant. The Department of Homeland Security later got a federal search warrant, and Dreyer was charged in federal court.

When the search was challenged, the Justice Department said a military investigation was justified because there are military bases in the greater Seattle area, and it’s a crime for members of the armed forces to distribute child pornography. But the Ninth U.S. Circuit Court of Appeals in San Francisco said the computer surveillance didn’t target military bases or personnel but extended across an entire state, resulting in prosecution of someone with no current military connection.

Those actions, the three-judge panel said, violated the Posse Comitatus Act, the 1878 law that prohibits the U.S. military from taking part in civilian law enforcement activities.

Read more: http://blog.sfgate.com/crime/2014/09/12/porn-conviction-tossed-over-militarys-surveillance-role/

[christx30]

1. As much as I hate to see a good

child porn case get dropped, this was the right decision. If it had been allowed to stand, members of the public could have been charged under military law. I mean, how many of us live in a state that also contain military bases?

[Live and Learn]

2. +1 nt

[joshcryer]

4. It sucks, and the dude is scum, but justice was had.

I hope the guy is able to get the help he needs.

[SoapBox]

5. Whoa....they searched computers across the ENTIRE state?

Holy crap...now that IS Big Brother!

[candelista]

17. Just checking.

[Ash_F]

37. No they used torrent tracking.

How this works is that they search for the material themselves, then send a call out to people who are sharing that particular file. Then, when the perps send the information to them, they have an address they can go to.

This would not work if their targets were not sharing the data in the first place.

That is not the same as searching computers.

[leeroysphitz]

42. That makes a million times more sense. Thanks!

[bananas]

6. Navy Guilty of Illegally Broad Online Searches - "routine practice" - not an isolated incident

http://www.courthousenews.com/2014/09/12/71363.htm

Friday, September 12, 2014
Navy Guilty of Illegally Broad Online Searches
By TIM HULL

(CN) - Navy investigators regularly run illegally broad online surveillance operations that breach the line against military enforcement of civilian law, a divided 9th Circuit ruled Friday.

<snip>

The 2-1 majority rejected the government's argument that the military is allowed to monitor and search all computers in a state without prior knowledge that a computer's owner is even in the military.

"To accept that position would mean that NCIS agents could, for example, routinely stop suspected drunk drivers in downtown Seattle on the off-chance that a driver is a member of the military, and then turn over all information collected about civilians to the Seattle Police Department for prosecution," wrote Judge Marsha Berzon for the majority.

The panel also warned that the present case suggests that Logan's broad search was not an isolated incident.

"So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over the information to civilian law enforcement when no military connection exists," the ruling states.

"We have here abundant evidence that the violation at issue has occurred repeatedly and frequently, and that the government believes that its conduct is permissible, despite prior cautions by our court and others that military personnel, including NCIS agents, may not enforce the civilian laws."

<snip>

[unhappycamper]

11. :(

[SwankyXomb]

14. It's much more palatable to America when BB looks like this

[cstanleytech]

29. I wonder how many cases relied on such illegally gathered evidence. nt

[imthevicar]

7. Do they Just Search!

Or can you plant? We don't know what this program can do.

[Veilex]

16. If they can gain access to computers across and entire state...

planting something takes very little effort.

[leeroysphitz]

8. OK Am I the only one concerned about this magic program that can search the hardrives

of every computer in a state?

How does it work? Who has it? Who authorizes it's use? WTF

[Ash_F]

38. See post 37

The article misrepresents the technology involved.

[freedom fighter jh]

9. The exclusionary rule works to protect the people who run the system, . . .

. . . not the people who are subject to it.

There were two wrongs here: Some sleazoid bought and sold child porn, perpetuating a system that abuses children; and the military illegally searched many computers. Two wrongs. Neither has been righted.

The exclusionary rule holds that evidence obtained illegally cannot be used in court. What's the point? To discourage the illegal collection of evidence? I don't think it's working: Evidence gets collected illegally all the time.

All credible evidence should be admissible in court. And collecting evidence illegally should be a punishable crime. In other words, use the good information you've got (convict the guy with the pics to discourage others from doing child porn and thus protect children who would be its victims) and punish anyone, including government and military, that violates the Constitution by collecting data illegally (and if that's done again maybe the Fourth Amendment will mean something and we'll all have some privacy).

[eggplant]

20. Um, no.

You are suggesting that the system that would be conducting illegal searches wouldn't be so corrupt as to protect those people doing the illegal searches. Good luck with that.

[freedom fighter jh]

21. I know.

The system does a good job protecting those who do the illegal searches by saying the evidence is inadmissible and that's the end of it.

Think about it: Don't police keep records of searches and who does them? Or consider a the OP's situation: The military is conducting an illegal search. That is clear. There is no mention of any punishment. That is what has to change.

[eggplant]

25. No, the punishment is already built in.

It is the state that is punished, not the bad actors, since it is the state that is using the tainted evidence. And the punishment is the exclusion of the tainted evidence and all evidence that comes as a result of that.

The bad actors are working on behalf of the state. It is a separate issue for the state to discipline its workers.

[cstanleytech]

30. Doesnt this also open up the states that used such evidence in cases to civil lawsuits?

[eggplant]

33. I'm not sure what you are asking.

(I'm not a lawyer, so YMMV here.)

It would seem that any competent defense attorney would be able to have the tainted evidence suppressed, so nobody would be publicly aware of it. What would the damages be (the purpose of a civil lawsuit) in this case?

Perhaps you could restate your question with a hypothetical example?

[cstanleytech]

34. Well I'm just wondering if say it can be proven that the states used this evidence to get

convictions knowing it was illegally obtained under the law isnt the state liable and can the people who were convicted sue the state then if they ended up spending time in prison?

[PosterChild]

22. RE: All credible evidence should be admissible in court....

You been reading Bentham again? Get a life!

[freedom fighter jh]

24. I have not. Can you explain? nt

[PosterChild]

26. Certainly, I would be glad to...

Jeremy Bentham was one of the great reformers of Anglo jurisprudence. In 1827 he published the Rationale of Judicial Evidence, a truly monumental work that has been one of the great influences on the course of law and judicial procedure since them. One of his dicta is to Let In the Light of Evidence under all circumstances. For instance, he argued strongly against the prohibition on the testimony of atheists, against the attorney-client privilege, and against the prohibition of self-incriminating testimony.

Bentham would most definitely object to prohibiting evidence as a way of punishing errant law enforcement procedures. He probably would have advocated punishment for both the criminal AND the law enforcement officer.

http://books.google.com/books?id=6G9VF_qJFyMC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false

http://www.ucl.ac.uk/Bentham-Project/publications/works_in_progress/rationale_je

[freedom fighter jh]

27. Thank you.

Now I am at least a little enlightened about Bentham.

I see that I overstated before. What I meant was not that all evidence should be let in -- there are, in the opinion of most people (not including Bentham, as you point out, but definitely including me) valid reasons not to allow some evidence. What I meant was that obtaining evidence illegally is not a good reason to exclude it. I hope someone will correct me if Im wrong, but i think the reason for excluding evidence that is obtained illegally is to discourage breaking the law to obtain evidence. If so, it doesn't work. The proper, effective response to breaking the law is punishment.

[PosterChild]

28. My understanding is...

... that you are correct. If I remember correctly, in the original court case that excluded evidence improperly obtained the reason for the exclusion was that it was the only practical way of punishing law enforcement when they step over the line.

Now, I don't fully agree with this, but I see the point. As we can see from the cases that have involved police brutality, it is very difficult to "enforce the law" against the "law enforcers". They have the sympathy and support of the general public, and there is always the problem of "who will watch the watchman?". The prosecutor sets the operational standards for the police, and the prosecutor is evaluated by the public on her rate of convictions. So punishing the prosecutor by denying her a conviction is at least a practical, if not entirely just, means of enforcing the standards.

But I am, by constitution, a Bentham-ite, so it is hard for me to admit it.

[Helen Borg]

10. I thought it was a crime for anybody...

To distribute child pornography...

[Hoppy]

12. Yes, it is. The problem is, the circumstances under which the crime was uncovered.

It is the result of an illegal search.

For example... suppose your friend (a good friend, I might ad) gives you a magical brownie to take home. You are walking down the street and because it is Saturday morning, a cop stops you and asks you to empty your pockets. You have done nothing wrong. There is no recent crime in the area to warrant his suspicion.

And, lo, what does he find?

Would you be happy?

Read the 4th Amendment. That's what this is about.

[McCamy Taylor]

19. Can't use illegally obtained evidence in court. Crime and conviction two different things.

[Hoppy]

13. The best part of this is the reference to Posse Comitatius.

That may slow them down a bit.

[DeadEyeDyck]

15. with cloud drives and the like, you might simply assume that everything on your

computer is public domain. I didn't realize, until a week ago, that all my photos from my phone, tablet and pc were on a Google drive! The only reason I became aware was that I reached the 16gb level and was notified.
I never "explicitly" gave permission but apparently did when I signed up for something.
I would never want a lot of those pictures to go public.
And I am quite sure, some government clown is drooling over them.

[McCamy Taylor]

18. Sounds like someone in the Navy likes child porn.

And they were determined to find some to look at. And then, as an after thought, turn it. I would find out who in the Navy decided to expand the search outside of military computers and check that person's personal computer.

[Ash_F]

23. I am skeptical that this program can search hardrives across the ENTIRE state

That would be a ridiculous amount of data transfer. Though I am sure the government does not give a crap about personal rights, the ISPs would be up in arms over the strain on their systems.

And those companies have money. If they complain, the government listens.

[cstanleytech]

31. Might not be a program thats the main source but rather it could the ISPs.

Its been suspected after all that the isps and the providers for the backbone of the Internet are in bed with the government and if thats true it could make such sweeping searches a hell of alot easier.

[Ash_F]

39. Blue_Tires just posted a brief explaining what happened. The article is poorly written.

Even if ISPs could access everybody's HDs and download the contents, the activity on people's computers would be so fervent that many would notice immediately.

[Blue_Tires]

32. They explained the "how" in the court document:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/09/12/13-30077.pdf

Whole lot of gray area in the original conviction AND the subsequent reversal...It will be interesting to see how many others convicted by the NCIS searches are freed as well..

[Ash_F]

35. That is a pretty long brief. Can you pinpoint the line? /nt

[Ash_F]

36. Oh.... ok they are torrent tracking

I understand now. That is not new, nor hugely advanced, nor does it actually involve searching people's hard drives.

The article badly misstates the technology involved.

[Tumbulu]

40. Sorry, I do not think that there is any privacy online

and anyone who does is perhaps fooling themselves.

This conviction should not have been overturned. Frankly it seems as though the military was doing something good here. I would like to see all and every government agency looking through all computers to find such criminals.

I also hope that prosecution of hate crimes and domestic violence should not depend upon the victim pressing charges. Any surveillance of violence should be prosecuted.

[randome]

41. There is especially no privacy when you use torrent files.

In fact, that's the whole point of using torrent files.

I hope this reversal is reversed.
[hr][font color="blue"][center]You have to play the game to find out why you're playing the game. -Existenz[/center][/font][hr]