Navy Guilty of Illegally Broad Online Searches: Child Porn Conviction Overturned

An anonymous reader writes In a 2-1 decision, the 9th Circuit Court ruled that Navy investigators regularly run illegally broad online surveillance operations that cross the line of military enforcement and civilian law. The findings overturned the conviction of Michael Dreyer for distributing child pornography. The illegal material was found by NCIS agent Steve Logan searching for "any computers located in Washington state sharing known child pornography on the Gnutella file-sharing network." The ruling reads in part: "Agent Logan's search did not meet the required limitation. He surveyed the entire state of Washington for computers sharing child pornography. His initial search was not limited to United States military or government computers, and, as the government acknowledged, Agent Logan had no idea whether the computers searched belonged to someone with any "affiliation with the military at all." Instead, it was his "standard practice to monitor all computers in a geographic area," here, every computer in the state of Washington. The record here demonstrates that Agent Logan and other NCIS agents routinely carry out broad surveillance activities that violate the restrictions on military enforcement of civilian law. Agent Logan testified that it was his standard practice to "monitor any computer IP address within a specific geographic location," not just those "specific to US military only, or US government computers." He did not try to isolate military service members within a geographic area. He appeared to believe that these overly broad investigations were permissible, because he was a "U.S. federal agent" and so could investigate violations of either the Uniform Code of Military Justice or federal law."

Comments

Where is the misuse of military equipment charge?

[RichMan]

Military equipment is the property of the people of the United States. So if what he was doing was against the law then will he be charged with misusing military equipment?

Re:When the cat's absent, the mice rejoice

[penguinoid]

Where is the 4th Amendment violation?

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Now, correct me if I'm wrong, but did Mr Logan have a warrant to search all of Washington? And where's his probable cause? Or maybe his search for child porn, wasn't a search?

Re:You have all been trained to accept this as nor

[Anonymous Coward]

> Dear AC, I am not familiar with a search engine called "RoundUp". Will you please provide a link? It looks useful.

RoundUp is a fork of the Phex Gnutella client. Phex is GPL, but RoundUp is only distributed to law-enforcement. Distribution comes with the source, I suspect that it also comes with a GPL-violating requirement of non-disclosure. The government has gone to court in order to fight a request by defense attorneys to reveal the source code.

Re:You have all been trained to accept this as nor

[Anonymous Coward]

I forgot to mention that I believe refusing to disclose the source code for RoundUp is a violation of the 6th amendment's right of confrontation. It is entirely possible that RoundUp is buggy enough to mis-attribute files to the wrong IP address.

Re:When the cat's absent, the mice rejoice

[DrJimbo]

The evidence was thrown out because a military investigator found the material, not because it was an unconstitutional search.

Nice try but that is not what the fine article says. It says:

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.

Even a modicum of common sense should tell you that people in military service do not have the same Constitutional rights as the general public even without the huge hint in the fine article. From Does the Constitution apply to rights of military members?:

But in other respects, even basic rights against unreasonable searches and seizures are virtually non-existent [for military personnel].

The problem was not that a person in the military was conducting a search that would have been Constitutional had a non-military person conducted it. The problem was that the search was performed using the lax (and generally Unconstitutional) standards the military uses for searching its own but it was conducted on an entire state. If the government wins this case then they will have a right to search all of your computers without any warrant or any probable cause just by asking a member of the military to conduct the search and then hand off anything interesting to the police of FBI.

Please stop just making shit up in order to twist a story into fitting your political agenda.

Re:When the cat's absent, the mice rejoice

[nbauman]

1) There is not a lot of evidence that most people who share this material are actually involved in harming children in any way.

18 years for trading child pornography?

I'll come out and say it, these laws are wrong. We have a higher incarceration rate than anyplace else in the world, rivaling Russia and China. Do you want to send those rates up even further?

I agree that child sexual exploitation is wrong. I think child pornography should be used as evidence for prosecuting the underlying crime. I can accept a reasonable criminal punishment for distributing child pornography, if that's the only way to send a message that our society strongly condemns child sexual exploitation. It seems that prosecuting people for having child pornography on their computers does more harm than good overall. I'm not convinced that prosecuting people at six degrees of separation from the underlying crime should be a crime itself. And I'm also not convinced that possessing child pornography created outside the U.S. should be a crime within the U.S. (Our bombs blow children to pieces in our many wars, which I think is a greater harm than their being sexually abused.) We don't prosecute web sites like bestgore.com that show beheadings and rapes.

But 18 years for trading child pornography is way out of bounds. That's the sentence we should give to somebody who originally abused the children to create the pornography, not someone at several steps removed who winds up with the images of it.

I think child pornography prosecutions are like traffic tickets. It's a lot easier for a cop to sit on his ass eating donuts in front of a computer monitor than it is to go out and prosecute actual sex crimes. And it would take a large shift in budget from uneducated cowboy cops to social workers, criminologists and social scientists who actually understand child sexual abuse and how to stop it.

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