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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."
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?
Looks like the basis was the Posse Comitatus Act rather than an actual constitutional issue. Hard to say how this will play out over time. The Supreme Court could go either way, or Congress could act to allow it if they so choose.
Navy Guilty of Illegally Broad Online Searches
Writing in dissent, Judge Diarmuid O'Scannlain noted with apparent regret that the majority was the first ever to apply the "exclusionary rule" to violations of the Posse Comitatus Act.
Excluding evidence under the rule should be a "last resort" and done only after consideration of the "social costs," he argued.
"Yet, in a breathtaking assertion of judicial power, today's majority invokes this disfavored remedy for the benefit of a convicted child pornographer," O"Scannlain wrote. "It does so without any demonstrated need to deter future violations of the PCA and without any consideration of the 'substantial social costs' associated with the exclusionary rule."
I wonder if legally speaking this would even be an issue if the Coast Guard was doing it? The Coast Guard is considered law enforcement unless acting under the direction of the Navy in wartime.
much of left-wing thought is a kind of playing with fire by people who don't even know that fire is hot - George Orwell
You have all been trained to accept this as normal- NCSI (the TV show, among most police procedurals) shows the resident geeks (McGee and Abby) operating dragnets on cellphone metadata, surveillance camera images, internet data and metadata, GPS locations and even breaking into classified networks to fetch this or that file on the suspect that they were not supposed or cleared to have.
You know they are justified because of the foregone conclusion: you have seen the evildoer doing the bad deed and you are rooting for him get caught.
Although real life doesn't work that way people are conditioned to believe if law enforcement bent the rules they did it in order to untangle themselves from the red tape and get the bad guys.
Those rules are there for a reason (look up general warrants and why the U.S. founding fathers specifically banned them in the 4th amendment), to prevent the exact kind of abuse that is happening right how.
But the media is doing the damnedest effort to convince the people that if police accuse someone he is certainly guilty of something and it is a matter of digging deep and broad enough to nail him.
You are zeroing in on child porn.
The court is addressing the activity of a military investigator stepping out of bounds.
It little behooves the best of us to comment on the rest of us.
Which show is he from?
The "fuck the constitution" reality show.
Right on! And take his badge away while you're at it.
It little behooves the best of us to comment on the rest of us.
I believe that "the ends justify the means" is not how I want my government to do business. I suppose you wouldn't mind me searching your house on a regular basis to look for contraband so long as I eventually found some in one of the houses where I look, but I'm pretty sure most others would object.
Hell, I'm a civilian so I wouldn't even need a search warrant. I mean, I would be tresspassing, but who's going to care? You're not because I'm doing it for virtue, and the person who actually has the contraband does have grounds to object because he did something wrong first.
dom
These child porn cases where the perp 'wins' are always tough. On the one hand there is the emotional plea to protect children and what not, but the other side of the coin is that such 'save the children' type laws are almost invariably used (abused?) in cases they were never meant to cover. A similar case can be made against anti-terrorism acts (such as the much maligned PATRIOT act) following 9/11. When people get too emotionally invested in something they tend to over react, often failing to consider the longer implications in a 'knee-jerk' reaction to make sure this 'never happens again'.
The reality is that we cannot prevent every crime from happening without also sacrificing every personal liberty we have, submitting to constant surveillance and living in conditions that would make the average prison feel like freedom. This is a slippery slope, and I feel that legally this case is a win for the masses, even if it means a guilty man avoids any sort of legal punishment. Course if it's any consolation for those 'he got off too easy' types, Michael Dreyer is probably now isolated from much of his former friends and family, and will likely have difficulty finding work. Even if he does seek treatment for his sexual deviancy, and never looks at or touches another child for the rest of his life; he will always be painted with the brush of a 'child abuser'.
In a bit of shameless internet panhandling, I accept Litecoin Donations at Lbd2oH9QsthD1GfuUXPyka12YxvWJYnBVf
I'm bucking for the Constitution of the United States, Bubba, and, indeed, "he seems to have exceeded his statutory jurisdiction in pursuit of actual crimes."
It little behooves the best of us to comment on the rest of us.
No you aren't "bucking for the Constitution of the United States." The case is based on statutory law, not Constitutional rights. The Posse Comitatus Act is an ordinary law passed by Congress. That can change it or undo it if they care to.
much of left-wing thought is a kind of playing with fire by people who don't even know that fire is hot - George Orwell
That's fine with me, but I'll go for the derivative of the 4th Amendment.
It's not cool to throw wide nets.
It little behooves the best of us to comment on the rest of us.
Disagreeing with one crime is no excuse for agreeing with another.
Yes, I do expect law enforcement to act within the law. For the very simple reason that if there's some way to rubber stamp a way around it with "serves to protect against child porn/terrorism/organized crime/money laundering/choose the horrible crime of the month", whenever it is convenient, any kind of check that serves to protect you from your law enforcement invading your privacy can as well be abolished. A law that only exists as long as the one limited by its existence allows it to be, if it can be ignored at will by the entity subject to it, is void by definition.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
The criminals here worthy of being described as scum and deserving confinement are the people involved in child pornography, not the investigator. At worst he seems to have exceeded his statutory jurisdiction in pursuit of actual crimes.
Allow me to quote the immortal words of Mr H.L. Mencken:
The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.
Now, on behalf of Mr Mencken, and all those who fight for human freedom, allow me to suggest you fuck off, and to remind you that just because there are a few scummy characters in the world, it still doesn't justify putting the entire state of Washington under surveillance, which is what happened here.
Crumb's Corollary: Never bring a knife to a bun fight.
The evidence was thrown out because he was convicted of and illegally broad search, which included people not related to the military. Didn't you even read the title??? For once, the good guys win.
No, there were no winners in this one. Child Pornographers were set free without prosecution because the investigators clearly don't give a crap about following the law themselves. The excessive surveillance was so shocking to the conscience that they will even allow child pornographers to go free. Bad guys on all sides, and nobody wins.
"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
I didn't suggest that the entire state of Washington should be under surveillance. I only commented on the application of "scum" as applying to child molesters,
Distinction without a difference.
do you think he might lean towards the sentiment expressed in another of his famous quotes?
Every normal man must be tempted at times to spit on his hands, hoist the black flag, and begin to slit throats. -- H. L. Mencken
You've misunderstood the quote. He's talking about being a pirate ("black flag"), about going against the state. That you take it as an endorsement of abusing state power to go after a comparatively minuscule threat is sad, predictable, but sad.
For anyone interested, the paper detailing the software (RoundUp) used in the dragnet can be found here: http://www.dfrws.org/2010/proc...
RoundUp is a Java-based tool that allows for both local and collaborative investigations of the Gnutella network, implementing the principles and techniques described in the previous sections. RoundUp is a fork of the Phex Gnutella client, and it retains Phex’s graphical user interface. Our changes in creating RoundUp from Phex focused on three key areas: adding specific functionality to augment investigative interactions, exposing information of interest to investigators in the GUI, and automating reporting of this information in standard ways.
No, he's just familiar with the history of abuse by the government that inspired our rules regarding due process and how they are absolutely necessary to combat tyranny. The government always starts overreach with something easy to be against and slowly turns up the heat. Due process lets murderers run the streets so that mass murderers don't sit on the seat of power.
This is my signature. There are many like it, but this one is mine.
"We didn't engage in Jury Nullification, Your Honor, we did not feel that the State presented a case beyond a reasonable doubt."
Do not look into laser with remaining eye.
If the images were images of actual children, then the crime is not victimless. Even if this person was not the one who produced the pictures, by re-distributing them he is complicit in the guilt of the ones who did produce the pictures.
If the images are digitally rendered images from 3d models made without an actual human model, or if they are hand-produced art (again made without a human model), then an argument can be made the the crime is victimless (though there remains a debate as to whether the availability of such images serves as an outlet and hence reduces actual crime, or serves as an exacerbator and hence creates actual crime).
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?
Don't waste your vote! Vote for whoever you want, unless you live in a swing state it won't matter anyways
No, they were people watching child pornogrophy. The actual pornogrophers that make the stuff are still out there. It's just too hard to go out and do real police work and get those making it. Much easier to sit in an office and search for the watchers.
> 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.
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.
Well, I'd be with you if the government was poking around on the users' computers, but they weren't. The users were hosting the files on a public peer-to-peer network where you essentially advertise to the world you've downloaded the file and are making it available to the world. Since both those acts are illegal, you don't really have an expectation of privacy once you've told *everyone* you've done it. While the broadcasting of the file's availability doesn't prove you have criminal intent, it's certainly probable cause for further investigation.
These guys got off on a narrow technicality. Of course technicalities do matter; a government that isn't restrained by laws is inherently despotic. The agents simply misunderstood the law; they weren't violating anyone's privacy.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
> Due process lets murderers run the streets
due proccess keeps innocent men from getting framed as murderers. Its an imperative for law enforcement to act proffesionally, to the end it keeps then honest, and makes them engage in fact based investigations, not willy nilly witch hunts.
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.
We don't see the world as it is, we see it as we are.
-- Anais Nin
The zealotry you people show in defending the U.S. Constitution makes religious extremists look like moderates.
Extremism in the defense of liberty is no vice.
Moderation in the pursuit of justice is no virtue.
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.
http://www.sciencedaily.com/re...
Child abuse rises with income inequality
February 11, 2014
Summary: As the Great Recession deepened and income inequality became more pronounced, county-by-county rates of child maltreatment -- from sexual, physical and emotional abuse to traumatic brain injuries and death -- worsened, according to a nationwide study.
http://www.bmj.com/content/347...
Research: Preventing sexual abusers of children from reoffending: systematic review of medical and psychological interventions
BMJ 2013; 347 doi: http://dx.doi.org/10.1136/bmj.... (Published 9 August 2013)
http://www.miamiherald.com/201...
Florida spurns $50 million for child-abuse prevention
Sorry, that's the penalty for not following the law - the evidence gets thrown out and cannot be used, ever. This is the only thing that can prevent large scale abuse by law enforcement, as long as it is applied consistently. Lately, that latter assumption is being called into question quite frequently.
The cesspool just got a check and balance.
There was a story, I think on Slashdot, about cops who would go online and pretend to be sexually aggressive 13-year-old girls, luring in social misfits.
A lot of it seemed to be entrapment, that is, they trapped people into committing a crime who would never have committed a crime without the encouragement and manipulation of the cops. The entrapment defense has an unreasonable burden of proof.
That's not the kind of policing I would admire.
If Timmy said that Frank had been doing something heinous, then the cops could get a search warrant to arrest Frank and search his house and computer. They wouldn't need to trap him into exchanging child porn.