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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."
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.
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
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
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.
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.
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.
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