Wednesday, December 12, 2007

"Consent to Assume Online Presence"

I just ran across something I’d not seen before: a law enforcement (FBI) form called “Consent to Assume Online Presence.”

Before I get to the form, what it does and why it’s new to me (anyway), I should explain what I mean by “consent.”

As I wrote in an earlier post, the Fourth Amendment creates a right to be free from “unreasonable searches and seizures.” That means, among other things, that law enforcement officers do not violate the Fourth Amendment when they conduct a search or seizure that is “reasonable.”

As I also explained in that post, a search or seizure can be reasonable in either of two ways: (i) if it is conducted pursuant to a warrant (search warrants for searching and seizing evidence, arrest warrants for seizing people); or (ii) if it is conducted pursuant to a valid exception to the warrant requirement. As I explained in the earlier post, consent is an exception to the warrant requirement. With consent, you essentially waive your Fourth Amendment rights and let law enforcement search and/or seize you or your property.

Unlike many of the exceptions to the warrant requirement, consent does not require that the officer have probable cause to believe he or she will find evidence of criminal activity in the place(s) they want to search. Probable cause is irrelevant here because you’re voluntarily giving up your Fourth Amendment rights.

To be valid, consent must be voluntary (so police can’t threaten to beat you until you consent) and it must be knowing (which means you have to know you had the right not to consent . . . but courts presume we all know that, so an officer doesn’t have to tell you that you have the right NOT to consent for your consent to be valid).

Officers can rely on oral consent (they ask if you’ll consent to let them search, say, your car, you say “ok” and they proceed, having gotten your consent), but there’s really a preference in law enforcement for having the person sign a form. Consent is, after all, a kind of contract: You agree to give up your Fourth Amendment rights and that creates an agreement with law enforcement under which they will search the property for which you have given consent. If officers rely on oral consent, the person can always say later that they didn’t’ consent at all or didn’t consent to the scope of the search that was conducted (i.e., the officers searched more than the person agreed to having them do). So officers, especially federal officers, generally have the person sign a form, a “Consent to Search” form.

Enough background. Let’s get to the “Consent to Assume Online Presence.” As far as I can tell, the “Consent to Assume Online Presence” form has so far been mentioned in only two reported cases, both federal cases and both involving FBI investigations.

In United States v. Fazio, F. Supp.2d, 2006 WL 1307614 (U.S. District Court for the Eastern District of Missouri, 2006), the FBI was conducting an online investigation of child pornography when they ran across an account (“salvatorejrf”) that was associated with the creation and posting of “four visual depictions of naked children.” United States v. Fazio, supra. They traced the account to Salvatore Fazio and, after some more investigation, obtained a warrant to search his home.

FBI agents executed the warrant, seized computers, CDs and other evidence. One of the agents, Agent Ghiz, also wound up interviewing Fazio, who said “he was acting in an undercover capacity to identify missing and exploited children” and “admitted that he had downloaded images of children from the internet and uploaded them on other sites.” United States v. Fazio, supra. According to the opinion, during the interview
Agent Ghiz did not accuse the defendant of lying nor did he use any psychological ploys to encourage Mr. Fazio to talk. . . . According to Agent Ghiz, [Fazio] never attempted to leave during the execution of the search warrant or the interview. Toward the conclusion of the interview, Agent Ghiz asked [Fazio] if he would be willing to continue to help in the investigation by allowing the FBI to use his online identity to access other sites to help investigate other child pornography crimes. [Fazio] was willing to cooperate and gave consent to the FBI's assuming his online presence. Government's Exhibit 8, a copy of a form entitled Consent to Assume Online Presence, was introduced at the evidentiary hearing. It was signed by [Fazio] in the presence of Agent Ghiz.
United States v. Fazio, supra. The evidentiary hearing came when Fazio moved to suppress the evidence the agents had obtained.

The other, more recent case is much more recent. In United States v. Jones, 2007 WL 4224220 (U.S. District Court for the Southern District of Ohio, 2007) the FBI was conducting another investigation into the online distribution of child pornography. In the course of the investigation, they ran across an account that was registered to Joseph Jones. United States v. Jones, supra. They obtained a warrant to search his home and went there to execute it but no one was there. The agents and some local police officers then went looking for Jones, whom they eventually found talking to two other men at the end of a driveway in what seems to have been a rural area. United States v. Jones, supra.

And FBI agent, Agent White, explained to Jones why they were looking form him and, at his request, showed him the search warrant for the property they had identified earlier. I won’t go into all the details, but Jones wound up consenting to their searching another location with which he also had ties. United States v. Jones, supra. He gave his consent to the search of that property by, as I noted earlier, signing a “Consent to Search” form, a traditional form. The FBI agent also had brought a “Consent to Assume Online Presence” form and Jones wound up signing that, too:

[Agent] White and [Jones] completed the `Consent To Assume Online Presence’ form. This form gave the FBI permission to take over [Jones’] `online presence’ on Internet sites related to child pornography so agents could discover other offenders. [Jones] filled in the spaces on the form calling for his online accounts, screen names, and passwords, and he signed and dated the form at the bottom.

United States v. Jones, supra.

I find the “Consent to Assume Online Presence” form very interesting, for a couple of reasons. One is that it doesn’t act like a traditional consent in that it doesn’t conform to the usual dynamic of a Fourth Amendment search and seizure.

The usual dynamic, which goes back centuries, is that law enforcement officers get a warrant to search a place for specified evidence and seize the evidence when they find it. They then go to the place and, if the owner is there, give the owner a copy of the warrant (which is their “ticket” to be there), conduct the search and seizure, give the owner an inventory of what they’ve taken and then leave. This dynamic is structured, both spatially and temporally: It happens “at” a specific real-space place (or places). It has a beginning, a middle and an end.

The same thing is true of traditional consent searches. So if consent to let police search my car for, say, drugs, they can search the car for drugs. The car is the “place,” so they can search that “place” and no other. And the search will last as only long as it takes to reasonably search the car (can’t routinely take it apart). Here, too, the owner of the car is usually there and observes the search.

Now look at the “Consent to Assume Online Presence” search, as I understand it: Agents, or officers, obtain the consent to assume the person’s online identity, which they do at some later time (that not being convenient at the moment consent is given, as we see in these two cases). The “place” to be searched is, I gather, cyberspace, since the Consent to Assume Online Presence lets officers use the person’s online accounts to search cyberspace for other evidence, i.e., to find others involved in child pornography in the two cases described above. So the “place” to be searched is apparently unbounded, and I’m wondering if the temporal dimension of the consent is pretty much the same. I don’t see any mention of the “Consent to Assume Online Presence’s” form limiting the length of time in which the consenting person’s online accounts can be used for this purpose. I suppose there’s a functional self-limitation, in that the consent expires when the accounts do or when they’re otherwise cancelled.

But even with that limitation, this is a pretty amazingly unbounded consent to search. It’s basically an untethered consent to search: As I said earlier, traditional consent searches have definite spatial and temporal limitations: “Yes, officer, you can search my car for drugs” lets an officer search the car (only that car) until he either finds drugs or gives up after not finding drugs. There, the search is tethered to the place being searched and is limited by the reasonable amount of time such a search would need. Here, the consent is untethered in that it apparently lets officers use the consenting person’s accounts to conduct online investigations.

I’m not even sure this is a consent to search, in the traditional sense. In these two cases, law enforcement had already gained access to the persons’ online accounts, so there wasn’t any going to be any additional, incremental invasion of their privacy. Law enforcement officers had already been in their online accounts and seen what there was to see. The consent in these cases picks up, as you can see from the facts summarized above, after the suspect has already been identified, after search warrants have been executed (and, in one case, a regular, spatial consent search executed) and after the suspect has effectively been transformed into a defendant. So that investigation is really over.

This is a consent to investigate other, unrelated cases. That’s why it doesn’t strike me as a traditional search. It’s really a consent to assume someone’s identity to investigate crimes committed by persons other than the one consenting. Now, there are cases in which law enforcement officers key in on a suspect, get the suspect to consent to letting them search property – a car, say – where they think they will find evidence of someone else’s being involved in the criminal activity they’re investigating the suspect for. There the officers are getting consent to carry on an investigation that at least partially impacts on someone other than the person giving consent. But there the consent search is a traditional consent search because it conforms to the dynamic I outlined above – it has defined spatial and temporal dimensions.

I could ramble on more about that aspect of the “Consent to Assume Online Presence” searches (or whatever they are) but I won’t. I’ll content myself with making one final point that seems interesting about them.

When I consent to a traditional search, I can take it back. That is, I can revoke my consent. So if the officer says, “Can I search your car for drugs?” and I (foolishly) say, “yes,” I can change my mind. If, while the officer is searching, I say, “I’ve changed my mind – stop searching right now”, then the officer has to do just that. If the officer has found drugs before I change my mind, then the officer can keep those drugs and they can be used in evidence against me because they were found legitimately, i.e., they were found while my consent was still in effect.

How, I wonder, do you revoke your “Consent to Assume Online Presence”? Do you email the agency to which you gave the consent, on call them or visit them or have your lawyer get in touch and say, “by the way, I changed my mind – quit using my account”?

1 comment:

Anonymous said...

I think you are correct as to the "Consent to Assume Online Presence" being outside the traditional Fourth Amendment consent boundaries. I think, however, that the form satisfies two issues: most certainly the overarching issue of the Fourth; and it also satisfies the more restrictive Title III and ECPA concerns.

The scope of this consent is defined by the accounts you grant the consent to, and it is by no means a "reverse identity theft" by the government. Accordingly, I assume a revocation of the consent can be effectuated by changing passwords on the accounts you consented.