Friday, November 30, 2012

eBlaster, the School Laptop and Child Pornography

After being “charged with two counts of receiving child pornography and two counts of accessing child pornography with intent to view it”, Thomas Wendl moved to suppress certain evidence.  U.S. v. Wendl, 2012 WL 5869589 (U.S. District Court for the Northern Mariana Islands 2012).  The charges resulted from a quite complicated set of facts.

FBI Joseph Auther was stationed in Saipan, where his son was a seventh grader at Whispering Palms school. U.S. v. Wendl, supra. His son had a laptop issued by the school provided through a federally funded program – Public School System (PSS). U.S. v. Wendl, supra.  Auther installed eBlaster on the laptop to monitor his son's Internet use. It sent emails to him several times a day that listed the sites his son visited and the keystrokes typed on the laptop. U.S. v. Wendl, supra. Auther did not tell his son about eBlaster and no icon or other sign showed it was installed on the computer.  U.S. v. Wendl, supra.

In April 2012, Auther was moved to the Denver office. U.S. v. Wendl, supra. In June, he told Thomas Wendl, the Whispering Palms principal, that he would have the laptop serviced and his son's files wiped before returning it to the school. U.S. v. Wendl, supra. He did not tell Wendl about eBlaster. U.S. v. Wendl, supra. Auther took the laptop to a computer store, which reimaged it and “Clean[ed] out files.” Auther assumed this  removed eBlaster. U.S. v. Wendl, supra.

On June 15, Auther noticed he had received a series of eBlaster e-mails and read them, which referred to searches for child pornography. U.S. v. Wendl, supra. He was shocked that his son was visiting sexually explicit websites until he remembered he returned the laptop.  Auther also wondered if Wendl was using it to access child pornography. U.S. v. Wendl, supra.  Some of the sites appeared to involve young Asian girls having sex with older men. Auther knew Wendl had married a Korean woman, and had an 11–year–old Korean stepdaughter.  U.S. v. Wendl, supra.

Auther called Wendl and pretended he was interested in buying the laptop; Wendel said he could not sell it because it he returned it to PSS. U.S. v. Wendl, supra. Auther was concerned that a child molester was operating at Whispering Palms. The next Monday, he went to the school and spoke with the technology coordinator for its PSS program, Joseph Torres.  U.S. v. Wendl, supra. He told Torres he was an FBI agent and said he was looking into a laptop that had been returned to the school; Torres said the school redistributed returned laptops to new students. U.S. v. Wendl, supra.

Around noon, Auther spoke with his wife and learned they had a new eBlaster report involving child pornography. U.S. v. Wendl, supra. That afternoon, before going to the FBI office, Auther drove by Whispering Palms and noticed Wendl's car at the school. U.S. v. Wendl, supra. He called Wendl, reiterating his desire to find the laptop and mentioning there might be inappropriate content on it. U.S. v. Wendl, supra. Wendl said he was looking into the matter and had determined that the laptop had been recirculated. U.S. v. Wendl, supra. Auther did not tell Wendl he had visited the PSS offices and knew Wendl had lied about returning the laptop there. U.S. v. Wendl, supra.

Auther reported the illicit Internet activity and Wendl's possible involvement to Special Agent Ewing and notified the CNMI Attorney General about his concerns. U.S. v. Wendl, supra. After June 18, Auther stopped receiving reports from eBlaster. U.S. v. Wendl, supra. On June 22, he forwarded the eBlaster e-mails to Ewing, who interviewed Auther and opened an investigation. U.S. v. Wendl, supra.

After being charged with the crimes noted above, Wendl moved to suppress “information regarding possible child pornography Internet searches and downloads obtained from a laptop computer without a warrant”.  U.S. v. Wendl, supra.  In other words, he moved to suppress the reports eBlaster generated as a result of Auther’s installing the program on the school-issued laptop. U.S. v. Wendl, supra.  The district court judge began her analysis of Wendl’s motion by noting that the 4th Amendment protects persons from

unreasonable searches and seizures of their home, property, papers, and effects. A search occurs in cases involving common-law trespass o4 ‘”when government officers violate a person's ‘reasonable expectation of privacy.”’ U.S. v. Jones, 132 S.Ct. 945 (2012) (quoting Katz v. U.S., 389 U.S. 347 (1967) (Harlan, J., concurring)). Thus, for a person to invoke the protections of the 4th Amendment, a search must be the product of government action, and the aggrieved person must have a reasonable expectation that the information seized would remain private -- commonly referred to as Fourth Amendment standing.

U.S. v. Wendl, supra.  The judge first addressed state action and then standing.

In opposing Wendl’s motion to suppress, the government argued that when Auther installed eBlaster on the laptop, he was not acting in his official capacity as an FBI agent – that is, as an instrumentality of the government.  U.S. v. Wendl, supra.  As I have noted in prior posts, if a civilian conducts what would otherwise be a 4th Amendment “search,” the conduct does not trigger the protections of that constitutional provision; it only applies when a state agent conduct a search.

The judge noted that the analysis of whether someone is acting as a state agent becomes more complicated when “the actor is an off-duty law enforcement officer”. U.S. v. Wendl, supra.  She also noted that Auther’s actions would qualify as state action “if they were “in some way related ‘to the performance of his official duties' ” or “pursuant to [a] government or police goal.” U.S. v. Wendl, supra (quoting Van Ort v. Estate of Stanewich, 92 F.3d 831 (U.S. Court of Appeals for the 9th Circuit 1996)).  She found that Auther's installing eBlaster on the laptop

was unrelated to the performance of his duties as an FBI special agent. His intent was solely to monitor his son's Internet activities. He had no reason to believe that anyone other than his son, to whom Whispering Palms had issued the PSS laptop, would use the computer during the period when it was loaned out to the boy. Auther was acting as a devoted father, not a law enforcement officer.

U.S. v. Wendl, supra.  

She also noted that if Auther had intentionally left eBlaster on the laptop when he returned it to Whispering Palms, knowing that he would be

duty-bound to report any observed criminal conduct, his continued receipt of eBlaster reports might be in pursuit of a police goal and therefore constitute a 4th Amendment search. But the evidence suggests Auther left eBlaster on the laptop inadvertently. . . . The fact Auther was preparing to relocate his family to the mainland makes it all the less likely that he was privately . . . launching a sting to uncover misuse of federally funded school computers on Saipan. In all likelihood, he had other things on his mind.

U.S. v. Wendl, supra. 

Wendl argued that even if Auther did not mean to leave eBlaster on the laptop,

his act of opening the eBlaster e-mails converted an inadvertent search into an intentional one. He points out that the subject lines showed that the reports covered a period of time after Auther's son no longer had possession of the laptop. The conclusion he draws is that Auther `did not have a justifiable basis (private interest or otherwise)’ for viewing the contents of the report.

U.S. v. Wendl, supra. 

The judge, however, was not persuaded:

The search was the gathering of information by eBlaster, not the viewing of the contents. The analysis would be no different if Auther had turned the reports over to other officers without having read them. However intentional the act of opening the e-mails may have been, the searches were still, at this juncture, inadvertent. The Court finds that the initial data received from eBlaster and viewed by Auther . . . prior to [his] contacting Wendl, are not the product of a search conducted under color of state law.

Neither would the initial eBlaster reports come under the 4th Amendment via the two-part test for private-party searches. Even if Auther `acquiesced in the intrusive conduct’ when he failed to direct the service technician to remove eBlaster, the intrusive conduct -- the installation of eBlaster -- was not by the government, but by Auther the private citizen. . . . [T]here is no evidence Auther intended to further a law enforcement purpose by keeping eBlaster on the laptop. Therefore, Wendl has failed to carry his burden to show that he should be accorded 4th Amendment protection from the private-party eBlaster search.

U.S. v. Wendl, supra. 

But she also found that this was jot the case for the eBlaster reports that were generated after Auther called Wendl on June 15:

By that time, Auther knew someone may have been viewing illicit material on the laptop. He suspected Wendl before he called him. When he did call, he hid his real concern about the laptop's usage behind a pretense that he was interested in purchasing the computer. After the call, he did not uninstall or disable eBlaster, even though as a private citizen he was under no obligation to continue monitoring an unknown person's offensive Internet activities.

He did not immediately call his colleagues at the FBI and hand the investigation over to them -- conduct that might have indicated Auther wanted to maintain a separation between his private self and his public persona as a law enforcement officer. After Wendl told Auther he delivered the laptop to PSS, Auther continued his investigation into the child pornography website searches.

Auther . . . was still concerned that the searches may point to his son. He was also concerned that someone within PSS may be using the laptop for these illegal searches. . . . The totality of the circumstances shows that at this point, Auther's actions were related to his official duties and in pursuit of a police goal. Although a formal FBI investigation had not been opened yet, Auther was now acting under color of law. Therefore, the searches that generated eBlaster reports after the initial phone call to Wendl are subject to 4th Amendment scrutiny.

U.S. v. Wendl, supra.  In other words, these searches had to be “reasonable.”

The prosecution argued that even if Auther’s conduct constituted state action, his

discovery of the illicit Internet activity through eBlaster e-mails was accidental and therefore does not come under the 4th Amendment. . . . [T]he Government relies on Thompson v. U.S., 382 F.2d 390 (U.S. Court of Appeals for the 9th Circuit1967). In Thompson, two police officers and a private security guard questioned Thompson in his hotel room about suspicious cashing of travelers checks. . . . [T]he security guard straightened a picture on the wall and a small packet fell from behind the frame.  One of the officers opened the packet and found marijuana.

The police arrested Thompson on narcotics charges, searched the hotel room . . . and seized stolen travelers checks. Thompson moved to suppress all evidence as the product of an illegal search and seizure. The trial judge denied the motion.  A divided panel of the Ninth Circuit affirmed, finding that the marijuana was `accidentally exposed’ and that the police were not required to `close their eyes’ to it. 

U.S. v. Wendl, supra. 

Again, the judge was not persuaded.  She explained that the holding in Thompson

is an extension of the plain-view doctrine. Police may seize incriminating evidence in plain view which they come across inadvertently when they have a “prior justification” for the intrusion. . . . That is to say, the police must be “lawfully present” on the premises. In Thompson, police were lawfully present in Thompson's hotel room because Thompson had invited them in.  The officers did not snoop around while they were there.

Auther, by contrast, had no legitimate justification to intrude on anyone's conduct on the school laptop once it was no longer on loan to his son. Moreover, the incriminating evidence did not drop out while he was straightening the icons on the computer's desktop but came into view because of intentional spying on the keyboard and hard drive. . . .

Auther's initial receipt and opening of eBlaster reports on Friday, June 15, are not 4th Amendment searches, but the receipt and opening of eBlaster reports on Monday, June 18, are.

U.S. v. Wendl, supra. 

As to the second issue -- Wendl’s standing to challenge the searches -- the judge found he did not have a “legitimate” 4th Amendment expectation of privacy in school property he “misappropriated”  . . . for his own personal use.”  U.S. v. Wendl, supra. 

Whatever expectation of privacy he developed in the contents of the laptop's hard drive and the keystrokes of Internet searches is not a legitimate one that society is prepared to accept. This is different from the situation where a search is conducted of an employee's designated workplace computer, in which to some degree an employee has a reasonable privacy expectation. . . . The laptop was not assigned to Wendl and was not his office computer. For these reasons, Wendl lacks standing to claim a 4th Amendment violation with respect to the eBlaster reports.

U.S. v. Wendl, supra.  (For more on standing, check out this prior post.)

The judge therefore denied Wendl’s motion to suppress the eBlaster reports.  U.S. v. Wendl, supra. 

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