Friday, March 29, 2013

Miranda and the Consent to Assume Online Presence

Some years ago, I did a post in which I analyzed the then-two reported cases I could find that involved law enforcement officers’ using a “consent to assume online presence” to gather evidence in a cybercrime case.  In that post, I analyzed the 4th Amendment issues I speculated such a consent could implicate.  I have not run across any cases since that addressed that issue in any notable respect, so I have not written about the issue since.

This post examines a recent case in which such a consent was used, but instead of raising a 4th Amendment challenge to its propriety, the defendant challenged the use of the evidence obtained as a result of the consent as violating his rights under the Supreme Court’s holding in Miranda v. Arizona, 384 U.S. 436(1966).

The recent case is U.S. v. Yong Wang, 2013 WL 452215 (U.S. District Court for the Southern District of New York 2013).  After he was charged with advertising child pornography in violation of 18 U.S. Code § 2251(d)(1), receiving and distributing child pornography in violation of 18 U.S. Code§ 2252A(a) (2)(B), and reproducing child pornography for distribution in violation of 18 U.S. Code § 2252A(a)(3)(A), Yong Wang moved to suppress certain evidence.  U.S. v. Yong Wang, supra.

More precisely, he moved to suppress “(1) his post-arrest statements and (2) evidence obtained as a result of his consent to agents assuming his online identity.”   U.S. v. Yong Wang, supra.  He argued that “his post-arrest statements were obtained in violation of Miranda v. Arizona,supra and “that his consent was not voluntary.”  U.S. v. Yong Wang, supra.  I will deal rather briefly with the first issue, and then explain on what the court did with the second issue. (I do not know why the case is captioned Yong Wang, instead of U.S. v. Wang, so in an effort to avoid error, I am using the court’s caption.)

According to the opinion, Count One of the indictment set out the facts on which all of the charges were based:

Between 2007 and June 2011, Wang `managed and operated at least 18 websites containing child pornography (‘the Websites').’ (Indictment ¶ 1) Wang `sold   “memberships” to the Websites to individuals who paid to view, post, and download graphic images of child pornography.’ . . . The Websites were in Chinese. . . .

In order to access child pornography on the Websites, it was necessary `to (i) purchase a “V.I.P. membership,” or (ii) acquire “points” either by making monetary payments or by posting pornography, including child pornography, to the Websites.’ . . . Wang `oversaw memberships for the Websites and collected payments directly or indirectly through associates who established accounts at banks in China, at Wang's behest.’ . . .  

One of Wang's websites -- -- is entitled ‘”Empire of the Young and Innocent Fragrances,”’ as translated from Chinese. . . .  Links on the Websites `advertised and offered access to child pornography collected under descriptive titles, such as “Young Young Empire,” “Young Girl Beauty Photos Military Region,” “Young Boy Movie Zone,” and “Exclusive Quality Young Girl Photos Set.”’

U.S. v. Yong Wang, supra.

According to the opinion, Wang “supported” his motion to suppress by submitting an

affidavit alleging the following facts: At 6:30 a.m. on June 23, 2011, federal agents entered his home. . . . Because he `did not know who they were,’ he hid in a closet. . . . 

`[W]ith guns drawn,’ the agents removed Wang from his closet and brought him to the living room. . . .  One of the agents told Wang, `we are not here for you, but want you to cooperate and tell us who is making the pictures and posting [them] on [the] web.’ . . .

Wang asserts that `[t]he Federal Agents led [him] to believe that if [he] cooperated with the agents and gave them the information they requested[, he] would be released’ and would not be arrested. . . . Accordingly, Wang provided a statement to the agents and consented to the agents assuming his online identity. . . .

U.S. v. Yong Wang, supra.

Before we get to the legal issues, I need to include a little more of the details the opinion provides as to what happened on June 23, 2011.  At some point after the agents took Wang from the closet and into the living room, two of them Agent Thompson and Agent Phung -- took him into his bedroom and “began questioning him.”  U.S. v. Yong Wang, supra.   

Thompson told him a translator was available, but Wang said he did not need one.  U.S. v. Yong Wang, supra. The opinion says that his website was in English, that he “spoke English clearly” and that he “never indicated” he was having “any difficulty understanding the agents.”  U.S. v. Yong Wang, supra.

Before they began the questioning Thompson

verbally administered Miranda warnings to Wang. . . . [and] gave Wang a written FBI advice-of-rights form. . . . After Wang read the advice-of-rights form, Thompson asked him if he understood it, and Wang responded that he did. . . . 

Thompson asked Wang if he was willing to sign the form and speak with agents. Wang stated that he was willing to answer questions, and he signed the waiver form. . . . After [he] signed the advice-of-rights form, Thompson and Phung began to interview Wang. . . .

U.S. v. Yong Wang, supra.

After Wang signed the form, he told the agents “he could go online and show them the `uudiguo’ website.”  U.S. v. Yong Wang, supra.  Thompson told [him] the agents wanted to take over his online accounts and asked Wang to sign a form entitled “`Consent to Assume Online Presence.’” U.S. v. Yong Wang, supra.  The form read as follows:

`I consent to the use of my online presence for any purpose relating to an official investigation by the above law enforcement authority, including (but not limited to) sending and receiving email or conducting any other electronic communications, accessing stored information, and using and disclosing such communications or information. I understand and acknowledge that by signing the consent form, I relinquish all present and future claims to the use of these accounts. I understand that law enforcement authorities will change the password(s) to this account so that I will no longer have access.’

`I give this consent freely and voluntarily, without fear, threats, coercion, or promises of any kind. I have been advised of my right to refuse to allow the assumption of my online presence, and I hereby voluntarily waive this right.’

U.S. v. Yong Wang, supra. 

Thompson told Wang that if he signed the form, he “would never have access to the accounts again.”  U.S. v. Yong Wang, supra.  Wang “read the form and then provided his user name and password for his desktop computer, for his Paypal account, for his email accounts, and for the server that hosted the `uudiguo’ website.” U.S. v. Yong Wang, supra.  He then “signed the form.”  U.S. v. Yong Wang, supra. “He did not ask any questions about the form” before doing so.  U.S. v. Yong Wang, supra.

In his motion to suppress, Wang argued that his statements to the agents could not be used against him because his waiver of his Miranda rights was “invalid” because of the “false statements” he claimed the agents made to him and the “pressure placed upon” him.  U.S. v. Yong Wang, supra.  

In the Miranda case, the Supreme Court held that suspects who were in “custody” when they were interrogated, which Wang was, are entitled to be informed of certain rights, such as their right to remain silent and their right to have a lawyer, their right to have the lawyer appointed if they cannot afford to hire one and their right to have the lawyer with them during interrogation (which means they cannot be interrogated if their lawyer is not present). 

But the Miranda Court also held that suspects can waive, i.e., can give up, these rights IF the waiver is (i) knowing and intelligent (the suspect knew he/she had these rights and understood the consequences of giving them up) and (ii) voluntary (the officers did not torture or otherwise overbear the person’s will so they would give up the rights).  For more on this, check out Wikipedia’s entry on waiving Miranda rights. 

The judge in this case held that Wang’s motion to suppress his statements would be denied because while he claimed the waiver was involuntary, he did not establish facts showing that.  U.S. v. Yong Wang, supra. The judge found there was no evidence that the agents threatened Wang or made false promises to coerce him into giving up his rights, and so denied his motion to suppress the statements.  U.S. v. Yong Wang, supra.

The judge also found that there was no evidence to show that Wang did not understand English and therefore did not understand the rights as administered to him since, among other things, he “maintained a Facebook page on which he wrote comments in English and he attended college in the United States.”   U.S. v. Yong Wang, supra. (This, of course, went to whether the waiver was knowing and intelligent.)

That brings us to Wang’s motion to suppress “evidence obtained as a result of his consent to agents assuming his online identity.”  U.S. v. Yong Wang, supra. I must admit that I was a little disappointed when I read how the judge in this case dealt with this issue, though I think that what the judge did was absolutely correct.  I only wishe the judge had addressed the issues in more detail, but I understand why he did not.

To understand why the judge did what he did, you need to understand a little more about what actually happened in this case.  When the judge held a hearing on Wang’s motions to suppress his statements and the evidence resulting from the consent to assume online identity, Agent Thompson testified that

the agents did not use any of the information Wang provided on the `Consent to Assume Online Presence’ form because they had previously obtained search warrants that authorized them to access Wang's desktop computer, his Paypal account, his email accounts, and the `uudiguo’ server. 

U.S. v. Yong Wang, supra.

A little more preface and we will get to the judge’s ruling.  Wang argued that any evidence obtained as a result of the agent’s using the Consent to Assume Online Presence should be suppressed because he did not give the consent “voluntarily.”  As I have noted in prior posts, consent is an exception to the 4th Amendment’s default requirement that officers obtain a search warrant before searching a place or thing.  

 If I consent to let officers search the place or thing without a warrant, I waive my 4th Amendment right to privacy in that place or thing.  I do not HAVE to consent; as Wikipedia notes, an individual “has the right to refuse to give consent.”  And since a 4th Amendment consent is a waiver, it, like Miranda waivers, has to be voluntary.

As noted above, in his motion to suppress Wang argued that his consent for the agents to assume his online presence was not voluntary which, if true, would have voided it and warranted suppressing the relevant evidence.  He lost . . . for two reasons:  One was because the judge found the consent was voluntary; the other was that the issue was basically moot:

With regard to the consent form, Agent Thompson testified that Wang provided the information on it and signed it after he signed the Miranda waiver form. . . .The credible evidence demonstrates that Wang read and understood the consent form, and that he executed it freely and knowingly. The Government has thus met its burden of demonstrating that Wang's execution of the consent form was knowing and voluntary.

This appears to be a moot point, however. Agent Thompson testified that agents did not obtain any new information as a result of the consent form because they already had search warrants for Wang's residence, email accounts, and servers. . . .The Government has further represented that it does not intend to use against Wang any evidence that was obtained as a result of his execution of the consent form. . . .

U.S. v. Yong Wang, supra.

For all of these reasons, the judge denied Wang’s motion to suppress his statements and evidence obtained as a result of the consent.  U.S. v. Yong Wang, supra.

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