Exigent Seizure of a Computer

Last fall, I did a post about how police can lawfully search a computer without getting a search warrant. This post is about how the same principle applies in a different context: seizing computers instead of searching them.

As I’ve noted before, the 4th Amendment gives the right to be free from unreasonable searches (which violate a legitimate expectation of privacy in a place or thing) and seizures (which violate our right to possess and use property).

Searches and seizures usually go together. When police are investigating a crime, they’re usually searching for evidence, which they seize when they find it. As I’ve noted, search warrants really should be called “search and seizure warrants” because when police search for and find evidence, they’re obviously not going to go away and leave it where they found it.

Sometimes, though, the order is reversed. Sometimes police seize something they think contains evidence and search it later. This post is about a case in which a Massachusetts police officer did just that.

The case is Commonwealth v. Kaupp, 453 Mass. 102, 899 N.E.2d 809 (Supreme Court of Massachusetts 2009) and here are the facts that led to the seizure in question:

On May 21, 2002, James Smyth, . . . the technology director at the Northeast Metropolitan Vocational High School . . . , was informed that an unauthorized computer named Joester7437 was connected to the high school's network. James directed Holly Shepardson, a network specialist . . ., to investigate Joester's contents and physical location on the school's premises. From her computer, Shepardson accessed Joester's open share on the high school's network. Shepardson found hacking tools, games, and pirated movies, and reported the same to James, prompting him to report the breach to a school administrator. Shepardson continued to examine Joester's open share and found a file . . . that depicted pornographic images of two females, one of whom appeared to be in her late teens and another who appeared to be between nine and twelve years old. While James was apprising vice-principal Theodore Nickole of the breach, Shepardson informed them of the pornography she found in Joester's open share. James accessed Joester's open share and observed a pornographic image of a girl around ten. Officer Maglio, assigned to the high school,. . . . contacted the Wakefield police . . . for assistance.

Shepardson reported Joester's presence on the network to Timothy Smyth, . . . the school's network manager. While trying to ascertain Joester's physical location . . . Timothy detected what appeared to be five unauthorized computers on the school's network. Within one hour, Timothy told James he was `fairly certain’ the unauthorized computers were in the electronics shop where [Kaupp] was an instructor.

[V]ice-principals Nickole and Antonelli went to the electronics shop and asked the students and [Kaupp] to go to the library. Sometime thereafter, Officer Maglio and Detective James, a member of the Medford police department's computer crime unit, arrived at the electronics shop. Detective James spoke with James and Timothy as to what they observed in Joester's open share. With the permission of Antonelli and James, Detective James, using his own notebook computer, accessed the school's network and opened Joester's open share. He found . . .several movies, including `Spiderman.’ Detective James concluded the copy of `Spiderman’ was unauthorized, as the movie had been released in theaters only recently. Detective James also found a motion picture file titled, `Beautiful Lolita Sandra Masturbates,’ showing what appeared to be a young girl masturbating. With Timothy's assistance, Detective James located the Joester computer in the electronics shop and turned it off. The Joester computer, which was later determined to belong to a student, was seized and transported to the Wakefield police department.

While searching for unauthorized computers in the electronics shop, Timothy came across a school-owned server named Nightcrawler in [Kaupp’s] office, . . . adjacent to the electronics shop. Nightcrawler's screen displayed an open share containing the titles of several movies, including `Spiderman,’ `Top Gun,’ and `A Knight's Tale.’ The source of the open share was Sinister, another unauthorized computer logged onto the high school's network. Timothy did not see any pornographic materials in Sinister's open share. Sinister was also found in [Kaupp’s] office. However, Timothy could not log onto Sinister as it was password protected.

Detective James, having been apprised of Timothy's observations of pirated movies on Sinister's open share, seized Sinister, which belonged to [Kaupp] on probable cause to believe it contained child pornography and copyrighted intellectual property. [He] did not look at the contents of Sinister's open share prior to securing it.

Commonwealth v. Kaupp, supra. They apparently found child pornography on Sinister because Kaupp was charged with possessing child pornography and moved to suppress the evidence found in Sinister. Commonwealth v. Kaupp, supra.

The Massachusetts Supreme Court held that Sinister was properly seized under the exigent circumstances exception to the 4th Amendment’s warrant requirement. As I explained in an earlier post, the exigent circumstances exception lets police search and/or seize without a warrant when they don’t have time to get a search or arrest warrant. If, for example, police know a kidnapper has taken his captive into a building, they don’t have to get a search warrant to be able to go in and get the victim without violating the 4th Amendment. The exigency – the need, in this example, to ensure the safety of the victim – justifies their proceeding without a warrant, as long as they have probable cause to believe that the kidnapper and victim are in the place they intend to enter.

In this case, the Massachusetts Supreme Court held that the seizure of Sinister was justified under the exigent circumstances exception:

Timothy's observation of the then recently released movie `Spiderman’ on Sinister's open share furnished probable cause to believe that Sinister contained pirated movies, prompting Detective James to impound Sinister. Detective James refrained from searching Sinister's contents until the search warrant issued. . . . Given the ease with which computer files may be accessed and deleted, and the disruption that would have been created by posting an officer in the defendant's office and preventing students from entering pending the issuance of a search warrant, we conclude that the seizure was reasonable.

Commonwealth v. Kaupp, supra. The court also found that ONLY the seizure of Sinister was justified under the exception:

The Commonwealth contends, and we agree, that the potential destruction or loss of evidence on Sinister created an exigency justifying the warrantless seizure of Sinister. . . . However, the Commonwealth maintains police did not need a warrant to search Sinister's contents because they seized Sinister pursuant to the exigent circumstances exception to the warrant requirement. We disagree. As we have noted, `an officer's authority to possess a package is distinct from his authority to examine its contents.’ Commonwealth v. Varney, 391 Mass. 34, 39 n. 4, 461 N.E.2d 177 (1984). . . . The exigency necessitating Sinister's seizure dissipated once the computer had been secured, requiring the police to seek a search warrant to conduct a forensic analysis of Sinister's contents.

Commonwealth v. Kaupp, supra.

Kaupp also seems to have argued that the trial court denied his motion to suppress evidence found on Sinister because the school consented to a search of Sinister. The Massachusetts Supreme Court noted that the lower court judge “did not conclude that the school had consented to Sinister's seizure. Rather, she correctly ruled that the school consented to a search of its network, which included Sinister's open share.” Commonwealth v. Kaupp, supra.

The school could not have consented to a search of Sinister because it was password protected. As I’ve explained before, for a consent to search to be valid, the person who gives the consent must have had the authority to authorize a search of the property. As I’ve also explained, your authority to consent to a search of property – a computer, a room, a car – is based on your having the right to use that property. The Supreme Court has said that joint users of property can consent to the search of that property. The high school could consent to a search of its network, but could not consent to a search of Sinister because Sinister was password-protected. Since Sinister was password-protected, school personnel (other than Kaupp) could not access it; since they could not access it, they didn’t have the authority (or the ability) to consent to a search of it.

Unlawful Posting of Criminal Activity for Notoriety and Publicity

This spring I'm teaching a class in which students research cybercrime laws in various states.

One of the states they're working on this term is Louisiana. A student working on Louisiana law came across a statute that creates a crime I’ve not heard of before: unlawful posting of criminal activity for notoriety and publicity.

Here’s how the statute defines the crime:

It shall be unlawful for a person who is either a principal or accessory to a crime to obtain an image of the commission of the crime using any camera, videotape, photo-optical, photo-electric, or any other image recording device and to transfer that image obtained during the commission of the crime by the use of a computer online service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or online messaging service for the purpose of gaining notoriety, publicity, or the attention of the public.

Louisiana Statutes § 14:107.4(A).

As Wikipedia explains, a principal is the person who actually commits a crime. So if John Doe robs a liquor store, he’s the principal (and the only principal) in that crime. An accessory is someone who helps the principal commit the crime; so if Jan Smith lends Doe the gun he uses to rob the liquor store, knowing that’s what he’s going to use the gun for and intending to assist him in committing the robbery, she’s an accessory to the crime he actually committed. In the U.S., anyway, accessories are usually subject to essentially the same punishment as their principals; the premise is that the accessory’s contribution to the commission of the crime justifies treating her or him basically as another principal.

So under this Louisiana statute, it’s a crime for the person who commits a crime or for someone who assists a person in committing a crime to take an image of the crime and then send it out over the Internet “for the purpose of gaining notoriety, publicity, or the attention of the public.” Louisiana Statutes § 14:107.4(A). The penalty for the crime is a $500 fine or imprisonment for “not more than six months, or both.” Louisiana Statutes § 14:107.4(B).

The statute also says that its provisions do not apply to any of the following:

(1) The obtaining, use, or transference of such images by a telephone company, cable television company, or any of its affiliates, an Internet provider, or commercial online service provider, or to the carrying, broadcasting, or performing of related activities in providing telephone, cable television, Internet, or commercial online services or in the production, exhibition, or presentation of an audiovisual work in any medium, including but not limited to a motion picture or television program.

(2) The obtaining, use, or transference of images by a law enforcement officer pursuant to investigation of criminal activity.

(3) The obtaining, use, or transference of images by any bona fide member of the news media broadcasting a news report through television, cable television, or other telecommunicaton.

(4) The obtaining, use, or transference of images for use in a feature-length film, short subject film, video, television series, television program, public service announcement, or commercial.

Louisiana Statutes § 14:107.4(C).

The statute was adopted in 2008. Louisiana Acts 2008, No. 660, § 1. Not surprisingly, there are so far no reported prosecutions under it.

I can’t find any news stories or legislative materials that tell me why the Louisiana legislature thought it necessary to create this new crime. And I can’t find any similar statutes in other states.

I’m therefore pretty much at a loss as to why the legislature adopted this statute. As I’ve noted before, substantive criminal statutes like this one – statutes that define particular crimes – are adopted because the government finds it necessary to prohibit activity that inflicts certain types of “harm.”

The “harms” criminal statutes go beyond the kind of harm that becomes the focus of civil suit; if I accidentally run into your car and seriously damage it, you can sue me for the harm I inflicted on your car. The law assumes that this level and type of harm can be adequately addressed by letting the parties litigate over who’s responsible and who has to pay for the damage. The law also assumes that the risk of being sued is enough to deter most people from causing damage to other people’s property when they can avoid doing so. That, in turn, is assumed to keep the inadvertent infliction of lesser types of harm under control in a society.

Criminal law has always been concerned with the really serious “harms,” the ones that can undermine the stability of a society. As I’ve noted elsewhere, a society (tribe, empire, nation-state, etc.) cannot survive and prosper if its citizens are free to pretty on each other; perhaps I should say, if its stronger, meaner citizens are free to pretty on the weaker and/or nicer citizens.

The Louisiana statute quoted above is a substantive criminal statute, which means it necessarily targets a type of “harm” that cannot be adequately addressed with civil liability. I can see the “harm” it is intended to target: If a killer were to film himself committing murder and then post the video online where the victim’s family could see it, that should inflict substantial emotional distress on them. They would, in effect, also become the killer’s victims . . . secondary victims, basically. That is, while they would not suffer physical injury or death at the killer’s hands, they would suffer substantial emotional distress . . . which is certainly a type of “harm.”

As I explained in my Fantasy Crime article, criminal law has not historically addressed emotional “harm,” which I call soft “harm.” It’s historically been concerned with the infliction of serious physical “harm” on people (e.g., rape, murder, battery) and on property (e.g., arson, theft, burglary). As I also explain in the article, criminal law has, for about the last two decades, been expanding its scope so it is increasingly encompassing soft “harms.” Modern stalking and harassment laws are good examples of crimes that target the infliction of soft “harms.”

So, I assume the Louisiana statute is targeting the infliction of emotional distress – soft “harm” – on people who either are the victim of the crime being filmed or are emotionally tied to the victim. I suppose I should expand the definition of the soft “harm” to include property crimes as well as people crimes; if someone were to burn a person’s home and then post video of the acts constituting the arson and the consequent fire that destroys the home, that would inflict soft “harm,” I think.

If I’m right and if that is the type of “harm” (or maybe “harms”) the statute is intended to target, I still don’t understand one thing: why the statute makes it a crime only if the principal or accessory posts the image or video “for the purpose of gaining notoriety, publicity, or the attention of the public.” Maybe that factors into the soft “harms” I’m speculating about because by gaining notoriety, etc., the perpetrator increases the level of soft “harm” he or she inflicts on those who suffer emotional distress because of the posting of the image or video.

Or maybe not. Maybe I’m reading too much into the statute.

Revocation of Consent to Seize Computer

This post is about what happens when you revoke -- take back -- your consent to let police officers seize your laptop of desktop.

As I explained in an earlier post, consent is a valid exception to the 4th Amendment’s warrant requirement.

As I’ve also noted before, the 4th Amendment requires that a search or a seizure must be “reasonable;” the default way a search or seizure can be reasonable is for it to be conducted pursuant to a search and/or seizure warrant.

Consent substitutes for a warrant because a consent for police to search or seize is a waiver of your right to have them not do so. The Supreme Court has long held that our constitutional rights are personal rights, which means it’s up to us as to whether or not we want to exercise a particular right (like the right not to be searched) or waive it, i.e., give it up.

As I also explained in that earlier post, you can revoke your consent to have the police search you or a place or seize something. In other words, you can change your mind.

As I noted in that post, a revocation of consent to search a place is prospective; that is, the officers have to stop searching once you revoke your consent. Whatever they saw while your consent to search was in effect is still information they validly acquired; they don’t have to forget that, say, they saw drugs on your coffee table or what looks like stolen diamonds in a dresser drawer. A revocation of consent for officers to seize something is also prospective, which means they can keep any items they seized while your consent to seize was in effect (absent, as I noted in an earlier post, your successfully filing a motion for the return of the property).

So if you consented to a search and seizure of your house and while the consent is in effect the officers see stolen diamonds on a table and seize them, revoking your consent only stops them from searching further and seizing any more evidence. The officers can keep the information they acquired while they were searching your house (e.g., they saw a pile of cash in a desk drawer but don’t have probable cause to seize it) and they can keep the diamonds. All your revocation of consent does is to stop them from going any further.

That brings me to the case I want to talk about: U.S. v. Megahed, 2009 WL 722481 (U.S. District Court for the Middle District of Florida 2009). According to a news story, on August 4, 2007, University of South Florida students Youssef Megahed and Ahmed Mohamed were driving along U.S. 176 near Goose Creek, South Carolina. A deputy sheriff stopped them for going 60 mph in a 45 mph zone and “became suspicious” when Mohamed closed a laptop computer as the officer approached the car. He asked if he could search the car and they agreed. The deputy found what law enforcement officers say were pipe bombs and an unidentified liquid inside the car’s trunk. He arrested them and both men are facing federal charges of possessing an explosive device.

On August 6, FBI agents came to the Tampa home where Megahed’s parents lived and asked if they would consent to a search of their home “for (among other things) bombs, bomb-making materials, and anything that could be used to manufacture or build a bomb.” U.S. v. Megahed, supra. Samir Megahed (who I assume is Youssef’s father) signed “English and Arabic consent forms (Forms FD-26 and FD-26.1)” allowing them to search. U.S. v. Megahed, supra.

FBI agents searched the house and seized a computer, among other things. U.S. v. Megahed, supra. They apparently seized it, at least in part, because Youssef’s sister told them he used it for “Internet shopping.” U.S. v. Megahed, supra. Since Mr. Megahed consented to a search of the home for “bombs, bomb-making materials, and anything that could be used to manufacture . . . a bomb,” the FBI agents construed his consent as encompassing the possibility that bomb-related information (e.g., plans, purchases of bomb-making materials) would be on the computer. After they finished searching the home, the agents took the computer and whatever else they seized and left.

The next day – August 7, 2007 – Samir Megahed called one of the FBI agents and asked that the agents return the computer to the family after they finished copying the hard drive. U.S. v. Megahed, supra. The very next day – August 8 – Mr. Megahed “voluntarily authorized a complete search of the computer by executing a `consent to search computer’ (Form FD-941).” U.S. v. Megahed, supra. The agent Mr. Megahed dealt with on August 8 later testified at a suppression hearing “that after he explained to Samir Megahed that the executed consent forms would authorize a search of the mirror image copy [of the home computer’s hard drive], Samir Megahed not only failed to object but also expressed a continued desire to cooperate.” U.S. v. Megahed, supra.

I don’t know what the agents and their computer forensics experts found on the imaged hard drive, but Youssef subsequently filed two motions to suppress “Illegally Searched and Seized Computer Hard Drives”. U.S. v. Megahed, supra. The focus of the second motion was “certain internet [sic] history recovered from” a search of the mirror image of the hard drive of the computer seized at the Megahed home. U.S. v. Megahed, supra. In moving to suppress the Internet history, Youssef Megahed argued, in part, that “the FBI discovered the internet [sic] history in the course of a search conducted after revocation” of Samir Megahed’s consent to search the computer. U.S. v. Megahed, supra.

Youssef Megahed based his motion to suppress on the premise I outlined above. He argued that the consent to seize and search the computer had been revoked and the revocation of consent barred the FBI from searching the computer’s hard drive and/or the mirror image they had made of the hard drive. The argument was based on “the October, 2007 revocation of consent by” Samir Megahed. U.S. v. Megahed, supra.

The federal judge didn’t buy Youssef’s argument:

[T]he October, 2007, revocation of consent . . . does not require suppression of the internet history. After agents searched the Megahed residence, seized the computer, captured a mirror image copy of the hard drive, and returned the hard drive to Samir Megahed, the evidence was discovered in the course of an examination of the FBI mirror image copy. In October, 2008, neither the defendant nor Samir Megahed retained a reasonable expectation of privacy in the mirror image copy the FBI had obtained already with Samir Megahed's consent and had begun already to search. The revocation did not operate retroactively to nullify this history.

U.S. v. Megahed, supra. In arriving at this conclusion (which I think is correct), the court cited a couple of cases that dealt with revoking consent for officers to seize hard copy documents. The defendants in those cases wanted to prevent the government from using the original documents federal agents had seized pursuant to the consent and/or the copies the agents subsequently made of the documents. Those courts held that the revocation of consent to seize documents did not affect the 4th Amendment permissibility of copying the documents; in other words, when the agents copied the documents, the consent to seize (and search) was still in effect, so the copying was reasonable under the 4th Amendment.

The Megahed case is the only reported case I can find in which someone revoked their consent to the seizure of a computer after it had been seized and after its hard drive had been imaged and searched. Obviously, the revocation of consent cannot bar officers from examining a hard drive/mirror image of a hard drive that was conducted, or even initiated, while the consent was still in effect. If the officers have the 4th Amendment right to possess the hard drive (and, by extension, a copy of the hard drive), they also have the 4th Amendment right to search its contents. The hard drive/image of the hard drive is in effect the government’s property.

If we analogize the imaging of a hard drive to the process of copying paper documents, then we reach the same conclusion even when the officers did not begin to examine the hard drive/mirror image of the hard drive until after the person who owned the computer had revoked his/her consent to its seizure. In the latter scenario, their acquiring possession of the hard drive was reasonable under the 4th Amendment because they seized it with the consent of the person who owned it. Since their acquiring possession of the hard drive was reasonable, it was also reasonable for them to made a copy of it; that is, they constitutionally had possession of the hard drive, so they had the constitutional authority to make a copy of it. As noted above, the copy of the hard drive then effectively became the government’s property, which meant the agents could constitutionally search it.

What about the residual scenario . . . the scenario in which the person who owns the computer revokes her consent for the agents to seize it BEFORE they make a copy of its hard drive? Assume officers come to my house and ask if they can seize my laptop; I give my consent for them to seize my laptop, so they take it away. The next day, before they have imaged the hard drive, I call them and say, “I’ve changed my mind. I want my laptop back.” I’m not sure what the correct outcome is here.

There’s a case from the U.S. Court of Appeals for the Sixth Circuit in which a taxpayer voluntarily gave the IRS his business records, i.e., consented to the seizure of the records by the IRS. He later asked to have them returned, the IRS refused, he sued, and the Sixth Circuit held that since the IRS’s possession of the documents was based on consent, “the government had no right to possession after consent was withdrawn.” Richard A. Vaughn, DDS, P.C. v. Baldwin, 950 F.3d 331 (U.S. Court of Appeals for the Sixth Circuit 1991). It also held that since the government had no constitutional right to possess the documents, it had no right to copy them after the consent had been withdrawn. So if we go with that theory, the officers have to give me my laptop and can no longer image its hard drive.

The U.S. Court of Appeals for the Ninth Circuit took a different view of revocation of consent to seize items in Jones v. Berry, 772 F.2d 443 (1983). In that case, IRS agents searched a couple’s home with Mrs. Jones’ consent and seized a number of items; after they’d taken the stuff away, Mr. Jones “revoked the consent granted by his wife.” Jones v. Berry, supra. He wanted the stuff returned. The Ninth Circuit held that the items did not have to be returned: “No claim can be made that items seized in the course of a consent search . . .must be returned when consent is revoked. Such a rule would lead to the implausible result that incriminating evidence seized in . . . a consent search could be retrieved by a revocation of consent.” Jones v. Berry, supra. That’s what I’ve always thought the rule was; once the government seizes evidence pursuant to a consent to search for and seize items, they get to keep what they seized. The only way the owner of the property can get the items back is, as I explained in an earlier post, by filing a motion for return of the property with the court.

There’s another line of cases which hold that if the government develops probable cause to believe that the item seized pursuant to consent from its owner is evidence of a crime while it’s in the government’s possession, the government doesn’t have to return the item if the owner revokes his/her consent. State v. Lane, 328 N.C. 598, 403 S.E.2d 267 (North Carolina Supreme Court 1991). So under this theory if in the scenario above the officers looked through the files on my laptop while my consent to its seizure was still in effect and discovered it contained evidence of a crime (drug records, say), they would not have to return the laptop to me and could presumably image its hard drive even after I tried to revoke my consent to its seizure.

Section 230 Immunity -- Revisited

A while back, I did a post in which I explained that a federal statute 47 U.S. Code § 230(c)(1) – immunizes certain parties from liability based upon content they publish online.

This post is about a Michigan case in which a criminal defendant claimed his defense attorney was ineffective because he did not raise this statute at trial: People v. Gourlay, 2009 WL 519216 (Michigan Court of Appeals 2009). The defendant said his attorney essentially committed malpractice by not raising the statute, his theory being that the statute would have barred his conviction.

As I noted in my earlier post § 230(c)(1) says that ““[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” An “information content provider” is a “person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet.” 47 U.S. Code § 230(f)(3). An “interactive computer service” is “any information service . . .that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet”. 47 U.S. Code § 230(f)(2).

The defendant – Kenneth Gourlay – was convicted of various crimes under Michigan law, including distributing child pornography. People v. Gourlay, supra. Here are the facts that led to the charges against him:

Justin Berry, at the age of 13, obtained a web camera, which he soon used to broadcast pornographic images of himself over the Internet. . . .

Defendant, who owned Chain Communications, a web hosting company, contacted Berry, informing Berry he was watching Berry over the Internet. Defendant and Berry began to communicate. . . . Berry [said] he wanted . . . . place his website with a web hosting company and wanted the website to have a members-only section. Defendant and Berry discussed different ideas for the new website. In 2002,

the new website . . .was created. . . . to allow Internet viewers to watch Berry engage in pornographic acts. Chain Communications hosted the site. Defendant registered the domain name, created a members-only section, and programmed the website with a JAVA applet, which provided a near live streaming image. According to Berry, defendant watched the images broadcasted over the website.

In . . . 2003 Berry moved into an apartment . . . with web cameras so his Internet viewers could watch him day and night. Berry discussed the apartment and the cameras with defendant. He [said] he was going to create a new website, the `mexicofriends’ website. The purpose . . . was to allow Internet viewers to watch Berry engage in pornographic acts. Chain Communications hosted the website, and defendant registered the domain name, created a members-only section, and programmed the website. . . .

People v. Gourlay, supra.

At trial, Gourlay’s attorney seems to have based his defense on Gourlay’s claims that he did not know Berry was broadcasting pornographic images of himself via the two sites and/or that he thought Berry was over 18. People v. Gourlay, supra. As I noted earlier, Gourlay appealed his conviction, arguing that the defense attorney should have raised the § 230(c)(1) immunity as a defense.

[Gourlay] argues that the jury should have been instructed that he could not be convicted of the pornography offenses unless it found he actually contributed to the creation of the child pornography. The jury also should have been instructed, defendant claims, that an Internet service provider does not create pornography by providing bandwidth or by providing technical or artistic assistance.

People v. Gourlay, supra.

In analyzing his argument, the Court of Appeals noted there was “no dispute” that Berry “was an information content provider” for the two sites and that Gourlay, “acting as Chain Communications, was an interactive computer service provider.” People v. Gourlay, supra. It then addressed the prosecution’s argument, which was that § 230(c)(1) “only provides immunity from civil liability.” People v. Gourlay, supra. The court held this argument failed because 47 U.S. Code § 230(e)(3) specifically says “no liability may be imposed under any State . . . law that is inconsistent with” 47 U.S. § 230. The court cited a dictionary which defines “any” as meansing “every; all” and therefore held that “the phrase `any State . . . law” includes civil and criminal laws.” People v. Gourlay. Since the Court of Appeals found Congress “intended that no liability may be imposed under a state criminal law that is inconsistent with § 230,” it rejected the prosecution’s argument and proceeded to consider the merits of Gourlay’s § 230(c)(1) claim.

The court noted that to convict a defendant of distributing child pornography in violation of Michigan law, the prosecution has to prove “(1) the defendant distributed . . . child sexually abusive material, (2) the defendant knew the material was child sexually abusive material at the time of distribution . . ., and (3) the defendant distributed . . . the material with criminal intent.” People v. Gourlay, supra (citing Michigan Compiled Laws § 750.145c(3)). The Court of Appeals noted that it could

imagine a prosecution for . . . § 750.145c(3) that would be inconsistent with § 230. Such a prosecution would be based on the theory that an interactive computer service provider distributes child sexually abusive material with the intent that it be seen by others when, after receiving notice of the material, keeps the material available to be viewed or discovered by others.

People v. Gourlay, supra. The court also noted, though, that the prosecution of Gourlay for distributing child pornography was not based on this theory. It was, instead, based

on the theory that defendant, knowing the purpose of the JFWY and mexicofriends websites was to allow Internet viewers to watch Berry engage in pornographic acts, was an active participant in the creation of the two websites. The prosecution produced substantial evidence. . . . (1) that defendant knew Berry hosted his own pornographic website, that Berry wished to take this website, the justinscam website, to the `next level,’ and that the purpose of both the JFWY and mexicofriends websites was for others to see pornographic images of Berry, (2) that defendant hosted the two websites with Chain Communications and registered the domain names, (3) that defendant programmed the websites . . . to create a near live streaming video image, (4) that defendant created the members-only sections for the websites, and (5) that defendant provided Berry with an advanced web camera . . . . In . . . online conversations, defendant told Berry that Berry . . . `got the money shots right before’ Berry turned the web cam off, and that some high resolution images of the `money shots’ would be nice in the website's members-only section. . . . Because the prosecution of defendant for distributing . . . child sexually abusive material. . . was based on defendant's active involvement in the creation of the JFWY and mexicofriends websites, . . . an instruction that [he] could not be convicted of [violating §] 750.145c(3) for providing bandwidth or for publishing material Berry created using the general services and mechanisms provided by Chain Communications was not to avoid a conviction that was inconsistent with § 230. Thus, counsel was not ineffective for failing to request a jury instruction on § 230. . . .

People v. Gourlay, supra. The court also noted that although Gourlay claimed on appeal that

he was merely providing standard web hosting duties to Berry for the JFWY and mexicofriends websites, there was no evidence presented at trial that many of the services defendant provided to Berry for the two websites, such as use of the applet, the creation of members-only pages, the technical assistance given to members of the two websites, and the registration of domain names, were provided for any of Berry's other websites or to other clients of Chain Communications.

People v. Gourlay, supra.

I think the Michigan Court of Appeals got it right when it held that § 230(c)(1) immunity applies to criminal as well as civil liability. It’s the only criminal case I can find in which § 230(c)(1) was even raised as a defense to criminal charges, but that might change, now.

I think the court was right for the reasons it gave – parsing the statute and finding that the language of § 230(e)(3) specifically says NO liability can be imposed under state law unless it’s consistent with the provisions of § 230. I also think the court’s conclusion in that regard is supported by the fact that another provision of § 230(e) -- § 230(e)(1) – says that nothing in § 230 “shall be construed to impair the enforcement of . . . any . . . Federal criminal statute.” It seems to me that if Congress had meant the same result to apply to prosecutions under state law, it would have said so.

The Privacy Privilege

This post is going to argue that we should slightly revised how we think about the legal principle that guarantees us privacy.

As I’ve explained before, the primary privacy guarantee we have is the Fourth Amendment, which protects us from “unreasonable” state-initiated searches and seizures.

The protection created by the Fourth Amendment, like the protections created by the other provisions of the Bill of Rights and other laws, are usually referred to as “rights.”

In this post, I want to argue that it the protection the Fourth Amendment gives to our privacy is more properly understood as a “privilege” than as a “right.” According to Black’s Law Dictionary, a “right” is “[s]omething that is due to a person by . . . legal guarantee”, while a privilege is an “exemption” or “immunity” granted to a person.

Rights and privileges both give us certain types of protection, but the dynamic involved differs. When I have a “right” to something, I expect the government to see that I get it. So I have a constitutional right to due process in a criminal trial or in an administrative proceeding dealing with my right to, say, unemployment benefits. Since I have a right to due process, it’s up to the government to see that I get it; if the government defaults on that obligation, I can sue to obtain redress for that default. But basically, when a right is involved my role is passive; I expect the government will give me what I am entitled to.

When I have a privilege – like the Fifth Amendment privilege against self-incrimination – I have, as Black’s Law Dictionary notes, an immunity that protects me from being compelled to do something the government wants me to do. So if a federal prosecutor subpoenas me in front of a grand jury and starts asking me about my (purely hypothetical) criminal activity, I can invoke my Fifth Amendment privilege and refuse to answer. I have to invoke the privilege, though; it’s not up to the prosecutor to take care of that for me.

Let’s get back to the Fourth Amendment as creating a privacy privilege. Why do I think it may make sense to treat that constitutional guarantee as a privilege, instead of as a right (which is the way it’s usually interpreted)? I think it makes sense because, as I wrote in a law review article, privacy is conceptually more analogous to the privilege against self-incrimination than it is to the right to have due process. Privacy is inherently an oppositional concept; it doesn’t exist in the abstract. When I’m concerned about privacy, I’m concerned about shutting other people out of certain aspects of my life . . . which is why I draw the drapes at night and shower in a room where the glass in the window is frosted.

As a matter of practice, then, we already treat privacy as a privilege, not a right, and we do that because it makes sense. It makes sense to make the state responsible for providing counsel and other procedural protections to defendants in criminal cases because the state controls the adjudicative process. It would not be “reasonable” to make the state the arbiter of privacy because privacy is not something in which the state has a vested interest; indeed, privacy is in many respects antithetical to the state’s interests since, if nothing else, the limitations imposed by privacy make it more difficult to investigate and prosecute crimes.

I think the Supreme Court has already at least implicitly recognized that the Fourth Amendment operates like a privilege, not a right. In the Katz case, which I’ve talked about in several posts, the Supreme Court implicitly recognized that Fourth Amendment privacy is a privilege and that the specific scope of that privilege must come from the people. Like evidentiary privileges, the contours of the “privacy privilege” are derived by balancing evolving societal expectations of privacy against the state’s interest in information-gathering.

The Katz Court made it clear that the “privacy privilege,” like the Fifth Amendment privilege, must be invoked to be effective when it held that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . but what he seeks to preserve as private, even in an area accessible to the public, may be . . . protected.” So if you’re going to grow marijuana in your bedroom, you’d better close the blinds; if you don’t, you can’t complain that your Fourth Amendment privacy was violated because police officers saw the plants and got a warrant to come get them. By not closing the blinds or blacking out the windows, you failed to invoke your privacy privilege.

We’re pretty good at invoking the Fourth Amendment privacy privilege in the real-world. We know how to close blinds and frost windows and have conversations we don’t want the world to know about in rooms with closed doors (that have maybe been swept for bugs). Cyberspace is where the invocation of the privilege really becomes problematic.

One could argue that the privilege should not apply to cyberspace because cyberspace isn’t a “place”, and privacy has traditionally been about places (the home or office, as the Katz Court noted). Cyberspace is a persistent, synchronous and asynchronous experiential phenomenon we conceptualize as a “place” because we have no other appropriate analogy. The fact that it isn’t a physical place is, however, irrelevant when it comes to the applicability of the privacy privilege. As I explained in an earlier post, the Supreme Court recognized over a century ago that we have a Fourth Amendment expectation of privacy in sealed letters we send through the mail; and in Katz, it recognized that we have a similar expectation of privacy in the content of our telephone calls. So since the Fourth Amendment privacy privilege applies to the contents of communications, it by extrapolation also applies to cyberspace, which is a more or less transient aggregation of digital communications.

That brings me to the issue I noted above: We’re pretty clear on how to invoke the privacy privilege in the physical world, but a little shaky on how to invoke it in the cyberworld. It seems to me we tend to think of privacy in the online world as a right; we expect the government to stay out of our online activity. I suspect most of us don’t think about the need to invoke privacy when we’re online, and maybe wouldn’t know how to invoke it if we did think about it.

This is where the notion of privacy as privilege comes in: The Supreme Court should make it clear that, unlike the home, this is not a context in which the privacy privilege presumptively applies; the Court should make it clear that the Fourth Amendment does not protect computer-mediated communications unless the parties to the communications affirmatively and effectively invoke the privacy privilege. One virtue of this approach is that emphasizing invocation gives courts a standard they can use to parse the varieties of computer-mediated communication; privacy cannot encompass communications unless the parties took steps to ensure that they remained private, unless they closed the blinds. The parties might rely on encryption, on the use of private, password-protected areas or other measures; they would not, however, be able to claim the protections of the Fourth Amendment if they did nothing to preserve the privacy of the communications at issue.

A court would, therefore, reject someone’s claim that she had an expectation of privacy in messages she posted on a publicly accessible website because there was no invocation of the privilege; the messages could be read by anyone. If the messages were posted to a Facebook wall, the court would have to determine if the wall belonged to a public group, a private group or an individual; if the wall belonged to a private group or individual, the court would then have to determine whether the subscribers had taken measures sufficient to limit access to the wall and thereby invoked the “privacy privilege.”

And what about emails? As I explained in an earlier post, they can be analogized to postcards because emails can be read by employees of the system(s) though which they are transmitted. In holding that we have a Fourth Amendment expectation of privacy in letters, the Supreme Court relied on the fact that he invoke the privacy privilege by sealing the letters in an opaque envelope; it noted we have no such expectation of privacy in postcards, because they can be read by anyone involved in their delivery. Encrypting emails would therefore invoke the privacy privilege; the more difficult question is whether any thing less than encryption should serve to invoke it.

In my humble opinion, a virtue of this approach is that by putting the burden of establishing a cognizable privacy interest on the individual, it gives individuals control over the extent to which their activities are shielded by the privacy privilege. This is consistent with Katz’s risk-analysis, e.g., its premise that “what a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.” It should also put people on notice that those who employ the communication opportunities in cyberspace without taking steps to ensure their privacy assume the risk that their communications will be read by outsiders, including law enforcement officers.

That, in turn, should encourage people to take steps to invoke the privacy privilege with regard to communication in cyberspace -- to develop technology that can be used to invoke the privacy privilege in this context. And since cyberspace is an artificial construct, it should prove easier to do this than to counter surveillance technologies in the real-world.

Uttering and Publishing

This post is about the use of a computer to commit a crime I must confess I hadn’t heard of: uttering and publishing. As Wikipedia explains, “uttering and publishing is a crime similar to counterfeiting. Uttering is the act of offering a forged document to another when the offerer has knowledge that the document is forged.”

The first uttering and publishing case I’m going to talk about is from Michigan, which has a statute that provides as follows: “A person who utters and publishes as true a false, forged, altered, or counterfeit record . . . or other writing . . . knowing it to be false, altered, forged, or counterfeit with intent to . . . defraud is guilty of a felony punishable by imprisonment for not more than 14 years.” Michigan Compiled Laws § 750.249(1). Under the Michigan statute, one can only commit the crime by uttering and publishing one of the documents specified in Michigan Compiled Laws § 750.248, which includes public records, powers of attorney, promissory notes, deeds and “an accountable receipt for money, goods, or other property”. Michigan Compiled Laws § 750.248(1).

Uttering and publishing seems to be an old crime. I was trying to figure out if there is any difference between the terms “utter” and “publish”, but there doesn’t seem to be. To resolve that issue, I had to go to some old cases: In Smith v. State, 79 S.E. 764 (Court of Appeals of Georgia 1913), the court said that if “the accused `uttered’ a forged instrument, he `published’ it”, so they are apparently synonyms. The Arizona Court of Appeals court said the same thing in 1966, so I’m assume it’s still true and is true for the crime defined under the Michigan statute. State v. Singh, 419 P.2d 403 (Court of Appeals of Arizona 1966).

The case we’re concerned with is People v. Cole, 2009 WL 691725 (Court of Appeals of Michigan 2009). Charles Cole was convicted of two crimes: uttering and publishing in violation of the Michigan statute quoted above and using a computer to commit uttering and publishing in violation of Michigan Compiled Laws § 752.796. Section 752.792 is not an uttering and publishing statute as such. Section 752.796(1) makes it a crime to “use a computer program, computer, computer system, or computer network to commit, attempt to commit, conspire to commit or solicit another person to commit a crime.” So if Cole used a computer to commit uttering and publishing, he committed a second crime, a violation of § 752.796(1).

After being convicted, Cole appealed to the Michigan Court of Appeals arguing that “the prosecutor presented insufficient evidence to support his conviction” and the trial court erred in denying his motion for a directed verdict of acquittal. People v. Cole, supra. When a defendant files a motion for acquittal, he’s claiming the prosecution hasn’t presented evidence that would allow a reasonable jury to convict him. If the prosecution hasn’t presented evidence a reasonable jury could rely on in convicting a defendant, the court can’t give the case to the jury because there’s no rational way for them to convict and it would be unfair to let them convict someone when the evidence doesn’t support it.

The Court of Appeals began its analysis of Cole’s argument by explaining the law involved in the charges:

The prosecution must establish three elements . . . to prove uttering and publishing: `(1) knowledge on the part of the defendant that the instrument was false; (2) an intent to defraud; and (3) presentation of the forged instrument for payment.’ . . . To prove the offense of using a computer to commit uttering and publishing, the prosecutor must prove: (1) the defendant used a computer, (2) with the intention of committing uttering and publishing. Defendant was convicted of uttering and publishing under an aiding and abetting theory. `[A]nyone who intentionally assists someone in committing a crime is as guilty as a person who directly commits it and can be convicted as an aider and abetter.’ . . . `Aiding and abetting’ describes all forms of assistance to the perpetrator of a crime and comprehends all words or deeds that might support, encourage, or incite the . . . crime.’ . . . . An aider and abettor's state of mind may be inferred from the facts . . . including a close association between the defendant and the principal, the defendant's participation in the . . . execution of the crime, and evidence of flight after the crime.

People v. Cole, supra.

As to what Cole did to get himself charged with these crimes, it seems he and Takara Robinson were passing bad checks at a Marathon station: “The Marathon station employees became suspicious of Takara Robinson's check because it matched bad checks they received in the past; however, those checks bore the name `David Clark.’ As they were stalling Robinson and [Cole], the Marathon station employees identified [Cole] as the person who previously presented the checks bearing the name `David Clark.’” People v. Cole, supra.

The Michigan Court of Appeals found that the prosecution had presented sufficient evidence to support his being convicted of uttering and publishing and using a computer to commit uttering and publishing under the prosecution’s aiding and abetting theory:

[Cole] confessed . . . he created the checks on his computer and used the account numbers from a valid check and transposed those numbers onto the checks he printed. The evidence established that [he] knowingly provided assistance to Robinson while she attempted to use the checks. [He] drove [her] to the Marathon station, and after [she] was delayed, [he] entered the gas station with a cover story and twice reached over the counter to retrieve Robinson's check and driver's license. Finally, [Cole] fled . . . and when the police caught them, he and Robinson threw some of the checks he printed out the window. . . . [T]he jury could infer from the facts . . ., including [his] participation in the planning and execution of the crime and . . . flight after the crime, that [he] was guilty beyond a reasonable doubt of using a computer to commit uttering and publishing and aiding and abetting Robinson while she committed uttering and publishing.

People v. Cole, supra.

Why wasn’t it forgery? I’m going to use a Virginia case to explain that. In Bennett v. Commonwealth, 48 Va.App. 354, 631 S.E.2d 332 (Court of Appeals of Virginia 2006), Ira Bennett was convicted of uttering a forged public record based on these facts:

Bennett entered a Virginia Department of Motor Vehicles office . . . to apply for a commercial license. Using the name and identifying information of `Leroy Swann,’ [he] completed and submitted an application for the license. Bennett took the test for a commercial license, but failed. He then amended his application to request a duplicate driver's license. In the processing this application, a DMV clerk had Bennett stand in front of a camera for a photograph and sign a computer screen bearing his digitalized image. Bennett signed the computer screen by forging the signature, `Leroy Swann.’ As a result of forging the signature on the computer screen, the computer generated a duplicate driver's license with the name `Leroy Swann.’

Bennett v. Commonwealth, supra. Bennett left without getting the duplicate license.

Bennett appealed his conviction, claiming the “act of affixing the forged signature to the computer screen could not constitute a forgery and uttering a forged public record.” The statute he was convicted makes it a crime to “forge a public record or utter, or attempt to employ as true, such forged record ... knowing the same to be forged”. Virginia Code § 18.2-168. Bennett admitted forging the name on the computer screen, but said he “was not guilty of uttering the forged document because he did nothing other than sign the . . . name, and did nothing to cause the forged signature to generate the license. Moreover, he never received or used the forged license.” Bennett v. Commonwealth, supra.

The Court of Appeals explained that uttering and forgery are two different crimes.

Forgery `is defined . . .as “the false making . . . with the intent to defraud, of any writing which, if genuine, might . . . be of legal efficacy, or the foundation of legal liability.”’. . . . By contrast, . . . uttering does not require proof the defendant produced or altered a writing. . . . [T[he Supreme Court of Virginia has found uttering to be `an assertion by word or action that a writing known to be forged is good and valid.”’

Bennett v. Commonwealth, supra. It noted that the “definition of `uttering” accepted by Virginia courts contains no requirement that a forged instrument be negotiated”.

The Virginia Court of Appeals upheld Bennett’s conviction:

As part of the procedure to obtain a duplicate license, Bennett was required to stand for a photograph and then sign the computer screen before him. The record contains no evidence that any further action was required of Bennett to complete the process of obtaining the license. After the forged driver's license was produced, the DMV clerk attempted to present it to Bennett; however, he had left and did not accept it. We hold that, in signing the false name on the computer screen and completing the application process, Bennett asserted to the DMV agent that the false name on the screen was good and valid, and he thereby instituted the process that produced the fraudulent license. Uttering was completed simultaneously with the forgery because the forged signature on the electronic screen was being `employed as true’ in order to generate the false public record. The crime of uttering a public record was then complete.

Bennett v. Commonwealth, supra.

It’s interesting to see old crimes applied to the use of new technology. It’s also interesting to realize that if someone signs a false name on a computer screen, they’re simultaneously committing both forgery and uttering a false document/public record.

Search Warrants and the Attorney-Client Privilege

A recent case from Georgia illustrates how federal prosecutors deal with the task of preserving attorney-client privilege when a search warrant is executed at a law office.

The case is U.S. v. Sutton (U.S. District Court for the Middle District of Georgia 2009), and here are the facts that led to the search:

Berrien Sutton is an attorney in Homerville, Georgia at the firm of Sutton & Associates, P.C. (`S & A’). On July 17, 2008, Sutton was indicted for one count of honest services fraud conspiracy, several counts of mail fraud, and one count of conspiracy to commit mail fraud. The charges against Sutton followed a federal investigation into allegations of official corruption in the Alapaha Judicial Circuit in South Georgia. Among other things, the Indictment charges that Brooks E. Blitch, III, a former superior court judge in the Alapaha Circuit, created unnecessary government positions and appointed Sutton and his wife, Lisa, to those positions to help them get out of debt. In return, Blitch allegedly received free legal services from Berrien Sutton.

U.S. v. Sutton, supra.

In June, 2008, an FBI agent applied for a warrant to search the S&A office. When an officer applies for a search warrant, he/she submits an affidavit (a statement made under oath) explaining why he/she wants the warrant, why there is probable cause to justify the issuance of the warrant, where he/she wants to conduct the search and what, exactly, he/she wants to search for.

In the affidavit the agent submitted for the S&A office, he said “there was probable cause to believe that evidence of a conspiracy to commit mail fraud was located at S & A.; specifically, evidence that Blitch appointed Sutton and his wife to unnecessary government jobs in return for free legal services.” U.S. v. Sutton, supra. The information the agent would have included in the affidavit would have been much more detailed and specific than this statement implies; it’s just a summary.

The court found that the affidavit and the rest of the application justified the issue of the search warrant, and so gave the FBI agent his warrant. It authorized him and the agents assisting him to search for items that included the following:

(a) Documentation in whatever format pertaining to the representation of Blitch Ford, Brooks E. Blitch III, Margaret Peg Blitch, and/or Brett Blitch, by Sutton and/or Sutton and Associates, P.C. (SAP), including but not limited to contracts for services, payment records, letters or other memorandum outlining services to be performed and fee agreements.

(b) Records in whatever format pertaining to billing records for Blitch Ford, Brooks E. Blitch III, Margaret Peg Blitch, and/or Brett Blitch.

(c) Records in whatever format pertaining to contingency agreements with Blitch Ford, Brooks E. Blitch III, Margaret Peg Blitch, and/or Brett Blitch.

(d) Computer hardware, meaning any and all . . . electronic devices capable of data processing. . . .

U.S. v. Sutton, supra.

The agents executed the warrant and seized evidence. After he was indicted, Sutton moved to suppress the evidence they seized at the S&A office. We, though, are only concerned with part of that evidence: evidence implicating the attorney-client privilege.

That evidence seems to have fallen into two categories. The first consisted of a “printout of an email that Sutton sent to Withers, his defense attorney in this criminal case.” U.S. v. Sutton, supra. The email was clearly protected by the attorney-client privilege because it was a communication by a client (Sutton) to his lawyer (Withers) that apparently dealt with the scope of the representation (i.e., dealt with issues in the case against Sutton).

The other category consisted of “documents that related to Sutton's representation of the Blitches.” U.S. v. Sutton, supra. Those documents may also have been protected by the attorney-client privilege; they dealt with information pertaining to Sutton’s (a lawyer’s) representing the Blitches (his clients) on various legal matters. The privilege could apply to these documents even though they had nothing to do with the case against Sutton; as long as material relates to the substance of an attorney’s legitimate work on behalf of his clients, it’s protected by the privilege. (Material won’t be protected by the attorney-client privilege if the work the attorney was doing involved assisting the clients with committing future crimes, but that exception may or may not have applied here.)

Sutton argued that the use of the search warrant to find and seize the email printout and the documents pertaining to his representation of the Blitches violated the attorney-client privilege and therefore required the suppression of this evidence. The federal district court disagreed.

To understand why the court disagreed, we need to review the procedure the agents who executed the warrant used to prevent the privilege from being compromised. The U.S. Attorney’s Manual, which is a statement of policies federal prosecutors and federal agents are to implement, deals with law office searches. It says “[p]rocedures should be designed to ensure privileged materials are not improperly viewed, seized or retained during the course of the search.” U.S. Attorney’s Manual § 9-13.240. It also says that

[w]hile every effort should be made to avoid viewing privileged material, the search may require limited review of arguably privileged material to ascertain whether the material is covered by the warrant. Therefore, to protect the . . . privilege and to ensure that the investigation is not compromised by exposure to privileged material . . ., a "privilege team" should be designated, consisting of agents and lawyers not involved in the underlying investigation.

U.S. Attorney’s Manual § 9-13.240. That is exactly what the agents did in the Sutton case. The agent’s affidavit provided

for a `taint team’ procedure to protect . . . the attorney-client privilege. This . . . search would be conducted by a `privilege search team’ that consisted of . . . agents who had no previous involvement in the . . . investigation. The team would be assisted by a `privilege prosecutor’ with no knowledge of, or involvement in, the investigation. The privilege prosecutor would be responsible for answering any legal questions that arose during the search. The privilege search team would deliver all seized evidence to the privilege prosecutor, who would deliver to the prosecuting attorneys all non-privileged documents. All privileged documents and documents outside the scope of the warrant would be returned to S & A by the privilege prosecutor.

U.S. v. Sutton, supra. The district judge therefore denied Sutton’s motion to suppress because the investigators followed this procedure:

[T]he agents delivered directly to the privilege attorney all evidence seized from S & A. The privilege attorney kept the documents in sealed envelopes and reviewed them to determine whether they were privileged. At no time did any prosecuting attorneys view any privileged material. For these reasons, the Court finds that Sutton has failed to demonstrate that the search violated his attorney-client privilege.

U.S. v. Sutton, supra.

I don’t know how many computers and how much data they had to go through, but the Sutton case seems to be essentially a simple case, at least in terms of applying the taint team procedure. In 2002, Lynne Stewart, a criminal defense attorney in New York City, was the target of a terrorism investigation. She had represented Sheikh Abdel Rahman, who was convicted of being involved in the 1995 World Trade Center bombing; the government suspected Stewart was conspiring with the incarcerated Sheikh and was involved in other crimes, so it got a warrant to search her law office.

That search was especially complicated because her office was “part of a larger suite,” which she shared “with four other solo practitioners.” U.S. v. Stewart, 2002 WL 1300059 (U.S. District Court for the Southern District of New York 2002). The computers used by the 5 lawyers and their staff were all networked, and at least one seems to have been in common use. The attorney-client privilege issues were, therefore, very complex.

Federal agents executed the search warrant at the offices and seized lots of material, including computer data. The court noted that the data was particularly “likely to contain privileged materials.” The government intended to have a privilege team review the data to sort out what was privileged and what was not, but Stewart said that wasn’t enough. She asked the court to appoint a Special Master – an outsider – who would conduct the initial screening of the material. She argued that the special complexity and sensitivity of the search and the material seized required that, and the court agreed. U.S. v. Stewart, supra. I can only find a couple of reported cases in which courts have appointed Special Masters, but I think it can be particularly important when computer search warrants are executed at law offices (or doctors’ offices, too, for that matter).

iPhone Search Warrant

Last year I did a post on a case in which the court held that officers could search an arrestee’s Blackberry under the search incident exception to the 4th Amendment’s warrant requirement.

As I explained in that post, the Supreme Court has held that it is reasonable (and all the 4th Amendment requires is reasonableness when it comes to searches and seizures) for an officer to search the person of an arrestee (pockets, purse, shoes, clothes) in order to find (i) any weapons he/she may have and/or (ii) any evidence he/she might be able to destroy if it isn’t located early in the process.

This post is about a slightly different procedure that was used for an iPhone. The procedure was used in the case of United States v. Lemke, 2008 WL 4999245 (U.S. District Court for the District of Minnesota 2008).

The case began when FBI agents trolled a “`hard core child pornography message board located in Japan, . . . the “Ranchi” message board” in an effort to identify U.S. citizens who were using the board to trade child pornography. U.S. v. Lemke, supra. I won’t go into all the details of the investigation; suffice it to say that the agents used a ploy to (allegedly) get Lemke to try to download an image of child pornography that they’d advertised on the Ranchi message board. When the agents reviewed the log file for the website they’d sent Lemke (and others) to, they harvested “`several hundred unique” IP addresses. U.S. v. Lemke, supra.

The agents traced several of the hits on the site to an IP address controlled by Charter Communications. After they served Charter with a subpoena, it identified Lemke as the “subscriber for that particular IP address” and gave the agents his home address. The agents confirmed that Lemke lived there, and discovered he had been investigated a couple of years before for allegedly molesting a 4-year-old girl. U.S. v. Lemke, supra.

With that and other information, they obtained a warrant to search Lemke’s house. They executed the warrant and seized a computer, along with other evidence. The forensic analysis of the computer turned up child pornography, including images and videos showing Lemke “engaged in sexual misconduct with three (3) different pre-pubescent girls”. U.S. v. Lemke, supra. The officers got two more search warrants, executed them, and seized a lot more evidence of varying kinds. U.S. v. Lemke.

At some point (it isn’t clear from the opinion), they arrested Lemke. When they arrested him, he was carrying a “black Apple iPhone.” U.S. v. Lemke. Instead of searching the iPhone pursuant to the search incident exception, the agents “secured [it] at the St. Cloud Police Department, pending a forensic analysis . . . to uncover the assigned telephone number, any stored telephone numbers, and any incoming or outgoing calls, text messages, photographs, or videos.” U.S. v. Lemke, supra.

A St. Cloud police officer, Jolene Thelen, then submitted an application for a warrant to search Lemke's iPhone. (State and federal agents often cooperate in this kind of case).

In addition to the information above, and in support of the . . . Warrant, which authorized a search of the contents of the . . . iPhone, Thelen attested that the Defendant had been arrested, and law enforcement had recovered a black Apple iPhone on his person. [She[ attested that the iPhone was secured in her desk at the police department, pending the issuance of a Search Warrant for forensic analysis of the data on the iPhone.

Thelen averred that, based upon her training and experience in law enforcement, she was aware child pornographers `commonly maintain a collection of child pornographic images in the privacy and security of their homes or some other secure location,”’ including `discs, hard drives, media storage devices, compact disc and thumb drives[.]’ Thelen further attested that child pornographers `rarely dispose of the collections’. . . . and to her belief, that a search of the . . . Defendant's iPhone, could reveal evidence of the Defendant's criminal conduct.

U.S. v. Lemke, supra.

The judge granted the warrant, they found evidence and Lemke moved to suppress the evidence the agents and officer found as a result of executing all the search warrants in his case. U.S. v. Lemke, supra.

Lemke’s motion to suppress the evidence found on his iPhone was based on one issue: He claimed that the information Officer Thelen provided in her application for the search warrant was not enough to establish probable cause to believe evidence of a crime (child pornography and evidence related to Lemke’s possessing and creating child pornography) would be found on the iPhone.

The federal district court judge found that the information she provided was enough to establish probable cause and justify the issuance of the search warrant. It noted, first, that Officer Thelen and other St. Cloud officers had assisted with the execution of one of the warrants at Lemke’s home, which resulted in her observing items she had seen in “sexually explicit photographs” seized from Lemke’s home. U.S. v. Lemke, supra. The court also considered the information summarized above, which Thelen had included in the application for the iPhone search warrant:

[A]fter considering the totality of the circumstances, and after applying a practical, common sense reading to Thelen's Affidavit, we find that the Judicial Officer, who issued the Warrant in question, [was] provided with substantially more than a reasonable likelihood to believe that a search of the Defendant's . . . iPhone, would reveal evidence relating to illegal child pornography. We find nothing to dispute the conclusion, that law enforcement had established. . . . a nexus between the Defendant and the iPhone which was seized from his person, during the course of his arrest.

U.S. v. Lemke, supra. The court therefore denied Lemke’s motion to suppress the evidence found on the iPhone.

Why did the investigators in the Lemke case get a search warrant for the iPhone instead of relying on the search incident exception? Since Lemke was carrying the iPhone when he was arrested, the exception would presumably apply under the analysis the court used in the search incident of a Blackberry case.

I don’t know why they got the warrant, but I can speculate. They may have not wanted to risk the possibility of a successful challenge if they’d gone with a search incident to arrest. As I noted in another post I did on search incident, defendants have been arguing that cellphones (like Blackberrys and laptop computers) are containers that are simply too complex to come within the scope of the search incident exception to the warrant requirement. So far, most courts have held that the exception applies, but some have not.

So given all that, I suspect a court would have upheld the validity of searching Lemke's iPhone pursuant to the search incident exception, but it might have gone the other way. So maybe they were just being extra-careful. Or maybe they just wanted to eliminate even the possibility of a credible argument based on their use of the search incident exception; they obviously had enough to get a search warrant, and they applied for 5 different warrants in the case, so maybe it was just as easy to apply for one more as to risk the search incident approach.

Clergy-Penitent Privilege

In Waters v. O’Connor, 209 Ariz. 380, 103 P.3d 292 (Court of Appeals of Arizona 2004), Korri Waters was prosecuted for sexual misconduct with a minor, a 16 year old boy.

During the pendency of her criminal case, Waters sent an e-mail to `Minister’ D.W., the volunteer music director at Church on the Word, a . . . non-denominational Christian church. D.W.'s title was honorific, given to her and others . . . to differentiate them from other church officers and as a sign of respect. Waters had been an active member of the church and had developed a close friendship with D.W. Over several years the two . . . discussed Waters' marriage and `things”’ that friends talk about.

In her e-mail Waters wrote she missed the church, asked forgiveness for the `choice’ she had made, explained she wanted her life back and stated she was `hungry to hear the word. . . .’ She asked . . . how to start over. . . . D.W. forwarded Waters' e-mail to the church's minister, Pastor D.M., and asked him what she should say. With guidance from Pastor D.M., D.W. answered Waters' e-mail and told her that . . .

[i]f you truly want deliverance in your life, total and complete deliverance, you have [to] come clean about what you did. Everything.

I want to help you. Your first step is to tell me exactly what you did, what's going on now, what your plan is for the future. As far as getting your life back, you don't want the life you had before. You need something better. A life that is solid and secure, without shame. It starts by telling the truth. The whole truth. The ball is in your court.’

Having been told by D.W. to tell her what she had done, Waters did exactly that. In a subsequent e-mail, Waters acknowledged her relationship with the minor, discussed its evolution and described it in graphic detail. D.W. forwarded this and other e-mails from Waters to Pastor D.M. who gave them to the minor's parents. The parents turned the e-mails over to the prosecutor in Waters' criminal case.

Waters v. O’Connor, supra.

The prosecutor wanted to call D.W. as a witness at Waters’ trial but Waters moved to bar her from testifying. She claimed D.W. “`had acted as a `person of the clergy’ and had provided her with religious counseling.” Waters v. O’Connor, supra. Waters said her communications with D.W. were privileged under Arizona Revised Statutes § 13-4062(3), which is the clergy-penitent privilege statute that applies in Arizona criminal proceedings. Section 13-4062(3) prohibits the examination of a “clergyman or priest, without consent of the person making the confession, as to any confession made to the clergyman or priest in his professional character in the course of discipline enjoined by the church to which the clergyman or priest belongs.” Waters v. O’Connor, supra.

The court held a hearing on Waters' motion. At the hearing, D.W. testified that she was not an ordained minister, did not receive confessions and referred questions regarding church doctrine to Pastor D.M. Waters v. O’Connor, supra. As the church's music director, she directed the choir, selected and arranged worship service music and occasionally delivered the “message” during worship services when Pastor D.M. was out of town. D.W. said that while she and Waters had been friends, Waters never before asked her for advice about “something like deliverance from sin.” D.W. also said this was the first time anyone had ever asked her for this type of advice. Waters v. O’Connor, supra.

Waters also testified. She said she believed D.W. was a minister and had confided in her as a minister, believing her e-mails would remain private -- except from Pastor D.M. -- because D.W. was a minister. She said that in the past she had confided in D.W. about her marriage and had sought her counsel as a minister. Waters v. O’Connor, supra.

The trial court denied Waters’ motion to bar D.W. from testifying because it found that D.W.’s position with the church was not that of a member of the “clergy.” Waters filed a motion asking the Arizona Court of Appeals to reverse the trial court’s decision, which the Court of Appeals agreed to do under its “special action” jurisdiction. An Arizona statute lets a court of appeals hear an issue in a case that has not gone to trial if it is an issue” of first impression, statewide significance” or a pure question of law. Waters v. O’Connor, supra. Since the Court of Appeals found that the issue Waters’ motion raised met all three conditions, it agreed to decide whether D.W. qualified as a member of the clergy for the purposes of applying the Arizona clergy-penitent privilege. Waters v. O’Connor, supra.

The court began its analysis of the issue by noting that the “privilege . . . belongs to the communicant: a clergyman may not disclose the communicant's confidences without the communicant's consent.” Waters v. O’Connor, supra. It also noted that the statute did not define “clergyman”. Waters argued that the clergy-penitent privilege should be

expansively defined, and should not be limited to formally ordained clergy. She argues that clergyman should be defined in a functional manner, and clerical status should be accorded to members of a religious organization who engage in functions akin to or customarily performed by members of the clergy. . . . [S]he contends that functionary and thus clerical status should be extended to individuals the communicant reasonably believes are acting as functionaries. Under her functionary equals clergyman definition, Waters' communications with D.W. would be privileged because Waters sought religious advice from D.W.; D.W. responded with spiritual counsel-just as a clergyman would; and Waters reasonably believed D.W. was, as befitting her honorific title, acting as a member of the clergy in providing that advice.

Waters v. O’Connor, supra.

Waters noted that a proposed (but not adopted) Federal Rule of Evidence would have defined clergyman as “`a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting him.’” Waters v. O’Connor, supra. After noting that various sources had criticized the expansive definition of clergy man in the proposed rule, the Arizona Court of Appeals held that the definition went too far because almost anyone in a

religious organization willing to offer what purports to be spiritual advice would qualify for clergy status. Such an expansive construction is contrary to how Arizona courts interpret privilege statutes. Generally, such statutes are to be restrictively interpreted. . . . because they impede the truth-finding function of the courts. . . . . Further, such an approach is not sufficiently linked to achieving the societal benefits justifying the existence of the clergy-penitent privilege

Waters v. O’Connor, supra.

The Court of Appeals explained that the clergy-penitent privilege exists “because of a belief that people should be encouraged to discuss their `flawed acts’ with individuals who, within the spiritual traditions and doctrines of their faith, are qualified and capable of encouraging the communicants to abandon and perhaps make amends for wrongful and destructive behavior.” Waters v. O’Connor, supra. It therefore held that the privilege should not be expanded to include communications with those

who are not qualified to provide such advice. As this case demonstrates, D.W.'s honorific title and activities in the church did not qualify her to render this type of counsel and encouragement or to even advise on issues of transcendent belief, repentance and forgiveness. Therefore, we decline to adopt Waters' functional test for determining the meaning of clergyman.

Waters v. O’Connor, supra.

The court also held, however, that the term clergyman “is not limited to members of religious organizations having an ordained clergy.” Waters v. O’Connor, supra. The court found that such a restrictive interpretation would violate the Establishment Clause of the Constitution (the clause that bars Congress from adopting laws that prefer one religion over others). The court decided that whether someone “is qualified to be a clergy member of a particular faith is . . . to be determined by the procedures and dictates of that person's faith.” Waters v. O’Connor, supra. “Thus, . . . we hold that whether a person is a clergyman of a particular religious organization should be determined by that organization's ecclesiastical rules, customs and laws. Such an approach avoids denominational favoritism and is consistent with the aims of the clergy-penitent privilege.” Waters v. O’Connor, supra.

The court therefore found that D.W.’s status did not qualify her as a clergyman under the Arizona statue, which meant that neither the emails she exchanged with Waters nor her testimony about those emails were barred by the state’s clergy-penitent privilege.

This is so far the only reported case I’ve seen involving email or any other aspect of cyberspace and an invocation of the clergy-penitent privilege. I can’t imagine that such claims will become common, but wouldn’t be surprised if the issue comes up, since it seems reasonable to assume that clergy will communicate with members of their congregations online.

And I wonder if there are online churches? If so, I assume all the communications would be via email, text, etc., so the privilege would necessarily come up in that context.