Monday, April 1, 2013

Metadata from VHS? 8th Circuit upholds VHS tape seizure in child porn case

I couldn't help but mention this case, briefly. The 8th Circuit, in United States v. Hager, No. 12-2074 (Mar. 29, 2013), held that a search warrant for digital devices containing metadata related to the production of child pornography allowed officers to search/seize VHS tapes. Even though the court acknowledged that VHS tapes are analog and contain no such thing. The ruling was bolstered, in part, by the officer's reliance on a computer forensic expert's opinion, as well as an AUSA stating that the VHS tapes were within the scope of the warrant.

I have bolded/italicized/underlined important parts:

During the search of Hager's residence, agents found 747 VHS tapes capable of holding more than 4,400 hours of information when viewed on a television. Litzinger called a computer forensic expert in North Dakota to ask whether the tapes constituted "electronic media." The expert said that they did. Litzinger then called the First Assistant United States Attorney for North Dakota, who said that the VHS tapes were within the scope of the warrant. Agents then seized the tapes. 
Litzinger was unfamiliar with WebTV or how VHS recording devices worked, thinking that WebTV was similar to a modem. Litzinger believed that he would find the Mueller images on the VHS tapes and that the VHS tapes would contain metadata useful to the Mueller case. Litzinger did not know that VHS tapes are analog, not digital, and as such cannot contain metadata; Litzinger saw a USB port on the WebTV box and assumed that the information on the VHS tapes would be the same as if it was saved on a computer.
Litzinger and a non-expert support staff member of the North Dakota HSI reviewed the VHS tapes at the North Dakota HSI office. Neither Litzinger nor the support staff member knew that the VHS tapes could not contain metadata, although a reasonably competent forensic computer examiner would know this. Upon viewing the tapes, Litzinger and the support staff member found child pornography, whereupon they stopped viewing the tapes and sought and obtained an additional warrant.
Now I understand that EXIF data, metadata, and digital signatures might be confusing to detectives/attorneys unfamiliar with the concepts, but letting this one go on the merits, or (as the court argues), alternatively, under the Leon good faith exception, strains credibility. 

Another excerpt is below:
Hager argues that the first search warrant authorized only a search for the metadata of the sexually suggestive images of Mueller's daughters. Accordingly, Hager argues that the agents were not authorized to search for the images on the VHS tapes in his residence because the VHS tapes could not contain metadata. Reviewing de novo, see United States v. Stoltz, 683 F.3d 934, 938 (8th Cir. 2012), we conclude that the agents did not exceed the scope of the warrant. 
In his affidavit in support of the search warrant, Litzinger made clear that he sought to recover "sexually suggestive images depicting known children which were produced by Robert John Mueller in Detroit, Michigan[.]" Appellant's App. 3-4, Litzinger Aff. ¶ 3. Similarly, the warrant authorized a search for and the seizure of "sexually suggestive images depicting [Mueller's minor daughters] wherever they may be stored or found[.]" Appellant's App. 42. In his affidavit, Litzinger averred that Hager had received the Mueller images and that Hager likely possessed hard copies thereof. Although Litzinger undoubtedly sought to examine any metadata from the Mueller images, a fair reading of his affidavit reveals that Litzinger sought to recover the metadata in addition to, and not to the exclusion of, the images themselves. See United States v. Monson, 636 F.3d 435, 441 (8th Cir. 2011)(explaining that "we ordinarily interpret affidavits in a 'common sense' fashion that is not 'hypertechnical'" (quoting United States v. Hudspeth, 525 F.3d 667, 674 (8th Cir. 2008))). 
Hager argues also that the warrant's addendum limited the scope of the search to only metadata. The addendum limited the search of tapes to "Electronically Stored Information that is specifically described in and that is the subject of this warrant." Appellant's App. 43. The warrant, however, authorized a search for "sexually suggestive images depicting [Mueller's minor daughters] wherever they may be stored or found[.]" Appellant's App. 42. When read in conjunction with the warrant's authorization, the addendum limited the search of tapes to the Mueller images and accompanying metadata, that is, "the subject of [the] warrant."See United States v. Fiorito, 640 F.3d 338, 347 (8th Cir. 2011) [12] ("The broad language of the warrant must be given a practical, rather than a hypertechnical, interpretation that is cabined by the purpose for which it issued."). Accordingly, the agents acted within the scope of the warrant when viewing the VHS tapes found in Hager's residence.


  1. Was hoping this was an April fools joke but doesn't appear to be!

  2. Never thought about it being an AF joke until now. Wish it was...

    1. The Eighth Cir is becoming the new Fourth Cir in terms of a wink and a nod in "digital searches" regarding pornography. They are both deeply conservative benches, and have been the most ridiculous when upholding searches, eg: US v Williams in the Fourth (2010) that said the government much search everywhere on all computers to look for evidence in the warrant. Welcome to the new era of the general warrant: digital searches built on law developed in CP cases. That interesting case from Vermont on Ex Ante restrictions in digital searches has been appealed by the Government, so keep an eye on that one if we are to get any Supreme Court opinion on the matter any time soon.