6th Circuit declines to extend Warshak reasoning to P2P

In a recent unpublished opinion, the Sixth Circuit held that its 2010 opinion in Warshak should not be extended to provide a reasonable expectation of privacy for users sharing files over Limewire. United States v. Conner, No. 12-3210 (6th Cir. 2013).

The defendant was convicted of receipt and possession of child pornography after law enforcement tracked the sharing of child pornography images on Limewire to him. A sheriff's deputy had searched for file names associated with child pornography, and found the defendant's IP address sharing them over the peer-to-peer (P2P) network.

On appeal, the defendant argued that the Sixth Circuit's decision in United States v. Warshak made the "search" of his computer a violation of the Fourth Amendment. In Warshak, the Sixth held that it was a violation of the Fourth Amendment for the government to compel Warshak's ISP to produce his emails without obtaining a search warrant with a showing of probable cause. The e-mails were obtained under the Stored Communications Act, which the Sixth Circuit therefore declared unconstitutional as it relates to this issue.

As for the search conducted on Limewire in the present case, however, the Sixth didn't buy the defendant's argument. The issue was whether P2P sharing "is different in kind from e-mail," and the court decided it was:

Unlike these forms of communication, in which third parties have incidental access to the content of messages, computer programs like LimeWire are expressly designed to make files on a computer available for download by the public, including law enforcement. Peer-to-peer software users are not mere intermediaries, but the intended recipients of these files.

The defendant attempted to argue that he did not know the files would be publicly available, but the court also found that the record proved otherwise. He had made multiple attempts to keep the files private, but the court held that the failure only showed he was "ineffective at keeping [them] ... from being detected" and not that "he was unaware of a risk of being discovered."

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Sixth Circuit affirms restitution award against expert witness who morphed stock images into CP for jury exhibit

In Doe v. Boland, No. 11-4237 (6th Cir. 2012), the Sixth Circuit held that an expert witness who morphed images of children into child pornography in order to show the ease of such editing to a jury was guilty of possession of child pornography. As such, he was ordered to pay restitution of $300,000 to the victims.

The defendant had downloaded images of two children from a stock photo website and edited the images "to make it look like the children were engaged in sex acts" as part of his preparation for testimony at a child pornography trial. His actual intent was to show the jury how easily such images could be modified and to argue that the defendants on trial may not have known the pornographic images they were viewing were actually child pornography.

After his presentation of the images, the FBI began an investigation, and he was charged with possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). The district court held that he did not have to create these morphed images to prove his point and that his actions were not protected by the Constitution or statute. Thus, damages of $150,000 were awarded to each of the two victims. (Read our earlier post about this decision here.)

The Sixth Circuit first held that the § 2252A(f) action for damages allows a court to award "compensatory and punitive damages" and does not require an "exact amount of ... damages." Therefore, the award of $300,000 was permissible.

Secondly, the production of the images was not protected by the First Amendment, and it was immaterial that the images were "never displayed ... outside of a courtroom" or transmitted electronically. "The creation and initial publication of the images itself harmed ... [the children], and that is enough to remove Boland’s actions from the protections of the First Amendment."

In conclusion, the court wrote:

This $300,000 award undoubtedly amounts to tough medicine for Boland.  When he created morphed images, he intended to help criminal defendants, not harm innocent children.  Yet his actions did harm children, and Congress has shown that it “means business” in addressing this problem by creating sizeable damages awards for victims of this conduct.... Nor was this Boland’s only option for trying to help his clients.  He could have shown the difficulty of distinguishing real pornography from virtual images by transforming the face of an adult onto another, or inserting a child’s image into an innocent scene.  If he felt compelled to make his point with pornography, he could have used images of adults or virtual children.  Instead, he
chose an option Congress explicitly forbade: morphed images of real children in sexually explicit scenes.  That choice was not protected by the First Amendment, and the children therefore are entitled to the relief Congress offered them.

Thus, the trial court's decision was affirmed. The case was first heard by the Sixth Circuit in 2011. In that earlier decision, the appeals court reversed and remanded a trial court decision holding that Congress intended for there to be an exception for expert witnesses.

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Sixth Circuit holds that "pinging" cell phone to obtain GPS location is not a search; opinion confuses everyone

In United States v. Skinner, a Sixth Circuit panel held that repeatedly pinging a cell phone in order to obtain its GPS coordinates (or something like that) was not a Fourth Amendment search and thus does not necessitate evidence suppression. No. 09-6497 (6th Cir., Aug. 14, 2012). In a concurring opinion, one judge argued that obtaining the data was a search, but the good faith rule saves the evidence from suppression.

The defendant was suspected of being involved in drug trafficking, and participants in the exchange were known to use pay-as-you-go cell phones equipped with GPS technology. Agents obtained the defendant's phone number and  "pinged" it in order to discover its location as the defendant traveled. They tracked him to his motorhome, and a K-9 dog alerted officers to the presence of narcotics. Over 1,100 pounds of marijuana were found.

Before trial, the defendant sought to suppress the search, arguing that the "use of GPS location information emitted from his cell phone was a warrantless search that violated the Fourth Amendment." The evidence was not suppressed, and he was found guilty on multiple counts.

On appeal, the Sixth Circuit concluded that no reasonable expectation of privacy existed "in the data given off by [the] voluntarily procured pay-as-you-go cell phone." The court continued:

If a tool used to transport contraband gives off a signal that can be tracked for location,  certainly the police can track the signal.  The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.... It follows that Skinner had no expectation of privacy
in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

The court considered this situation simply an advancement of the Supreme Court's 1983 decision in Knotts as it is law enforcement adapting to technological change. They also distinguished the case from Jones because no physical intrusion occurred in Skinner. "Skinner himself obtained the cell phone for the purpose of communication, and that phone included the GPS technology used to track the phone’s whereabouts." Further, the court noted that Justice Alito's concurrence also does not apply. Alito suggested that "relatively short-term monitoring" of movements may not violate the Fourth Amendment, and Skinner was only tracked for three days (opposed to 28 days in Jones).

In a concurring opinion, Judge Donald argued that Skinner did have a reasonable expectation of privacy in the GPS data, making the act by law enforcement here a search. However, she also noted that the Leon good faith exception would prevent the need for suppression "because the officers had probable cause to effect the search in this case and because the purposes of the exclusionary rule would not be served by
suppression."

If my analysis of the technology doesn't make sense, it's because the facts in the opinion leave a lot to be desired. This might be about cell site location data. The fact that Skinner was tracked to his home would make you think it was GPS data due to the accuracy, and the court called it GPS throughout. The court also referenced agents pinging the phone. No one - including the court, apparently - is really sure what was happening here. Check out Professor Kerr's discussion of this issue here (and the reader comments).

UPDATE: Professor Kerr dug into the case a little more. Be sure to read what he came up with on Volokh Conspiracy.

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Sixth Circuit okays warrantless seizure to prevent destruction of evidence

In United States v. Bradley, 2012 U.S. App. LEXIS 13752 (6th Cir. 2012), the Sixth Circuit held that a 26-hour delay in obtaining a search warrant after seizing a laptop was not unreasonable as the defendant may have deleted evidence.

A Kentucky investigator was using hash values to search for distributors of child pornography over a peer-to-peer network. After finding a distributor's IP address, it was tracked to a local fire station. Police went to the station and asked the defendant if they could use software to search his computer for child pornography. He consented, but the search did not load correctly. The defendant then consented to allow the investigator to obtain his GUID (a unique number for each installation of the software). The GUID matched the computer they were looking for, the investigator seized the computer and obtained a warrant the next day in order to perform a further search.

On appeal, the defendant argued that the seizure of the computer without a warrant was a violation of the Fourth Amendment because there was no consent or exigent circumstances. The Sixth Circuit, however, disagreed, finding that exigent circumstances existed. Had the laptop been left with the defendant, he might have destroyed the data or the laptop itself, reasoned the court. Further, "the government's interest in deterring the production and dissemination of child pornography is significant," outweighing the property interests of the defendant. Because the investigator waited until a search warrant was obtained before continuing the search, the seizure was only a de minimis intrusion upon the defendant's rights.

The court also determined that the seizure was reasonably executed. The defendant argued that another officer could have stayed at the fire department to ensure that data was not deleted while the investigator obtained a warrant. The court noted that this was "the better path" but the seizure was not necessarily unreasonable. Also, because of "the intricacies of the warrant application, ... the 26-hour delay was not unreasonable."

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6th Circuit finds probable cause to search camera for evidence of underage drinking, one judge disagrees

The Sixth Circuit recently affirmed the denial of a motion to suppress in United States v. Westerlund, 2012 FED App. 0440N (6th Cir.). In the case, a 15-year-old boy was found drunk by his parents. He and his girlfriend claimed that Westerlund gave them alcohol. The boy's older brother (age 16) told police that he had also been given alcohol and marijuana by Westerlund before and that "a camera had been used at some of their parties and pictures had been taken but he thinks most of them were deleted."

On this information, law enforcement requested a search warrant to find "evidence relating to alcohol, marijuana, and devices used to photograph, record, and store images of minors without clothes or using alcohol or controlled substances." The district court found that no probable cause existed to search for child pornography, but a search for evidence of providing alcohol to minors was allowed including a search of digital cameras. Subsequently, photographs of unclothed minors and minors consuming alcohol were found. The Sixth Circuit affirmed the denial of the motion to suppress.

In a concurring opinion, Judge Cole agreed that probable cause existed to search for evidence of providing alcohol to minors, but suggested that it did not extend to searching cameras. Still, he concurred because of the "ever-widening Leon good-faith exception jurisprudence (an exception that will surely soon, if it has not already, swallow the rule)."

Cole argued that the only evidence suggesting that Westerlund had photographic evidence was a quote from the teenager saying that pictures had been taken but were deleted. The statement did not specify that Westerlund was the one who had taken them or that he was still in possession of them. Cole found this "disturbing" and suggested that it would allow a search warrant to be applied to nearly every person there because they likely had cameras on their cell phones.

[T]here would be a similarly "fair" probability that their devices would contain photos depicting criminal activity. To presume that there is a "fair probability" that photos of criminal activity would be found at Westerlund's home based on this statement alone requires an understanding of the word "fair" that I do not have.

 Judge Cole continued:

The district court latched onto the latter clause of W.J.'s statement, which referred to the photos being deleted, to note that photos may be resurrected from the trash folder on a computer, so their deletion should pose no bar to obtaining a search warrant. But such an argument puts the cart before the horse; it is not the photos' ability to be seized that is at issue, but whether the photos may be sought at all. Similarly, the majority opinion erroneously applies the "plain view" exception to justify the police officers' seizure of the photographs, while what is actually at issue is whether the police were able to look for any photos. As Westerlund makes clear, the photos that were immediately incriminating were not laying around in plain view; the government underscores this by noting that "[i]n the course of reviewing the pictures, other photographs were found that clearly and immediately appeared to be evidence of other crimes . . . ." Given that the officers had no authority to rifle through the photos in the first place, it cannot be reasonably stated that the incriminating photos were in plain view. To say otherwise would obviate any need for a search warrant to specifically list the items sought.

While Judge Cole's argument certainly brings up an important issue in the case, it does also seem reasonable that even without the testimony about pictures being taken, an officer would be able to search a camera for the evidence. The fact that alcohol was in Westerlund's house does not alone provide evidence of providing alcohol to teenagers. Something more was needed, and pictures that might have been taken are certainly a great source. Regardless, Cole's acknowledgment of the ever-expanding good faith rule is well-received - at least by this author.

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6th Cir. vacates computer forfeiture, restitution award

The Sixth Circuit vacated on the issues of forfeiture and restitution in a child pornography possession and production case. United States v. Evers, 669 F.3d 645 (6th Cir.).

After the defendant's son reported him to police for alleged sexual abuse of the defendant's niece, police executed a search warrant to find photographs the defendant had taken of the girl. Officers seized two computers, a digital camera, and other items. In relevant part to the appeal, the trial court ordered forfeiture of the seized items as well as restitution to the son (who was acting as the niece's guardian).

The trial court awarded $1,640 in restitution including $1,500 for lost wages and $140 for child care expenses under 18 U.S.C. § 2259. The defendant argued on appeal that (1) only the victim's lost income is recoverable, (2) the lost wages were not proximately caused by the offenses, and (3) the child care award is not justified. The Sixth Circuit held that the son was a victim under the statute and can recover lost income as it was proximately caused by the defendant. The award for child care was vacated, however. The defendant had been providing free child care for the victim which would not have been free otherwise, and thus, the child care expenses were not proximately caused by the crimes.

On appeal, the Sixth Circuit also vacated the forfeiture of one of the computers because both had not been used for child pornography. Property subject to forfeiture "must bear a 'sufficient nexus' or 'substantial connection' to the underlying offense."

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6th Cir. vacates sadistic or masochistic conduct enhancement

In United States v. Corp, 668 F.3d 379 (6th Cir.), the Sixth Circuit vacated an enhancement for materials depicting sadistic or masochistic conduct because the court only considered the victim's testimony concerning the defendant's conduct rather than the actual content of the images.

The defendant had met the victim on an adult-only dating service, and after meeting, the defendant photographed the victim in many sexual acts. After it was discovered that the victim was 15, defendant was charged and pled guilty to sexual exploitation of a minor. At trial, a number of enhancements were applied, and defendant appealed two - (1) § 2G2.1(b)(4) - material involving sadistic or masochistic conduct and (2) § 4B1.5(b) - pattern of activity involving prohibited sexual conduct.

The appellate court held that a sadistic or masochistic determination is objective and is limited to "the contents within the four corners of the image." Thus, the actual victim's physical or mental pain and experiences is immaterial. The trial court placed great weight on the victim's testimony that defendant urinated on her in applying this enhancement, but none of the photos showed this act. A photo did exist, however, in which the victim had the defendant's semen on her face. The court found that the actual act of ejaculating on another's face is "purposefully degrading and humiliating," but these photos do not capture the act - only the results of that conduct.

With regard to the pattern challenge, the defendant must have been engaged in a pattern of prohibited sexual conduct with minors on at least two occasions. The court found that two acts satisfied this requirement. The first was a previous child pornography offense, and the second concerned a collection of pictures that appeared to involve a girl under the age of 18, but the government was unable to confirm her age. Because the defendant did not contest these facts at trial, the finding was not clearly erroneous.

Thus, because the § 2G2.1(b)(4) enhancement was based on conduct and not the content of the photographs, it was vacated. The § 4B1.5(b) enhancement was affirmed.

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Double jeopardy examined in CP case by 6th Circuit

In United States v. Hutchinson, the Sixth Circuit vacated a conviction for possession of child pornography and remanded a conviction for receipt of child pornography due to double jeopardy considerations. 448 Fed. Appx. 599  (6th Cir. 2012). The defendant had pled guilty, but argued on appeal that the conviction violated the constitution.

The first conflict raised by the defendant was that convictions of Count Two (receipt and distribution of child pornography) and Count Three (possession of child pornography) violated double jeopardy. The court held that "conviction under both statutes is permissible if separate conduct is found to underlie the two offenses." In this case, the conduct for Count Two was that defendant possessed the computer containing child pornography, and the images were shipped through interstate commerce. The facts for Count Three were that defendant received and distributed child pornography through interstate commerce. Because both counts were based on the same conduct, the possession charge was a lesser-included offense, offended double jeopardy, and was vacated.

The defendant also argued a double jeopardy violation with Count One (receipt and distribution of visual depictions of minors engaged in sexually explicit conduct) and Count Two. The Sixth Circuit found that the record did not contain enough information, but "if the same images of 'real' child pornography formed the basis of both Counts One and Two," Count One would be a lesser-included offense. Both counts may cover real images, but only Count Two may cover virtual images. Thus, the issue was remanded.

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6th Circuit affirms conviction under Sarbanes-Oxley for erasing Internet tracks

In United States v. Kernell, the Sixth Circuit held that by deleting evidence of defendant's hacking activities, he violated 18 U.S.C. § 1519 of the Sarbanes-Oxley Act. 667 F.3d 746 (6th Cir. 2012). The defendant used the forgotten password feature to obtain access to then-Governor Sarah Palin's personal e-mail account. Kernell was charged with, among other counts, violating § 1519, and he appealed that conviction.

After Kernell obtained access to the account, he publicly posted the login information to 4chan. Soon thereafter, he took several steps to cover his tracks, including deleting his temporary internet files, removing his browser, and defragmenting his hard drive. The FBI claimed these acts violated § 1519 which reads:

Whoever knowingly alters, destroys, mutilates, conceals ... with the intent to impede, obstruct, or influence the investigation ... of any department or agency of the United States ... shall be fined [or imprisoned].

The issue was whether Kernell was aware of the investigation and knew he had a duty to keep the records. The Sixth Circuit found that Kernell's acts were "done in contemplation of an investigation that might occur." Further, he had even publicly acknowledged the possibility of such an investigation. "[Kernell] deleted the information on his computer out of a fear that the FBI would find it, plainly showing that he took his actions with the intent to hinder an investigation."

Courts have applied § 1519 in other cybercrime cases:

• United States v. Wortman, 488 F.3d 752 (7th Cir. 2007) (defendant who destroyed her boyfriend's CDs containing child pornography violated the statute because she knew of the investigation)
• United States v. Hicks, 438 Fed. Appx. 216 (4th Cir. 2011) (defendant destroyed hard drive upon learning agents wanted to speak with him)
• United States v. Keith, 440 Fed. Appx. 503 (7th Cir. 2011) (defendant deleted images of child pornography from a flash drive upon seeing police approach his house)

The distinction with these cases is that they specifically knew an investigation was in progress. Kernell, on the other hand, only suspected that a federal investigation would soon begin.

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Judge finds guidelines flawed, Sixth Circuit vacates sentence

The Sixth Circuit has vacated and remanded the sentencing of a defendant after the district court imposed one day in jail and ten years supervised release for possession of child pornography because the judge objected to the sentencing guidelines. United States v. Bistline, 665 F.3d 758 (6th Cir. 2012).

After pleading guilty to the possession of 305 images and 56 videos of child pornography, the district court refused to follow the guidelines range of 63 to 78 months' imprisonment because it felt "that 'the guidelines for possession of child pornography are seriously flawed.'" Ultimately, the court sentenced the defendant to one night in jail and 10 years of supervised release. On appeal, the government argued that the sentence was "substantively unreasonable."

The district court considered several issues at sentencing including the need for adequate deterrence, the need to avoid unwarranted sentence disparities, and the history and characteristics of the defendant. The court found that "the humiliation of his arrest and [his] prosecution" was sufficient deterrence, but the Sixth Circuit disagreed. Likewise, the court found that the imposed sentence creates disparities in sentencing rather than avoiding them. Lastly, the district court used the defendant's age and need to care for his wife to justify the sentence, but the appellate court found that their children could have cared for her.

At sentencing, the district court also found it troubling that Congress had been involved in creating the relevant guidelines, but the Sixth Circuit had no objection to that and felt that any "political considerations" that might have influenced their decision could also happen in the courtroom.

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6th Circuit vacates pornography ban as condition of release

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Two domains, one folder: Prosecution can bring two charges

The Sixth Circuit recently held that a hosting account having two domain names directed to it allowed the defendant to be charged with two counts of transportation of child pornography (and therefore was not multiplicitous or a violation of double jeopardy).

In United States v. Richards, 659 F.3d 527 (6th Cir. 2011), Richards argued that because all of the data was located in the same folder, it was irrelevant whether he had two distinct domain names. The court noted, "the sites could have operated at the same time and drawn different images from the same folder because they were on different domains."

While that is certainly the case, the domain name should not be the key here. Even if only one domain name existed, it could have been accessed on multiple computers and "drawn different images from the same folder." The domain names are irrelevant. If a person were to register a hundred domain names for one website, they should not automatically be subjected to a hundred counts. Rather, the approach would vary using the court's citations from other circuits.

• United States v. Schales, 546 F.3d 965, 979 (9th Cir. 2008) - “[W]here a defendant has stored sexually explicit images in separate mediums, the government may constitutionally charge that defendant with separate counts for each type of material or media possessed.” To apply Schales to Richards, there should only be one count. It was saved in one single medium. Though it could have been accessed through different domain names does not change the medium.
• United States v. Gallardo, 915 F.2d 149, 151 (5th Cir. 1990) (“With respect to the child pornography statute [18 U.S.C. § 2252(a)(1)], each separate use of the mail to transport or ship child pornography should constitute a separate crime." Under this standard, Richards should have been charged a different count for each visit to the site and access of the files.

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