Fifth Circuit surprises no one with decision that accessing another's text messages on their cell phone doesn't violate SCA

In Garcia v. City of Loredo, Texas, No. 11-41118 (5th Cir. 2012), the Fifth Circuit held that a person accessing text messages and images on the cell phone of another does not violate the Stored Communications Act (SCA). Those of you who have ever studied the SCA are certainly not surprised.

Garcia worked as a police dispatcher, and the wife of a coworker took Garcia's phone from her locker at work. After finding text messages and photos that showed department policy violations, the coworker's wife set up a meeting with the deputy assistant city manager and the interim police chief. The images and texts were shown, the videos were copied off of the phone, and Garcia was fired. Garcia later filed suit, and summary judgement was granted with regard to her SCA claim.

Her argument before the Fifth Circuit was that her cell phone was a "'facility' in which electronic communication is kept in electronic storage in the form of text messages and pictures stored on the cell phone." The Fifth cited a variety of district court cases, a law journal article by Professor Kerr, and the legislative history to back up its holding that devices such as cell phones are not facilities under the act.

The court also held that even if the cell phone was a "facility," the text messages and images certainly do not fit into the SCA's definition of "electronic storage." A common sense definition might make one think that would be the case, but we are, of course, dealing with statutes. Under the SCA, data is only in electronic storage when it "has been stored by an electronic communication service provider." If you want to know what that means, click here.

Thus, the Fifth affirmed the district court's grant of summary judgment, dismissing Garcia's SCA claim.

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Fifth Circuit reissues en banc CP restitution opinion, retains substance of the opinion

In October, the Fifth Circuit, in an en banc opinion, held that a victim of child pornography is not limited to recovery for losses proximately caused by the defendant. In re Amy Unknown, No. 09-41238 (5th Cir. 2012) (en banc). Under the opinion, victims can be awarded the full amount of damages from any individual defendant - even if he only came into possession over the Internet. The decision, which I discussed in a previous post, vacated and remanded the combined cases for the district court to reconsider damages.

Each had been heard by different panels of the court individually. When the second case was heard, the panel agreed with the prior precedent, but wrote a special concurrence questioning the prior decision and suggesting the opinion be taken up en banc. The two cases were heard together by the full Fifth Circuit.

Last week, the Fifth Circuit withdrew its October opinion, choosing to vacate and remand one of the cases and to affirm the other. In re Amy Unknown, No. 09-41254 (5th Cir. 2012) (en banc). The court had remanded both in the October opinion, but in one of the cases, the government had not actually appealed the sentence which had awarded only partial damages. Therefore, the issue could not be remanded because it had not actually been appealed.

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Fifth Circuit shows forensic acumen in CP case; defendant preserves important question for appeal

In United States v. Pelland, __ F.3d __ (5th Cir. 2012), the Fifth Circuit held that circumstantial evidence could be used to prove the interstate commerce requirement of the federal CP statute. The case is noteworthy for two reasons: (1) the court, in holding as it did, discussed the forensic details accurately and succinctly (which often does note happen) and (2) the defendant preserved an interesting statutory interpretation problem which the court punted on for good reason.

This case is relatively run of the mill in terms of facts - the defendant was caught with child pornography on a computer and a zip drive, and convicted. On appeal, he asserted that the government had failed to produce sufficient evidence to sustain the conviction because they had not proven, for each file, that the interstate commerce requirement was met.

In a thoughtful and technologically accurate opinion, the court held that circumstantial evidence of internet use, coupled with file creation dates, and the defendant's own admissions, were sufficient to sustain the conviction. In the court's holding, which I encourage you to read, it deals with IRC chat rooms, file creation dates with respect to downloading and copying, and a few other technical issues. Their analysis was spot on, and an encouraging sign that the courts are becoming better equipped to handle these issues. Here is a small excerpt:

Pelland's child pornography files—both charged and uncharged—had creation dates ranging from May 2008 to March 31, 2009. As Cummings testified, a creation date can be the date a file was downloaded from the Internet or the date it was transferred from another device. Pelland contends that the creation dates reflect the dates on which he transferred pre-existing files onto the thumb drive and desktop, not the dates on which they were originally downloaded. The jury could have reasonably concluded, however, that Pelland would not have transferred the files in a piecemeal fashion on many separate dates, and that Internet downloading on separate dates was more plausible.

If, as Pelland urges, creation dates reflected the dates that pre-existing files were transferred (and not download dates), none of the files on the thumb drive or desktop could have had creation dates earlier than November 2008—the date Poisson gave these devices to Pelland, and thus the earliest date he could have transferred files onto them. Because some of the uncharged files have creation dates going back to May 2008, however, the jury could have reasonably inferred that the creation dates reflected download dates, not file transfer dates. 

The defendant also argued that for one particular count the court was relying on an erroneous decision in United States v. Dickinson, 632 F.3d 186 (5th Cir. 2011) which allows the commerce clause requirement to be met by "producing" child pornography on a device that was involved in interstate commerce. The error, the defendant asserts, is that the Fifth Circuit held in Dickinson that copying files from one device to another is "producing" child pornography, and that is clearly erroneous. The court, because the evidence tying the defendant to the internet was sufficient to sustain all counts, punted on the issue.

The statute in question is 18 U.S.C. § 2252A(a)(5)(B), which states in pertinent part:

Any person who . . . knowingly possesses, or knowingly accesses with intent to view, any . . . material that contains an image of child pornography . . . that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means . . . .

The Fourth, Seventh, Ninth, and Tenth circuits have also held that a defendant copying files from one media to another has "produced" child pornography. The language in question from Dickinson is as follows:

Dickson's arguments are as unpersuasive to us as similar arguments were to the Fourth, Seventh, Ninth, and Tenth Circuits. First, "producing" is broadly defined as "producing, directing, manufacturing, issuing, publishing, or advertising." 18 U.S.C. § 2256(3). Congress could have left "producing" undefined, thereby giving it its ordinary meaning. But by defining "producing" using the term itself plus other closely related terms, Congress intended the statute to cover a wider range of conduct than merely initial production. Excluding copying from our interpretation of "producing" would be too restrictive a reading.

The defendant in Pelland argued that Dickson was wrongly decided, arguing that the statutory definition of "producing" was construed too broad and that copying was never meant to be within the statute's reach. The Fifth Circuit denied to address the issue:

Pelland's argument respecting the definition of "produced" is moot because, as we have discussed, the trial evidence was sufficient to prove the government's primary interstate commerce theory. . . . In any event, because Dickson has not been overruled or superseded by a decision of the Supreme Court or this court sitting en banc, we cannot overturn it. . . . Pelland recognizes that we must follow Dickson, and raises this argument only to preserve it for further review.

It is my hope that the defendant requests an en banc review, or if such review is denied, appeals to the Supreme Court. I have a hard time pulling "copying" from "producing." More fundamentally, I think it is tenuous to rest federal jurisdiction on copying to a device that came from interstate commerce - the previous activity of the device seems to be irrelevant for the current activities. In cases where the internet is used as the jurisdictional hook, at least data is contemporaneously being transferred between interstate elements (be it CP related or not). I think this is overstepping by Congress, compounded by judicial expansion of a statute beyond its plain meaning. Stay tuned.

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Fifth Circuit to hear cell site data case Tuesday

Tomorrow, the Fifth Circuit will hold oral arguments for its much anticipated case on cell site location information. A magistrate judge denied the government's 2703(d) request for 60 days of location data, holding that a search warrant was needed. The district court judge agreed, and the government appealed.

The predominant issue in the case is whether CLSI is protected by the Stored Communications Act alone or also by the Fourth Amendment. If it's only the former, law enforcement need only show "specific and articulable facts," rather than the higher standard of probable cause required by the Fourth Amendment. Because, the government argues, the data is held by a third party, the Fourth Amendment does not apply.

The case is In Re: Application of the United States of America for Historical Cell Site Data (No. 11-20884).

Here's a list of court filings in the case:

• Government's Brief
• Professor Orin Kerr's Amicus (arguing the question is not ripe)
• Professor Susan Freiwald's Amicus
• EPIC's Amicus
• ACLU, EFF, CDT, and NACDL Amicus
• Government's Reply Brief

And here are a commentary links on the case:

• Magistrate Judge Smith's defense of his decision
• Professor Kerr - Here, here, here, here, here, and here
• Professor Freiwald

I'll post a link to the oral argument once the recording is available.

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Seventh Circuit holds warrantless search of digital storage devices after private "search" did not violate Fourth Amendment

In Rann v. Atchinson, __ F.3d __ (7th Cir. 2012), the Seventh Circuit held that a law enforcement search of two digital storage devices for child pornography which were handed over by the defendant/offender's wife and daughter, respectively, did not violate the Fourth Amendment. The defendant was arguing ineffective assistance of counsel (by way of federal habeas), based on his lawyer's failure to attempt to suppress the child pornography evidence obtained from the digital devices when the police searched them without a warrant.

After the victim (age 15) reported sexual assault by her biological father to the police and was interviewed, she returned home and obtained a digital camera memory card and returned it to the police. The card contained images of her own sexual assault. Subsequent to this, the mother of the victim turned in a zip disk with additional images of her daughter being sexually assaulted, along with images of her other daughter being assaulted as well. According to the police, neither individual was prompted to bring these digital devices to them, nor were any law enforcement offers present when each individual retrieved the devices.

The defendant's main contention was that:

when the police searched the digital storage devices and viewed the images on them, they exceeded the scope of the private search conducted by [the victim] and her mother. Since the subsequent search by the police exceeded the scope of the initial private search, so his argument runs, the police needed a warrant to “open” the digital storage devices and search them because the record contains no evidence that [the victim] or her mother knew the digital storage devices contained images of child pornography prior to the police viewing. Since the police did not obtain a warrant prior to opening the digital storage devices and viewing the images, he claims their doing so constituted an unconstitutional warrantless search in violation of the Fourth Amendment.

Now, I'm going to stop here for a second. The court states that the defendant and mother conducted a "private search."  By this, I would argue, one would assume that such a search would include viewing the files on the digital devices to determine if they did in fact contain child pornography. However, there is no indication anywhere in this case that such a search took place. Granted, there is an assumption made that they would not have turned in the devices if they did not know there was CP on the devices, but I just want to point out that nowhere is there evidence that either individual described to the police what exactly was on the devices (or described a single picture contained on them).

Back to the case - the court states that private searches are not subject to the Fourth Amendment, and police do not need to "avert their eyes" to the evidence obtained from such searches. However, police cannot exceed the scope of the original private search to obtain evidence. The standard from Jacobsen relating to private searches is "individuals retain a legitimate expectation of privacy even after a private individual conducts a search, and 'additional invasions of privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.'"

The question of how to handle police searches of digital devices searched privately, first, was one of first impression for the court. However, the court adopted the Fifth Circuit's approach in Runyan, a 2001 case with similar factual circumstances. Runyan held that "a search of any material on a computer disk is valid if the private party who conducted the initial search had viewed at least one file on the disk." The Fifth Circuit "analogiz[ed] digital media storage devices to containers" and "ruled that 'police exceed the scope of a prior private search when they examine a closed container that was not opened by the private searches unless the police are already substantially certain of what is inside that container based on the statements of the private searches, their replication of the private search, and their expertise.'" In Runyan, multiple digital devices were turned over to the police, not all of which had been looked at by the personal who was the "private searcher," so only those devices that the searcher had looked at one or more files on, were admitted.

Here, the court held that the victim and mother essentially had to know what was on the disks when they turned them in, and thus the police could be substantially certain what they contained. The court held this over the objection of the defendant that there was no direct evidence of this, and it was purely conjecture:

[The defendant] argues that the Illinois Appellate Court relied on conjecture when it found that [the victim] and her mother knew the contents of the devices they delivered to the police, pointing to the Illinois Appellate Court's finding that “[a]lthough no testimony exists regarding how the images on the zip drive came to be there, it seems highly likely that [the victim's] mother [compiled] the images on the zip drive herself, downloading them from the family computer.” Rann argues that this is conjecture, yet he offers nothing but conjecture and speculation in its place.

The court justified its holding by stating that "the contrary conclusion—that [the victim] and her mother brought digital media devices to the police that they knew had no relevance to [the victim's] allegations—defies logic."

The court went on to state that:

even if the police more thoroughly searched the digital media devices than S.R. and her mother did and viewed images that S.R. or her mother had not viewed, per the holding in Runyan, the police search did not exceed or expand the scope of the initial private searches. Because S.R. and her mother knew the contents of the digital media devices when they delivered them to the police, the police were “substantially certain” the devices contained child pornography.

I've seen some chatter on Twitter that this case is #Troubling. I agree and disagree. I disagree, in that Easterbrook wrote this opinion, in a typical judicially restrained manner - cabining it to the particular circumstances of this case, and especially to the fact that the victim and the mother only turned in two devices, both of which were assumed to have CP (whereas in Runyan, many devices were turned in, in a sort of "grab bag" of evidence.")

I agree that it is troubling because I can't see how you can use the analogy of a container with respect to digital devices. Sure, it is easy when it comes to camera memory cards, but how about hard drives? If the wife had turned in the entire computer hard drive, could the police have searched the entire thing, if she said she had opened a single picture and found CP?

Another very good point to be made in regards to this case is this - what would have been so challenging about getting a warrant to search these devices, based on the information provided by the mother and victim?

Lastly, I put "search" in the title in quotations, and had an aside above about the lack of explicit evidence of the mother or victim viewing the files on the digital device because I think a flaw in the case is the absence of any elaboration on how turning those devices in was the search.

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