Website Banner Defeats Numerous Fourth Amendment Objections in CP Case

A federal district judge recently held in a child pornography (CP) case that the website's banner doubly defeated any Fourth Amendment objection to an investigator's use of the site to collect evidence of possession and distribution of CP. The case, United States v. Bode, No. 1:12-cr-00158-ELH (D. Md. Aug. 21, 2013), rests on evidence developed by a government investigator (Burdick) who was granted administrator-level access to a website where the defendant (Bode) was allegedly posting CP. The website in question (which has since been shut down) offered users a real-time chat service, including the ability to send messages and images to public chat rooms, as well as "privately" to individual users. The site logged timestamps, IP addresses, message contents, images, and public chat room history for review by its administrators, though individual users could not see or review their own usage history after a chat session was over. The website also required acceptance of its terms of service before allowing users to post or receive messages. Its terms read:

CHILD PORNOGRAPHY...
BEHIND EVERY PICTURE THERE IS PAIN!
HELP US REPORT IT! 

Posting photos, graphics or cartoons showing persons under 18 years of age is not allowed. Child pornography or other illegal material will immediately be reported to the posters [sic] local authorities. Requesting images of the above nature is not allowed. All posted pictures and conversations, public and private, are logged and supervised. [The website] may disclose these communications to the authorities at its discretion.

The final sentence (emphasis added) was appended at Burdick's request during his investigation, before the CP images at issue in the case were allegedly posted.

But first, the backstory: Burdick, an agent with the Department of Homeland Security's Immigration and Customs Enforcement (Child Exploitation Investigations Group), heard that users of this website were trading. Without getting a warrant or a court order, he began looking into the site and observed users posting CP using the chat service. Burdick checked with the website's domain name registrar to try to identify its operator and found that its administrator was located in Sweden. Since it is more complicated to serve process on a foreign entity (and it is unclear whether Burdick would have had the authority to do so), he emailed the site operator to ask for cooperation in his CP investigation. The site operator enthusiastically complied, giving Burdick an administrator-level account on the website so he could directly review the site's logs. Burdick used his administrative access to identify users who had been reported by others for (potentially) trading CP, and then began checking the logs generated by those particular users more carefully.

Eventually Burdick checked with an Assistant United States Attorney, who recommended that he ask for changes to the website's terms of service, italicized above. (The US Attorney's office also declined to use any evidence developed before the language was appended.) After the terms of service were changed, Burdick used the administrator function to save logs and images users sent to public chat rooms and as private messages to other users. Burdick collected evidence that a user had posted CP from what turned out to be defendant Bode's IP address. This eventually served as probable cause for a warrant to search his home and computers for CP, which revealed additional CP on Bode's computer.

Suppression Analysis

Bode moved to suppress all of the evidence against him as fruit of the poisonous tree, on grounds that Burdick's initial investigation violated the Fourth Amendment, the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., and the Wiretap Act, 18 U.S.C. § 2510 et seq. The court dealt with the Wiretap Act and SCA claims easily: neither statute includes a suppression remedy for information obtained from "electronic communications" like those here, while the Wiretap Act does include a suppression remedy for information obtained intercepted in real time from "wire or oral communication," at 18 U.S.C. § 2515. This made it easy for the court to conclude that when Congress did not include a suppression remedy for electronic communications, it did so with a specific intent not to create such a remedy. The court therefore declined to find an implied statutory right of suppression.

The constitutional claim, violation of the Fourth Amendment, is more interesting, since it could give rise to a suppression remedy (though somewhat ironically, constitutional suppression is a court-created remedy, see Weeks v. United States, 232 U.S. 383 (1914)). As a preliminary matter, the parties had conceded (for the purposes of the Fourth Amendment analysis in the motion at issue here) that the website had become the government's agent, by granting Burdick administrator-level access and changing the language of its banner at his request. Nevertheless, the court held that the banner to which Bode agreed in order to use the chat service constituted two separate grounds for eliminating any Fourth Amendment objections to Burdick's collection of evidence:

First, the banner defeated any reasonable expectation of privacy, which is a prerequisite for any protectable Fourth Amendment interest under Katz v. United States, 389 U.S. 347 (1967). The Bode court compared the banner's language to other cases in which a reasonable expectation of privacy had been at issue, finding that the added text ("[The website] may disclose these communications to the authorities at its discretion.") put the issue beyond doubt, as the AUSA had hoped: users had given up their expectations of privacy. Under this theory, no protectable privacy interest existed, and no constitutional "search" ever occurred, so there was no Fourth Amendment violation and no reason to suppress the resultant evidence.

Second, the court found that even if a search had occurred, the banner indicated consent to that search. Bode tried to argue that his consent had been limited in scope to investigation by the website operator, not the government, but the court was having none of it, instead finding that there was "no meaningful distinction" between the consent Bode had given (for the website operator to turn over information to the authorities) and what actually happened (the operator creating an administrator account for the investigator). This consent was therefore sufficient to allow Burdick's collection of evidence even if it was a Fourth Amendment search.

The government also argued that the website operator had "common authority" to consent to searches of its logs, but the court did not address this argument, having already found two grounds for denying Bode's motion to suppress. Had the court addressed the issue, it probably would have been able to find the site administrator, which had the right to examine its logs, also had the right to authorize their search under the common authority doctrine of United States v. Matlock, 415 U.S. 164 (1974) (finding common authority over shared room sufficient) and Frazier v. Cupp, 394 U.S. 731 (1969) (finding shared use of a duffel bag sufficient). In fact, since the operator could view the logs while ordinary users could not, I found this to be the government's strongest argument, and I am not sure why the court did not even address it.

Conclusion

In any event, this one banner did quite a bit of work: the court's denial of suppression almost certainly means Bode is out of arguments and will be convicted. And it likely means other users of the site will be (or already have been) prosecuted for similar crimes: one of Burdick's emails thanking the website operator for cooperating with the investigation mentioned that he had found "roughly 25 users" in the United States violating CP laws. So, while the website might be gone, the text of its banner may have even more work to do in the courts.

A Footnote

The Bode court also notes that the website operator who was willing to help with the investigation -- seemingly a decent character -- was later tried, convicted, and imprisoned in the Philippines for sex trafficking.

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11th Circuit finds reasonable a 25-day delay in submitting warrant application to search computer

In United States v. Laist, the Eleventh Circuit held that a government delay of 25 days from the defendant's revocation of consent to search a computer until a search warrant application was submitted did not violate the Fourth Amendment.

The distribution of child pornography was tracked to the defendant's home, and law enforcement went to search. Upon arrival, the defendant admitted to possession of child pornography and signed a consent form allowing the search and seizure of his computer. A week later, the defendant withdrew his consent by letter. The search warrant application was submitted 25 days later, and the application was approved six days after submission. The defendant was ultimately convicted of multiple child pornography related crimes.

At trial and again on appeal, the defendant argued that the evidence should have been suppressed because the 25-day delay was an unreasonable seizure under the Fourth Amendment. "Laist argued that he had a substantial possessory interest in the items; that after he revoked his consent to their search, the FBI continued to hold them only on the basis of probable cause; and that the subsequent delay in obtaining a search warrant was unreasonable and therefore violated his Fourth Amendment rights."

The Eleventh Circuit disagreed, holding that although the interference with the defendant's possession was "not insubstantial," it was diminished as he had been given the opportunity to copy documents he needed for school off the computer prior to the seizure, and he had admitted to possession of child pornography and shown such an image to law enforcement. Nonetheless, the government was still required to "diligently obtain[] a warrant," which the Eleventh determined happened in this case. The 25-day delay was reasonable due to the amount of time needed to prepare the warrant and how busy the office was at the time.

The government's efforts here were sufficiently diligent to pass muster under the Fourth Amendment. While a 25-day seizure based solely on probable cause is far from ideal, and we have found shorter delays unreasonable under different circumstances, see Mitchell, 565 F.3d at 1352 (21-day delay), the totality of the circumstances in this case demonstrate the reasonableness of the government's actions.

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District court case provides road-map for what not to do under the Fourth Amendment

In Hatfield v. McDaniel, 2012 U.S. Dist. LEXIS (M.D. Ala. October 19, 2012), the court allowed the plaintiff's case alleging violations of section 1983 resulting from two illegal searches to proceed. The defendants were law enforcement officers and state/local entities that were party to the alleged Fourth Amendment violations.

This is the closest case I've ever seen of what not to do under the Fourth Amendment:
1.  Facially invalid searchwarrant - check
2.  Search of computer (pursuant to facially invalid search warrant), which was allowed within 10 days, executed 1 year later - check
3.  Failure to stop a search upon the owner's revocation of consent - check

Hatfield owned a car stereo store which occasionally accepted trade-in merchandise. He was careful, however, not to accept stolen goods. When a car stereo was brought in that he believed was stolen, he refused to accept it, and an officer showed up shortly after to take custody of the stereo and arrest the individual trying to trade it in. At that time, Hatfield asked the officer to take a look at a rifle he had received as a trade-in, because he was unsure if that was stolen, too. It turns out that it was.

The officers decided, based on the stolen merchandise they had found so far, that it would be prudent to go through all of Hatfield's inventory to check for other stolen merchandise. Hatfield agreed. The officers began the search, and a little while later, a drug dog showed up (his name was Hobbs - he was not a party to the action). At that point Hatfield removed consent for the search. The officers told him he could do it the hard way, or the easy way. Hatfield chose the hard way, which involved his arrest for the stolen rifle, and the police obtaining a warrant from a judge to continue to search. However, instead of waiting until the warrant arrived, there was evidence that the search continued at Hatfield's store. Error #1.

At some point during the search, Hatfield's girlfriend told officers there was child pornography on his computer. They drafted a facially invalid warrant, based on only her statement and no other evidence - they did not even include in the warrant a statement regarding her veracity or the basis for her claim. Error #2.

They then executed the facially invalid search warrant for Hatfield's computer, and seized it. The warrant gave the police 10 days to do so. Then, 1 year later, they actually searched the computer and found child pornography. (In my opinion, Error #3 - the court held otherwise).

Prior to trial, Hatfield moved to suppress all of the evidence obtained after he revoked consent, and the court granted the motion. This included the seizure of the computer. So, all charges were dropped. Hatfield then sued the police, the city, and individual officers for Section 1983 violations related to the search. The defendants moved for summary judgment, arguing qualified immunity applied. However, the court disagreed.

As to the search after consent was revoked, the court cited Arizona v. Hicks as controlling, and stated the following:

The controlling precedent, then, shows that an officer moving a box in Powerhouse Audio, even if only a few inches, and then inspecting it constituted a search (even if that search revealed nothing of great value). Accordingly, on summary judgment, Lieutenant McDaniel and Officer Furlong, who allegedly participated in that warrantless search, are not entitled to invoke the defense of qualified immunity as a shield to Mr. Hatfield's Fourth Amendment claim against them. (emphasis added)

The court then went on to analyze the search/seizure of the computer. Hatfield argued that the search warrant had not been executed within the defined term of 10 days, because the computer wasn't actually searched within that period. The court disagreed (which I think, personally, was erroneous). The court held that execution of the warrant occurred within 10 days because the seizure occured within 10 days. The court reached that conclusion as follows:

While it is undisputed that Sergeant Graves did not search the computer until nearly a year after the warrant was issued, it does not necessarily follow that the warrant was not executed within the ten-day limit. Although the term "execute" is undefined in § 15-5-12, usage of the term suggests a search warrant is executed when the described property is physically seized and taken into police custody. In the context of electronically stored information, that would mean the warrant is executed when the computer is seized, not when the files are accessed. 

With respect to the warrant to search the computer, the court held that it lacked even "a hint" of probable cause and was therefore facially invalid. The court explained:

. . . in light of controlling precedent, the affidavit fails to establish even probable cause to believe there would be pictures of children, pornographic or otherwise, on Mr. Hatfield's computer. The only fact supporting such a conclusion is the statement of an unidentified woman at the scene, because the affidavit did not reveal Ms. Neal's identity but only referred to her as "a person that was at the store." . . . It is well settled law that a statement from an anonymous source may establish probable cause for a search warrant, but only so long as "given all the circumstances set forth in the affidavit . . . , including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). But here the only fact tending to establish probable cause is the anonymous statement, and there is absolutely nothing in the affidavit supporting the veracity or basis of knowledge of the woman who made it. . . .The statement here lacks even a conclusory assurance of reliability and credibility, so it could not have provided probable cause for a search warrant.

Moreover, the warrant was "so lacking in indicia of probable cause as to render official belief in its existence unreasonable." The court rejected a last ditch argument that the officer's conduct was based on the collective knowledge of law enforcement:

Even assuming Sergeant Graves had access to the collective knowledge of law enforcement, Mr. Hatfield's evidence shows his computer was searched pursuant to a facially void warrant. That conduct, if established at trial, constitutes a violation of clearly established law, and Sergeant Graves is therefore not entitled to invoke the defense of qualified immunity.

Total fail - check.

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Reasonableness of length of time in consent search examined

A recent Eleventh Circuit case found that it was reasonable for law enforcement to wait nearly 11 months to search a computer that was obtained by consent. After signing a consent statement, Philip Edwards said he would like to have the computer back "sooner than later." At no point thereafter did he try to revoke consent.

As a result of various delays, a search warrant was not obtained for 34 days, and the computer was not analyzed until ten months later. The court held that because there was no revocation of consent and since Philip did not provide a specific amount of time, the timeliness was reasonable and within the consent.

I bring this case up not because it has anything unique about it, but to hopefully ignite discussion. I realize this is rather common place in child pornography and other cybercrime cases. Cybercrime units across the country are faced with budgets that hardly meet demand, often forcing long wait times. And obviously there an amount of time that should be considered de minimis, but eleven months seems be an unreasonable amount of time. The Sixth Amendment right to speedy trial exists, in part, to eliminate the distress of a defendant having to experience the uncertainty associated with the trial process. Certainly a similar protection should apply after a search. Due process? Cruel and unusual punishment?

Or is the key here consent? Should Emanuel have known that he could revoke his consent?

The case is United States v. Emanuel, 2011 WL 4376191 (11th Cir. 2011).

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