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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State appellate court rules on Facebook message authentication and hearsay arguments

In Smith v. State, No. 2012-KA-00218-COA, the Mississippi Court of Appeals addressed authentication and hearsay arguments regarding social networking messages in a case of first impression. The court ultimately found the messages to have been properly admitted.

The defendant was convicted of capital murder for the death of his stepdaughter, a seventeen-month old girl. At trial, the prosecution was allowed to use as evidence Facebook messages sent between the defendant and his wife.

On appeal, the defendant argued that the Facebook messages should not have been admitted because they were not properly authenticated and were hearsay. As to the issue of authentication, the court found the messages to be properly authenticated because the wife testified that the printouts were "Facebook messages between her and Smith."

On the hearsay issue, there were two types of messages before the court. One was an e-mail notification produced automatically by Facebook notifying the wife of a new message which contained the content of the message itself. The other was a printout of wall postings from the defendant on the wife's page. The court found that because the e-mail was "a fully automatic process, ... [it] may not be considered as hearsay." Comparing the case to one a federal court opinion, the court reasoned:

The court noted that when someone forwards an email, he or she has made an out-of-court assertion as to what someone else said. Id. There, however, a person forwarded the message. Thus, there was an assertion and a declarant. Here, an automatic process sent each message. As a result, in this case there was neither an assertion nor a declarant. The email notification, which contained the Facebook message, is not within the definition of hearsay.

The court then found that the defendant's statements were admissions by a party-opponent and therefore not hearsay. The wife's statement "could be hearsay" and no exception was offered by the state, but the error was considered harmless.

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Forensic Fraud: Now Available on Daytime TV - A frank discussion about the admissibility of photo and video enhancement testimony

For years, Hollywood has perpetuated the myth of photo and video enhancement.  According to Hollywood and its all-too-convenient plot points, a mere click of a computer’s “enhance button” transforms any grainy image into a clear, focused picture with perfect resolution (there also has to be a serious woman in glasses looking over the person operating the computer’s shoulder shouting “enhance. . . enhance . . . enhance” in order for this to work).  In reality, this is fundamentally impossible.  Hollywood ignores the fact that every photographic image is composed of pixels, and once a photo is enhanced to where it is fully pixelated… all that the viewer can see are the pixels.  You can see nothing but blocks of color, and one certainly cannot see something that was completely undetectable to the naked eye. The majority of the scientific community has been in on the joke, even generating Internet memes ridiculing Hollywood’s scientifically-inaccurate portrayal of video and photo enhancement.  Unfortunately, American courts seem to be the only ones left out of the joke, frequently admitting video and photo enhancement evidence that is nary more than forensic fraud.

If movies were scientifically accurate...

I recently came across this type of evidence in an unexpected place: the Jodi Arias trial; and my trip to the most widely-publicized trial in the country led me to reflect upon video enhancement testimony, slippery slopes, and forensic fraud.

For those of you who have jobs, families, or hobbies, Jodi Arias’s murder trial is the trial du jour for bored housewives and retirees.  Broadcast every weekday on Court TV for almost four months, the facts of the case are more tawdry than any romance novel lying at the bottom of the K-Mart bargain bin.  Essentially, Jodi Arias dated Travis Alexander on-and-off for a few years.  She was a good looking woman with a proclivity for stalking; he was an equally good looking man with a fatal attraction to crazy women. Sordid details about the couple’s sex life have become the thrust of the evidence at trial.  Their relationship ended unamicably when Arias stabbed Alexander twenty-nine times, slit his throat from ear to ear, and shot him in the chest three times.  Naturally, she claims the killing was self defense.

The trial is being held close to my hometown, and a friend invited me to ride with him to see it.  Not one to miss government-funded panem et circenses and never having attended a high-profile trial, I agreed.   Before I went to the trial, I had very little knowledge about the facts of the case.  Anything I did know about it, I had gleaned from reports on my local news channel.  But, after I arrived, the other attendees seemed more than excited to discuss the  “complex legal issues” of the trial with me.  In this situation, “complex legal issues” was a euphemism for Jodi Arias’s sex life, the great significance of a planned trip to Cancun in establishing a motive for the killing, and the prosecutor’s dashing good looks (personally, I do not see it).   I did not have high hopes for my day at the trial, and my fellow spectators seemed more interested in fist fighting, criticizing the public defender’s tie, and getting the prosecutor to autograph their walking canes than an intellectual discussion about the current state of our justice system.

In any event, my fellow attendees informed me that I had picked a bad day to come to the trial.  We would only get to see one naked picture of the victim that day, and we would not likely learn any new, salacious details about the couple’s sex life. The judge had scheduled a Rule 702 hearing for most of the morning.  My interest was peaked. At issue was an expert’s enhancement of this photo:

Before the killing, Arias and Alexander took numerous pictures of each other in compromising positions. This photograph had been the last one Arias snapped of Alexander alive, the killing occurred mere seconds after she took the picture.  The defense sought to admit the testimony of a photographic enhancement expert, who, by his own account, was able to enhance the photograph in order to see a clear reflection of Arias in the victim’s eye.  According to the expert, Arias was standing a few feet away from Alexander, holding the camera with both hands at the time the picture was taken; and he further asserted that he could state with scientific certainty that she was not holding either a gun or a knife.  There was no evidence corroborating the reliability of the expert’s testimony or establishing a statistical rate of error.   In other words, defense counsel failed to show that this evidence conformed to the strictures of Rule 702.  Thus, for the purposes of a 702 analysis, it is fact that this testimony was non-admissible pseudo-science.

The defense counsel thought this testimony was relevant to corroborate Arias’s theory of the case: that she had killed Alexander after she dropped his camera on the tile bathroom floor and he aggressively charged at her.

The “enhanced” eye reflection

The resulting image of Arias holding a camera.  Looks like the Stay Puft Marshmallow from Ghostbusters to me.

The prosecutor balked at the admission of this evidence.  According to him, the enhancement evidence was “voodoo” and “fantastical.”  It is quite clear that, given a strict application of Rule 702, this evidence should not be admitted.  Without the expert’s drawing, do you clearly see a figure holding a camera?  Can you eliminate as a matter of scientific certainty that the figure is not also holding a gun or a knife?

In the end, the expert’s testimony was not admitted.  After an hours-long, closed door hearing, the parties agreed to stipulate that Arias was not holding a gun or a knife when the picture was taken.  Evidentiary crisis averted.

Yes, this is where the CSI Effect has left the state of evidence in America’s courtrooms.  Based upon Hollywood plot-driven fiction, the American public, and thus the jury pool, has been convinced that any crime can be solved by a computer nerd and his trusty MacBook.  It seems that the imagination, and not Rule 702, is the only limit upon what is admitted into courts.  Experts are now “enhancing” the photographed reflection in people’s eyes.

Even if the evidence had been admitted at the Arias trial, the impact would be minimal.   Arias admits to killing Alexander, and most of the evidence presented by defense counsel is aimed at mitigating the crime so that Arias escapes the electric chair.  But, just because it would not cause a serious miscarriage of justice in this particular trial does not mean that it is a good omen. Unfortunately, the Arias trial may only be a harbinger of things to come.  Whereas the evidence in Arias’s case was introduced to corroborate her self defense claim, there is a very dangerous flip-side to the CSI Effect: prosecutors armed with false or dubious “forensic” evidence using it to obtain slam dunk convictions.  It is a story as old as time, or, at least, the CSI franchise.  It is only a matter of time before prosecutors start hiring the Arias photo enhancement “expert” as well as other with even more dubious scientific chops.  For example, it is an eventuality that prosecutors will seek to admit this expert to testify in child pornography cases, in order to identify the person who produced the contraband.  The slippery slope of this type of evidence is scary, and the end result is not a good one.  It will almost certainly result in innocent people serving jail time, as all non-scientific forensic testimony eventually does.

Mississippi dentist enhances video for body language with inaccuracy "less than ... Jesus"

Take, for example, the case of Leigh Stubbs and Tammi Vance in Lincoln County, Mississippi.  After successfully completing a drug rehabilitation program, Stubbs and Vance decided to travel to Louisiana with their friend, Kim Williams.  With Stubbs staying sober at the wheel, the women made pit stops at Williams’s boyfriend’s house for Oxycontin and various gas stations for beer.  Unsurprisingly, the women did not make it to Louisiana  according to schedule and  got waylayed in Lincoln County, Mississippi.   They decided to stay the night at the local Comfort Inn.   The next day, Williams was completely unresponsive as a result of a drug overdose.  Stubbs and Vance called the hotel front desk and performed CPR on Williams until paramedics arrived.  When she arrived at the hospital, Williams was comatose and was suffering from various, odd injuries.

The district attorney decided to indict the women on four counts: (a ) conspiracy to possess morphine; (b) grand larceny; (c) unlawful possession of morphine; and (d) aggravated assault.  The only problem?  He had no evidence supporting the charges; the alleged victim could not remember a thing.   Undeterred, the district attorney called Michael West, a Mississippi dentist who moonlit as a forensic witness for the prosecution.   Really, there were no limits to the types of forensic testimony that Michael West was willing to supply to Mississippi prosecutors; he was the Wal-Mart of witnesses: he would testify a little bit about everything, but the quality of the testimony was not particularly good.  He routinely testified as a wound pattern expert, a trace metals expert, a gun shot residue expert, a gunshot reconstruction expert (he once performed a ballistics analysis by shooting dogs from the pound), a crime scene investigator, a blood spatter expert, a "tool mark" expert, a fingernail scratch expert, and an expert in "liquid splash patterns."  Most famously, he testified as a bite-mark expert, where he would match bite-marks on skin to plaster dentitions.  As for his error rate when engaging in this “forensic science?”  He testified that it was “something less than my Lord Jesus Christ.”  How about that for meeting your burden under Rule 702?

The testimony West presented at Stubbs’s and Vance’s criminal trial was nothing short of unbelievable.  Of course, being Michael West, he claimed to have found a bitemark on the alleged victim’s hip.  To the surprise of absolutely no one, he was able to “match” it to one of the defendants.  But, he did not stop at bitemark testimony.  He also claimed to “enhance” a surveillance video of the hotel’s parking lot, using his home computer and Photoshop.  He testified that his abilities to “enhance” the video allowed him to view Stubbs and Vance as they engaged in inculpatory acts, namely, lifting the Williams’s body from the in-bed toolbox of Stubbs’s truck and carrying it into the hotel room where she was discovered comatose and injured the following day.  West then testified that using his enhancement software, he was able to determine that the figures entering and leaving the frame in the video were wearing different clothing (one wearing shorts, the other wearing blue jeans) and were two different women, thus incriminating both Stubbs and Vance.

West further claimed he could actually read the body language of one figure in the footage, that she appeared "anxious," and was exhibiting the sort of adrenaline-fueled "fight or flight" response one shows after committing a crime.

According to West, anyone with spare time and a home computer was qualified to be an expert witness in photo and video enhancement. “[Before,] I would have to send photographs off to the FBI . . . [and it would] cost us $20,000 to get them back and enhanced. Now you can sit at home, with your own computer, with $1000 software and do enhancements that used to only NASA could do . . . And that’s what we did in this case.”

Based entirely upon West’s testimony, Stubbs and Vance were convicted on all four counts and sentenced to forty-four years in the State penitentiary, the statutory maximum.

If you are thinking to yourself that West’s testimony smells fishier than a Long John Silver’s during Lent, that is because it is.  Almost a decade after Stubbs’s and Vance’s convictions, Stubbs’s father filed a Freedom of Information Act request with the FBI, inquiring as to whether the Agency processed any of the evidence in his daughter’s case. The FBI returned a report it prepared after analyzing the surveillance footage, a report that was prepared before Michael West was hired to “enhance” the surveillance video. The Agency's report found nothing incriminating in the footage. It repeatedly points out that the quality of the recording is insufficient to tell for certain how many people are depicted in the video, much less determine their identities or what sort of clothing they're wearing. The report also makes no mention of anyone moving a "body."

The District Attorney did not turn over the FBI report to the defense pursuant to his constitutional obligations under Brady.   After over ten years of incarceration, Stubbs’s and Vance’s convictions were overturned by the trial court of Lincoln County.  The Circuit Court of Lincoln County has scolded the State for knowingly soliciting and introducing false evidence.  When confronted with the fact that the FBI crime lab contradicted his video enhancement testimony, West attributed it to the fact that the FBI could not afford computers or Photoshop in order to reach his results. In a shameless move to save face, the Mississippi Attorney General’s Office has indicated that it intends to reprosecute the women based upon the original indictment, an indictment that was procured by presenting Dr. West’s bite mark and video enhancement testimony to the grand jury.

In the end, there are people like Michael West, who think that their 1999 Compaq Presario and copy of Photoshop makes them qualified experts, carving out a niche forensic analysis practices all over the country.  Many trial judges are caught unawares about the limitations of video and photo enhancement.  This evidence, which essentially amounts to forensic fraud, is admitted much more often than it is rejected.  It seems, in the end, our societal fascination with CSI and like franchises has come at an extreme cost.  We have compromised the integrity of our courts and sent innocent people to prison.  And, it made last Monday a really boring day for housewives to attend the Arias trial.

[Editor's Note: The author is currently serving as a consultant for the Mississippi Innocence Project which is representing Leigh Stubbs.]

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Computer forensic delays a growing problem?

It is hard not to notice the growing number of cases that revolve around or discuss the delays associated with processing computer forensic evidence. Is there a growing problem? The short answer is yes, but it is hard to determine the scope and depth of the problem merely by analyzing disparate court opinions and news stories. It does appear to be a systemic problem, both at the federal, state, and local level. Here is some evidence:

Recent cases

(January 3rd, 2013) United States v. Montgomery, __ F.3d __ (10th Cir. 2013) - after obtaining documents through a FOIA request, the defendant alleged as part of his defense that "forensic analysis had not been done because the FBI's . . . CART . . . office in Oklahoma City was backlogged for over 6 months."

United States v. Lovvorn, 2012 WL 3743975 (M.D. Ala. April 24, 2012) - "Finally, Lovvorn argues that an unreasonable delay between the seizure and the subsequent search of his computer is a violation of the Fourth Amendment. . . . The property was taken to the Coffee County Police Station, and then turned over to the Alabama Bureau of Investigation ("ABI"). The ABI returned the results of their forensic investigation nineteen months after the seizure from Lovvorn's residence occurred. There was no evidence presented that Lovvorn sought to have his property returned or was prejudiced in any way, nor has there been any assertions against the chain of custody or the authenticity of the evidence. The ABI has only one location in the state. The court therefore finds it is reasonable to believe that the delay was caused by nothing more than a backlog of cases."

News Stories

General Dynamics Awarded $42 Million to Support FBI Computer Forensic Networks

Previous posts

Federal court holds that 15-month delay in reviewing electronic evidence was an unlawful seizure

District court orders suppression after lengthy delay for cell phone search (3 month delay)

In Paypal DDOS case, government reprimanded for failure to analyze and return data in a timely fashion - In that post, I wrote: "To me, it's hard not to wonder if there is a systemic problem going on with how the government is handling cybercrime cases and the plethora of evidence that they tend to produce - according to this transcript, there were at least 9 terabytes of data that had to be analyzed.  That is certainly a lot of data, but as the court in Metter stated, there has to be a line drawn somewhere when retention of data transforms from investigatory to a violation of the Fourth Amendment."

Comments

The underlying legal implications of such backlogs are numerous, but include: (1) the suppression of evidence (as seen in a few cases above) due to the delay, as a violation of the Fourth Amendment, (2) delay in prosecution of child pornography and similar child predator cases, which has the potential to provide time/opportunity to commit additional offenses, and (3) the likelihood that evidence in lesser cases will be skipped over for more high-profile cases, driving up the bar that must be reached to consider a case worthy of prosecution.

I'd appreciate any comments from practitioners in the field who have seen similar delays and can attest to them, or alternatively, stories indicating a trend in the opposite direction.

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