Friday, April 07, 2006

Membership as Probable Cause

CrimProf Blog describes a recent 9th Circuit decision:
The 9th Circuit Court of Appeals, in U.S. v. Gourde, No. 03-30262, ruled that mere membership in a pornographic website that contains both legal and illegal porn is enough to authorize the FBI to search a home computer.
I think the opinion can be read more narrowly - the court specifically references the affidavit in support of the search warrant, "The affidavit left little doubt that Gourde had paid to obtain unlimited access to images of child pornography knowingly and willingly, and not involuntary, unwittingly, or even passively", and the facts set forth in the affidavit make it exceptionally unlikely that Gourde would become and remain a member of the site without the intention of downloading images of minors. Still, it would be nice if the Court had been more explicit in its holding, for reasons Judge Kleinfeld describes in his dissent.
Is the holding of the majority opinion that if a person has subscribed to a site that has legal and illegal material, that suffices as probable cause for a search warrant? That if a person has paid money to look at material that is illegal to possess, he probably possesses it? If the holding is narrower than these formulations, everyone’s computer would be safer were the narrowing restrictions made clear. If it is not, the majority opinion is dangerous to everyone’s privacy.
It's a short step from "paid member" to "member" - broadly constructed, if you knowingly download P2P software, and know in using it that you can download pirated music files, software, copyrighted images, and probably also illegal pornography, would that be enough for a warrant? What if the authorities could also demonstrate that you had used the P2P software to access a hard drive which stores some unlawful material, had run searches which caused unlawful material to appear among your results (whether or not you downloaded it), or had downloaded illegal material (even though that might not have been apparent from the file name)? Even with paid membership, how much illegal content must be present on the site and how obvious must it be before you can potentially be the subject of a search warrant?

This assertion by the majority also raises my eyebrow:
Thanks to the long memory of computers, any evidence of a crime was almost certainly still on his computer, even if he had tried to delete the images. FBI computer experts, cited in the affidavit, stated that “even if . . . graphic image files[ ] have been deleted . . . these files can easily be restored.”
Is the FBI agent assuming an unsophisticated computer user who thinks that dragging icons into the trash "deletes" the associated file? Is that a reasonable assumption? And to say "easily" seems glib. I know a law firm which could have used that FBI agent a while back, when they accidentally deleted a large folder of documents from their server and somehow rendered the files unrecoverable (short of pulling the hard drive and submitting it to a data recovery service).

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