Privacy Law

NCIS trolling for child porn offenders violates Posse Comitatus regulations, 9th Circuit says

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A federal appeals court has tossed evidence of child pornography because it was obtained as a result of a broad online investigation by the Naval Criminal Investigative Service, violating policies and regulations banning military enforcement of civilian laws.

The Sept. 12 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals was “a scathing rebuke of the investigative service and the Justice Department,” the New York Times reports. The decision said a trial judge should have suppressed the evidence against Michael Dreyer of Algona, Washington, a civilian who was convicted of possession and distribution of child pornography and sentenced to 18 years in prison. The Seattle Times also has a story.

The Algona police department was alerted to the possible criminal violations by NCIS after one of its agents “launched an investigation for online criminal activity by anyone in the state of Washington, whether connected with the military or not,” the opinion (PDF) said.

The agent used a software program called RoundUp to search for any computers in Washington state sharing child porn on the Gnutella file-sharing network, the opinion says. The software pointed to one computer sharing files identified as child pornography, and the agent made out an administrative subpoena for the Internet user associated with the IP address, which led to Dreyer. The agent turned the case over to the local police department after verifying that Dreyer was not a member of the military.

The 9th Circuit said the broad search violated rules and policies implementing the Posse Comitatus Act, which bars the military from enforcing civilian laws.

“The extraordinary nature of the surveillance here demonstrates a need to deter future violations,” the opinion said. “So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over the information to civilian law enforcement when no military connection exists. This is squarely a case of the military undertaking the initiative to enforce civilian law against civilians.”

A dissenting judge on the panel would not have suppressed the evidence.

U.S. Attorney Jenny Durkan told the Seattle Times that the appeals court may have misunderstood the technology used by the NCIS agent and the scope of his searches. Some of the information in the 9th Circuit opinion “is wrong” and her office may seek an en banc rehearing, she told the publication.

The opinion said the NCIS apparently monitored all civilian computers in a state, though the NCIS search that identified Dreyer was limited to computers linked to certain file-sharing networks, the New York Times says.

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