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Internet Accounts and Probable Cause to Search a Home:
In the last few years, a number of courts have considered when and how information relating to an Internet account can create probable cause to search a home for evidence. In these cases, the police know that an Internet account was used in a particular way potentially related to criminal activity. The police then use that knowledge to get a warrant authorizing them to search a physical place for evidence of the crime.

  The issue has come up most recently in a series of federal cases involving membership in child pornography-related groups. The basic fact pattern is that the government shuts down a listserv or business relating to child pornography, and manages to obtain a subscriber list of e-mail addresses. The feds then go to the ISP that hosts a particular e-mail address and get account records from the ISP, and particularly who signed up for the account and where they live. The feds then use this information to get probable cause for a warrant to search the suspect's home. The feds execute the search and find child pornography. The defendant then moves to suppress the evidence on the ground that the warrant did not provide probable cause to believe ex ante that the evidence would be located there.

  So far, at least, courts have struggled with these cases. The Ninth Circuit recently voted to rehear en banc one such case, United States v. Gourde, and just today a Second Circuit panel in United States v. Coreas expressed its strong disagreement with a panel from two weeks ago on the same question. (Hat tip: AL&P.) Given the legal uncertainty on the question, I thought it might be interesting to explore why it is uncertain, as well as what the key analytical steps should be to resolve these questions.

  The uncertainty is relatively easy to explain. Legal disputes about probable cause are about estimating the chances that fact B exists given known fact A. We make these estimates based on our human experience, common sense, and shared understandings. For example, imagine that a 5'3" man with a mask robs a bank, and then the next day a 5'3" man named Joe Smith brags to his coworkers in an office across town that he robbed a bank the day before, and produces five fresh $100 bills to prove it. Does this scenario create probable cause to search Smith's home for evidence? The question boils down to a series of inferences based on your own experience. How unusual is it for a man to be 5'3" or to have five fresh $100 bills? How likely is it that someone would brag about a crime but actually be uninvolved in it? How likely is it that a bank robber would store evidence at his home?.

  For the most part, judges can address these questions because they have an intuitive sense of the answers. Most people recognize the key questions to ask, and have at least a vague sense of the answers. Cases involving Internet accounts are more difficult because judges generally don't have much experience with the technology. To most judges, there is this Internet thing out there, and people do stuff on that Internet thing, and they don't have much of a sense of how to go from fact A to inference B. (If there are any judges reading this, I should say that you are of course an exception; it's the other judges that I have in mind.)

  So what are the key questions that a court should ask when determining whether use of an account to join a child pornography-related listserv creates probable cause search a home for evidence? Here is a somewhat oversimplifed list:

  1) How likely is it that the defendant is the one who controlled the account when it was used to join the group? People can sign up for accounts using fake names and/or fake addresses. They also can use hacked accounts belonging to other people. As a result, judges can't simply assume that the defendant was the person who controlled the account.

  2) How likely is it that the defendant signed up with the service with the intent to get illegal images? The law generally prohibits knowing receipt and possession; several courts have interpreted possession to require intentional reaching out to control images. We can quibble with the details of the substantive law, especially in the case of the precise meaning of "possession" of a digital file, but as a rule this means that a person who accidentally receives images of child pornography may not be guilty of an offense.

  3) How likely is it that the defendant actually did receive images? The list or group may not have distributed contraband images during the period that the suspect was a mamber.

  4) How likely is it that the defendant initially received the images in his home? In the past, it has been quite likely that people who are using the net to obtain contraband child pornography images are doing so from their home. This may be changing, though. For example, a person might drive across town, find an unsecured wireless network, and use that network to download the images straight on to their laptop.

  5) And finally, how likely is it that the images are presently in the home? There is lots of caselaw on this question, actually. Several courts of appeals have noted that collectors of child pornography generally keep the images they obtain instead of deleting them. At the same time, there is always at least a possibility that an image present in the home one day may not be present in the home another day. Finally, it's worth noting that (depending on the specific language contained in the warrant) it may not be necessary to find the actual images. For example, if a suspect downloaded images one day and deleted them a month later, evidence showing that the defendant knowingly received the images on the first day could be stored on the defendant's computer even if the images themselves are not present.

  Of course, how these questions play out depends on the facts of specific cases. Probable cause is necessarily a fact-specific inquiry, and it depends on an assessment of the likelihood in each individual warrant affidavit. At the very least, though, I think these are the key questions that the courts should be asking.
Shannon Love (mail) (www):
So, how does one accurately answer any of these probabilistic questions without some empirical research?

The only real way to determine the probability that a search based on evidence "x" is likely to produce results is to study a lot searches based on "x'. In other words, you don't know until you try.

I find it a little scary that law gets laid down based on the hunches of judges who have no direct experience with the behaviors under consideration. Judges could easily under or overestimate the predictive value of pre-existing information.

I don't know how to combine empiricism with the law in any specific case but there has got to be a way.
8.18.2005 9:17pm
nk (mail) (www):
My last published win in a Fourth Amendment case was in 1984 so I bow to your expertise. I would limit a warrant based only on ISPs to computers seized at the home. No drawers ransacked, no mattresses slashed to shreds, no toilet tanks smashed with a hammer without turning off the water valve (yes, all these and more happen when the police execute a warrant). This need not necessarily be the only probable cause for the arrest and information or indictment. The police can conduct further inquiry as your questions suggest, so can the prosecutor's investigators, so can a grand jury on the evidence they found on the computers. But I think, if so limited, the initial search would not poison the fruits of further investigation. Probable cause is not really a very high standard.
8.18.2005 9:33pm
nk (mail) (www):
P.S. And after Groh v. Ramirez what Fourth Amendment rights have been left, anyway? With all due deference, I again concede your expertise.
8.18.2005 9:42pm
d. ziff (mail):
Have you found that when making these probable cause determinations courts think about what incentives the rules will create for potential criminals? For example, if the rule is that downloading images to a laptop using a non-secure wireless network shields the suspect from some sorts of searches, won't that just lead to criminals using that method, or any other method the courts declare "off limits" under a probable cause inquiry? Have courts been employing that sort of analysis? Should they be? And if so, how far should it be taken in the computer context? I've noticed a couple courts use this line of reasoning when it comes to file labels (i.e., if the rule were that officers couldn't look at innocently labeled files, then all criminals would do to hide records is rename the files), but I wonder if it applies elsewhere.
8.18.2005 10:36pm
42USC1983 (mail):
Membership in a child porn club seems as a basis for probable cause to me. It is more likely than not (and hell, probable cause is not probable, but more like 25%) that someone who views child porn will a) download images or b) fail to clear his cache. Moreover, given that one's computer stores a whole helluva lot of things, it seems likely that the user's computer will have some illegal images.

What is my basis for saying this? There's the problem. My opinion is based on assumed usages of computers, and my knowledge of how computers work. Then again, all probable cause inquiried are focused on our shared experience.

To me, there is another issue (which, if you covered but I missed, apologies): Should membership in a kiddie porn group give the police probable cause to search one's home, instead of, say, obtaining a search warrant only to search the computer?

Like I said, it seems clear cut that there's probable cause that one's computer will contain a trace of evidence related to one's illegal surfing. But it's a bigger inferential step to infer that the guy will have other stuff in his home. Thus, my view is this: Membership in a child porn listserve provides probable cause for a) a warrant for the computer (mindful, of course, of the protections Kerr suggests in S&SIADW) but b) no probable cause for a search one the suspect's home.
8.18.2005 10:49pm
myalterego (mail):
Are there any anologous cases that are useful? For instance, wouldn't the same questions of whether probable cause exists and what a warrant should cover (search of computer vs. search of home) be equally important for other substantive crimes? Of course child porn gets all the press, but there must be some interstate wire fraud cases or so on where a defendant used a computer and warrants were issued (or not) based on that computer usage.
8.18.2005 11:05pm
brucem (mail) (www):
The very idea of there being "illegal pictures" (that are illegal to merely possess) is incompatible with the Fourth Amendment's prohibition on unreasonable searches, much like drug possession, but with an even greater extent of incompatibility. In a victimless crime that occurs merely by having a picture in your possession, short of the government breaking the law itself to distribute the illegal pictures in a sting operation, there will NEVER be probable cause sufficient to justify a search warrant of someone's home to find an illegal picture. In the guise of "protecting the children" the Fourth Amendment will certainly give way to new "exceptions" so that the government won't be thwarted in arresting kiddie porn possessors, and so that politicians can get and remain in office by saying they're locking up people for looking at unpopular pictures. Victimless possessory crimes are simply incompatible with the Fourth Amendment, and unfortunately people care more about alleviating imagined politician and media created fears than their rights, their privacy, or the principles this country was founded on.
8.19.2005 12:43am
42USC1983 (mail):
Bruce, is that a statement of the law, or of your opinion?
8.19.2005 12:48am
Bruce:
Orin, interesting post. It reminds me a lot of an observation I saw (I can't remember where at the moment) about summary judgement using the "substantial similarity" test in copyright law. With ordinary works, the "substantial similarity" test allows judges to use their common sense about books, songs, movies, etc. A judge can recognize a similar plot, characters, melody, etc. by drawing on ordinary experience. That experience fails, however, when applied to computer programs, or elements of computer programs, that are alleged to be infringing, resulting in a lot of confusion and discomfort in determining whether one program is substantially similar to another.
8.19.2005 1:34am
Stephen Aslett (mail):
Brucem,

Please explain to me how child pornography possession is a victimless crime.

It seems to me that adults who take sexually explicit pictures of young children may do so for two reasons:

1) To make money.

I would imagine that some child pornographers sell the pictures they take to individuals who then post them on newsgroups. In this case, the one who purchases the pictures, even though he hasn't actively exploited children like the pornographer, is encouraging the production of more child pornography and thereby more exploitation. While I'd imagine that actual purchases of child pornography on the internet are rare, I'm sure it's out there.

2) To satisfy their own twisted desires.

Presumably, though, most child pornographers take pictures not to make a profit but to satisfy themselves sexually. It's also conceivable that some pornographers are motivated by a desire to share their work or get off on the idea that other people are getting off to their pictures. In this case, the child pornography downloaders, even though they don't pay for the porn, create a market that potentially satisfies the sexual desires of child pornographers, encouraging them to make more child porn.

Admittedly, even if this market of child porn downloaders evaporated overnight, some pornographers would continue to make pictures for their own personal sexual enjoyment. But I'd bet that enough are excited by mass distribution of their work that, in absence of knowing that others would appreciate them, they would be less likely to make them.

Alternatively, even if child pornographers aren't sexually excited by distribution, the existence of online child pornography newsgroups gives them comfort and a sense of legitimacy. "Look at how many others feel this way. There must not be anything wrong with me." This sense of community normalizes and encourages behavior that in the absence of such a community would be less likely to occur. "I wonder if anyone else takes pictures of children. I don't hear or see any of these people. Maybe there's something wrong with me and I shouldn't be doing this."

Let's not also forget that possession of child pornography can make child pornographers and child molesters. Again, I'd bet money that many child pornographers started taking pictures because they were inspired by the pictures of others. Similarly, I'd bet that many child molesters first started off as prodigious consumers of child porn. (While I'm sure that many child porn consumers never produce child porn or molest children, do you really want to take the chance that they'll control themselves?)

So, in the end, I suppose there are two reasons why possession of child pornography is not victimless:

1) It encourages the production of child pornography by providing a financial incentive, sexual gratification incentive, or community belonging incentive to child pornographers.

2) It helps to create child molesters and child pornographers by providing an unhealthy outlet for deviant sexual desires.
8.19.2005 3:17am
Daniel Chapman (mail):
"Look at how many others feel this way. There must not be anything wrong with me." This sense of community normalizes and encourages behavior that in the absence of such a community would be less likely to occur.

Sounds like "evolving standards of decency" to me! Forget the 4th... we should be searching the penumbras!
8.19.2005 10:01am
nk (mail) (www):
Illinois v. Caballes, decided this term, is a useful illustration of escalating incremental probable cause. The defendant was speeding which gave the police officer probable cause to stop him, check his driver's credentials and issue him a warning. Without being called to and within the normal time for writing the warning, a second officer showed up with a drug-sniffing dog. The dog reacted positively to the defendant's car's trunk. There was then sufficient probable cause to open the trunk and discover the marijuana.
8.19.2005 10:22am
Jeremy (mail):
It seems to me that membership in a child porn ring creates probable cause for invasive searches in most aspects of the life of the accused. In my opinion, courts are needlessly struggling with this question; the answer seems pretty easy.

The facts that internet addresses can be hacked and that these people download images away from home on unsecured wireless networks are at most interesting side-notes, but how many child pornographers are actually accomplished hackers? Methinks not many.
8.19.2005 10:32am
Andy Freeman (mail):
> how many child pornographers are actually accomplished hackers? Methinks not many.

They don't have to be. All they have to do is download software.

> that these people download images away from home on unsecured wireless networks are at most interesting side-notes

A large fraction of wireless networks allow anonymous access, and such networks are common in residential areas. In an apartment house, I'd expect to see several "open nodes". Since computers that can use such networks are very common, the "how do you know who downloaded from IP x" question is far more than an "interesting side-note".
8.19.2005 12:01pm
Stephen Aslett (mail):
I'm just thinking out loud here...

It seems to me that merely subscribing to alt.child.porn should be enough to give probable cause search one's computers. (Honestly, what legitimate reason could you have for subscribing to such a newsgroup? Maybe if you're an investigative journalist, a cop, or a social science researcher, but the vast majority sign up for the images.) Sure, it's possible that people could fradulently sign up others, but that's unlikely enough that it doesn't trouble my probable-cause meter. Similarly, I'm not bothered by the staleness issue (deleted detritus stays on the hard drive for a long time unless it's written over many times with special programs) or the possibility that the subscriber merely looks at the pictures and never "possesses" them by downloading them.

Still, let's assume that probable cause doesn't exist in these situations. Would everyone agree, then, that reasonable suspicion does?

Sure, reasonable suspicion is only enough to justify a stop. And it's only enough to justify a frisk if the officer reasonably believes the suspect poses a danger to the officer or others. It's a stretch, but what about this line of reasoning...

Subscription to a child porn newsgroup gives rise to a reasonable suspicion that the subscriber has downloaded illegal images onto his computer. (Citing social science research that may or may not exist to prove the following point,) individuals who download child pornography are likely to produce it themselves, be active child molesters, or be immininent future child molesters. As such, these people pose a danger to themselves and others. This justifies a "stop and frisk" search of the user's computer(s) for images of child pornography. The search would be done using software designed only to search for images or (even better) would search for known images of child pornography that are posted on such newsgroups.

Would this work as a justification? Probably not. Stop and frisk usually occurs outside of the home (where there's less of an expectation of privacy), involves a perception of very imminent danger, and (arguably) is less intrusive than a scan of one's hard drive. (Let's also not forget that the cops would have to enter your house, grab the computer, or make a copy of the hard drive on site to scan it later. Plain view then becomes an issue.)

Alternatively, I suppose we could pass a law subjecting individuals who subscribe to newsgroups to administrative searches of their computers. Hey guys, if you're going to subscribe, you're going to be regulated--be ready for some diminished expecations of privacy.
8.19.2005 12:12pm
Stephen Aslett (mail):
Oh yeah, and the frisk is of the actual person, not the person's property.
8.19.2005 12:14pm
Michael Last (mail):
The description you give for determination of probably cause I find borders on scary....studies (I don't have references at present) on doctors have found they are lousy at estimating posterior distributions within their field of expertise. For instance, the classic introductory probability problem of estimating the probability somebody who tests positive for a disease actually has the disease, given false positive rates, false negative rates, and disease prevalence, is frequently missed by practicing doctors. Given that I doubt judges have a better sense (not for the least of reasons that they often have to make decisions out of their field of expertise), any procedure that relies on judges deriving a reasonable conditional probability....

Can the warrant be challenged after the fact based on conditional probability? If you can show that under a reasonable model, the conditional probability is below some threshold, can you imply a lack of probably cause?
8.19.2005 12:14pm
Sparky:
I agree -- membership in the listserv should be enough.

All these "what ifs" merely mean thar the presence of contraband pornography in the home is not certain; it's still overwhelmingly probable.

For example, who cares about point 4 (whether the defendant initially received the images in his home)? Even he downloaded them to his laptop while on a business trip to Podunk, he probably brought his laptop home with him.
8.19.2005 12:33pm
Aultimer:
The commenters who start with assumption that an email addy, ISP account, or even an IP address, maps cleanly to a person have missed the point. Innocent users aren't cleanly mapped, let alone folks with something to hide.
8.19.2005 12:33pm
Nick (www):
I think in this specific case there shouldn't be much uncertainty:

1) People can sign up for accounts using fake names and/or fake addresses. They also can use hacked accounts belonging to other people.

While people can signup with fake addresses... they wouldn't be able to receive any of that email making signing up with that address useless for receiving pictures. The hacked accounts issue is different... but one could use the same logic for a PO Box. Someone could have a key to someone else's PO Box and have mail sent there. If that PO Box were used to determine probable cause... how is that treated in current case law?

2) We can quibble with the details of the substantive law, especially in the case of the precise meaning of "possession" of a digital file, but as a rule this means that a person who accidentally receives images of child pornography may not be guilty of an offense.

This boils down to the question of what happens when someone else signs you up for a listserv. In that case, it's very helpful to look at the policies of the listserv itself. Many of them have features built in to require someone to respond to an email to start receiving other messages. You can also look at the amount of time someone was on the list. If they were only on for a day, then it's likely that they were signed up by someone else, and once they realized it, they removed themselves. Someone on the list for a long period of time is more likely to want the images being sent.

3) How likely is it that the defendant actually did receive images? The list or group may not have distributed contraband images during the period that the suspect was a member.

Most listserves archive the messages sent making this a very answerable question.

4 &5 are still pretty open... but I think that they should preclude a search of the homes... but I'm not a lawyer, I'm a software engineer.
8.19.2005 12:56pm
Daniel Chapman (mail):
Do people actually still use listservs? Shouldn't the modern focus be on peer to peer file sharing?
8.19.2005 1:13pm
Daniel Chapman (mail):
Now why was that post deleted? Because he argued for a distinction between possessing the pictures and making them? I think after Lawrence, you can't dismiss an argument like that out of hand, and there was nothing else in the post that warranted deletion.
8.19.2005 2:34pm
Bryan DB:
Nick, you noted:

1) People can sign up for accounts using fake names and/or fake addresses. They also can use hacked accounts belonging to other people.

While people can signup with fake addresses... they wouldn't be able to receive any of that email making signing up with that address useless for receiving pictures. The hacked accounts issue is different... but one could use the same logic for a PO Box. Someone could have a key to someone else's PO Box and have mail sent there.


I think the problem is that someone could sign up with an arbitrary email address and then access that email through someone else's network. How, then, do you use probable cause to get to the ultimate offender?
In my neighborhood (of houses, no less, not apartment buildings) I can sit in my living room and access at least three wireless networks belonging to my neighbors. Assuming I sign up to a list with an anonymous email, and then surf and check email through my neighbor's network, where will probable cause lead? Not to me.
8.19.2005 2:38pm
OrinKerr:
Daniel,

I deleted a comment because in the course of discussing quite valid and interesting legal arguments, the author started to use (and repeat) language that was just way too coarse for the VC. There are appropriate ways to make a point and inappropriate ones, and to me that one crossed the line.

Orin
8.19.2005 4:16pm
Challenge:
"In a victimless crime that occurs merely by having a picture in your possession...."

Uh, what the hell would you call the child? If you were a 10, 12, 15 year old with your picture plastered all over the internet doing who knows what, would you consider yourself a victim? I think distribution of such material is a crime distinct from its creation. Spare me your take on what the Framers meant by "reasonable."
8.19.2005 4:43pm
Brucem (mail):
Daniel, I believe I used a euphamism for masturbation (can I say that?) that was certainly relevant to the topic at hand. I figured the euphamism was less offensive than the word masturbation, but I suppose I was wrong. My apologies. Since I've seen all sorts of curse words used here in discussions about free speech, I had no idea that a mild euphamism for masturbation was too course for the Volokh Conspiracy. I thought this was a legal website, not a 'family' (read: censored) one. Anyway.... again, my apologies.

But yes, I was saying something along the lines of the following:

1. Certainly having your name/email subscribed to a listserve cannot give the police probable cause to search your home. Anyone can sign up anyone else on a listserve. That means not only could anyone give the police probable cause to search someone else's home, but the police could manufacture probable cause by signing you up for such a listserve then saying they have probable cause for a warrant. Certainly the fact that you're email address was entered somewhere on the internet can't by itself support probable cause for a search warrant. I would argue that it's completely irrelevant to probable cause because there is no indication that the owner of the email address is the one who entered it to subscribe.

2. Yes, possession of child porn is a victimless crime. Making it, on the other hand, likely is not. There most certainly is and should be recognized a distinction between making child porn (which amounts to sexual assault of a minor, unless we're talking about virtual kiddie porn) and possessing it.

3. Kiddie porn is basically photographic evidence of a crime. I know of no other crime, not even murder or terrorism, where it is illegal to possess pictures of the corpus delicti. Should someone be arrested if they possess pictures of a murder victim just because they happen to get off [Orin: can I at least say 'get off'?] on those pictures? Presumably on the theory that if we don't arrest these people there will be more murder? Not for a minute do I accept the market theory of justifying possessory prohibition.

Let me ask this: Is someone who sits at home watching 9-11 videos of the airplanes crashing into the world trade center over and over again for sexual purposes (and possesses videotapes of said videos for that sole purpose) a worse criminal more deserving of punishment than one who possesses (and I stress that he didn't make it) kiddie porn, on the assumption that 9-11 was a worse crime than molesting a child? If people like watching 9-11 videos of the airplanes crashing into the buildings and are even willing to pay money to download those pictures and videos off the internet, does that mean there will be more terrorist attacks to satisfy the "demand" for those videos?

4. Of course kiddie porn is disgusting, offensive, and I would not begin to argue that it is not immoral. But possessing a picture is simply not hurting anyone and is not a legitimate crime. This comes down to legislating taste under the guise of protecting children. By all means we should go after those individuals who sexually assault and abuse children, whatever their reasons or justification may be for their crime, whether it be arousal or profit or both. But the idea of police stormtroopers busting into someone's home to look for "illegal pictures" (on the shakiest of probable cause, no less) is more offensive to me than any kiddie porn could ever be.

5. I'd rather a pedophile gratiate his desires by looking at a photograph than by molesting a child. I realize some people will say that either-or is a false dichotomy in that pedophiles shouldn't be "allowed" to have those desires in the first place. Yeah, well, good luck with that. In the meantime, we should use our resources to catch those people who actually molest and assault children, because that's NOT a victimless crime.
8.19.2005 5:51pm
Challenge:
"Yes, possession of child porn is a victimless crime. Making it, on the other hand, likely is not."

They're separate crimes. OK, imagine that a child has to endure the atrocious crime of some creep taking pictures of them. That's a crime. Now, imagine that picture is distributed to thousands (perhaps tens of thousands) of other individuals. Do you think the victim doesn't care? Of course they do, they are further victimized. Are they equivalents? No, but I think there is no problem in considering each a crime.
8.19.2005 5:59pm
von (mail) (www):
Frankly, I don't buy BruceM's Fourth Amendment arguments (and I say that with misplaced confidence, since I'm not a Fourth Amendment scholar by any stretch of the word). But it seems that BruceM can deal with Challenge's, umm, challenge quite easily. Challenge writes:

[BruceM:] "Yes, possession of child porn is a victimless crime. Making it, on the other hand, likely is not."

[Challenge:] They're separate crimes. OK, imagine that a child has to endure the atrocious crime of some creep taking pictures of them. That's a crime. Now, imagine that picture is distributed to thousands (perhaps tens of thousands) of other individuals. Do you think the victim doesn't care? Of course they do, they are further victimized. Are they equivalents? No, but I think there is no problem in considering each a crime.


BruceM is arguing that possession of child pornography is a "victimless crime." Challenge responds by pointing out how distribution of child pornography (whether for profit or not) is not a victimless crime. But I don't hear Bruce M. to argue that distribution of child pornography is a victimless crime; nor does his argument that possession of child pornography is a victimless crime require him to also argue that distribution of child pornography is also a victimless crime. In fact, I read Bruce M.'s posts to imply the opposite.

Now, I don't buy Bruce M.'s argument that we should not criminalize mere possession of child pornography, primarily because (unlike him) I believe that it is legitimate (and comports with the Fourth Amendment) to essentially criminalize demand for an illicit product. But it seems to me that a lot of responses to Bruce M. are missing his narrowly-tailored point (or, at least, what I understand to be his narrowly-tailored point).
8.19.2005 6:26pm
von (mail) (www):
primarily because (unlike him) I believe that it is legitimate (and comports with the Fourth Amendment) to essentially criminalize demand for an illicit product.

I should stress again that, consistent with my being a total nonexpert on these issues, I'm talking completely out of by rear end, here.
8.19.2005 6:27pm
Andy Freeman (mail):
> It seems to me that merely subscribing to alt.child.porn should be enough to give probable cause search one's computers.

alt.child.porn isn't a mailing list. It's a usenet group. The difference is important because you don't subscribe to usenet groups, they don't have members, you merely view their messages.

Go to groups.google.com . Type "comp.arch" into the box and hit return. You're now seeing usenet messages for a computer architecture discussion. Unless google is tracking you, there's no way to know that you've seen them via google's interface. There's certainly no central registration.

There are literally thousands of services that let one read usenet messages, almost all without any tracking.

Yes, there are services that you can sign up to to have usenet messages delivered to your e-mail. Anyone can set one up, so you're not going to be able to find them.

In some ways, usenet groups are a lot like distributed blogs. Did anyone "subscribe" to volokh.com? (Yes, there are differences, but they only make finding viewers harder, not easier.)

> I'm just thinking out loud here...

If your argument depends on technical details, shouldn't you know them?
8.19.2005 6:28pm
Clint:
BruceM-

There's a flaw in your 9/11 analogy.

While 9/11 was a singular event, the exploitation of children for pornographic (and other) purposes is ongoing. (I'm not a layer, but in my amateur opinion) the harm caused by purchasing child pornography is in the funding of the industry -- contributing to the exploitation of more children.

For a better comparison, consider snuff films, which are illegal for the same reason. (i.e. the public interest in not having people murdered for profit.)

If someday, terror-fetishism becomes sufficient that people are actually detonating bombs in crowds primarily in order to profit off the video release.... that will be a horse of a different color.

Clint

One last thought -- according to Law and Order SVU, there's now a _legal_ sub-industry using 18-year-old models and "photoshopping" the images to make them appear younger. What happens when, inevitably, someone produces real pornography and then markets it as the legal photoshopped variety?

The boring answer is that the producer is presumably guilty of both child pornography and fraud -- but what about an unknowing middle man who profits from the transaction? What about a profitting middle man who merely claims to have been ignorant -- whose is the burden of proof? What about the "end user"? Does the prosecutor need to prove that a defendant knew that the images he purchased were _actually_ the images of a child?
8.19.2005 6:57pm
Challenge:
"BruceM is arguing that possession of child pornography is a "victimless crime." Challenge responds by pointing out how distribution of child pornography (whether for profit or not) is not a victimless crime. But I don't hear Bruce M. to argue that distribution of child pornography is a victimless crime..."

That is precisely what he is arguing.
8.19.2005 7:01pm
Clint:
Re: "membership" and "signing up"...

I would assume that the police would have to demonstrate either that the target of the search paid for the account, or that their home IP address was used.

Not 100% certain here, but I think in the case of unauthorized use of a wireless network that there might be potentially useful information in the memory of the wireless router using that IP address... so a warrant for some computer equipment might be warranted even if you're relatively certain (for some odd other reason) that the homeowner is innocent. If the criminal is sufficiently sophisticated, this might not be true, but every search is predicated on the assumption that criminals usually make some mistakes.
8.19.2005 7:03pm
von (mail) (www):
That is precisely what he is arguing.

Maybe I misread Bruce M., then.
8.19.2005 7:14pm
BruceM (mail):
Von is exactly right. Challenge, no, I am not arguing that distribution of child porn is a victimless crime, I'm arguing that possession of it is. The possessor doesn't distribute it. To the extent that the child photographed is identified later on and embarassed, a tort has certainly been committed whereby the child (and I'd toll the SOL until the kid reaches majority) can sue the person who created and/or distributed the photographs for monetary damages. It's like a false light/privacy lawsuit.

Clint: are you saying terrorism is not "ongoing"? What if I really like to look at pictures of terrorist acts? Should I be locked up? Should my pictures be seized as contraband? (note: I of course do not like to look at such pictures, but as far as I can tell doing so is perfectly legal--ironically even if I were the one who did the actual terrorism and photographed it!)

Just to be clear, I'm not saying criminalizing child porn violates the fourth amendment. The fourth amendment has nothing to do with what can be a crime and what cannot. My only comments regarding the fourth amendment were with respect to the subject of this thread, what is probable cause for searching a home based on information gleaned solely from the internet. I believe basing a search warrant on the sole fact that suspect's name and email address were in a kiddie porn email listserve is NOT ENOUGH to justify a search warrant, and any warrant that issued on that dearth of questionable information would be constitutionally infirm, in violation of the 4th Amend. I am opposed to creating a situation where the police can type your email address into a website and then say that email address being there gives them probable cause to support a search warrant of your home.

I believe criminalizing the possession of a photograph violates the first amendment and substantive due process (if I can say that phrase here, it's probably more offensive to the average person than is the masturbatory reference I stated earlier), but has nothing to do with the 4th Amendment. And with reference to my statement about the first amendment, I believe it is absolute and unpopular or obscene things do not fall outside of its protection. Yes I realize SCOTUS caselaw disagrees with me, but I long thought the sentencing guidelines were unconstitutional as well, so, we can each have our opinions.
8.19.2005 7:19pm
Clint:
Bruce-

No. I'm saying that terrorist acts are not primarily motivated by a desire to profit financially from selling pictures of the act. That's the difference, at least as far as the public policy interest in forbidding you from purchasing child pornography.

I'm not entirely sure how I feel about simple possession -- unless there's some sort of presumption that it was purchased, or evidence leading up to the search that it was downloaded from a pay site, or something like that. Perhaps this agrees with part of the point you're trying to make...

(Keep in mind that downloading from a free site that is funded by advertising would still qualify for this broad definition of "purchasing".)
8.19.2005 7:39pm
Daniel Chapman (mail):
Like I said... the penumbras pose the real question. Most of the arguments I've seen against possessing kiddy porn (without actually molesting any kids) have been remarkably similar to the arguments against homosexual sodomy. Is it inconceivable that in the near future we will see someone arguing to "define his theory of the universe" to include the right to be sexually excited by pictures of naked kids? Isn't his personal gratification "Adult private sexuality" in the legal sancturay of the bedroom?

Before I get flamed off the board, I'm obviously not trying to promote this argument... just pointing out (along with BruceM) that it exists. And before you completely disregard it, remember that people said it was ridiculous to think that Lawrence could be applied to polygamy or incest.
8.19.2005 7:49pm
BruceM (mail) (www):
The bottom line is the idea of police busting down someone's door, arresting them, and putting them in prison for extremely long terms for possessing a photograph (not to be confused with molesting a child) is simply insane to me. I really don't care if the picture was purchased or received for free.... buying a photograph of a crime is not a real crime.

And yes, just to be clear, I don't suppor possessing kiddy porn, molesting kids, terrorism, or murder.
8.19.2005 8:36pm
Clint:
BruceM-

How would you distinguish "possessing/purchasing a photograph" from purchasing illegal drugs, illegal weapons or classified documents, or receiving stolen goods?

Would you decriminalize the fencing profession as well?
8.19.2005 9:09pm
BruceM (mail) (www):
Clint:

Good question. I am firmly against all drug prohibition, but that's a topic for another day (or at least another thread), so I wouldn't distinguish photograph prohibition from drug prohibition in any sense that I support one but not the other. Ditto with "illegal weapons" except I believe there is a nuclear, chemical, and biological exception to the 2d Amendment.

I also believe giving classified documents to the enemy (or any foreign state for that matter) should be a crime, but merely possessing classified documents should not. This is a matter of national security, but it's not obvious so let me explain. If the government wants to keep things classified, it should have to use every effort possible to make sure the information can't get out. If it's possible to get out, then there is a security flaw that needs to be fixed; the person who possesses the information shouldn't be punished merely for doing so. If a person possesses classified information who is not authorized to do so, then the government has been negligent (it's a res ipsa loquitur situation). If the government can't punish people for possessing classified information they should not possess, the government will not be able to have a "if you possess it we'll punish you" threat to give them a false sense of security, and thus will be forced to REALLY use every effort possible to make sure classified information stays classified. The government should not be relying on threats of punishment to keep classified information out of the hands of those who are not supposed to see it. Again, don't confuse possessing classified information with selling it to the enemy. That's different.

The same goes with possessing weapons. People should be able to bear whatever arms they so desire, including any automatic weapon. HOWEVER, I believe there should be a nuclear, biologic, and chemical exception implicit in the 2d Amendment. I would have no problem with the Constitution being amended to reflect that, because the idea of implied limitations of our rights disturbs me greatly and is the first step down a slippery slope.

As for receiving stolen goods, it's a little bit different in that it's more than just a possessory crime, it's about furthering a theft, which is an actual crime with an actual victim. A better way of making my point would be if it were illegal to possess stolen goods if you had no idea they were originally stolen. Imagine someone going to prison for 188 months because, when the cops were searching his home under a search warrant based on the fact that the suspect's email address was found somewhere incriminating on the internet, they found a TV set that was reported stolen 6 years earlier, that the suspect bought on Ebay, and that the suspect had absolutely no idea was stolen. But it was. The prosecutor proves up the fact that the tv was stolen, and the suspect knowingly possessed the TV set. Would that be a legitimate crime? I can tell you that such a law would be justified by saying that theft is bad, theft is a problem, we can't have theft, we have to prevent theft, and locking up anyone who possesses property that is later determined to be stolen would serve to make people take affirmative steps to guarantee that anything they acquire is not stolen. We punish people for possessing weapons they have no idea are illegal, so this is certainly feasable. Would you have a problem with it? Why?

At the end of the day, this is all about criminalizing non-crimes to prevent real crimes, and possession of X is always a non-crime. Ban possession of kiddie porn to prevent sexual assault and rape of minors. Ban possession of machine guns to prevent murder (as if semiautomatic weapons don't kill people). Ban possession of drugs so that dark-skinned people won't rape white women and so all our children won't kill themselves.

These laws are all irrational, incredibly invasive to privacy and liberty (by their very nature snitching, searching, and creating crime to fight crime are necessary to enforce possessory criminal laws), and are not things that a legitimate government can criminalize.

I realize we've come to the point where most Americans feel the legislature can do whatever it wants, but that doesn't make it right, and it's really just a product of too many people watching Fox News. Ask the average person on the street if Congress has the power to pass a law that punishes speeding "in or affecting interstate or foreign commerce" (in other words, any and all speeding, see Raich v. Gonzalez) by over 5 miles per hour over the speed limit with the death penalty, and most people would say Congress has the power to do so, because it would be the will of the people (they'd then caveat their answer with the baseless opinion that Congress would certainly never pass such a draconian law). Now, if I were a federal judge I'd strike down that law as being grossly violative of the 8th Amendment's proportionality requirement, but most people would then proceed to call me an activist judge thwarting the will of the people, legislating from the bench, and invading the exclusive province of the legislature to enact criminal laws, while simultaneously saying my irresponsible activist judging has just given speeders the right to crash their cars into busloads of precious children.

But I digress....
8.19.2005 10:24pm
Challenge:
"Challenge, no, I am not arguing that distribution of child porn is a victimless crime, I'm arguing that possession of it is."

Oh, so I guess even your agree your ridiculous comparison to crime photos is utterly inapt. After all, distributing video or photos of 9-11 could never be a crime, could it? Nope.

I am not sure why distributing can be a crime from what you have shared. I can understand how, in my view, one should be treated more harshly than others (the distributor of child porn should be treatly more harshly than someone only possessing it), but I don't see how you can claim one is a crime and one isn't. They are, essentially, the same thing, except that the distributor both possesses and then shares his pornography. If possession is not bad enough to be a crime, then why does promoting possession (distribution) suddenly become one? I don't get the logic, frankly. It seems to be a pretty bizarre exception to your insistence that merely possessing "evidence" of a crime cannot be a crime (which is itself nonsensical because it ignores that possessing child porn IS a crime). If you really believe the law can no more distinguish between child porn and 9-11 photos, then I don't see how you believe the law allows for distribution of one and not the other. It may be that you believe that is an appropriate, albeit arbitrary, line, but it is not at all consistent with what you have spouted, that child porn is merely evidence of a crime and cannot be viewed by society or the law as a crime distinct from its creation.

If you concede distribution can be criminalized, I think you have correctly conceded that possession is something which should be discouraged, both for the benefit of society and for the dignity of the victim. If you really believed child porn was the same as a crime scene photo, you could never come to that sort of conclusion.
8.20.2005 12:58am
Andy Freeman (mail):
> Not 100% certain here, but I think in the case of unauthorized use of a wireless network that there might be potentially useful information

At that point, "he looked shifty" has more basis in reality.

>so a warrant for some computer equipment might be warranted even if you're relatively certain (for some odd other reason) that the homeowner is innocent.

At this point, the presumption should be that the homeowner is innocent, because none of the "technical arguments" hold water.
8.20.2005 3:30am
Bologna Slicing Dep't (mail) (www):
With all of these empirically unmoored (thanks SL) probabilities floating around, it would seem that decisions about probable cause would be dominated by the tribunal's feelings about whether low-suspicion searches are good or bad in the abstract.

I am pretty sure that there are judges out there who see no real harm in pretty any sort of search, at least so long as te search nets a child pornographer (or meth cooker or other criminal). If such judges exist, then it is difficult to see why they would ever exclude evidence on a lack-of-probable-cause basis. The probable cause inferences and uncertainties are indeterminate to the point of being a nullity.

I imagine that the opposite sometimes applies as well, where an individual judge is so fed up with the War On Drugs that she always mentally calculates &aggegates the packed, unspoken, unquantified probabilities in a way categorically hostile to probable cause.

I would like to think that most judges are between these two extremes, and that they really apply probable cause as a test that could go either way, rather than an ideologically wielded rubber stamp coming down with refreshing certitude in the noumenal realm of uncertainty about uncertain uncertainties. Alas, my experience is limited and I am beginning to think that general feelings about the worth of the 4th amendment dominate the fact-sensitive analysis that is supposed to be going on here.
8.20.2005 10:21am