9th Circuit Dismisses Child Pornography Evidence due to NCIS Investigation

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Sep 22, 2014

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The 9th Circuit Court of Appeals dismissed evidence of child pornography that was illegally obtained via an overbroad online investigation conducted by the Naval Criminal Investigative Service (NCIS) citing federal statutes that prohibit military police organizations from interfering with the enforcement of civil laws.

NCIS Investigates Civilian Computers

At issue in United States v Dreyer was an investigation conducted by NCIS Agent Steve Logan who, in 2010, used a law-enforcement program known as RoundUp to patrol for child pornography on computers in Washington via a legal file-sharing network called Gnutella.  During the course of his investigation, Agent Logan identified a computer sharing suspicious files, downloaded three of them, and then acquired a subpoena for Comcast to provide information about the owner of the IP address – 60-year-old Michael Dreyer.  After Agent Logan determined that Dreyer was not serving in the military, he handed the results of his investigation over to civilian law enforcement.

On the strength of Logan’s investigative efforts, Washington police looked into Dreyer’s computer activity and found several videos of adults engaged in illegal sexual behavior with preteen boys and girls.  Using the graphic video evidence, prosecutors earned a conviction in September of 2012, sentencing Dreyer – who had a previous child pornography conviction in 2000 – to 18 years in prison. 

9th Circuit Rebukes NCIS Investigation

In a 2 – 1 divided opinion, the 9th Circuit rejected the NCIS involvement in the case as a violation of the Posse Comitatus Act, a New Deal era law that “prohibits Army and Air Force military personnel from participating in civilian law enforcement activities.”  Under the Posse Comitatus Act, military investigators, which include the civilian NCIS branch, may indirectly assist with civilian investigations, or produce information that was discovered during permissible investigation of military personnel.  In this case, because Agent Logan acted without any assistance from civilian law enforcement and investigated computers across the entire state of Washington, the 9th Circuit determined that he had not satisfied any exceptions to the restrictions on military involvement with civilian law enforcement.

Throughout its opinion, the majority did not pull any punches in criticizing the actions of Agent Logan and the NCIS, finding the investigation a “massive” and “egregious” violation of policies overseeing military law enforcement that warranted the exclusion of the evidence used to convict Dreyer of child pornography.  The majority excoriated the NCIS’s broad investigation into civilian computers, writing:

“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.  Such an expansive reading of the military’s role in the enforcement of the civilian laws demonstrates a profound lack of regard for the important limitations on the role of the military in our civilian society.”

After criticizing NCIS overbroad use of authority, the Court wrote that it had no choice but to disqualify any evidence obtained by Agent Logan’s search because, “The extraordinary nature of the surveillance here demonstrates a need to deter future violations.” The Court acknowledged the likely outcome – Dreyer being freed despite engaging in the distribution of child pornography – but felt that, “There could be no bona fide military purpose to this indiscriminate peeking into civilian computers, [and] letting a criminal go free to deter national military investigation of civilians is worth it.”   Federal prosecutors who argued the case before the 9th Circuit have not formally appealed the decision, but indicated that the case is not closed.

Critiques Argue 9th Circuit Mistaken over Technology Use

US Attorney Jenny Durkan spoke with the Seattle Times after the opinion was released and said that the court may have misunderstood the nature of the technology Agent Logan used to conduct his search, calling the 9th Circuit “wrong” on its conclusion.  Durkan would not offer further comment, but her statements echoed the government’s position that Agent Logan was not issuing surveillance over all computers in Washington as the Court stated, but only over computers engaged in suspicious file-sharing activity, and, while the NCIS may have overstepped, the action was not so egregious as to dismiss evidence and allow a convicted child pornographer to go free.

Impact of 9th Circuit Decision

The 9th Circuit opinion comes at a time when civilians, companies, and some members of the judiciary are struggling to accept increasingly expansive government surveillance of electronic communications.  With the now-public actions of the National Security Agency (NSA) leaving many Americans unsettled, it seems like the 9th Circuit is firing a shot at the broader issue of military and federal involvement into civilian law enforcement via electronic investigation and surveillance.  With more to come on US v Dreyer, it will be interesting to follow not only the outcome of this case, but whether or not the 9th Circuit’s sentiment causes a lasting impact across federal courts. 

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