Child Pornography Case Spurs Debate on Military’s Role in Law Enforcement
Child Pornography Case Spurs Debate on Military’s Role in
Law Enforcement
By ERIK ECKHOLM and RICHARD A. OPPEL Jr. SEPT. 21, 2014
In a field office near Brunswick, Ga., a federal agent
working as an undercover cybersleuth signed on to a large file-sharing network
sometimes used by traders in child pornography.
Using a law-enforcement computer program called RoundUp,
the agent, Stephen D. Logan, scanned computer activity by the network’s members
in the state of Washington. He located a computer offering illegal photos and
videos, and downloaded three files as evidence.
Local police took it from there, obtaining a warrant
based on the distant search. The owner of the computer was convicted of
possessing and distributing child pornography, and is now serving an 18-year
sentence at a federal prison in Texas.
Had Mr. Logan worked for the F.B.I., his work on the case
might have seemed routine. But Mr. Logan worked for the Naval Criminal
Investigative Service, and his mission that day in April 2011, he would later
testify, had been to look for military service members trading in child
pornography in Washington, the location of several naval bases.
Mr. Logan’s computer surveillance could not distinguish
military users from others, and the man he helped catch, Michael A. Dreyer, was
a civilian. Now the case has sparked sharp debate over how much the military’s
formidable investigative powers can legally contribute to civilian law
enforcement.
This month, in a scathing rebuke of the investigative
service and the Justice Department that has generated wide interest in legal
circles, a federal appeals court in San Francisco overturned Mr. Dreyer’s
conviction. Federal authorities had shown “a profound lack of regard for the
important limitations on the role of the military in our civilian society,”
declared the decision issued Sept. 12 by a panel of the Federal Court of
Appeals for the Ninth Circuit.
Military investigators often cooperate with civilian law
enforcement when tracking down, for example, a source of heroin flowing into a
military base. But in this case, “they were just searching generally on the
chance that they would run into someone from the military,” said Erik B. Levin,
the defense lawyer in Mr. Dreyer’s appeal.
In addition to condemning the Navy’s investigative
service for overstepping regulations that have evolved from the Posse Comitatus
Act of 1878, limiting the use of federal troops in law enforcement, the appeals
court took the unusually strong step of excluding the computer evidence in any
new trial of Mr. Dreyer.
“The extraordinary nature of the surveillance here
demonstrates a need to deter future violations,” said the ruling, written by
Judge Marsha S. Berzon, in justifying a decision that could set the offender
free. One of the three judges dissented on this aspect, saying the harm would
outweigh any benefit, and some independent legal experts said that the decision
to exclude evidence went against recent legal norms.
The revelations of cybersearches by the naval agency come
at a time of heightened sensitivity about computer privacy and government
spying.
Marc Rotenberg, president of the Electronic Privacy
Information Center, a private group in Washington, D.C., called the Circuit
Court opinion “interesting and significant.”
“As the Department of Defense plays a greater role in
domestic surveillance, questions will be asked about how its surveillance
capabilities might feed into domestic law enforcement,” he said.
Federal prosecutors argued that because the N.C.I.S.
investigator was a civilian employee, he was not covered by the rules barring
military involvement in civilian criminal investigations. They also argued that
the agency had a legitimate military-related purpose in seeking child
pornography offenders in a region with several naval facilities.
They added that the investigative service’s role in the
case — the transfer of information — involved only “indirect” and permissible
involvement in civilian law enforcement. Federal prosecutors declined to
comment last week, but a federal prosecutor told The Seattle Times that the
judges may have misunderstood the technology Mr. Jacobs used and the scope of
his searches.
The Justice Department is considering whether to appeal
the ruling.
The federal appeals panel expressed its views in
unusually harsh terms, at some points describing the investigative service as
monitoring “all the civilian computers” in a state, although, according to
court documents, the searches that led N.C.I.S. to Mr. Dreyer were apparently
limited to computers linked to targeted file-sharing networks.
The naval investigative service’s role in the case
“amounts to the military acting as a national police force to investigate
civilian law violations by civilians,” Judge Andrew Kleinfeld wrote in a
concurring opinion.
“Letting a criminal go free to deter national military
investigation of civilians is worth it,” Judge Kleinfeld wrote, defending the
mandate to exclude the computer evidence in any retrial.
The third member of the appeals panel, Judge Diarmuid
O’Scannlain, while agreeing that the surveillance had violated regulations,
objected to the decision to exclude the evidence. “This case provides no
justification for setting a convicted child pornographer free,” he wrote.
Orin S. Kerr, a law professor at George Washington
University, described as “aggressive” the court’s decision to exclude
incriminating evidence from the computer searches. The Supreme Court in recent
decades has usually allowed such evidence unless a defendant’s constitutional
rights have been violated, which he said is not true of this case.
Charles J. Dunlap Jr., an expert on national security law
at Duke University and a former Air Force general, said that the Posse
Comitatus Act had been aimed at the threat the armed forces might present to
democracy, and that civilian employees, like those in the naval investigative
service, “simply do not pose the same kind of concerns.”
The appeals court noted that evidence has rarely been
excluded in past cases for violations of Posse Comitatus-related rules. But it
said that the evidence of repeated violations, and the government’s insistence
it had done nothing wrong, warranted sending a strong message.
In earlier court testimony, Mr. Logan said that he and a
colleague in the Georgia office had started investigating child pornography
cases because “we had the opportunity and the equipment,” particularly the
RoundUp program, and that he had been involved in at least 20 other child
pornography investigations. It was standard practice, he said, to scrutinize
computers within a designated geographic area, without any way to limit
searches to those owned by military or government personnel.
A spokeswoman for the investigative service declined to
talk about the scope of the work at the Georgia location by officers like Mr.
Logan, or whether the service has undertaken similar wide searches for child
pornography offenders in other states with a significant Navy presence, like
Florida, Virginia or California.
“We’re not going to talk about it, because the case is
still pending,” said MaryAnn Cummings, communications director for N.C.I.S.
It is unclear how often computer investigations by the
naval investigative service or other military agencies have yielded evidence of
child pornography or other crimes that was handed to civilian authorities.
In one case with similarities to that of Mr. Dreyer, an
appeals court reached a different conclusion. In an undercover investigation in
2008 on a Yahoo chatroom, an N.C.I.S. agent located in Bremerton, Wash., spoke
with a man in Louisville, Ky., who sent pictures of naked children.
Law enforcement authorities obtained a search warrant,
and the man, James L. Holloway, was sentenced to eight years in federal prison.
In a decision on July 30, 2013, the United States Court of Appeals for the
Sixth Circuit turned down Mr. Holloway’s request to suppress evidence based on
the Posse Comitatus Act, arguing that the military’s involvement had been
minimal.
A version of this article appears in print on September
22, 2014, on page A11 of the New York edition with the headline: Child
Pornography Case Spurs Debate on Military’s Role in Law Enforcement.
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