In a recent Ninth Circuit case, US v. Dreyer, the court held that certain evidence of child pornography was excluded because it came from the NCIS (yes, that agency that Mark Harmon works for on TV.) As a result, a pretty disgusting pervert will go free. But the more interesting part of the case is that the evidence was excluded because the military was accessing the private computers of non-military personnel in a complete fishing expedition.
According to the court, here's what happened:
In late 2010, NCIS Special Agent Steve Logan began
investigating the distribution of child pornography online.
Several months later, from his office in Georgia, Agent
Logan used a software program, RoundUp, to search for any
computers located in Washington state sharing known child
pornography on the Gnutella file-sharing network.
It is, of course, generally illegal for the military to engage in civilian law enforcement, under the well known Posse Comitatus Act. There are several exceptions, such as terrorism involving weapons of mass destruction, and also where indirect support to specific civilian law enforcement activities is provided.
But that's not what the NCIS did, and the court called them on it:
Agent Logan’s RoundUp surveillance of all computers in
Washington amounted to impermissible direct active involvement in civilian enforcement of the child pornography laws, not permissible indirect assistance. He acted as an investigator, an activity specifically prohibited as direct
assistance.
The ultimate issue was whether this violation of the PC Act was bad enough to justify excluding the evidence developed, even though such exclusion would release the scumbag defendant. The court thought what happened was pretty bad:
Agent Logan understood that he did not have the authority to search any
location, but had to limit his searches to areas where there was “a Department of Navy interest.” Yet, Agent Logan’s search did not meet the required limitation. He surveyed the entire state of Washington for computers sharing child pornography. His initial search was not limited to United States military or government computers, and, as the government acknowledged, Agent Logan had no idea whether
the computers searched belonged to someone with any “affiliation with the military at all.” Instead, it was his “standard practice to monitor all computers in a geographic
area,” here, every computer in the state of Washington. (emphasis in original)
That bears repeating--it was Agent Logan's standard practice to monitor all computers in a given area, in this case, in the entire state of Washington.
As a result, the court excluded the evidence. The US Attorney may seek an en banc hearing, or try to appeal to the Supreme Court. That apparently hasn't been decided yet. So it's possible that the ruling won't stand. But although this is an interesting case in its own right, what's really interesting is what it suggests about the scope of government spying.
Keep in mind that a single law enforcement agent (probably about a GS-12) of the NCIS, the civilian branch of the Navy's law enforcement team, had the technical ability to monitor every computer in Washington. And he used that ability. What do you think the NSA is doing, with their super-powerful, super-secret technical capacity? I'm actually a little nervous even as I'm typing this. And American citizens should not be nervous about criticizing their government. It's un-American--or at least it used to be.