March 09, 2006

Judge Kleinfeld on Computers and Privacy

Howard Bashman has a set of links and comments to an interesting case before an en banc panel of the (supposedly notoriously liberal) 9th Circuit Court of Appeals. Their decision held "that an individual's subscription to web site offering both legal adult pornography and illegal child pornography provides a lawful basis to issue a search warrant to search the person's computer for evidence of child pornography". There are a few interesting things about this case that Bashman notes and are worth checking out, but I'd particularly alert you to an excerpt from the dissent of Judge Kleinfeld (it was a 9-2 decision with Bush I appointee Kleinfeld and old liberal lion Reinhardt in dissent) that I think is an interesting and largely accurate observation about Americans, computers, and privacy expectations. It's interesting to note though that, to my knowledge, few of Kleinfeld's (and the country's) concerns seem to work themselves into US law.

Posted by armand at March 9, 2006 04:09 PM | TrackBack | Posted to Law and the Courts


Without getting into details, and acknowledging that I didn't follow up on the caselaw to which the various 9th Circuit factions cited, I think this case was correctly decided.

Kleinfeld's dissent is unremarkable -- literaly, I have no remarks to offer about it, except that it was unpersuasive.

Reinhardt's dissent seemed to boil down to this proposition:

The majority concludes that the affidavit made out probable cause by assuming that anyone who subscribes to an internet site with both legal and illegal material must collect illegal material from the site. This assumption stacks inference upon inference until the conclusion is too weak to support the invasion of privacy entailed by a search warrant.
Here's the problem: the majority made no such assumption, nor did the affidavit (or the law) ask them to. It's not necessary at the warrant stage to assert that anyone who subscribes to a mixed-content site collectts illegal material from that site. Rather, it's sufficient that, under all of the circumstances, a magistrate might reasonably conclude that there was probable cause to believe a party did collect such illegal material, and the magistrate's determination is entitled to a great deal of deference.

The question isn't even whether any two magistrates would have decided the issue the same way and issued the same warrant. The question is whether the magistrate in question, faced with the evidence in question, erred in finding probable cause to issue the warrant at issue. On these facts, I have trouble imagining how one could fault a magistrate for reaching a result favoring the warrant.

If anything, this case bumps up against areas of internet law that, to my knowledge, remain unsettled, pertaining to the satisfaction of statutes aimed at physical behavior (reproduces, transmits) in the context of digital technology. Speaking roughly, faced with arguments that the internet is different, courts seem to be responding that, no, it's the same.

If this were a situation in which a subject of a warrant had, for over a month, visited on a frequent and regular basis a shop that contained in roughly equal measures both adult and child pornography, I doubt the same level of umbrage would attach to a warrant to search said subject's home for evidence of purchases of such pornography. While the dissenting judges ask why one should assume that the subject of the warrant availed himself of the illegal material, the majority properly asks why it should assume that he would avoid the illegal material, given its centrality in the marketing, ranging from URL on down. After all, there are thousands of pornography websites that don't advertise kiddie porn.

It's not that I don't think that this is a close case; rather, I think that it is. But close cases are not what get overturned on appeal in the circumstance-dependent realm of the Fourth Amendment.

As for why the original panel members may have changed their votes en banc, would you prefer that your judges had views so fixed that none of their intelligent colleagues, and no oral argument no matter how persuasive, could ever affect their views?

This is a tempest in a teapot if you ask me. Not uninteresting at the outset, but unremarkable in its outcome.

Posted by: moon at March 10, 2006 01:02 AM | PERMALINK

The reason I found all this interesting had nothing to do with the facts at issue or the holding. I'm not challenging that the 9th decided this correctly. What I think is interesting (in addition to the switches by the members of the 3 judge panel) is simply the nature of the topics that Kleinfeld brings up. I think that the creation of cyberspace really has created a new e-world in which our desire for privacy does, in many cases, extended deeper than our belief in the privacy of our dining rooms. And of course, as Kleinfeld notes, when that privacy is broken people's lives can be terribly damaged, whether or not charges are filed. I just think all this is an interesting matter in terms of how the average person would think about the 4th Amendment and associated issues - and that the belief systems we have developed about our use of the net and what are and what are not reasonable intrusions on privacy there - well, that often people's beliefs about those things don't match actual law terribly well. The technology has changed our world - but not necessarily our laws, and likely not our constitution.

Posted by: Field Marshall Armand at March 10, 2006 09:43 AM | PERMALINK

ah, i get it. oops. (pssst, i had been drinking, which might explain why i went on and on, though it doesn't explain a) why i bothered to read a 37-page opinion after midnight on a school night, b) why i'd want to write about law even when i'm buzzing, or c) the marked lack of typos in my comment. weird.

i think you and kleinfeldt are right that computers are different, but i don't know if the bedroom, which suggests a difference, is the appropriate analogy. back in the days before computers, one would have frowned upon a guest rifling through a file cabinet, too.

Posted by: moon at March 10, 2006 10:02 AM | PERMALINK

True, but in some ways I think the file cabinet is a poor analogy too - since so much of what we do on-line involves interactions (often very private) with other actual human beings and not simply pieces of paper with ink on them that we'd rather others didn't see.

Still, I'm rather stunned at the curiousity and typing skills you can muster drunk, in the wee hours, after a big Pitt win. Me, I came home and was in bed inside an hour.

Posted by: Armand at March 10, 2006 10:56 AM | PERMALINK
Post a comment

Remember personal info?