Here’s an interesting scenario. Say for a moment you’re a judge. You have been given the job of ruling on whether a lower court’s ruling is valid. But this case isn’t any old case. This case involves a man who was convicted of possessing and distributing child pornography. Here’s the kicker, the evidence used to convict him was collected through a Navy program that scanned every computer in the state loaded with a specific file sharing program. In other words the evidence, which is damning, was only available because the military overstepped its boundaries and took it upon itself to enforce civilian law. Do you overturn the ruling and set a person possessing and distributing child pornography free or do you allow a precedence to be set that allows the military to enforce civilian law? That’s the position judges Judge Berzon, Andrew Kleinfeld, and Diarmud O’Scannlain found themselves in:
A federal appeals court said the US Navy’s scanning of the public’s computers for images of child pornography constituted “a profound lack of regard for the important limitations on the role of the military in our civilian society.”
The Naval Criminal Investigative Service (NCIS) practice led the 9th US Circuit Court of Appeals to suppress evidence in the form of images of child pornography that an NCIS agent in Georgia found on a Washington state civilian’s computer. The agent was using a law-enforcement computer program called RoundUp to search for hashed images of child pornography on computers running the file-sharing network Gnutella.
“…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,” Judge Marsha Berzon wrote for the San Francisco-based appeals court.
I wouldn’t have wanted to be those judges. Possessing, manufacturing, and/or distributing child pornography is one of those crimes where the mere accusation is usually enough to destroy one’s life. Being the judge who allowed an accused child pornographer to go would be a bad position to be in but overturning a conviction would far worse. A lot of judges would probably cave to the political pressure and allow the ruling to stay. In fact O’Scannlain felt that the ends justified the means. But judges Berzon and Kleinfeld decided to not be total shitbags and and stuck down the ruling as the evidence was collecting in violation of the Posse Comitatus Act, which prohibits the military from involving itself in civilian law enforcement.
I’m sure there are people on O’Scannlain’s side. After all child pornographers may hold the rare status of being a group of people hated more than Hitler. But allowing the ruling to stand would have opened the door for a lot of law enforcement abuse. Effectively it would have set a precedent that allowed law enforcement to bypass a lot of paperwork and legal obstructions by having the military perform surveillance for it. While warrants aren’t much of a check against police abuse they are more of a check than the military has to submit to.