(CN) - Navy investigators regularly run illegally broad online surveillance operations that breach the line against military enforcement of civilian law, a divided 9th Circuit ruled Friday.
One such operation carried out in 2010 by NCIS agent Steve Logan eventually netted Seattle-area resident Michael Dreyer for distributing child pornography.
Using software called RoundUp from his office in Georgia, Logan searched for "any computers located in Washington state sharing known child pornography on the Gnutella file-sharing network," the ruling states.
Logan wrote in a subpoena that he chose Washington because of its large "saturation" of Department of Defense and Navy personnel.
The search hit on at least one computer, which, with the help of an FBI subpoena to Comcast, he discovered was linked to Dreyer's address. Logan's check on Dreyer revealed that while he used to be in the Air Force, he was no longer affiliated with the military.
Nonetheless, NCIS turned its information over to local police, who searched Dreyer's home and found "many videos and images of child pornography," according to the ruling.
Dreyer was convicted and sentenced to 18 years in prison, despite his claim that the evidence against him should have been suppressed as a clear violation of the Posse Comitatus Act (PCA), which generally prohibits the military from getting involved in civilian law enforcement.
A divided appellate panel agreed on Friday, reversing the lower court's dismissal of his motion to suppress the evidence and sending the case back to Seattle.
The 2-1 majority rejected the government's argument that the military is allowed to monitor and search all computers in a state without prior knowledge that a computer's owner is even in the military.
"To accept that position would mean that NCIS agents could, for example, routinely stop suspected drunk drivers in downtown Seattle on the off-chance that a driver is a member of the military, and then turn over all information collected about civilians to the Seattle Police Department for prosecution," wrote Judge Marsha Berzon for the majority.
The panel also warned that the present case suggests that Logan's broad search was not an isolated incident.
"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," the ruling states.
"We have here abundant evidence that the violation at issue has occurred repeatedly and frequently, and that the government believes that its conduct is permissible, despite prior cautions by our court and others that military personnel, including NCIS agents, may not enforce the civilian laws."
Writing in dissent, Judge Diarmuid O'Scannlain noted with apparent regret that the majority was the first ever to apply the "exclusionary rule" to violations of the Posse Comitatus Act.
Excluding evidence under the rule should be a "last resort" and done only after consideration of the "social costs," he argued.
"Yet, in a breathtaking assertion of judicial power, today's majority invokes this disfavored remedy for the benefit of a convicted child pornographer," O"Scannlain wrote. "It does so without any demonstrated need to deter future violations of the PCA and without any consideration of the 'substantial social costs' associated with the exclusionary rule."
An NCIS Public Affairs Officer did not immediately respond to request for comment.
One such operation carried out in 2010 by NCIS agent Steve Logan eventually netted Seattle-area resident Michael Dreyer for distributing child pornography.
Using software called RoundUp from his office in Georgia, Logan searched for "any computers located in Washington state sharing known child pornography on the Gnutella file-sharing network," the ruling states.
Logan wrote in a subpoena that he chose Washington because of its large "saturation" of Department of Defense and Navy personnel.
The search hit on at least one computer, which, with the help of an FBI subpoena to Comcast, he discovered was linked to Dreyer's address. Logan's check on Dreyer revealed that while he used to be in the Air Force, he was no longer affiliated with the military.
Nonetheless, NCIS turned its information over to local police, who searched Dreyer's home and found "many videos and images of child pornography," according to the ruling.
Dreyer was convicted and sentenced to 18 years in prison, despite his claim that the evidence against him should have been suppressed as a clear violation of the Posse Comitatus Act (PCA), which generally prohibits the military from getting involved in civilian law enforcement.
A divided appellate panel agreed on Friday, reversing the lower court's dismissal of his motion to suppress the evidence and sending the case back to Seattle.
The 2-1 majority rejected the government's argument that the military is allowed to monitor and search all computers in a state without prior knowledge that a computer's owner is even in the military.
"To accept that position would mean that NCIS agents could, for example, routinely stop suspected drunk drivers in downtown Seattle on the off-chance that a driver is a member of the military, and then turn over all information collected about civilians to the Seattle Police Department for prosecution," wrote Judge Marsha Berzon for the majority.
The panel also warned that the present case suggests that Logan's broad search was not an isolated incident.
"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," the ruling states.
"We have here abundant evidence that the violation at issue has occurred repeatedly and frequently, and that the government believes that its conduct is permissible, despite prior cautions by our court and others that military personnel, including NCIS agents, may not enforce the civilian laws."
Writing in dissent, Judge Diarmuid O'Scannlain noted with apparent regret that the majority was the first ever to apply the "exclusionary rule" to violations of the Posse Comitatus Act.
Excluding evidence under the rule should be a "last resort" and done only after consideration of the "social costs," he argued.
"Yet, in a breathtaking assertion of judicial power, today's majority invokes this disfavored remedy for the benefit of a convicted child pornographer," O"Scannlain wrote. "It does so without any demonstrated need to deter future violations of the PCA and without any consideration of the 'substantial social costs' associated with the exclusionary rule."
An NCIS Public Affairs Officer did not immediately respond to request for comment.
