A federal appeals court issued a decision suppressing evidence found by a Naval Criminal Investigative Service special agent and used to prosecute a civilian for child pornography. The NCIS special agent had conducted dragnet surveillance of all civilians in an entire state. The “extraordinary nature of the surveillance” demonstrated “a need to deter future violations” of the Posse Comitatus Act and send a message to the government that military personnel are not permitted to enforce civilian laws.
NCIS Special Agent Steve Logan began to investigate the distribution of child pornography in late 2010. Months later, he used software called RoundUp to “search for any computers located in Washington state showing known child pornography on the Gnutella file-sharing network.” He found a computer with an IP address that was sharing child porn, downloaded three files and confirmed that these files were child porn.
The NCIS special agent requested the name and address that had been associated with the IP address when he downloaded the files. He submitted the request to the NCIS representative at the National Center for Missing and Exploited Children, which then turned the request over to the FBI. The FBI sent Comcast an administrative subpoena and Logan ultimately obtained information indicating the IP address was associated with Michael Allan Dreyer of Algona, Washington.
Logan checked a Defense Department database for evidence of any current military affiliation. He found none and so Logan forwarded a report with supporting evidence on to the NCIS office in Washington. That office provided the evidence to Officer James Schrimpler of the Algona Police Department, which proceeded to initiate an investigation that led to additional searches of Dreyer’s computer.
Ultimately, videos and images of child porn were found and Dreyer was arrested, prosecuted and convicted of child pornography offenses. He was sentenced to 216 months in prison and lifetime supervised release. He appealed the conviction and argued that the “fruits of the investigation” in his case should have been suppressed because the military is prohibited from enforcing civilian laws.
The Ninth Circuit Court of Appeals concluded [PDF] that they had to order the suppression of evidence. Not only had Logan engaged in dragnet surveillance without a warrant on multiple civilians but the record showed this was “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 record here demonstrates that Agent Logan and other NCIS agents routinely carry out broad surveillance activities that violate the restrictions on military enforcement of civilian law,” according to the court’s decision. “Agent Logan testified that it was his standard practice to ‘monitor any computer IP address within a specific geographic location,’ not just those ‘specific to US military only, or US government computers.'”
Logan apparently had initially been able to figure out that Dreyer’s personal IP address was located in Federal Way, Washington. He figured this area had a “large” Defense Department and US Navy “saturation indicating likelihood of USN/DOD suspect.” While it is true that this area was within 30 miles of “several military installations,” it was also similarly near Seattle and Tacoma.
“He did not try to isolate military service members within a geographic area,” the court found. Also, Logan “appeared to believe that these overly broad investigations were permissible, because he was a ‘US federal agent’ and so could investigate violations of either the Uniform Code of Military Justice or federal law.”
According to the court, Logan was “monitoring another computer at the same that he found Dreyer’s IP address.” He was also involved in “at least twenty other child pornography investigations. And he and at least two other agents had been carrying out these type of broad searches for “several months” before he came across Dreyer’s IP address.
The court cited the government’s positions during litigation as further evidence that the evidence in this criminal case had to be suppressed:
…The government is arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military. Such an expansive reading of the military’s role in the enforcement of the civilian laws demonstrates a profound lack of regard for the important limitations on the role of the military in our civilian society…
Additionally, the court argued that if it were to accept the government’s position it would mean NCIS agents could “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.”
As serious as all these violations of law appeared to be, it is important to recognize the court only ruled that the government had violated the Posse Comitatus policy provisions but not the criminal Posse Comitatus statute. Judge Andrew Kleinfeld dissented and argued the court should have imposed a criminal penalty.
…The Navy did not just peek into Dreyer’s home computer. It peeked into every computer in the State of Washington using the peer-to-peer file sharing program, “Gnutella.” That is more “widespread” than any military investigation of civilians in any case that has been brought to our attention. Millions of people use Gnutella, and millions of people live in Washington, so the number of Gnutella users in Washington is likely quite large. As for being “repeated,” the Posse Comitatus violation was repeated against every Gnutella user in Washington. It does not matter that this is the first case we have seen, and that we do not have repeated circuit court cases. The offense is to the people in Washington whose computers were hacked by the Navy, not to this court. The repetition that matters is the repeated invasions of Washingtonians’ privacy, as the Navy software went from civilian computer to civilian computer. [emphasis added]…
In other words, not only were Dreyer’s rights violated but systematically the military violated the rights of citizens in Washington.
Kleinfeld found the violations to be so staggering that the penalty to the government should be that a criminal like Dreyer was let go:
…True, the practical effect of the decision may be to let a criminal go. As Justice Cardozo wrote, application of the exclusionary rule means that “[t]he criminal is to go free because the constable has blundered.” We are unlikely to see so widespread and repeated a Posse Comitatus violation from the Army or Air Force, because their military personnel would risk prison. If the military chooses to become a national police force to detect civilians committing civilian crimes, the Navy would be the branch to use, because the criminal penalty does not apply to Navy personnel. Without the criminal penalty, the exclusionary rule is about all that the judiciary has to deter such widespread and repeated Posse Comitatus violations as we have here. Letting a criminal go free to deter national military investigation of civilians is worth it. [emphasis added]
The federal appeals court seems to have been confronted with the reality that the government is deliberately working to circumvent Posse Comitatus law in order to justify the military to being involved in widespread surveillance and criminal investigations of civilians.
Since National Security Agency Edward Snowden blew the whistle on top secret surveillance programs, there has been massive outrage from Americans over the NSA’s dragnet surveillance program involving the collection of millions of citizens’ phone records. There has also been outrage over the PRISM program, where Internet companies provided the NSA with access to the content of Internet communications.
The dragnet surveillance engaged in by NCIS agents is strikingly similar.
The military may be engaged in investigating serious crimes, however, the separation between civilian law enforcement and the military should be respected and valued. When military agents or officers are committing systematic violations of civil liberties, the potential effect on society should trouble every American.