A federal appeals court overturned a prior decision which ordered the suppression of evidence, uncovered by a Naval Criminal Investigative Service special agent, and used to prosecute a civilian for child pornography in violation of the Posse Comitatus Act.

The United States requested a rehearing by the Ninth Circuit Court of Appeals after it ruled, in September 2014, against the government because NCIS special agent Steve Logan had conducted dragnet surveillance of all civilians in the entire state of Washington. The government challenged the appeals court’s decision to order a suppression of evidence to send a message that military personnel are not permitted to enforce civilian laws.

The appeals court’s new ruling [PDF] still maintained Logan and the NCIS had been responsible for “systemic violations.” However, it interpreted those violations as the “result of institutional confusion that existed at the time.”

Logan and other NCIS agents “who worked with him spearheaded a law enforcement investigation that would
inevitably encompass mostly civilian-owned computers. We cannot conclude that the investigation had a legitimate independent military purpose because the methodology NCIS employed so clearly violated DoD and naval policy, as well as the boundary Congress imposed” through the Posse Comitatus Act and other regulations, the appeals court declared.

The appeals court insisted NCIS misunderstood the Posse Comitatus Act and pointed out the government asserted “Logan’s actions were permissible.”

“At best, the record demonstrates a poor understanding of the restrictions imposed on NCIS’s involvement in civilian law enforcement. Authorization of the program described in Logan’s testimony was apparently based on an entirely incorrect understanding of the PCA-like restrictions that apply to NCIS,” the appeals court stated.

Yet, despite the fact that the NCIS—with the backing of the Justice Department—committed a “troubling” and “unprecedented” act, the appeals court refused to order suppression because it did not believe it was “needed to deter future violations.”

“The government represented at oral argument that the military is already in the process of changing its practices and limiting its participation in civilian law enforcement to conform” to Posse Comitatus Act-like restrictions,” the appeals court recounted. The government argued the court’s finding of a violation was “more than sufficient to deter NCIS agents from engaging in any future investigative efforts of this type.” The Defense Department “adopted new regulations that acknowledge the applicability of [Posse Comitatus Act-like] restrictions to the Navy and to NCIS.”

Considering that, the appeals court decided the government should have the opportunity to “self-correct.” It also added, “The military is best suited to correct this systemic violation, and it has initiated steps to do so.”

This conclusion contrasts with the appeals court’s previous decision, where it stated, “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.”

In September 2014, the NCIS dragnet surveillance operation was not described as the result of “institutional confusion” but rather the result of massive violations of the law based upon the belief that the military had the authority to monitor criminal activity on any civilian computers in any state with a military base or installation.

Judge Andrew Kleinfeld wrote in a concurring opinion:

… 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.

This time around Kleinfeld was not one of the judges hearing the case.

NCIS special agent launches dragnet surveillance operation

To be clear about what happened, NCIS Special Agent Steve Logan launched an investigation into 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.

As noted by the appeals court, “Agent Logan and other NCIS agents routinely [carried] out broad surveillance activities that [violated] the restrictions on military enforcement of civilian law.” And, “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.’” The operation was cleared all the way through NCIS headquarters, according to Logan.

Systematically violated the rights of citizens in state of Washington

The rights of citizens in Washington were systematically violated, which is why Kleinfeld dissented in September and called for a criminal penalty to be imposed.

… 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]

The Electronic Frontier Foundation, known for its advocacy on digital freedom and privacy rights, submitted a brief [PDF] to the appeals court in support of the suppression of evidence and highlighted how Logan had been spying on another computer when he chose to target Dreyer and was involved in “at least twenty other Internet based investigations.”

“Military encroachment into civilian affairs is not hypothetical or isolated; it has been widespread and repeated throughout the 21st century,” EFF eloquently declared. “Most problematic, technological advancement will only exacerbate the risk of military investigation into civilians as it becomes easier for the military to engage in the type of dragnet Internet surveillance at issue here.”

“With online surveillance, military investigators can cast a large net that touches civilians regardless of where they are located, and unless a defendant challenges this activity in court as Mr. Dreyer has done here, these investigators can easily hide their tracks from public view. This case highlights that dramatically: an NCIS officer stationed in Georgia ultimately investigated Dreyer, a Washington resident.”

“The Internet’s ability to connect far-flung people allows the military to engage in large scale, indiscriminate collection of personal information,” EFF additionally argued. “Without appropriate filtering and clearly defined practices tailored to restrict military investigators to conduct only military related investigations or investigate military personnel for wrongdoing, there is a real risk that civilians will inevitably end up with military intrusion into their lives.”

Yet, despite all of the troubling implications of a domestic spying operation like the one carried out by NCIS, the government defended it in court. It never admitted there was something wrong about the operation. It only chose not to pursue an appeal of the court’s decision that it had violated the Posse Comitatus Act in order to focus on preventing the court from suppressing evidence, which is was just as important in this case.

Courts proceed as if systemic violations will not occur again, despite a history where boundaries set by the Posse Comitatus Act are flaunted. And the government will continue to benefit from top-rated dramas like NCIS and its spin-offs, which champion Big Brother in the fight against crime.