CAAF has posted its opinion in United States v. Clayton here.  Due to my ongoing computer limitations, I can’t open it.  Perhaps one of my CAAFlog colleagues will post a synopsis.

9 Responses to “New CAAF decision”

  1. Anonymous says:

    I respectfully think your assessment of the dissent’s position is a wee bit off and unfair. An IP address first of all does not tell you where a computer that is being used to access stuff is physically located. It can in certain situations, but generally speaking my IP address can a) be random, b) change, and c) is tied to my internet provider more than to my physical location.

    What is concerning is that seemingly when child pornography is involved there are less stringent applications of the rules for probable cause then when any other type of contraband is involved.

    Someone subscribing to High Times, but with no evidence of actually requesting pot wouldn’t be enough to justify a PC search of their home, but someone accessing a child porn site, with no evidence of requesting child porn is apparently enough.

    Since laptops are portable, the logical extension of your argument is that accessing a pro-child porn website should be enough to justify a search ANYWHERE. Car, home, work, or anywhere that person has been. That seems to make the requirement of probable cause that evidence exists at a particular location somewhat illusory.

    I know, child porn = bad, and certainly results often enter into these decisions (we care less about pot than child porn, so one gets more protection than the other) but it still makes PC a farce to see how often it seems to be lowered when dealing with PC.

    How many CP cases have been overturned for lack of PC? I suspect by percentage it is a lot closer to zero than for drugs.

  2. Phil Cave says:

    The IP “address” does not tell you where a computer is physically located, although I agree it can be a sort of address. {http://www.whatismyip.com/)

    QUOTE: Often, people think if they lookup an IP address, that they are going to find the physical postal address of the user assigned the IP in question. This is simply not true. At this time, we are not aware of any IP address database that will give you the exact physical postal address of the IP address you lookup.UNQUOTE
    (http://www.whatismyip.com/tools/ip-address-lookup.asp)

    Your IP address can be altered, there are both free and for a fee ways to do that.
    http://www.whatismyip.com/faq/how-to-change-your-ip-address.asp

    Generally the IP addess, and a WhoIs lookup (http://www.whatismyip.com/tools/ip-whois-lookup.asp can tell you a lot about the computer and the owner of the internet service, including it’s general location. Then you can go to the company and get more information. If the computer is on a network, then the network administrator can tell you using a combination of the MAC address (which is different to the IP address [http://www.whatismyip.com/faq/what-is-a-mac-address.asp]) of the NIC and unit records showing the workspace where the computer is assigned.

    The dissent is correct. As we saw with drug urinalysis cases, decisions tend to be results oriented. Exceptions tend to swallow the rule.
    Clayton now stands for the proposition that if someone is thought to have looked at or possessed CP at some time, then a general search authorization can be approved to look for any potential piece of equipment or search for CP.
    I rather think the dissenting judges got it right under the facts of this case. In particular they make the correct analogy to how drug search cases were dealt with and a “split” apparently with federal courts.
    IMHO.

  3. anon says:

    Anon 0553 – Does High Times package contraband inside its magazine? Nope.

  4. Anon says:

    What happened to the long post that was on here this morning? I didn’t have a chance to read it, but intended to come back later and now it’s gone. A nice little flag, such as “post removed for X reason” would be good. Then Anon 0807’s post wouldn’t look so odd (referencing a deleted post).

  5. Anon says:

    Wasn’t that the thrust of the dissent’s point though? That there is no evidence that the appellant in this case received any contraband from the website in question or ever accessed it, or if it even had contraband present on the website?

  6. Tami says:

    I think people are starting to lose sight of what “probable cause” (PC) is. PC is a “big picture” determination. The facts relied on, if examined separately in their own little vacuums, would not be enough to support PC. However, when determining whether PC exists, you have to look at ALL of the facts relied upon together (a “totality of the circumstances” if you will) and ask if the totality of the facts stated in the affidavit would lead a reasonable person to believe that evidence of child porn is PROBABLY (not more than likely, definitely, conclusively, etc.) located in the place to be searched? If the answer is yes, then there is PC and the magistrate’s authorization is good.

    Would a reasonable person, having information that: (1) LTC Clayton was a member of a group of people whose only purpose of getting together was to share child porn images and share ideas of ways to exploit children; (2) an image of child porn was actually posted for the members to look at, download, etc.; (3) members of this group admitted to this; (4) LTC Clayton was actively asking that this information be e-mailed to him, 25 messages at a time; (5) the e-mail account at issue was his–he even used his own name as part of his e-mail address; (6) the IP address for the computer that this information was being sent to was in Kuwait at Camp Arifjan; (7) LTC Clayton was in Kuwait at Camp Arifjan at the time; (8) LTC Clayton had a laptop computer, which is easily portable and would normally be kept at either work or home (there are only so many places you can go when you’re deployed); and (9) the IP address could pinpoint the location of the computer (i.e. his “dorm”), believe that images of child porn are PROBABLY on a computer in his “dorm” room? I think the answer is a resounding yes.

    In a PC determination, there doesn’t have to evidence that he actually received it. He WAS asking for the comments being posted, and there WAS evidence that child porn was on the group’s website. Google shut it down. A person who joins a chat group created for the purposes of sharing child porn and sharing ideas of how to sexually exploit children probably keeps images of child porn. The logical place to keep those images is in private quarters, where people have a reasonable expectation of privacy. This was not a “general” authorization–it was an authorization to search for a computer and computer “media” in a specific location.

    As for my previous post, I was very critical of the dissent. I think the dissenting opinion’s analysis of the facts and law is wrong. People are free to disagree with me, and obviously some people do. However, my post was not a personal attack, and I don’t think it was abusive, so I don’t know why it was removed. I’ve seen vitriolic posts lodging personal attacks on the judges and other posters, or go completey off topic, remain. Most of the Clayton posts (the last one I see is 11:34 am) seem to suggest that the only reason the majority decided the way it did is because of a knee-jerk reaction to the nature of the crime–child porn. Should those posts be removed too, since they “unfairly” criticize the majority?

    As for IP addresses in general, yes they are random, but that doesn’t prevent computer usage from being traced. IP addresses change, if you move your computer to another location. I’ve used the “what’s my IP address” to trace my computer usage, and my IP address changes based on my change in location. My neighbor’s IP address is different than mine. LTC Clayton’s IP address for using his computer at work would have been different than his IP address for using that same computer at his quarters. An IP address can be compared to the known physical location of the suspect–if you have a match, then you’ve got PC as far as I’m concerned.

    The analogy being made to “High Times” is not quite accurate. I would agree that simply subscribing to “High Times” is not enough, on its own, to support PC. But if someone asks other subscribers to mail them instructions and tips on how to grow pot, or asks for names of people who use it or distribute it, then that person is probably trying to grow pot, and I can look up that person’s address, and I think that’s enough PC to get a search and seizure authorization to look in any place where pot can be found within that address’ boundaries. If I find some other contraband in places where pot can be found, it’s plain view, and the search is still legal, even if I never find pot.

  7. Publius says:

    Tami, you hit the nail on the head in both of your comments. Your first comment was critical of the dissent but not disrespectful. A shame someone thought it necessary to take it down. I suppose that’s what happens when the defense community is running the blog.

  8. Anonymous says:

    some of your facts dont seem to jibe with what I read in the opinion.

    I don’t think it was clear that the porn was present on the website, I dont think it was clear that the appellant actually asked for any porn, you are just plain wrong on how IP addresses work, and PC analysis is a little more complex then you make it out to be.

    Having said that, didn’t see any reason why your post should have been pulled. I don’t agree with your legal analysis but it wasn’t improper.

    Although I’d say to Publius and yourself that perhaps you might be willing to give the admins a bit of a break on this until it’s confirmed your post wasn’t lost or eaten as part of a technical glitch or accident.

  9. Phil Cave says:

    What happened to the original post? This post is not the one I and several others commented on below. The factual/computer technology error(s) have been removed.