Nobody in this thread is defending child pornography. Rather, we’re attacking the FBI’s method of investigating potential child pornography.
What those of us who know something about the technology are saying is that if your only evidence is a circumstantial suggestion of a possible click, then you have no case at all. Not a “weak” case. Zero case.
The standard you’re inadvertently advocating, that our public defenders should be allowed to trample on people’s lives because the crimes they’re attempting to prosecute are so heinous regardless of whether they have any expertise or knowledge in what they’re investigating, is very, very dangerous. It’s equivalent to a District Attorney in 1900 arguing that someone might be a suspect in the murder of somebody who was a hundred miles away at the time, because there is evidence that the former made a phone call to the latter, and “you can’t be sure that the guy didn’t reach his arm through the telephone line, put his hand out at the other end, and strangle the victim.” Either the DA is woefully ignorant about the technology, or he’s counting on equivalent ignorance on the part of judge and jury so his drive to conviction isn’t interrupted.
Yes, modern technology can be complicated and scary, but how is justice being served if there’s no standard for ensuring that the powers that be know what the fuck they’re talking about?
While that looks lovely in print, the simple fact is that there are certain crimes that even the fleeting suspicion of is sufficient to ruin a career or even a life. I recall reading about an instance several years where a student was upset with a teacher and accused him of some inappropriate behavior. The truth was revealed a very short time later but the damage was already done. And there are more than a few documented cases where the same thing has happened.
Sex crimes against children are the modern day witch trials. Even if you win, you lose.
It occurs to me that the FBI’s intent wasn’t to trap a user into a convictable action, but just to feed them a list of names that might include ones they want to watch more carefully. Sure, many innocents will click on a link either accidentally, out of curiosity, or even have the link clicked for them by various softwares running in the background, but the theory is that a larger percentage of those clickers are truly pedophiles than a random selection of the population.
So, my theory goes, if they concentrate on the names this scheme brings them, possibly cross-checking with other lists, it will have a greater harvest rate of eventual damning data, leading to arrest, prosecution and conviction, than picking a name out of a hat.
Here’s the connection I think you’re making in your head: that this situation is analogous to one in which a car registered in my name runs down an old lady, at which point the driver flees the scene, and warrant is issued based on my ownership of said vehicle.
Here’s where that analogy falls down: if the vehicle had been stolen, and I failed to report is as such, there is every reason to believe that I had custody and control of it when it squished the old biddy. Somebody “stealing” my wireless internet connection, on the other hand, is in all likelihood not something I’d know about (and I’m relatively tech-savvy!), and obviously even if I did I wouldn’t have reported it. There is therefore reason to believe I was not responsible for clicking on those links.
What the sting established was not probable cause, but possible cause.
Or the car could have been stolen at 10:00 AM and used in the hit and run at noon, and you were at work during that time and had no way of knowing it. Cops can still get a warrant.
The mere fact that there are alternate plausible explanations – even alternate MORE plausible explanations – does NOT DESTROY PROBABLE CAUSE.
That’s the way the law works, OK?
Are you suggesting that the rules for a search warrant involving child porn should be issued upon a higher standard than “probable cause?”
If there are more plausible alternate explanations, then what level of probability is needed then to meet “probable cause”? 49%? 30%? 1%?
I thought I was understanding your argument right up until this point. 
The common use meaning of probable is something that is likely to be true (or courtesy of M-W: “supported by evidence strong enough to establish presumption”). If there is a more plausible (innocent) explanation then how can the illegal one be presumed correct?
There is no set percentage or any other good heuristic guide for probable cause. As Bricker knows, PC is largely what a magistrate or judge says it is. It is accurate to say that the mere existence of other plausible–or more plausible–explanations is insufficient to negate probable cause. But all that says is what is insufficient. It is not an argument for why this set of facts ought to be sufficient.
What many posters are saying is that the technical information received by the FBI should not lead a reasonable person to conclude that there is some significant possibility that a crime has been committed by any particular individual. That is a view that is entirely consistent with the law and unchallenged by Bricker’s Socratic teachings thus far in the thread.
I’d really like to see an answer to my post 52. What is probable cause exactly? How is the concept defined legally?
-FrL-
I think a better analogy is, “A woman is hit by a car and killed. You own a car. Therefore, the cops arrest you.” Surely, there is some point at which the connection between the crime and the accused becomes so tenuous one can no longer reasonably consider it “probable cause,” no?
I guess the thing that bothers me is that pranking people with malicious links is not a fringe activity, it’s extraordinarily common (although not usually with the intent to get people arrested). The whole phenomenon of duckrolling/rickrolling has become a huge fad (not to mention the old favorites like goatse and lemonparty), and with the rise of flash-based inline video, getting someone to download an illegal image or video automatically is not very difficult. With javascript they don’t even need to know they did it.
I guess it’s not much different than police getting warrants based on anonymous tips, so in a sense it’s not particularly shocking, but it doesn’t make me comfortable.
Half seriously, I’m expecting a new fad of “pedorolling” where the goal is to get people to click on or automatically download a link that is guessed to be a law enforcement tool.
Every state has case law that defines it.
I am on vacation, so my usual reference sources aren’t in front of me, but Virginia’s language is burned into my skull: “Probable cause exists when the facts and circumstances within the officer’s knowledge and of which he has reasonable information are sufficient in and of themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.”
The problem with all of these “What if’s” (“What if someone stole his WiFi signal?” “What if he was following a disguised link?”) don’t really upset the standard of probable cause. In this case, we have a guy that clicked four times on a link that promised a four-year-old in sexual acts, and who actually downloaded a video file that promised to display those acts. Sure, it could have been someone else on his WiFi signal. That’s for an investigation to sort out. But it’s CERTAINLY probable cause.
Of course.
But in this specific instance, the nexus is sufficient.
One problem with your commentary, Professor Parker, is that the facts in this case survived to a conviction, a process that certainly put the probable cause used in obtaining the warrant to the test. You may say, “Well, the court got it wrong,” but in fact warrants based on similar facts have been upheld with some regularity. So – it’s your view that these facts “should not lead a reasonable person to conclude that there is some significant possibility that a crime has been committed by any particular individual,” but I assume you understand that your bald assertion at the suppression hearing won’t quite carry the day.
In other words – you’re speculating about what “should be.” I am talking about WHAT IS.
Then what case, do you think, do we look to for a precedent here?
You know, what with the onus being on the prosecution to demonstrate probable cause, and all…
In your expert opinion as a lawyer, of course, which is unimpeachable. But what’s at question here is your expertise in IT, which I do not believe to be extensive.
We understand “what is.” “What is” is not in question. The point of this thread is, very specifically, “what should be.”
You have an unfortunate tendency to portray yourself as a hard-headed realist beset by dewy-eyed pollyannas mewling about idealistic fantasy. TG, IANAL, but I am consistently struck by how often you quote statute as though it were Scripture, and how often those quotes include words like “reasonable men”. May one presume a penumbra of information, that these men as well as being reasonable are also informed?
And if a reasonable man is also informed, and is informed to the particulars outlined above by resident geeks, nerds, and internet wonks…to the effect that the “evidence” is no such thing at all, it suggests nothing and proves even less…
May we not then fairly assume that such a “reasonable man” would not, in fact, regard this tissue of suggestion as anything more worthy of attention than a used square of Charmin, and worthy of precisely the same disposal?
Now, I’m just a country boy, but seems to me that if your definition of “probable cause” depends on the opinion of a “reasonable man”, then it is up to you to insist that it is reasonable to ignore expert testimony and intelligence, and hence legitimate to impose arrest and confiscation where it is not, ah, warranted.
Good luck with that.
A search made pursuant to a valid warrant is presumptively reasonable, and it falls to the defense to challenge it.
However, if you’re looking for similar cases in which the defense HAS challenged similar warrants, there’s U.S. v. Perez, in which the Fifth Circuit last year upheld the conviction of a man for child porn even though he offered some of the same arguments that appear in this thread.
Perez argued that “…mere association between an IP address and a physical address is insufficient to establish probable cause.”
The court’s response:
My current life is as the project manager for a federal contractor that provides IT services to the federal government. My home network consists of an AD domain with two DCs, several Linux boxes – Fedora and Ubuntu – which authenticate to my AD domain via LDAP, and I built it all myself. For my kid’s Internet surfing, I installed a pass-through proxy server (Privoxy on Fedora, with two eth interfaces on the Fedora box in bridging mode) using their trust file feature as a proxy whitelist. That meant downloading the code from Sourgeforge and doing the make locally to get the force options in place. Again, did it all myself.
I believe I understand the technical issues involved here pretty thoroughly.
And what I’m telling you is that courts that have looked at these issues have determined that probable cause exists. Now, this is not a technical issue in the sense that, say, pinging a firewall that drops all ICMP packets will fail is. That’s a demonstratable technical issue. The finding of probable cause is more a matter of precedent now.
Consider this question, by analogy. A man sees a police car coming slowly down the street, and he turns and starts running the other way. Is that probable cause?
With no rulings on the issue, we could engage in precisely the sort of back-and-foth that our IP issue has generated above. But we’re past thaT. Courts have ruled. We now KNOW, not in any scientific sense – but in the practical aspect of what the law will permit – whether that’s probable cause.
So, too, here. This constitutes probable cause.