“surveyed the entire state of Washington for computers sharing child pornography.” [their italics] It was Agent Logan’s “standard practice” to do so. There is “abundant evidence that the violation at issue has occurred repeatedly and frequently” […] [Agent Logan] “appeared to believe that these overly broad investigations were permissible, because he was a U.S. federal agent and so could investigate violations of either the Uniform Code of Military Justice or federal law.” […] Incredibly, “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.”
In dissent, Justice Diarmuid O’Scannlain expresses his disgust that applying the exclusionary rule would “set a convicted child pornographer free”, and argues that “from the premise that the government believes it has a certain power, it does not follow that the government routinely exercises that power.”
This was the first time that a Posse Comitatus violation had been addressed by excluding the evidence, and legal blogs are abuzz with the question of whether that remedy was appropriate. To me, O’Scannlain’s visceral dissent naively ignores the government’s track record on surveillance and civil liberties, and the fact that this case effectively discloses a new form of mass government surveillance practice.
Yes, this ruling will set free a child pornographer. I have three daughters myself, and I’m not immune to the revulsion O’Scannlain feels. However, unlike him, I’m also conscious of how often the fear of child sexual abusers is used as a lever to dismantle civil liberties, and to limit children’s physical freedom. Here, the remarkable thing is that on two judges, that powerful lever failed to work.
O’Scannlain argues that the government may not be exercising the power it claims, to pro-actively monitor all computers in any state with a military base or installation – i.e., all of them. On matters of surveillance, it is very, very safe to assume that the government is using any power it publicly claims it has, and a whole lot of other powers they don’t see fit to inform us about as well. Without aggressive court rulings like this one that plainly state that they cannot do something, the government will do any spying that it has the technical ability to do; it will start with the most disfavored groups, and, experiencing no check, and secure in its own righteousness, will happily move on to everyone.
In this case, the intrusion was enormous. To find child pornographers, the military surveilled all computers in a whole state, and identified from among them which computers had Gnutella installed. The same power could be used as easily to find all computers with Tor installed, or any other software application the state deems suspicious. It could be used to identify and disrupt the computers of anyone who made postings from a given IP address that were critical of the military, and in the State of Washington, there’s plenty to get angry with the military about. Dreyer was lucky, in a way, that this pro-active surveillance was being conducted by someone under military supervision; if it had been conducted by domestic agencies, he might well have had no recourse in law. Indeed, it appears that initially law enforcement tried to depict it as a civilian ICE/homeland security investigation assisted by NCIS, an assertion that the press naively reported as fact.
This also raises another interesting issue. NSA, though a civilian agency, has always been run by senior military officers – currently Admiral Mike Rogers, but more usually a lieutenant-general. NSA and the military’s “Cyber Command” are effectively unified. Since that is so, could civilian NSA employees be considered to be acting, like the civilian Agent Logan, under military supervision? And if so, could NSA surveillance, under this ruling, violate the Posse Comitatus Act as well?
The radical and extraordinary notion of rights expressed by the Founders, and enshrined in the Declaration of Independence, was that rights did not flow from governments. Instead, it was “self-evident” that in fact all human beings had been “endowed by their Creator with certain unalienable Rights.” – rights that could not be bought or sold, and that were by default the prior possession of every human being.
Much of American history can be characterized as a long-running battle between those who believe that some categories of people – be they black people, women or Native people, foreigners, communists, terrorists, felons or pedophiles – don’t deserve the rights of “real people”, and those who believe that government cannot take those rights away from anyone. In the short term, the reasons for denying rights to a particularly appalling group of people always seem more compelling. But in the long run, we are stronger and truer to our principles if we consistently accord the same rights to all people, wherever the writ of the US government runs, and if we make everyone, inside the government and out, equally answerable before the law.
Among other things, this principle means that the prisoners at Guantanamo should be turned loose; that felons should be able to vote; that terrorist suspects should be Mirandized; that conspiracy theorists should be allowed to own guns; that Nazis should be allowed to parade down the street in your town; and that, to the disgust of Justice O’Scannlain, the despicable Michael Dreyer should be freed. I’m not imagining that there will be no downside. But failing to convict some factually guilty people, because of procedural violations, is a feature, not a bug, and points towards a system that still has some justice left in it.