Thursday, December 11, 2008

Internet Privacy

Well, here's proof that internet usage can be bad for you. I am handling a case in Cannon County, Tennessee where the defendant is charged with possession and distribution of child pornography via e-mail messages. The interesting (and disturbing) thing is how he got caught.

All of our e-mail messages are being monitored for objectionable content.

America Online (and all of the other internet providers) have entered into agreements with the National Center for Missing and Exploited Children to report any instances of child pornography being sent by e-mail via their systems. The NCMEC then tips local authorities, who obtain search warrants for the person's computer.

The NCMEC was created by an act of Congress. Its board of directors is loaded with government officials, primarily from Federal law enforcement agencies. Despite this, they maintain that they are not a government agency and that their actions do not violate the 4th amendment (which applies only to governmental searches).

This is pretty disturbing. I am not a supporter of child pornography. But I am a big supporter of civil liberties. Here, we have the government making an end run around the 4th amendment by creating a non-governmental agency to accomplish searches that would be illegal if conducted by the government. And, for the most part, the Federal courts have permitted this.

The issue of whether they are a governmental agency doesn't seem to have been directly raised. I will be raising it via a motion to suppress. In this case, the defendant has to fight to prevent a conviction since Tennessee law prohibits him from pre-trial diversion or even probation. It even prevents him from remaining on bond pending appeal (although I think that provision is also invalid since it basically diminishes his right to an appeal). So, this case is going to trial unless I can get the evidence tossed. Of course, it's unlikely that a trial court will rule that way, so an appeal is likely.


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