Hello, You've Got Mail ... And Possibly Criminal Charges.
MayorBob.
Posted to Legal on Wed Mar 07, 2007 at 10:24:05 AM EST (promoted by port1080). RSS.
The case of the US vs. Kenneth Kelley presents us with troubling aspects. The first aspect is that the doctrine of "reasonable doubt" may have been turned on its head. The other aspect is that, based upon a decision by the Ninth US Circuit Court of Appeals, a person no longer need seek out a criminal activity to become the target of government prosecutors. Now, even if you are just the unsolicited recipient of certain spam emails, you may find yourself a target.
Kelley, a 55-year-old writer from San Francisco, got caught up in the law when German investigators found his name on an email mailing list for a German child porn ring. The Germans reported this to US authorities who determined that Kelley in fact had received emails containing child porn from the German site. Federal agents seized Kelley's computer and found child porn images on the hard drive. He contended a hacker must have maliciously placed the images on the hard drive. A federal judge ruled the child porn images inadmissible as they had been obtained by a search for which the feds had no probable cause. The judge ruled "people frequently receive unwanted e-mail and saying that authorities need to have evidence that the recipient intentionally violated the law in order to justify a search." On to the Ninth Circuit.
In a 2-1 decision by a three judge panel (pdf doc), with retiring Justice Sandra Day O'Connor casting the deciding vote, the original decision was overturned. Judge Pamela Rymer, writing the for the majority, said that even though the emails Kelley received were spam and therefore unsolicited, "the circumstances of their delivery indicated a fair probability" that he willingly received them. She noted the emails were also found on the machines of other recipients and were sent to two user accounts Kelley maintained: "The reasonable inference ... is that Kelley was part of (a) network of persons interested in child pornography primarily involving young boys. As a matter of practical, common sense, this is unlikely to occur without prior communication or connections." Thus, in the mind of Judge Rymer, perish the thought of "reasonable doubt" that Kelley, who had no prior criminal record, never solicited the emails.
Dissenting Judge Sidney Thomas observed that previous rulings upholding computer searches required authorities offering some evidence about the computer's owner. Thomas lamented, "lowering our standards of probable cause to permit government intrusion into private residences based solely on proof of mere transmittal of unsolicited email constitutes an unwarranted erosion of the Fourth Amendment." The case is returned to trial court where Kelley could end up spending substantial time as a guest of the federal prison system and be tagged a sexual offender for the rest of his days.
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