It's Not Just Pornography... It's The Underlying Principle

Strong Dissent in Porn-Related Computer Search Case: Warrant Based Only On Web Site Membership

Two judges on the 9th U.S. Circuit Court of Appeals who are on the liberal and conservative extremes of the court joined forces in strongly dissenting from a court ruling that mere membership in a pornographic Web site containing both legal and illegal porn is enough to authorize the FBI to search a home computer.

This is a principle that should have been used by Congress during the McCarthy Era. Mere membership in an organization that may or may not have illegal activity ongoing, or an account with a business that may or may not be conducting illegal activity, is not grounds for a warrant. The matter of PROBABLE CAUSE is in question.

If Person A joins X Club via the web, and only participates in the legal activities and remains unconnected to any illegal actions, should the membership in that club be grounds for a search warrant? Evidently both extreme of the judicial ideology think not.

"The majority concludes that the [search warrant] affidavit made out probable cause by assuming that anyone who subscribes to an internet site with both legal and illegal material must collect illegal material from the site," wrote Judge Andrew Kleinfeld, a conservative appointee of President George H.W. Bush.

"This assumption stacks inference upon inference until the conclusion is too weak to support the invasion of privacy entailed by a search warrant," wrote Kleinfeld in the 7-2 decision in U.S. v. Gourde, No. 03-30262.

Colin Fieman, a defense lawyer with the Tacoma, Wash., federal public defender's office, expressed concern about the broader implications of the ruling. "This is the only case I found where the warrant rested exclusively on membership," he said. He called the 9th Circuit's 7-2 majority ruling "troubling," and said he would seek U.S. Supreme Court review.

"I think the key issue that wasn't addressed in the en banc decision was the fact that it was a mixed-content site," Fieman said. "Courts' traditional view is that if a search is based entirely on membership, it has to be an organization with a wholly illegitimate purpose."

In a rare marriage of minds, 9th Circuit Judge Stephen Reinhardt, the appeals court's most liberal voice, dissented along with Kleinfeld, writing: "In this age of increasing government surveillance, lawful and unlawful, and of the retention of all our deeds and thoughts on computers long after we may believe they have been removed, it is important that courts not grow lax in their duty to protect our right to privacy and that they remain vigilant against efforts to weaken our Fourth Amendment protections."

Micah Gourde, 29, of Castle Rock, Wash., paid $19.95 a month for two months' membership in a pornographic Web site, www.lolitagurls.com, which contained pictures of legal adult porn as well as illegal child pornography.

FBI agents raided the owners of the lolitagurls' site in Iowa, confiscated the host computer and prosecuted the owner. They also sought a warrant to search Gourde's computer, arguing that there is a "fair probability" that customers of child pornography Web sites download the illegal images, clearing a path for police searches.

A 'fair probability' does not rise to the established level of PROBABLE CAUSE, which is the standard established in the Fourth Amendment in order for a warrant of arrest, search or seizure to be issued.

Gourde challenged the warrant based on the Fourth Amendment and sought to suppress more than 100 images of child pornography seized from his home computer.

The majority said that it "neither strains logic nor defies common sense to conclude" that someone who paid for access to a Web site that carries child pornography probably downloaded images.

Assistant U.S. Attorney Janice Freeman in Seattle said the ruling "provides some guidance in the circuit in the context of probable cause for computers and child pornography cases."

She disputed the notion that the majority held that membership alone was sufficient for probable cause, and said that other factors, combined with membership in the site, allowed agents to seek a warrant for further investigation.