Congress could stiffen protections, according to David Sobel, by closing an escape clause that now allows federal agencies to declare their databases exempt from the 1974 Privacy Act by merely publishing a rules notice in the Federal Register. It could grant citizens access to information that is collected about them and create a special judicial procedure to allow individuals to challenge inaccurate government dossiers. Information could be kept in anonymous form through encryption. European-style privacy laws could impose restrictions on private firms’ ability to collect and keep personal data, and enable customers to correct or expunge information on themselves held privately. In sum, the law could use a good deal of updating and polishing.
THE PRIVATIZATION OF SEARCHES
The jumbled legal landscape in the United States has created many oddities, one of which is this: Without a proper warrant signed by a judge, law enforcement can get your Web-browsing history from your Internet service provider but not from your personal computer. Even from a distance, using “Trojan Horse” software that downloads data from your hard drive, the government needs a search warrant.
If a private individual who is not a government agent takes it from your computer, however, and then turns the information over to the police, that’s just fine. The Bill of Rights restricts what government may do, not what private entities may do. So the Fourth Amendment does not prevent an individual or a private institution, such as a company or a college, from searching an employee’s desk, a student’s room, or anyone’s personal computer. Any restrictions must rely on laws passed by legislatures, not on the Constitution as interpreted by the courts.
Private colleges—not state universities—have exploited this constitutional loophole to send campus police on dormitory searches for drugs, which local police then subpoena and use in criminal prosecutions. This happened to a Dartmouth College student named Adam Nemser, who took his case all the way to the New Hampshire Supreme Court and lost.
In their police-style uniforms, Dartmouth’s unarmed campus security officers could be mistaken for officers of the law. Their patrol area has no visible boundaries, for the campus has no walls or gates but spills across the village streets of Hanover, New Hampshire, into charming neighborhoods where students mingle with townspeople.
There are more campus cops than town cops, and they coordinate with each other. The campus cops check fraternity basements to enforce the college’s alcohol rules, take drunken students to the infirmary, and investigate burglaries and sexual assaults. Only occasionally do they enter students’ rooms without consent to search for drugs. But they don’t have arrest powers and usually destroy small amounts of narcotics, referring minor cases for college disciplinary action and only those involving large quantities or trafficking to the police for criminal prosecution.60
The campus cops can search without warrants because they don’t act on behalf of government. Dartmouth is a private college, its security officers are not agents of the police, and their searches are therefore not “searches” within the meaning of the Fourth Amendment.
This Adam Nemser learned to his distress. Officers of Dartmouth Safety and Security (DSS) entered and searched his room, found marijuana, confiscated it, placed it in the security department’s safe, and notified the Hanover police. DSS then insisted on being served with a search warrant before turning the pot over to the police, who obtained the warrant, got the drugs from the safe, and charged Nemser with possession.
The student’s lawyers argued that this little charade violated the Fourth Amendment, since the campus security officers were acting essentially as agents of the state. It is well established in case law that if an “agency relationship” exists, the private actor is governed by the same constitutional rules as a police officer. The trial judge saw such agency here and granted Nemser’s motion to suppress the marijuana evidence. The police and DSS had an “implicit understanding,” observed Judge Albert J. Cirone, Jr. “The College’s agents conduct private area searches of drugs, not necessarily in plain view or with consent.” When they seize narcotics, the campus cops don’t get prosecuted for drug possession themselves, he noted. The warrant directed at DSS is designed “to ‘legalize’ the process by cloaking the search with judicial approval.”
The prosecutor appealed successfully to the New Hampshire Supreme Court. Without proof that a private party’s search was induced by prior “affirmative action by a governmental official,” it said, no agency relationship could be shown. The court found multiple facts establishing the independence of the college security officers: They were not asked by the police to do the search; they received no equipment, information, or assistance in the case; and they neither trained with, took instructions from, nor formulated policies jointly with the police. The marijuana was admitted into evidence.61
State universities operate under stricter rules, since their security officers are state agents in fact. They have at their disposal all the exceptions to the Fourth Amendment’s requirements that have been carved out by the courts, plus two: Searches can be made if students have signed a general consent as part of a housing agreement, provided the main purpose is not a criminal investigation,62 and “administrative searches” can be made for health and safety reasons with an easy-to-get warrant that doesn’t have a probable-cause requirement.63 In either case, if drugs are seen “in plain view,” they can be used as evidence.
• • •
“If a burglar brings us documents he stole from someone’s house,” said a federal prosecutor in California, “the law is clear that we can use that information. There’s no Fourth Amendment violation, as long as we didn’t instigate the burglary.”
So, the private, high-tech burglar has flourished in the computer age like a digital bounty hunter. Immune from the Fourth Amendment, a hacker with a moral cause can burrow into people’s online crimes for the sheer satisfaction of seeing the criminals put away. Even if he violates anti-hacking laws, he hardly risks arrest by police who are grateful for his tips and files of electronic evidence. Even if he routinely helps law enforcement, the private nature of his activity is usually accepted by the courts unless there is clear proof that the police in a particular case knew of his upcoming search, acquiesced, or gave him guidance.
But the relationships between these computer vigilantes and the cops are often muddy, contradictory, and open to competing interpretations, as Ronald Kline discovered.
He was in his late fifties, a California State Superior Court judge in Orange County, when in May of 2000 he sat at his home computer and clicked on what appeared as a picture file. Instantly, a stealthy program known as a Trojan Horse was downloaded, making his computer accessible to Bradley Willman, a nineteen-year-old operating from his parents’ basement 1,300 miles away in Langley, British Columbia.
Willman had planted the malware (short for “malicious software”) on pornographic sites to catch people in possession of sexual images of children, a federal and state crime. Motivated by unspecified “incidents in his past that he had ‘very bad dreams’ about,” according to a Justice Department brief,64 the young man could sit comfortably in Canada and—committing a crime himself—search through the hard drive of every computer that downloaded his Trojan Horse. He could read personal files and e-mail, track Internet activity, and even monitor each keystroke. He believed that he had infected about three thousand computers.
It took him a while to get around to looking through Judge Kline’s files, but when he did, he struck gold. Along with some pictures, he found an electronic diary that “detailed defendant’s sexual interest in young boys,” the brief reported,
specifically identifying young boys in the Little League games defendant umpired, as well as young boys defendant met while naked in the spa at an athletic club. For example, defendant wrote that taking a specific boy to a baseball game was “like I was getting ready for a date. Well, I was, really.” Defendant also recounted instances in which he surreptitiously touched and rubbed some of these bo
ys. Defendant described in detail the private areas of these prepubescent boys and his careful plots to befriend boys without arousing suspicion. For example, defendant wrote, “I gave a lot of thought today about this business of approaching these kids too fast.… You have to make them come to you or it doesn’t work.” With regard to one boy, defendant was “trying to arrange a ‘sleep over’ if I can, and I’m trying to play it right.”65
Willman didn’t give the diary directly to police. Using the pseudonym Omnipotent, he sent it anonymously to PedoWatch, an organization devoted to nabbing pedophiles; PedoWatch transmitted the diary to California authorities who notified the police in Irvine, where Kline lived. To make sure the diary was authentic, Detective Ronald Carr matched dates and details with Kline’s docket of court hearings, found that he belonged to the athletic club he mentioned, and verified that boys he named had played in games he had umpired.
It was harder to identify the tipster. Omnipotent told PedoWatch by e-mail that he had no further information. The e-mail account he’d used was registered under a false name and address, he didn’t answer Carr’s e-mails, and a subpoena for records of a site he had given PedoWatch as a storage place for files turned up a pseudonym as well.
The breakthrough came when PedoWatch gave Carr a Web site the tipster maintained, and the subpoenaed records revealed a false name but a real address. A Vancouver detective visited the house, found that Willman was living there, asked around, and heard that he had been in touch with a member of the Royal Canadian Mounted Police, George Barnett. Carr called Barnett, “who knew Willman because Willman had provided a March 2000 tip about a man who had offered over the Internet to provide his eight-year-old daughter for sex,” the Justice Department reported; Willman was a “predator hunter” who infected the computers of child pornography suspects, Barnett told the California detective. Carr and a U.S. Customs agent went to Vancouver to interview the young man.66
Like most private informants, Willman had traveled in a swampy landscape, breaking laws ostensibly to help law enforcement, and twice becoming a suspect himself. In 1998, a cooperating witness in a federal case had downloaded pornography received from Willman, prompting “a Customs agent to alert his counterpart in Canada that Willman could be a criminal,” according to the government’s brief. The following year, U.S. Customs issued a “lookout report” at the borders based on speculation that he might try to enter the country to meet with a thirteen-year-old boy in Arkansas. Detective Carr also became suspicious after interviewing him and checking him out—suspicious enough to send e-mails suggesting that Willman “was likely a child pornography trafficker who Carr hoped Canadian law enforcement would prosecute.”
The Justice Department made a point of these incidents to argue that Willman was never a government informant subject to the Fourth Amendment. “He was completely unknown to the particular state and federal agents that used the fruits of his search here,” the government brief argued. “In fact, the agents had to conduct an investigation even to identify and locate him. A tipster can hardly be said to be working for government agents under these circumstances.” Had he been someone a government agency “either knew or should have known” was searching people’s computers, according to an earlier Ninth Circuit decision, his role might have made his search unconstitutional and the subsequent evidence inadmissible.67 But the government portrayed Willman’s association with law enforcement as “scattered and haphazard.”
Judge Kline’s lawyers saw more of a pattern. Willman had told investigators that he had given information to police in Canada, Kentucky, Arkansas, New York, northern California, and Texas, some before the Kline search, some after. “Law enforcement provided a number of benefits to Willman for his work for them,” Kline’s appeals brief noted: He was spared prosecution for possessing child pornography, the illegal materials were never confiscated, “nor did law enforcement ask him to return the money he made from his sales.” Furthermore, in the midst of ongoing cooperation, the trial judge found, law enforcement asked Willman for more information: Customs had requested his help investigating a Russian pornography ring.68
Indeed, despite the government’s attempt to dissociate itself from Willman’s searches, Detective Carr, in applying for a search warrant of Kline’s home, cited Willman as a source who had proved “reliable” in prior relationships with law enforcement.69
When the police confiscated Kline’s home computer, an investigator opened a video file depicting “two minor boys engaged in oral copulation.” The local district attorney’s office then turned the case over to Customs, which got federal warrants for the judge’s home and office computers. The home hard drive contained the diary and more than 1,500 pictures of boys, including 100 pornographic images. “The court computer contained more images of naked boys,” the government reported, “diary entries discussing defendant’s sexual interest in particular boys, and records of defendant using his court computer to access websites that appeared to cater to pedophiles.”70
When Kline moved to suppress all this evidence as the fruit of an unconstitutional search by Willman, the trial judge agreed, finding that Willman was in effect an agent of the state. On appeal, government attorneys worried that the intermediary PedoWatch, which worked closely with law enforcement, might be considered a quasi-government agency. But Kline’s lawyers didn’t make that argument, and a three-judge panel of the Ninth Circuit saw no agency relationship.71 With the evidence reinstated, Kline pleaded guilty, and when the trial judge in February 2007 sentenced him to twenty-seven months in prison, he collapsed into the arms of his lawyer.72 He was placed in the Federal Medical Center at the Butner federal prison in North Carolina, evidently for treatment of his pedophilia.
“The Internet is a lawless country,” wrote a blogger. “Without those willing to establish justice, chaos will always ensue. Brad Willman should be handed a badge and a $100k salary.”73
Ah, but then he would need search warrants.
CHAPTER EIGHT
Life, Liberty, and the Pursuit of Terrorists
I have no faith in these prosecutions. The government has no idea what they’re doing. They have no idea where the terrorists are or who the terrorists are. They’re just running around showing off, or pretending to show off. America’s at such risk from these people.
—William Swor, defense attorney
RORSCHACH TESTS
IF THE WORLD’S major intelligence agencies could be so thoroughly mistaken in their consensus that Iraq under Saddam Hussein possessed chemical and biological weapons in 2003, if all the espionage and surveillance powers of the United States, Britain, Russia, and others could combine themselves into such a colossal error, then how can mid-level operatives reliably conclude that someone is a terrorist? You might think that after providing the false rationale for launching a long, brutal, and unnecessary war, failed intelligence methods would be greeted with skepticism, especially when aimed at identifying dangerous individuals. But no, intelligence remains central to counterterrorism. Disjointed eavesdropping, unchecked hearsay, and maps of people’s contacts are assembled into caricatures—some accurate, some not.
It is well known that fragments of unverified intelligence, from searches and surveillance conducted outside the rigorous requirements of the Fourth Amendment, overwhelm analysts and send investigators on wild forays of speculation. Sometimes clear-thinking officials stitch together disparate scraps to produce legitimate prosecutions. But an initial thread of information can also be spun into a hunch and then a theory and then an elaborate scenario that weaves a tale of partial distortions and imaginary facts. That is what happened in the first major terrorism case after September 11, illustrating how the evasion of constitutional demands can corrupt an investigation. It began with a shard of misleading intelligence and continued in violation of rules that have matured in accordance with the Constitution—procedures that would have offered a better chance of testing the government’s allegations and getting at the truth.
Koubriti seemed an affable man. Six feet tall with a shaved head and a very short goatee, he smiled a lot and laughed easily at absurdities, although it was often a bitter laugh. His dark eyes looked wounded. On a strap around his right ankle, he wore a black box, about two inches square, that sent a signal through his phone when he was home near Detroit, as he was required to be at certain times of day.
His sister in Fez had heard about the lottery first. Every year, among millions of applications throughout the world, the State Department randomly chooses 50,000 for “diversity visas” from countries with low immigration rates to the United States. “She asked me if I wanted her to fill it [out] for me,” and he still remembered his sarcastic reply: “ ‘Yeah, right, I’m lucky.’ She was like, ‘I’m gonna fill it anyway.’ ” And she did: for him, for herself, for their cousin, all sitting in Morocco hoping to win. Koubriti’s number came up, and he alone got a coveted green card, certification of legal residence. “So why not?” he asked himself. “I have the green card! This is America!”
Just twenty, he had dropped out of college after two years of courses on French law. “I got tired of studying,” he admitted, “so my father opened a coffee shop for me. It was enough for me as a single man,” but not enough for the “better future” he thought America would offer. Like many, he was charmed by the promise. “That’s why everybody comes to the United States: make more money, allow you to get married and have children and have comfortable life.”
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