Hoo-Boy [8:41 pm]
No one can be in favor of child porn, but this seems a little extreme — depends on what sort of safeguards the court insisted on to ensure that the subscriber was the owner: US court OKs computer searches for child porn [pdf]
Police may search computer hard drives for child pornography if their owners subscribe to Web sites selling the images, a U.S. appeals court ruled on Thursday.
There is a “fair probability” customers of child pornography Web sites receive or download the illegal images, opening the door for police searches, according to the ruling by the U.S. 9th Circuit Court of Appeals.
The ruling affirmed a lower court’s decision supporting an affidavit by the Federal Bureau of Investigation for its probe of Lolitagurls.com Web site and subscriber Micah Gourde.
From Judge Kleinfield’s dissent:
The majority concludes that the 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. This assumption stacks inference upon inference until the conclusion is too weak to support the invasion of privacy entailed by a search warrant. “[W]ith each succeeding inference, the last reached is less and less likely to be true.” The privacy of a person with a sexual perversion that might make him a danger to our children seems by itself an unlikely candidate for concern. But the overwhelming importance of the privacy of peopleâ€™s computers makes it essential to assure that — even in this ugly corner of human perversion — probable cause seriously interpreted remain a prerequisite for search warrants.
From Judge Reinhardt’s dissent:
The majority improperly brushes aside the importance of the government’s ability to determine whether Gourde had downloaded or received illegal images. It argues that it did not need to prove that Gourde definitely downloaded or received illegal images in order to show that there was a “fair probability” that he possessed such images on his computer. Ante at 2373. That is certainly true — but it is not the issue in the present case. In concluding that the governmentâ€™s ability to determine Gourde’s download history is immaterial to the probable cause analysis, the majority confuses two different types of information: evidence that the government could have obtained but that it did not possess at the time it applied for a warrant, and evidence that the government had in its possession at the time it applied for the warrant but did not utilize — evidence that would have answered the question whether there was probable cause. This case involves the latter type. Although the government certainly need not provide definitive proof that an individual downloaded or otherwise received illegal images on his computer to establish probable cause, when it has critical evidence in its possession but decides to avoid becoming aware of the content, it creates a “circumstance” which casts substantial doubt on the probability that the individual does in fact possess illegal images.
When this circumstance is properly weighed along with the others relied upon by the majority, it can no longer be said that the record before the magistrate judge showed a “fair probability” that Gourde downloaded or otherwise received illegal images. [...]