Appeals Court Orders Government To Return Non-Child Porn Files To Convicted Man
from the files-not-forfeited-forever dept
When the government seizes computers and storage devices linked to criminal activity, it has the obligation to return these once the investigation is over. A verdict in either direction or a guilty plea effectively eliminates the government's claim on the seized items. Now, the government may argue that it can't separate the criminally-related files from the "innocent" ones, but it bears the burden of proof for this claim.A man convicted of child porn possession has been fighting to reclaim his personal emails and photos from the government, but so far has been rebuffed by its claims that separating the good and bad files would be too difficult to pursue. A lower court agreed with the government's assessment of the situation, but this has now been overturned by the Ninth Circuit Court of Appeals.
As the ruling notes [pdf link], the lower court failed in its duty to shift the burden of proof from the convicted man to the government.
The panel held that the district court’s decision not to put the burden of proof on the government was legal error, where the defendant filed the Rule 41(g) motion after he pleaded guilty and the government no longer needed his property as evidence. The panel held that the government could not have carried its burden of proof had the district court correctly placed it on the government, where the government failed to submit any evidence of the difficulty and costs of segregating the defendant’s data, which it claimed was a legitimate reason for retention of the noncontraband files.While keeping in mind that the government can raise legitimate concerns about the cost and difficulty of segregating data, the lower court allowed the government to make unsupported claims about the task at hand. While the government did file some paperwork along with its opposition to the release of the files, nothing it submitted bore relevance to the case at hand.
The government attached three exhibits to its opposition brief: (1) a document listing some of Gladding’s property the government found to be noncontraband; (2) email correspondence between counsel; and (3) the transcript of a hearing on a similar dispute in a different case. None of the exhibits established the burden or cost to the government of segregating contraband from noncontraband computer files.Gladding hired a digital forensics expert who was able to retrieve a great deal of the non-criminal files, despite arguments from the government that doing so was technically unfeasible. But there were still some files left that Gladding wanted returned and, again, he was stonewalled by the government, with an assist by the district court, which muffed the "burden of proof" determination.
The district court did not expressly state whether Gladding or the government had the burden of proof on the motion. However, the parties impliedly concede the court put the burden on Gladding. And the district court’s brief analysis denying Gladding’s motion sheds light as to whom the district court thought should bear the burden of proof. The district court denied Gladding’s motion because it was “satisfied” by the government’s “representations” that it is “almost impossible to separate [the noncontraband files] out.”This looks an awful lot like a deferral to the government -- contrary to the one of the main prongs of the judicial system: to act as a check against government overreach or misconduct. This failure may have only been an "error," but it's the sort of error that undermines the system's integrity.
But representations are not evidence, unless adopted by the opponent. The government failed to submit any evidence of the difficulty and cost of segregating Gladding’s data, which it claimed was a “legitimate reason” for retention of the noncontraband files. For that reason, the government could not have carried its burden of proof had the district court correctly placed it on the government. The district court’s decision not to put the burden of proof on the government was legal error.
There were multiple options available to the government to help mitigate the costs and difficulty of separating the data -- including passing those costs on to the requester -- but it was allowed to simply declare the effort to be too much trouble. By failing to shift the burden of proof, the court screwed Gladding and basically gave the government a pass to hold onto unrelated, non-criminal data for as long as it wanted to. Fortunately, the appeals court reversed the previous decision and forced the government to make an active effort to return the unneeded files. As it points out, child porn possession may be an odious offense, but a criminal's computer is rarely used solely for criminal activities.
Many people store every aspect of their lives on electronic devices. Those devices are brimming with correspondence, schedules, photographs, and music. As a result, a crashing computer or a lost smartphone can lead to catastrophic results for a person who failed to back up that data; the only record for years of a person’s life can be lost in an instant.Even if the good and bad are intermingled, the non-offending files still belong to the convicted person. The potential loss of personal data isn't presumed to be part of the "consequences" of criminal behavior. The government's unchallenged assertions about the inseparable nature of Gladding's files effectively argue that convicted persons have no right to their own files, much less the expectation that non-criminal, non-investigative data will be returned to them when no longer needed.
Criminals who possess child pornography are no different. Those criminals may likewise store important aspects of their lives on their electronic devices. But along with the normal risks of losing their personal data, such criminals also risk losing that personal data when the government seizes their devices for evidence of child pornography.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: child porn, doj, evidence, ninth circuit, property
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
complete BS
Segregating those is trivially easy, using a variant of:
find / -name "*.jpg" -o -name "*.jpeg" -o -name "*.png" -o -name "*.mpg" -o -name "*.mpeg" -print
with enough clauses to account for everything and a crosscheck against the output of
find / -type f -print
to make sure that nothing was overlooked. (And a second crosscheck via
find / -type f -exec file {} ';'
just in case the guy was hiding images/videos in files whose names belied their content.)
This should yield a first-pass list of everything that's unlikely to be child porn. That list can be checked -- with a variation of the find/file combination just above -- to make sure that nothing slipped through.
Then everything else -- images/video -- should be checked against the government's exhibit list.
Ummmm...they DO have an exhibit list, yes? I presume that at some point they enumerated every single image and every single video that qualifies as child porn and that they have not only the file names, but the full path to them along with checksums -- so that they can be unambiguously identified.
If so, then any image/video NOT on that list is not considered evidence of CP and thus should be returned.
If not, then what the hell are they playing at? Why don't they have an exhaustive inventory?
Yes, getting this completely right will require a little bit of tweaking and a little bit of cross-checking beyond what I've outlined here. But this is basic command-line fu, the sort of thing I'd expect journeyman system admins to be fluent in. And certainly anyone who even PRETENDS to be a forensic examiner should know this stuff backwards and forwards. So claiming that this is onerous or expensive is really nonsense: it's neither.
[ link to this | view in chronology ]
Re: complete BS
The folks who are fluent in this...
...don't work for the government.
[ link to this | view in chronology ]
Re: complete BS
OTOH if they don't know what's the porn, then we have a prosecution problem.
[ link to this | view in chronology ]
Re: Re: complete BS
I agree with your analysis.
However, the government apparently was not forced to identify each and every contraband porn image on the computer; the defendant pled guilty. The government may have had an identified example or two, but without having had to actually argue the case, apparently they didn't do a thorough job in the first place.
[ link to this | view in chronology ]
Re: Re: Re: complete BS
[ link to this | view in chronology ]
Re: Re: Re: complete BS
[ link to this | view in chronology ]
[ link to this | view in chronology ]
It is the standard plaint of the agents of this government. I don't want to have to follow the law because it is too difficult.
[ link to this | view in chronology ]
Re:
Tell that to all the cops that seized cash from unsuspecting drivers.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Backups do not help
I'm glad that this tide is changing. If even a convicted criminal can have his data back, those who didn't do anything wrong have a little less to fear.
[ link to this | view in chronology ]
Re: Backups do not help
[ link to this | view in chronology ]
The solution is so damn simple: let the government make a copy of all the files and return the original to the owner.
No wonder SCOTUS thought Aereo was a cable company.
[ link to this | view in chronology ]
They say it costs too much to separate the files
[ link to this | view in chronology ]
Re: They say it costs too much to separate the files
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I'd be prepared to go a step further and decriminalize the mere possession of such material. Prosecute the people who create it since they're the ones molesting kids, and maybe the ones who distribute it, but leave the people who are just looking at it alone. Like you said, maybe the guy satisfies his urges by looking at the pictures and videos and fantasizing. It doesn't automatically follow that if he likes looking at the images, he'll go out and molest kids.
Some people do have self-control. I like looking at Playboy playmates. I'll probably never get the chance to sleep with any of them, but that doesn't mean I'm going to go out and rape them.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
While we're at it, I think prostitution should be decriminalized as well. I mean, can you think of anything else that's legal to give away for free, but illegal to sell?
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
I'm like that with cat pics. Sure, "The call of the wild goes unanswered" and "We need to talk 'bout how you doin' so much nip" are funny but sooner or later I want to see a kitten sneaking up on a dog or trying to jump but misjudging the distance. See? I just went from pics to vids because vids are more fun. I'm not sure I'll ever actually get a kitty but it sure is fun to watch them doing silly things. And after a while, I get bored with the old stuff and go looking for something new.
Now where there's demand there will be supply. The fact that pervs want this stuff is why there is so much of it.
[ link to this | view in chronology ]
When people get caught with questionable pictures and videos, the government dismisses any claim the person might make that they had no way of knowing that the material was illegal, but when the shoe is on the other foot, suddenly, they claim that they can't tell what is and isn't legal?
Shouldn't this call into question the evidence in a lot of their cases?
[ link to this | view in chronology ]
All those people who used Megaupload to store their personal files will have no right to have those seized files returned even though they are not the ones charged with a criminal crime should the prosecution get their way in not having the non criminal files returned.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]