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Appeals Court Orders Government To Return Non-Child Porn Files To Convicted Man

from the files-not-forfeited-forever dept

Wed, Jan 7th 2015 1:40pm — Tim Cushing

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.”

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.

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.

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.

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.

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.

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Filed Under: child porn, doj, evidence, ninth circuit, property

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Anonymous Coward, 7 Jan 2015 @ 1:54pm

Interesting. So this could be used to rebuff the NSA's argument that "it's too difficult to separate Americans' data from foreigners". Now they are bound by law to NOT HAVE that data (sorry, NSA, it seems the "only collecting but not searching" argument won't stick).
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Anonymous Coward, 7 Jan 2015 @ 1:56pm

complete BS
Let's assume for a moment that everything that was actually child porn was an image or a video.

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.
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Anonymous Coward, 7 Jan 2015 @ 2:20pm

Re: complete BS
Ahem...

The folks who are fluent in this...

...don't work for the government.
[ link to this | view in thread ]
Anonymous Coward, 7 Jan 2015 @ 2:48pm

this sort of thing seems to happen more and more. what happens when the judge, as in this case, is told/proven to be completely wrong with his ruling? if i did something wrong at work, i would receive a severe reprimand at least and training so as to not make the same mistake again. when, as in this case, the judge made errors (and i find it very strange that it was classed as a 'legal error'), surely he doesn't just get told what was wrong, does he/she? on top of that, 'legal' is his/her job and a damn good knowledge of it is required to do that job. what if it were a case involving a much more serious crime? the 'defendant' could end up in jail for a considerable time when there should have been no inside time. not good really!!
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z! (profile), 7 Jan 2015 @ 2:57pm

Re: complete BS
Exactly, It's pretty simple- if the government can find the porn, they also know what isn't porn (1 not equal 0). By that, it's a trivial problem to copy off the non-porn and set that back.

OTOH if they don't know what's the porn, then we have a prosecution problem.
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Groaker (profile), 7 Jan 2015 @ 3:23pm

A nice excuse for thievery. What court would listen to an argument that a nongovernmental thief found it too difficult to return what he had stolen.

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.
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PRMan, 7 Jan 2015 @ 5:22pm

Re:
"What court would listen to an argument that a nongovernmental thief found it too difficult to return what he had stolen."

Tell that to all the cops that seized cash from unsuspecting drivers.
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Anonymous Coward, 7 Jan 2015 @ 5:38pm

Re: Re: complete BS
(almost) 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 thread ]
Anonymous Coward, 7 Jan 2015 @ 5:58pm

Re:
the whole bloody administration acts like it is above the law your just seeing the trickle down effect of the underlings noticing their bosses getting away with breaking laws.
[ link to this | view in thread ]
Anonymous Coward, 7 Jan 2015 @ 6:00pm

Re: Re:
cops are above the law too in most cases
[ link to this | view in thread ]
madasahatter (profile), 7 Jan 2015 @ 7:13pm

Re: Re: Re: complete BS
To force a plea the government would need to show that there was some significant amount of child porn on the computer not just one or two files which could have accidently downloaded. At some point they had to examine the pictures and videos. The point is that the porn files are likely to pictures and videos which have well know file extensions generating a list of these files should get porn plus some innocent files.
[ link to this | view in thread ]
Anonymous Coward, 7 Jan 2015 @ 7:54pm

Re: Re: Re: complete BS
Normally a complete listing of any questionable (possibly illegal) files along with printouts of the images will be made during the investigation and prior to the filing of any charges. Some of the items on this list might not actually be illegal (for instance, non-pornographic nudes) and others might be actually illegal. In some ways this actually complicates the issue since decisions regarding which images are legal and which are illegal are often not easy calls to make. However, as long as the defendant doesn't expect to get back any questionable files, returning files not on the list should be easy enough. HOWEVER, there's always the possibility of encrypted and embedded files and other tricky little ways of hiding content to worry about, supposing that the defendant is capable of that sort of thing, but ENCASE (and other computer forensics programs) would most likely be able to deal with most of that.
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Anonymous Coward, 8 Jan 2015 @ 2:26am

Backups do not help
This is a nightmare scenario for any computer user: if you're falsely accused of anything, you will lose all your data, no matter how many backups you have, because all the backups are seized too, and your storage media will never be given back to you.

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 thread ]
Violynne (profile), 8 Jan 2015 @ 3:21am

How ironic to read the government has a problem working with digital files.

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 thread ]
Richard (profile), 8 Jan 2015 @ 3:30am

They say it costs too much to separate the files
They say it costs too much to separate the files but how much does it cost to keep fighting in court?
[ link to this | view in thread ]
Anonymous Coward, 8 Jan 2015 @ 3:47am

Re: They say it costs too much to separate the files
Should they not have also separated the files in determining what counts of guilt they were going to go to trial with?
[ link to this | view in thread ]
Ninja (profile), 8 Jan 2015 @ 4:24am

At the risk of drawing anger towards me I have this thing in my mind: considering he is already convicted and that once a pedo always a pedo why not let him have the pics already and add a much more severe penalty if he gets any new pics? That way he can satisfy his pedo urges with the pics and leave new kids alone. Let's not act innocent here, there is plenty of child porn out there that was produced already so if there are people that are sick and need to see such thing let them have it. But at the same time ramp um the punishment for actual child abuse and production of such material by a whole death penalty or something. Again, I'm not condoning child porn or abuse but it seems to me that many of those who end up abusing children would be satisfied with just seeing stuff. Heck even fantasy works, drawings are banned in some countries. This is counterproductive. I wonder how it works for violent people that let loose on video games while not doing in real life.
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Rekrul, 8 Jan 2015 @ 5:17am

Re:
At the risk of drawing anger towards me I have this thing in my mind: considering he is already convicted and that once a pedo always a pedo why not let him have the pics already and add a much more severe penalty if he gets any new pics? That way he can satisfy his pedo urges with the pics and leave new kids alone.

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.
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Rekrul, 8 Jan 2015 @ 5:20am

In addition to what others have said, what happened to the government's assertion that child porn is easy to spot?

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 thread ]
Anonymous Coward, 8 Jan 2015 @ 6:00am

Re: Backups do not help
you will lose all your data, no matter how many backups you have, because all the backups are seized too
Having backups at a friend's house or in something like Tahoe-LAFS would make this more difficult. The government might be unaware of these backups, or if not, there are still legal protections related to searching residences (i.e. they'd need a separate warrant).
[ link to this | view in thread ]
Ninja (profile), 8 Jan 2015 @ 6:42am

Re: Re:
Glad I'm not the only one that thinks about it. But we are still fighting about legal marijuana uses...
[ link to this | view in thread ]
Anonymous Coward, 8 Jan 2015 @ 6:47am

"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."

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 thread ]
Groaker (profile), 8 Jan 2015 @ 7:18am

Our government believes that it owns what is seen as temporarily in our care, that it owns us as slaves who can be beaten and killed at a whim, and that we have no recourse to these actions.
[ link to this | view in thread ]
That One Guy (profile), 8 Jan 2015 @ 7:42am

Re:
Oh they already handled that little issue by having the servers, and the data on them, wiped, so there's no files to return.
[ link to this | view in thread ]
Rekrul, 8 Jan 2015 @ 6:32pm

Re: Re: Re:
Glad I'm not the only one that thinks about it. But we are still fighting about legal marijuana uses...

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 thread ]
That Anonymous Coward (profile), 9 Jan 2015 @ 4:33am

Does anyone know if the DoJ submitted "evidence" of how much it would cost to return the megaupload data?
[ link to this | view in thread ]
John Fenderson (profile), 9 Jan 2015 @ 9:44am

Re: Re: Re: Re:
Body parts & organs.
[ link to this | view in thread ]
Pragmatic, 13 Jan 2015 @ 2:42am

Re: Re: Re:
Uh, guys... I'm not sure you understand what these "urges" are: he wants to look at porno pics of kids. Now I don't know about you but if you like looking at Playboy playmates I daresay you don't just have one copy of Playboy because, let's face it, looking at the same thing gets boring after a while.

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 thread ]

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