Remember how the Edward Snowden cache had privacy activists worried that the NSA had turned into Big Brother and snooped on the Internet activity of American citizens? It turns out they had the right idea, but the wrong part of government. The Ninth Circuit has tossed out a child-pornography conviction because the evidence was collected without a warrant by the US Navy — which took it upon themselves to spy on Internet users (via Radley Balko and Popehat):

Navy criminal investigators repeatedly and routinely peeked into the computers of private citizens in Washington state and elsewhere, a violation of the law so “massive” and egregious that an appeals court says it has no choice but to throw out the evidence against an Algona, Wash., man sentenced to 18 years in prison for distribution of child pornography.

The three-judge panel of the U.S. 9th Circuit Court of Appeals, in a decision handed down last week, said the 2012 prosecution of Michael Allan Dreyer by the U.S. Attorney’s Office in Seattle demonstrated Naval Criminal Investigative Service (NCIS) agents “routinely carry out broad surveillance activities that violate” the Posse Comitatus Act, a Reconstruction-era law that prohibits the military from enforcing civilian laws.

The court called the violations “extraordinary” and said evidence presented in Dreyer’s prosecution appears to show that “it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over that information to civilian law enforcement when no military connection exists.”

The resort to the Posse Comitatus violation makes this an easier call for the courts than the same issues of surveillance might be with the NSA or FBI. According to the description in the Sacramento Bee, it appears that the Navy investigators stuck to the same pen-register data that courts have ruled are less private than the body of the communications. Or at least that seems to have been their argument:

That is what happened to Dreyer, now 60, who became the target of an NCIS investigation in 2010 when Agent Steve Logan, who was stationed in Georgia, used a law-enforcement software program called “RoundUp” to troll for child pornography on computers in Washington using a legal file-sharing network called “Gnutella.”

According to court documents, Logan identified a computer sharing suspicious files, downloaded three of them, then got a subpoena for Comcast, which identified Dreyer as the IP address owner.

Had the FBI taken the same action in a counter-terrorist operation and turned up a child-porn suspect, I doubt the courts would have thrown out the conviction (although one can never tell about the Ninth Circuit). The toughest question would have been how the investigator would have known of the nature of the “suspicious” files without illegally surveilling the content without a specific warrant. Even in this case with the US Navy surveillance producing the material, the trial court felt inclined to keep the evidence in play for the jury; without it, there would have been no conviction at all.

We still don’t know why a US Navy investigator in Georgia was conducting mass surveillance on Washington residents. From the Bee’s report, it doesn’t appear that the government offered an explanation in its appeals, either. Instead, they tried to argue that Logan’s status as a civilian employee of NCIS negated the Posse Comitatus restriction, but the unanimous opinion strongly rebuked that argument, and the argument that Logan’s mass surveillance was appropriate because Washington has so many military bases:

More fundamentally, the government’s assertion that there is a meaningful difference between civilian and other employees of the Navy for the purposes of the PCA-like restrictions is unsound. The DoD policies have consistently proclaimed that they set forth “restrictions on participation of DoD personnel in civilian law enforcement activities.” See DoDD 5525.5, Enclosure 4; DoDI 3025.21, Enclosure 3.  They do not limit their reach to non-civilian personnel only.  And any contention to the contrary is belied by the abundantly clear expressions in the most recent regulations and policy instructions. Both state that they “[a]ppl[y] to civilian employees of the DoD Components,” and that their restrictions on direct participation in civilian law enforcement “apply to all actions of DoD personnel worldwide,” with “DoD personnel” defined to include “Federal military officers and enlisted personnel and civilian employees of the Department of Defense.” …

The government is arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military. Such an expansive reading of the military’s role in the enforcement of the civilian laws demonstrates a profound lack of regard for the important limitations on the role of the military in our civilian society. …

The government’s position that the military may monitor and search all computers in a state even though it has no reason to believe that the computer’s owner has a military affiliation would render the PCA’s restrictions entirely meaningless. To accept that position would mean that NCIS agents could, for example, routinely stop suspected drunk drivers in downtown Seattle on the off-chance that a driver is a member of the military, and then turn over all information collected about civilians to the Seattle Police Department for
prosecution.

The government will seek an en banc appeal on this, the Bee’s Mike Carter reports, but the unanimity and vehemence of the ruling will probably convince the rest of the panel to take a pass. The government could take this to the Supreme Court, but given the recent concerns over the militarization of police (which Carter also notes), one could easily foresee a strange-bedfellows coalition of limited-government conservatives and defendants-rights liberals emerge on the Roberts court with this case. And pushing this case would raise the profile of these mass-surveillance efforts by parts of the government we never even suspected of conducting them.