SEATTLE (Tribune Content Agency) — The 9th U.S. Circuit Court of Appeals will rehear a case in which a three-judge panel last year threw out a man's child-pornography conviction over what it found to be “massive” and egregious illegal surveillance into civilian computers by the Naval Criminal Investigative Service.
The appeals court, in a one-paragraph order issued Wednesday, ruled the case will be reheard “en banc,” meaning at least 11 of the 9th Circuit’s 29 appeals-court judges will reconsider whether to suppress the evidence gathered by the NCIS against Michael Allen Dreyer, which led to his 2012 conviction for possession and distribution of child pornography. It was Dreyer’s second federal conviction for the offense.
Dreyer, of Algona, Wash., was sentenced to 18 years in prison.
However, the three appellate-court judges last year said the sentence should be thrown out because of the enormity of the government’s violation of the Posse Comitatus Act, a law from the 1870s Reconstruction era that prohibits the military from enforcing civilian laws.
The investigation into Dreyer began when an NCIS agent in Georgia used special law-enforcement software called “RoundUp” to troll through shared files on civilian computers throughout Washington state, looking for child pornography. He later said his investigation was justified by the large number of military installations there.
The agent identified suspicious files on Dreyer’s computer. When he determined Dreyer was not a member of the military, the information was passed on to local law enforcement. Police later found 20 videos and more than 1,300 child-sex images on Dreyer’s home computer.
The three-judge appellate panel said the case demonstrated that NCIS agents “routinely carry out broad surveillance activities that violate” the Posse Comitatus Act.
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.”
In a brief seeking to stave off an en banc hearing, Dreyer’s attorney, Erik Levin of Berkeley, Calif., called the NCIS actions “an unprecedented intrusion of the military into civilian law enforcement” and said the NCIS “routinely disregarded” the law prohibiting violations of Posse Comitatus.
Federal prosecutors acknowledged the possibility that the agent’s actions may have violated the act but argued that the violations were minor and did not warrant suppressing the NCIS evidence that led to Dreyer’s conviction.
In arguing for an en banc hearing, Assistant U.S. Attorney Helen “Mickey” Brunner told the court that applying such an “extraordinary remedy” to a violation of the Posse Comitatus Act would be unprecedented.
Indeed, the government would like the court to determine whether criminal evidence could ever be excluded for Posse Comitatus violations. However, Brunner, in her brief, acknowledges prosecutors had failed to raise that question in earlier briefing.
Levin said that argument — the core of the government’s brief — should be forfeited.
According to court documents, NCIS Agent Steve Logan, stationed in Georgia, was using “RoundUp” software to look at shared files in computers in Washington and identified a computer sharing suspicious files. After downloading three of them, he got a subpoena for Comcast, which identified Dreyer as the IP address owner.
Logan, according to court documents, checked to see whether Dreyer was a member of the armed forces and determined he was not.
Logan then summarized his investigation and forwarded it to the NCIS office in Washington state, which turned it over to the Algona Police Department, according to the documents.
The case was filed in federal court by the U.S. Attorney’s Office.
Dreyer was arrested in April 2011 and fought to suppress the evidence, which included explicit videos of adults having sex with preteen boys and girls.
U.S. District Judge Marsha Pechman allowed the videos to be used, and Dreyer was convicted of possession and distribution of child pornography after a four-day jury trial in September 2012.
However, the 9th Circuit judges found the NCIS behavior so outrageous that it “demonstrates the need to deter future violations,” and sent Dreyer’s case back to the district court with an order that Pechman exclude the NCIS evidence against him.
Senior 9th Circuit Judge Andrew Kleinfeld, along with Judge Marsha Berzon — the author of the opinion — found that the case “amounts to the military acting as a national police force to investigate civilian law violations by civilians.”
“There could be no bona fide military purpose to this indiscriminate peeking into civilian computers,” Kleinfeld wrote. “Letting a criminal go free to deter national military investigation of civilians is worth it.”
The judges also excoriated the government for defending the role of the NCIS and its investigation, saying the court has warned the Justice Department about it before. This time, the court said, the violation comes with a price — Dreyer’s release from prison — to get the government’s attention.
“Such an expansive reading of the military role in the enforcement of civilian laws demonstrates a profound lack of regard for the important limitations on the role of the military in our civilian society,” Berzon wrote.
The opinion comes as the reach of government and law enforcement has come under fire after a series of disclosures of domestic surveillance by former National Security Agency systems analyst Edward Snowden.
©2015 The Seattle Times. Distributed by Tribune Content Agency, LLC.
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