Thursday, March 01, 2007

U.S. v. Kelley (9th Cir. - March 1, 2007)

I gotta agree with Judge Rymer on this one, and respectfully disagree with Judge Thomas.

Yes, it's true that there's a lot of spam out there, including pornographic spam. So it's possible -- possible -- that an individual might receive unsolicited e-mails that contain child pornography. I'm sure it happens. Indeed, I'm positive. For that reason, I wouldn't allow a search warrant that said simply "X received e-mails with child porn. Let me search his computer." Not good enough.

But, here, Kelley's has two different e-mail accounts, and multiple instances of the the same type of kiddie porn (young boys engaged in sex acts) sent as e-mail attachments to both accounts -- Kelley's "Gay1dude" account and his "Badatt178" account. These were often the same kiddie porn attachments seen in the e-mail accounts of a different pedophile (Herbert Mumenthaler) in Germany who had 450 incoming e-mails with kiddie porn and 25 outgoing e-mails with kiddie porn; in other words, someone who we're pretty positive deliberately collects and disseminates the stuff.

Is it possible that Kelley was just randomly spammed -- on both of his (sexually explicit) accounts -- with the same kiddie porn that was collected and distributed by Mumenthaler? Yes. It's definitely possible.

But we don't demand certainty before we issue a search warrant. All we ask is that there's a "fair probability" that there's illegality and evidence thereof. And I think that the evidence against Kelley in the warrant adequately demonstrated precisely that.

There was perhaps a fair probability that Kelley was spammed. But there was also, at minimum, a fair probability that he wasn't. That's enough.

So I agree with Judge Rymer. And, for that matter, Justice O'Connor, who sat by designation and joined the majority. Respectfully, I part company with Judge Thomas on this one.