United States v. Kenneth Kelley ( 2007 )

THOMAS, Circuit Judge,

dissenting:

Each day, billions of unsolicited email messages are sent over the Internet.¹ These unwanted emails, popularly termed “spam,”² often carry commercial messages. Many of the commercial messages are dubious in nature and origin, and a substantial proportion consists of pornographic images or links to pornographic websites. Spam may also contain child pornography or links to illegal websites containing child pornography.³ The true content of these messages is often disguised. As the United States Senate Committee on Commerce, Science, and Transportation noted:

Pornographic spam is more likely than other spam to contain fraudulent or misleading subject lines. In its recent report, the FTC found that more than 40 percent of all pornographic spam either did not alert recipients to images contained in the message or contained false subject lines, thus “making it more likely that recipients would open the messages without knowing that pornographic images will appear.”

United States Senate Committee on Commerce, Science, and Transportation, CANSPAM Act of 2003, S. Rep. 108-102, p. 4 (July 16, 2003).

Despite the enormous volume of unsolicited pornographic emails sent every day, with the true content concealed from the recipient, the majority holds that the mere transmission of unsolicited pornographic emails creates probable cause to search the entire house of the email recipient. Because I respectfully disagree with this conclusion, and because it conflicts with our precedent, I would affirm the well-reasoned judgment of the district court that the warrant lacked probable cause.

I

This is not the first time we have confronted the question of whether unsolicited communication can form the basis for probable cause. In United States v. Weber, we considered the government’s claim that it had probable cause to search a defendant’s house for child pornography based on evidence that he had been sent— but had never picked up from the post office — material advertising child pornography and had later ordered four photographs from a government-created distributor. 923 F.2d 1338, 1344 (9th Cir.1990). We concluded under those circumstances that the government lacked probable cause for the search. We held that the mere receipt of pornographic images and the subsequent ordering of photographs did not create a “fair probability” that the government would find child pornography at the defendant’s house on the date of the search. Id. at 1344-45. Significant to the reasoning of Weber was the lack of evidence that the defendant was either a child molester or a collector of child pornography. Id. at 1345.

We recently considered the impact of Weber and its progeny on pornography distributed via the Internet in United States v. Gourde, 440 F.3d 1065 (9th Cir.2006) (en banc). In Gourde, we examined a search of a defendant’s computer based on affidavit evidence that he had taken “ ‘steps to affirmatively join’ the website” featuring downloadable child pornography. Id. at 1068. In sustaining the warrant, we emphasized that “Gourde’s status as a member manifested his intention and desire to obtain illegal images.” Id. at 1070. In order to become a member, Gourde had to provide his home address, his email address, and his credit card information. Id. He then had to consent to have the fee deducted from his credit card every month. Id. We explained that “these steps, however easy, only could have been intentional and were not insignificant. Gourde could not have become a member by accident or by a mere click of a button.’’ Id. (emphasis added).

In Gourde, we distinguished Weber precisely on the grounds of Gourde’s unambiguous affirmative steps. We explained that “Gourde’s continuous, affirmative steps to access a child pornography website can hardly be compared to the single controlled buy in Weber two years after his initial, and unconsummated, foray into child pornography.” Id. at 1074 (emphasis added). See also United States v. Lacy, 119 F.3d 742, 745 (9th Cir.1997) (noting that defendant took affirmative steps by placing telephone calls to and downloading photographs from a computer bulletin board system located in Denmark); United States v. Froman, 355 F.3d 882, 890-91 (5th Cir.2004) (relying in part on evidence in the affidavit that defendant took affirmative steps to join child pornography group and did not cancel his membership even though it was easy to do so).

In addition to holding that probable cause for a residential search was established when a defendant took affirmative steps to acquire child pornography, we have also sustained searches based on evidence suggesting that the defendant is a pedophile or child pornography collector. In United States v. Hay, we upheld a magistrate judge’s finding of probable cause by relying in part on the fact that “there was evidence of Hay’s extreme interest in young children.” 231 F.3d 630, 632-33, 634 (9th Cir.2000). This evidence, combined with his receipt of nineteen child pornography images through a direct transfer download onto his computer, distinguished Hay from Weber and made it much more probable that the images “were neither unsolicited nor accidental.” Id. at 634.

Similarly, the Tenth Circuit has relied on evidence of a defendant’s personal history, in combination with his receipt of emails containing child pornography, to establish probable cause. United States v. Rice, 358 F.3d 1268 (10th Cir.2004), overruled on other grounds by United States v. Rice, 405 F.3d 1108 (10th Cir.2005). There, the defendant was a teacher who had, in a previous school system, taken pictures of two young girls in bikinis that “suggested an unhealthy and inappropriate interest in the bodies of young girls.” Id. at 1275. This additional evidence of the defendant’s interest in young children was present in the affidavit and was an important factor in the Tenth Circuit’s decision to find the affidavit sufficient. Id.

In sum, we have sustained searches based on evidence (1) of affirmative acts to acquire child pornography, (2) of the defendant’s tendencies toward pedophilia, or (3) that the defendant was a collector of child pornography. We have never held— until today — that mere receipt of unsolicited pornographic material, without more, establishes probable cause to search a residence for child pornography.

II

The paucity of the evidence that the government offered in support of the warrant is quite evident. The only evidence upon which the government relied at the time of the search was that Mr. Kelley had been sent nine emails containing child pornography over a period of at least nine months, quite possibly longer. There was no evidence that Mr. Kelley requested the emails, viewed the emails, or actually received the emails in his “Inbox.” There was no evidence refuting the possibility that Mr. Kelley’s email program routed the emails to his spam folder, or that Mr. Kelley deleted the emails upon receipt. Nor was there evidence that Mr. Kelley at any point made any affirmative attempt to obtain child pornography or that he collected child pornography or had any affinity for it. In short, there was no evidence that these nine emails were anything more than unsolicited spam.⁴

Holding that the evidence the government submitted in this case constituted probable cause for an extensive residential search cannot be reconciled with the principles we adopted in Weber, Gourde, and Hay.

I can well understand the government’s motivation. Child pornography is a scourge on our nation. But every hour, millions of unsolicited and deceptively disguised emails are sent to innocent computer users. Lowering our standards of probable cause to permit government intrusion into private residences based solely on proof of mere transmittal of unsolicited email constitutes an unwarranted erosion of the Fourth Amendment.

For these reasons, I respectfully dissent.

1 . See Adam Hamel, Note, "Will the CAN-SPAM Act of 2003 Finally Put a Lid on Unsolicited E-mail?," 39 New Eng. L. Rev. 961, 961 (2006) ("Spam accounts for as much as eighty percent of the estimated fifty-seven billion e-mail messages that are transmitted across the Internet daily.”); Brad Stone, Spam Doubles, Finding new Ways to Deliver Itself, N.Y. Times, Dec. 6, 2006, at A1 (noting that "[w]orldwide volumes of spam have doubled since last year” and that nine out of every ten email messages is junk mail).

2 . The term "spam” in this context does not refer to the processed meat product invented by Jay Hormel in 1937, but apparently was derived from a sketch by the British comedy group Monty Python's Flying Circus first broadcast in 1970, in which a restaurant patron is presented with a menu containing nothing but variants of Spam. CompuServe, Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015, 1018 n. 1 (S.D.Ohio1997). As part of the routine, a group of Vikings in the restaurant insistently sing a chorus about Spam, increasing in volume until other conversation is impossible. "Hence, the analogy applied because [unsolicited commercial e-mail] was drowning out normal discourse on the Internet.” Hamel, 39 New Eng. L. Rev. at 963 n. 18.

3 . See, e.g., Leslie Brooks Suzukamo, Reports of Child-Pom Spam Are Increasing, St. Paul Pioneer Press, Dec. 17, 2001, at Al; Paul Mores, Child Pom E-mails Shock Residents Hit by Spam, Hamilton Spectator, Oct. 18, 2005, at A3; Mark I. Johnson, Volusia Seizes Child Pom Stash; Edgewater Man Netted in N.Y.-Based Sting, Daytona News-J., Oct. 4, 2005, at 1C (describing child pornography investigation that began with a tip from someone who received "a spam email offering child pornography''); The Spaminators: So Why Do They Call It ''Spam"?, Chi. Trib., April 23, 2003, at 9 (stating that the FBI investigated child pornography spam in 1996). See also Anti-Child Porn Organization, at http://www.antichildporn.org/ mailadvisory.html (describing spam containing embedded images of child sexual abuse); FBI, Baltimore Field Office, "Cyber Crime,” at http://baltimore.fbi.gov/cyber — crime.htm (requesting reports of child pornography spam).

4 . Aside from the allegation that Kelley had been sent pornographic messages, the rest of the probable cause affidavit consisted of generic, boilerplate language — the use of which we eschewed in Weber. 923 F.2d at 1345 (noting that the affidavit contained ''rambling boilerplate recitations” about pedophiles and collectors of child pornography, but "not a whit of evidence ... indicating that Weber was a ‘child molester.’ ”).