A groundbreaking case in the area of Internet crimes came down last week from the Ninth Circuit Court of Appeals. The question presented to the court was whether a suspect’s membership to a website that displays child pornography provides a probable cause to search/seize his computer.

Mr. Gourde was a paying member of a child pornography website for a total of two months before it was shut down by the FBI. The site had in its possession illegal images and after the FBI obtained a list of all site members, agents applied for search warrants for the computers of the members. Months after the site had been shut down, agents found over 100 illegal child pornography images in Gourde’s computer. He was charged with, among other things, with possession of child pornography under 18 U.S.C. §§ 2252(a)(4)(B), (b)(2), and 2256.

Gourde moved to suppress the images, claiming that the FBI did not have a probable cause to search his computer. The district court disagreed; Gourde pleaded guilty, but reserved his right to appeal. A three-judge panel of the Ninth Circuit reversed in 2004. In rehearing the case en banc, the Ninth Circuit reversed its earlier ruling by a 9-2 vote. In an opinion authored by Judge McKeown, the Court held three factors critical to the correct determination that there was a probable cause. First, even though the site contained legal images, it was focused on illegal child pornography. Second, it was significant that Gourde remained a paid subscriber for two months and until the site was shut down by the FBI. Third, due to the nature of computers and because it is impossible (for average user, at least) to permanently delete an image from a computer, there was a likelihood that there would be evidence left on Gourde’s computer.

While at the end of this case justice prevailed, this case bears a hint of a slippery slope. It is not hard to conceive a scenario in which law enforcement could obtain warrant solely based on a user’s membership of a site which has some sort of illegal content. In an extreme example, someone posting child pornography images to eBay, for instance, could give a probable cause to search millions of users’ computers because they might have downloaded some of this content. As the dissents point out, the government could have easily obtained evidence about whether Gourde had in fact downloaded illegal images before applying for a warrant (Judge Reinhardt; presumably he meant feds checking the server logs to establish who downloaded what).

U.S. v. Gourde, 03-30262 (9th Cir., Mar. 9, 2006)