Thursday, October 27, 2011

There Is A Zoo in Central Park

Judge Moore and Judge Kethledge fought both a legal battle and a snark battle in United States v. Beauchamp, published October 25. Judge Moore, joined by District Judge Marbley, found that Beauchamp was unconstitutionally searched and seized when police stopped him for: (1) walking on the street with another person; (2) in a high crime area; (3) at 2:30 in the morning; and (4) hurriedly walking away from a police officer while avoiding eye contact.

Judge Kethledge disagreed and, in addition to finding that reasonable suspicion existed, also accused the majority of applying the incorrect standard of review and of appellate factfinding. Judge Kethledge wrote in dissent, "Appellate factfinding is a rare and exotic animal, and often seems out of place too. Its appearance warrants explanation in the manner that, say, a rhinoceros in Central Park does."

As with many fact-intensive Fourth Amendment stops, reasonable minds could disagree as to the degree of suspicion Beauchamp aroused. But the victor of the snark battle can only be Judge Moore. In a withering footnote, Judge Moore pointed out, correctly, that there is a zoo in Central Park. While a rhino is not part of the Zoo's usual repertoire, they do get visiting exhibits from time to time and, at any rate, a rhino in Central Park could really easily be explained by the zoo.

While such snark battles are fun to blog about, they are indicative of a very real and serious problem with our Circuit: an ideological breach so vast that Democratic and Republican appointees no longer regularly lunch together at the University Club in Cincinnati. Both the substance and style of this decision demonstrate why Adam Liptak of the New York Times called the Sixth Circuit "surely the most dysfunctional federal appeals court in the nation."

Tuesday, October 25, 2011

In Which Judges Learn That There Is No Good Analogy for the Internet

Timothy Ryan Richards was an internet porn king. He operated at least a dozen websites pulling in a reported $60,000 per year. Unfortunately, these sites contained child pornography. In United States v. Richards, published yesterday, the Sixth Circuit affirmed his sixteen-year sentence.

The opinion deals primarily with the (over?)breadth of the search warrant. The FBI narrowed its investigation to one server in California: cabinet 200.02, server number 4, at the BlackSun facility in Los Angeles, California. The warrant permitted a search of the entire server. In addition to Richards' websites, server number 4 might have contained the information for any other number of sites. On the other hand, Richards could have mislabeled his directories.

Judges Griffin and Siler agreed that narrowing the search to one server was particular enough. Judge Moore disagreed and found the warrant overbroad. Judge Moore would have required the warrant to be limited to specific directories and the server's unallocated space.

What is abundantly clear from this opinion is that our law is ill-equipped for the internet age. In order to find familiar ground and invoke precedent, the Judges grapple for the best analogy. Maybe servers are like file cabinets. Maybe they are like drawers in file cabinets. Maybe they are like apartment buildings and the administrator is like a landlord. Maybe the unallocated space is like a common area -- but what if the bike is locked to the radiator?

Both opinions have real problems because, in the end, the internet is not like anything else. The majority points out a seemingly irreconcilable problem. Computers hold so much personal and private information that they should receive extra Fourth Amendment protection. But criminals can hide, mislabel and manipulate files such that there is no way to find anything without a broad search.

There will no doubt be much development in this area of the law. But for now, in this circuit, a warrant to search one (1) whole server is good enough.