Hunting Cybersex

Although government officials assert that the Time Warner IP address link to Javier Perez was enough to establish probable cause to search his home, the Department of Justice's own guidelines warn against basing search warrants solely on an IP address. "Probable cause challenges may ... arise when supporting evidence in an affidavit derives heavily from records of a particular Inter­net account or Internet Protocol ("IP") address," reads a manual on search-and-seizure procedures issued by the DOJ's Computer Crime and Intel­lect­ual Property section. "The problem is a practical one: generally speaking, the fact that an ... address was used does not establish conclusively the identity or location of the particular person who used it."

Yet that is the precise leap in logic made by FBI Special Agent Robert Britt and Assistant U.S. Attorney Grant Sparks. Conversely, in a 2000 case (U.S. v. Grant), the U.S. 1st Circuit Court of Appeals concluded that evidence linking a person to a particular account -- like Ramos' admission that his Yahoo! account login was "stephanmee2003" (the account linked to the initial "child pornography" complaint filed in New York) -- is far more substantive evidence, because such accounts are generally password protected, reducing the likelihood that a third party might have been actually responsible for transmitting or receiving material via that account at any given time.

Yet U.S. District Judge Sam Sparks ruled that the FBI warrant was valid and the search of Perez's house legal. Attorney Chris Perri, who is handling Perez's appeal to the U.S. Supreme Court, suspects that Sparks might have reached his conclusion because he misunderstood this key difference, thinking instead that an IP address is a sort of "digital fingerprint" and as discrete as a password-protected e-mail account. In his Supreme Court appeal brief, Perri highlights a specific comment by the judge. "You know, I have two Web addresses in my home," Judge Sparks said during the September 2005 suppression hearing. "My wife and I have separate ones. We have six children, thank God, they're all gone, but I rather suspect that they would have separate addresses [as well]." (A footnote to Perri's brief suggests that the justices investigate how the court's Internet access is configured, speculating that they'd find some "overlap" in their "respective IP addresses," he wrote. "If a rogue law clerk were to send out unlawful transmissions from the Court's computers, would this Court believe it fair for the registered owner of the Court's IP address to be the subject of a search warrant, even though this owner had nothing to do with the transmissions?")

The 5th U.S. Circuit Court of Appeals did rule that Britt's discovery that three people actually lived at the house on Scenic Brook Drive "should have alerted the police to the possibility that one of the other housemates might have been using the IP address in question at the time of the illicit transmissions," adding that the "existence of wires traveling into each of the bedrooms added support to that possibility." Nonetheless, the judges concluded that it wasn't necessary to have a magistrate sign off on a new warrant because "the IP address in question was registered in Perez's name, and because the two other individuals living in Perez's house maintained separate residences" (that is, each bedroom was the private quarters of each housemate). Thus, the court wrote, there was still a "fair probability" that Perez was responsible for transmission of the alleged child-porn videos. Fair probabilty, they noted, is "something more than a bare suspicion, but need not reach the fifty percent mark." (Like Judge Sparks, the 5th Circuit seems confused about the difference between an IP address and a more discrete electronic hallmark, such as a password-protected account. In the Perez opinion, the court concluded that while the Grant case involved a screen name and not an IP address, "the principle" in Grant "is equally applicable" to Perez's case.)

To Perri, the court's assertion is absurd. With three people -- Atterberry, Ramos, and Perez -- living at the house and sharing a single IP address through a router, there would be only a 33% chance that Perez was the person who transmitted the contraband video. While probable cause is a fluid standard and not a hard-and-fast technical standard (and a lower bar than that of "beyond a reasonable doubt," which must be met in order to convict), he argues that no reasonable person would consider a one-in-three chance a "fair" risk. "[The court] might not want to give an actual percentage, but I think when you get low enough there is no 'fair probability.' So is the Fifth Circuit saying that 33% is fair probability?" he asks. "What if you go bet on a sporting event. Is 33% fair probability that the team will win? Enough to bet on?"

Chicago attorney Joe Obenberger, who specializes in pornography- and adult-entertainment-industry-related legal issues, says the 5th Circuit's ruling isn't surprising. The appellate court has "created some bad law in child pornography" cases, he says. The court is "extremely conservative and [doesn't] quite have the precision or legal understanding that I wish they had" in these kinds of cases. Dallas attorney E.X. Martin agrees: In this evolving area of the law, with the specter of a cyberpredator looming, courts have a tendency to engage in "results-oriented" decision-making, at times contorting law and logic in order to validate search warrants. The result is that the Fourth Amendment (barring unreasonable searches) is "damaged," he says. "All of my friends say that it's [actually] dead. I'm beginning to believe they're right."

There is at least one valuable lesson to be learned, says Obenberger. "The teaching point would be that if you want to do bad things online, go to Starbucks."