Back in November, Lawmeme reported on the district court’s decision in United States v. Jarrett, 2002 WL 31496302 (E.D. Va. Nov. 1, 2002), which suppressed evidence obtained in a search of a child pornographer’s computer by an overseas hacker. (Read the relevant facts here.) On Tuesday, the Fourth Circuit reversed the district court's holding and found this evidence admissible. Essentially, the court held that, in this case, the Government was merely the passive recipient of the evidence obtained through private searches; its correspondence with the anonymous hacker did not rise to the level of affirmative encouragement or participation that would be required to make the hacker a government agent.
The Fourth Circuit's decision is here. Read more for excerpts from the decision.
Excerpts from United States v. Jarrett, No. 02-4953, 2003 WL 21744122 (4th Cir. July 29, 2003)
The Facts
[Lawmeme’s previous coverage of this case recounts the pertinent facts.]
The Law
[T]he Courts of Appeals have identified two primary factors that should be considered in determining whether a search conducted by a private person constitutes a Government search triggering Fourth Amendment protections. These are: (1) whether the Government knew of and acquiesced in the private search; and (2) whether the private individual intended to assist law enforcement or had some other independent motivation.
[The Government concedes the existence of the second factor.] Thus, the only question before us concerns the first factor--did the Government know of and acquiesce in Unknownuser's search in a manner sufficient to transform Unknownuser into an agent of the Government, and so render the search unconstitutional.
[S]imple acquiescence[, passive acceptance, or mere knowledge] by the Government does not suffice to transform a private search into a Government search. Rather, there must be some evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional.
Applying the Law
[T]he [district] court held that in light of the Government's collective efforts to praise Unknownuser for his assistance, its repeated requests for further assistance, its assurances that Unknownuser would not be prosecuted for his hacking activities, and its refusal to suggest that Unknownuser should cease hacking, "there was far more than mere knowledge on the government's part."
[The district court erred in its findings. The Government did not encourage Unknownuser or participate in his hacking because the November-December 2000 and Ma 2001 email exchanges (1) were brief, (2) took place seven to twelve months before the Jarrett search, (3) consisted of nothing more than (i) perfunctory expressions of gratitude for Unknownuser's assistance in the Steiger investigation, (ii) assurances that Unknownuser would not be prosecuted should he decide to testify as a witness in the Steiger trial, and (iii) a vague offer of availability to receive more information in the future. Furthermore, prior to Unknownuser's Jarrett emails, (4) he had not been in contact with the Government for almost seven months, and (5) the Government seemingly had no intention of reestablishing contact with him. As the court later says, the last emails just prior to the Jarrett emails "were simply too remote in time and too tenuous in substance to bring the Jarrett search within the scope of an agency relationship."]
Without more, these exchanges do not suffice to create an agency relationship that would embrace the Jarrett search. Were we to allow the Duffy communications to effect such an agency relationship, virtually any Government expression of gratitude for assistance well prior to an investigation would effectively transform any subsequent private search by the party into a Government search.
[T]he Government was under no special obligation to affirmatively discourage Unknownuser from hacking.
Miscellaneous Points
It's worth noting that, despite the court's conclusion, it emphasized that "the Government operated close to the line in this case" and that "the Government's behavior in this case is discomforting." Furthermore, it noted in dicta that the following "wink and a nod" email, which was sent after Unknownuser had already searched Jarrett's computer, would have made the private search illegal if it had been sent before the search occurred:
I can not ask you to search out cases such as the ones you have sent to us. That would make you an agent of the Federal Government and make how you obtain your information illegal and we could not use it against the men in the pictures you send. But if you should happen across such pictures as the ones you have sent to us and wish us to look into the matter, please feel free to send them to us. We may have lots of questions and have to email you with the questions. But as long as you are not 'hacking' at our request, we can take the pictures and identify the men and take them to court. We also have no desire to charge you with hacking. You are not a U.S. citizen and are not bound by our laws.
Given this dicta, and absent intervening factors, I'd have to say that Unknownuser's days of aiding law enforcement--at least by providing evidence obtained through hacking--are over.