Computer search and seizure issues in Internet crimes against children cases.

• Author: Kreston, Susan S.

Child sexual exploitation encompasses a broad spectrum of types of child abuse. For purposes of this article, the type of child sexual exploitation that will be primarily dealt with is computer-facilitated child pornography. However, other types of child sexual exploitation cases, such as prostituting children, on-line luring and abduction, and trafficking, will also certainly generate computer evidence. (1)

Child pornography is the permanent recording of the sexual abuse and exploitation of a minor. The best approach to combating this crime is a multi-disciplinary one, in which the investigator, prosecutor, and all other allied criminal justice professionals involved work together to best ensure that sexually exploited children are assisted by the criminal justice system. Working together as a team also ensures the best chance for bringing to justice the perpetrators of this crime. One of the most important areas of multi-disciplinary collaboration is in the drafting and execution of search warrants. This article will initially focus on what components should be found in a search warrant, then address the exceptions to the search warrant requirement, specifically concentrating on the topics of plain view, consent, private searches, exigent circumstances and parole and probation considerations, and conclude with an overview of federal privacy statutes that may impact on search warrant issuance and execution.

1. COMPUTER SEARCH AND SEIZURE ISSUES (2)

   With the advent of computer technology, the production and storage of child pornography has changed radically. In the past, production and storage were expensive, technically difficult and often left a readily discernible trail for law enforcement to follow. With current computer technology, the creation of child pornography has been reduced to an easy-to-accomplish exercise, needing only common video cameras, video capture boards, digital cameras, or scanners and software tools to inexpensively and easily record and edit the product. The computer's capacity to store images in digital form makes it an ideal repository for child pornography. A single CD-R can store hundreds to thousands of images and thousands of pages of text. Hard drives can store hundreds of thousands of images at very high resolution. Thumb drives, Smart Cards, DVDs, CD-RWs, zip disks, and jazz disks, which can be easily hidden due to their small size and shipped anywhere in the world, can also store thousands of images.

   The communication between pedophiles engaging in the business of child pornography has also been revolutionized by the nearly universal access to computers now enjoyed in the United States. (3) This communication allows contact to be made around the world quickly, privately, and anonymously. These advantages to computer interaction are well known and serve as a foundation of trade among pedophiles.

   The ability to produce child pornography easily, reproduce it inexpensively, and market it anonymously (through electronic communications) has drastically changed the method of distribution. Child pornography can now be electronically mailed to anyone with access to a computer and a modem. With the proliferation of commercial services that provide electronic mail, anonymous re-mailing, chat rooms, and off-site storage facilities, computers have become a favored medium among child pornographers. (4) In view of the advancing technological aspects available to those who traffic in child pornography, traditional tools used in criminal investigations, such as the search warrant, must be adapted to respond to the new and emerging facets of this crime and to the unique issues that arise within a child abuse/sexual exploitation case.

2. SEARCH WARRANTS

   The Constitution requires law enforcement to establish "probable cause, supported by Oath or affirmation," and must "particularly describ[e] the place to be searched, and the persons or things to be seized." (5) The items to be seized must be defined with sufficient detail so as to limit the executing officer's discretion in deciding what will be seized. Components of a search warrant in cases of Internet crimes against children will now be detailed.

   1. Background Information

      A search warrant may begin with an introductory paragraph reciting the affiant's training and experience in the area of investigating child sexual exploitation. An affiant's expertise may be established by listing the following: (1) present rank and assignment, (2) area(s) of responsibility, (3) length of experience as a law enforcement officer, (4) training and work experience received in the area of child sexual exploitation, (5) training and work experience received in the area of computers, including conferring with other law enforcement officers trained in computer investigations, and (6) any other relevant information. The affiant may also rely upon the expertise of others.

      Information explaining the Internet, the World Wide Web, chat rooms, electronic bulletin boards, Internet Service Providers ("ISPs"), free e-mail programs (e.g., Yahoo!), or other specialized online services relevant to the case should also be included in the search warrant application. The affiant should not assume the reader of the request for a search warrant has knowledge of the latest computer technologies or jargon. The terminology and descriptive explanations should be made as detailed as possible.

   2. Probable Cause

      Probable cause is established through an affidavit in support of the warrant, setting out the factual basis for the warrant application. In determining whether probable cause exists to issue a warrant, the issuing judge must decide whether, given the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (6) In determining if there is probable cause to seize and search a particular computer suspected of containing evidence of child sexual exploitation or having been used to facilitate the crime of child sexual exploitation, two facts must be established: first, that there is a computer physically located at a particular location and, second, that the computer contains evidence of, or was used to commit, the crime. If this two-prong test is not satisfied, the warrant will be invalidated. (7)

   3. Drafting the Warrant

      In many cases, undercover communications with the suspect via the Interact furnish probable cause to believe that the suspect's computer contains child pornography and other evidence of distribution and receipt. .In proactive cases, undercover investigators, posing as minors, meet the suspect in predicatedchat rooms or an Internet Relay Chats ("IRC") (8) and receive child pornography image files from suspects who are also in the "room" or IRC. In reactive cases, actual minors and/or their parents, or other private citizens report receipt of child pornography image files to law enforcement agents, who then begin an investigation.

      Many affidavits in support of a search warrant list the titles of each image and describe their contents so that the reviewing magistrate can make a determination as to the illegality of the images. In United States v. Brunette, (9) the court held that where "neither the magistrate judge nor the district court judge independently viewed the images[,] ... and because the affidavit did not adequately describe them, we conclude that the warrant was not supported by probable cause." (10) The case was affirmed however, but only by applying a United States v. Leon (11) good faith analysis. (12) One way to avoid these questions is to print copies of the images, place them in sealed envelopes and make them available to the magistrate to review if desired.

      Accompanying e-mail messages, as well as the titles of the images, provide additional evidence as to the suspect's knowledge that the images feature children engaged in sexually explicit conduct or sexually explicit poses. In addition, IRCs and newsgroups are typically named to correspond to the user's interest, as in "preteensex." This evidence is particularly important if the affidavit includes an expert opinion section discussing the behavioral characteristics associated with a child pornography collector. The affidavit should recite case specific evidence demonstrating that the suspect is a candidate who is likely to fit the behavioral characteristics identified. (13)

      Child pornography warrants typically authorize the seizure of all images of child pornography. The affidavit and attachments should specifically define the meaning of the term "child pornography." If the warrant authorizes seizure of child pornography as referred to in 18 U.S.C. [section] 2252A, there should be a reference to the definition found in [section] 2256(8). This is especially true in light of the Supreme Court's ruling in Ashcroft v. Free Speech Coalition, (14) which held unconstitutional the definitions contained in [subsection] 2256(8)(b) (15) and 2256(8)(d). (16) In situations in which a suspect is downloading child pornography files from, or uploading such files to, a newsgroup, the affidavit should include general Internet background, descriptions of terms used, and explanations of the investigative techniques for the reviewing magistrate, using accessible, non-technical, user-friendly language.

   4. Particularity

      Child pornography computer cases can present unique challenges when trying to describe the items to be seized with sufficient detail. Descriptive computer search language used in a search warrant affidavit might include the following:

      All electronic data processing and storage devices, computers and computer systems, such as central processing units, internal and peripheral storage devices such as fixed disks, internal and external hard drives, floppy disk drives and diskettes, tape drives and tapes, optical storage devices, dongles, encryption keys, personal data assistants (PDAs) or other memory storage devices, and...