Sunday, October 17, 1999
Judge: E-mail seizures were legal
Documents may be taken with evidence
BY BEN L. KAUFMAN
The Cincinnati Enquirer
Innocent users' e-mail can be seized along with evidence of suspected computer crimes, according to a federal judge in Cincinnati.
U.S. District Judge Herman J. Weber said two Tristate confiscations did not violate users' privacy, First Amendment rights to free speech and association, or Fourth Amendment freedom from unreasonable search and seizure.
The judge also said posting something on a computer bulletin board did not turn it into material meant for publication that is protected by a recent privacy law.
Judge Weber's recent deci sions vindicated 1995 raids by the Hamilton County Regional Electronic Computer Intelligence Task Force in Clermont and Butler Counties.
E-mailers represented by civil rights attorney Scott Greenwood sued, saying there were no grounds for grabbing messages and files of people who were not suspected of computer crime.
In a series of rulings, Judge Weber rejected their arguments and finally dismissed their suits.
His decisions are being appealed, Mr. Greenwood said. “We think he's wrong on all of it.”
Defendants included Sheriff Simon L. Leis Jr., the task force and its officers.
The victories also allowed
the sheriff to revisit his conflict with then-Prosecuting Attorney Joseph Deters over the computer raids and legal fallout.
Sheriff Leis recalled that Mr. Deters — now Ohio state treasurer — “publicly stated that the sheriff's office was acting wrongfully, that the action of the sheriff's office would cost the taxpayers millions of dollars, and where Mr. Deters refused to represent the sheriff's office because he believed it had acted against his legal advice.”
That still rankles Sheriff Leis.
“The cost to the taxpayers was caused by Mr. Deter's refusal to do his duty and required the sheriff's office to hire outside counsel,” Sheriff Leis said. “These two cases are typical of Mr. Deters' constant efforts to ridicule or demean the sheriff's office.”
Not so, Mr. Deters responded. “I have the greatest respect for the sheriff's office. My grandfather (Dan Tehan) was the county's greatest sheriff.”
However, task force members said incorrectly that Mr. Deters' top aides gave the go-ahead for the raids, Mr. Deters continued. “They did it against our advice.”
After Mr. Greenwood revealed that conflict and questioned those aides, Mr. Deters said, there was a “clear conflict” and outside lawyers had to be hired to defend the sheriff and task force.
Those attorneys, Michael Maundrell, Lawrence Barbiere and John Hust, won both cases:
• Steven Guest, one of 6,000 users of the Cincinnati Computer Connection Bulletin Board System in 1995, initiated a $60 million class action after task force members seized operator Bob Emerson's equipment from Mr. Emerson's Clermont County home.
Officers said they were looking for 45 sexual scenes that were too explicit for the Internet.
Mr. Emerson pleaded guilty to six counts of attempted pandering obscenity and was sentenced to three years' probation and fined $1,000 in Clermont County Common Pleas Court.
• Michael O'Brien sued after task force officers confiscated the computer he used for business and his teen-age son Noah used in 1995 to operate the Spanish Inquisition Bulletin Board System from Mr. O'Brien's Butler County home.
Officers said they were looking for kiddie porn, pirated software and tools for breaking into other computer systems.
Mr. Greenwood said Noah O'Brien pleaded no contest in Hamilton County Juvenile Court to attempting to disseminate information that would help hackers break into another computer system. He was put on probation and given a small fine, Mr. Greenwood said.
Neither Mr. Guest nor Michael O'Brien was accused of any wrongdoing.
Both complaints have been working their way through federal court for more than three years and, in a series of rulings, Judge Weber said:
• The warrants were sufficiently specific to comply with the Fourth Amendment and the fact that the raids were outside Hamilton County did not invalidate the searches.
• Task force search warrants complied with the Fourth Amendment ban on unreasonable searches and that was sufficient to protect the users' First Amendment free speech and association.
• Searchers did not exceed their authority under the warrants.
• The searches and seizures were legal because officers had probable cause to believe the computers were used to commit crimes.
• That there was legal as well as illegal materials on the computers did not invalidate the confiscations.
• The Privacy Protection Act did not protect users' materials from confiscation. That act generally extends the Fourth Amendment ban on unreasonable searches to materials meant for publication by journalists and others not suspected of crime.
• Posting e-mail on computer bulletin boards was not publication nor did it turn those e-mails into protected material meant for public distribution under the Privacy Protection Act.
• Even if the materials were protected by the act, they were at least jointly in Mr. Emerson's possession and exempt from privacy act protection because he was suspected of computer crime.
Now that Mr. Greenwood has filed his notice of appeal, he and the sheriff's outside attorneys will explore whether the issues can be mediated before the lawyers pursue full-blown preparation and appearances before the U.S. Court of Appeals for the 6th Circuit. So far, the Guest class action has cost taxpayers $107,000 for outside counsel; the O'Brien suit, $67,000, according to sheriff's spokesman Steve Barnett.
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