The Rights of the People (48 page)

The prosecutor appealed successfully to the New Hampshire Supreme Court. Without proof that a private party’s search was induced by prior “affirmative action by a governmental official,” it said, no agency relationship could be shown. The court found multiple facts establishing the independence of the college security officers: They were not asked by the police to do the search; they received no equipment, information, or assistance in the case; and they neither trained with, took instructions from, nor formulated policies jointly with the police. The marijuana was admitted into evidence.
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State universities operate under stricter rules, since their security officers are state agents in fact. They have at their disposal all the exceptions to the Fourth Amendment’s requirements that have been carved out by the courts, plus two: Searches can be made if students have signed a general consent as part of a housing agreement, provided the main purpose is not a criminal investigation,
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and “administrative searches” can be made for health and safety reasons with an easy-to-get warrant that doesn’t have a probable-cause requirement.
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In either case, if drugs are seen “in plain view,” they can be used as evidence.

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“If a burglar brings us documents he stole from someone’s house,” said a federal prosecutor in California, “the law is clear that we can use that information. There’s no Fourth Amendment violation, as long as we didn’t instigate the burglary.”

So, the private, high-tech burglar has flourished in the computer age like a digital bounty hunter. Immune from the Fourth Amendment, a hacker with a moral cause can burrow into people’s online crimes for the sheer satisfaction of seeing the criminals put away. Even if he violates anti-hacking laws, he hardly risks arrest by police who are grateful for his tips and files of electronic evidence. Even if he routinely helps law enforcement, the private nature of his activity is usually accepted by the courts unless there is clear proof that the police in a particular case knew of his upcoming search, acquiesced, or gave him guidance.

But the relationships between these computer vigilantes and the cops are often muddy, contradictory, and open to competing interpretations, as Ronald Kline discovered.

He was in his late fifties, a California State Superior Court judge in Orange County, when in May of 2000 he sat at his home computer and clicked on what appeared as a picture file. Instantly, a stealthy program known as a Trojan Horse was downloaded, making his computer accessible to Bradley Willman, a nineteen-year-old operating from his parents’ basement 1,300 miles away in Langley, British Columbia.

Willman had planted the malware (short for “malicious software”) on pornographic sites to catch people in possession of sexual images of children, a federal and state crime. Motivated by unspecified “incidents in his past that he had ‘very bad dreams’ about,” according to a Justice Department brief,
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the young man could sit comfortably in Canada and—committing a crime himself—search through the hard drive of every computer that downloaded his Trojan Horse. He could read personal files and e-mail, track Internet activity, and even monitor each keystroke. He believed that he had infected about three thousand computers.

It took him a while to get around to looking through Judge Kline’s files, but when he did, he struck gold. Along with some pictures, he found an electronic diary that “detailed defendant’s sexual interest in young boys,” the brief reported,

Willman didn’t give the diary directly to police. Using the pseudonym Omnipotent, he sent it anonymously to PedoWatch, an organization devoted to nabbing pedophiles; PedoWatch transmitted the diary to California authorities who notified the police in Irvine, where Kline lived. To make sure the diary was authentic, Detective Ronald Carr matched dates and details with Kline’s docket of court hearings, found that he belonged to the athletic club he mentioned, and verified that boys he named had played in games he had umpired.

It was harder to identify the tipster. Omnipotent told PedoWatch by e-mail that he had no further information. The e-mail account he’d used was registered under a false name and address, he didn’t answer Carr’s e-mails, and a subpoena for records of a site he had given PedoWatch as a storage place for files turned up a pseudonym as well.

The breakthrough came when PedoWatch gave Carr a Web site the tipster maintained, and the subpoenaed records revealed a false name but a real address. A Vancouver detective visited the house, found that Willman was living there, asked around, and heard that he had been in touch with a member of the Royal Canadian Mounted Police, George Barnett. Carr called Barnett, “who knew Willman because Willman had provided a March 2000 tip about a man who had offered over the Internet to provide his eight-year-old daughter for sex,” the Justice Department reported; Willman was a “predator hunter” who infected the computers of child pornography suspects, Barnett told the California detective. Carr and a U.S. Customs agent went to Vancouver to interview the young man.
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Like most private informants, Willman had traveled in a swampy landscape, breaking laws ostensibly to help law enforcement, and twice becoming a suspect himself. In 1998, a cooperating witness in a federal
case had downloaded pornography received from Willman, prompting “a Customs agent to alert his counterpart in Canada that Willman could be a criminal,” according to the government’s brief. The following year, U.S. Customs issued a “lookout report” at the borders based on speculation that he might try to enter the country to meet with a thirteen-year-old boy in Arkansas. Detective Carr also became suspicious after interviewing him and checking him out—suspicious enough to send e-mails suggesting that Willman “was likely a child pornography trafficker who Carr hoped Canadian law enforcement would prosecute.”

The Justice Department made a point of these incidents to argue that Willman was never a government informant subject to the Fourth Amendment. “He was completely unknown to the particular state and federal agents that used the fruits of his search here,” the government brief argued. “In fact, the agents had to conduct an investigation even to identify and locate him. A tipster can hardly be said to be working for government agents under these circumstances.” Had he been someone a government agency “either knew or should have known” was searching people’s computers, according to an earlier Ninth Circuit decision, his role might have made his search unconstitutional and the subsequent evidence inadmissible.
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But the government portrayed Willman’s association with law enforcement as “scattered and haphazard.”

Judge Kline’s lawyers saw more of a pattern. Willman had told investigators that he had given information to police in Canada, Kentucky, Arkansas, New York, northern California, and Texas, some before the Kline search, some after. “Law enforcement provided a number of benefits to Willman for his work for them,” Kline’s appeals brief noted: He was spared prosecution for possessing child pornography, the illegal materials were never confiscated, “nor did law enforcement ask him to return the money he made from his sales.” Furthermore, in the midst of ongoing cooperation, the trial judge found, law enforcement asked Willman for more information: Customs had requested his help investigating a Russian pornography ring.
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Indeed, despite the government’s attempt to dissociate itself from Willman’s searches, Detective Carr, in applying for a search warrant of Kline’s home, cited Willman as a source who had proved “reliable” in prior relationships with law enforcement.
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When the police confiscated Kline’s home computer, an investigator opened a video file depicting “two minor boys engaged in oral copulation.” The local district attorney’s office then turned the case over to Customs, which got federal warrants for the judge’s home and office computers.
The home hard drive contained the diary and more than 1,500 pictures of boys, including 100 pornographic images. “The court computer contained more images of naked boys,” the government reported, “diary entries discussing defendant’s sexual interest in particular boys, and records of defendant using his court computer to access websites that appeared to cater to pedophiles.”
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When Kline moved to suppress all this evidence as the fruit of an unconstitutional search by Willman, the trial judge agreed, finding that Willman was in effect an agent of the state. On appeal, government attorneys worried that the intermediary PedoWatch, which worked closely with law enforcement, might be considered a quasi-government agency. But Kline’s lawyers didn’t make that argument, and a three-judge panel of the Ninth Circuit saw no agency relationship.
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With the evidence reinstated, Kline pleaded guilty, and when the trial judge in February 2007 sentenced him to twenty-seven months in prison, he collapsed into the arms of his lawyer.
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He was placed in the Federal Medical Center at the Butner federal prison in North Carolina, evidently for treatment of his pedophilia.

“The Internet is a lawless country,” wrote a blogger. “Without those willing to establish justice, chaos will always ensue. Brad Willman should be handed a badge and a $100k salary.”
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Ah, but then he would need search warrants.

I
F THE WORLD’S
major intelligence agencies could be so thoroughly mistaken in their consensus that Iraq under Saddam Hussein possessed chemical and biological weapons in 2003, if all the espionage and surveillance powers of the United States, Britain, Russia, and others could combine themselves into such a colossal error, then how can mid-level operatives reliably conclude that someone is a terrorist? You might think that after providing the false rationale for launching a long, brutal, and unnecessary war, failed intelligence methods would be greeted with skepticism, especially when aimed at identifying dangerous individuals. But no, intelligence remains central to counterterrorism. Disjointed eavesdropping, unchecked hearsay, and maps of people’s contacts are assembled into caricatures—some accurate, some not.

It is well known that fragments of unverified intelligence, from searches and surveillance conducted outside the rigorous requirements of the Fourth Amendment, overwhelm analysts and send investigators on wild forays of speculation. Sometimes clear-thinking officials stitch together disparate scraps to produce legitimate prosecutions. But an initial thread of information can also be spun into a hunch and then a theory and then an elaborate scenario that weaves a tale of partial distortions and imaginary facts. That is what happened in the first major terrorism case after September 11, illustrating how the evasion of constitutional demands can corrupt an investigation. It began with a shard of misleading intelligence and continued in violation of rules that have matured in accordance with the Constitution—procedures that would have offered
a better chance of testing the government’s allegations and getting at the truth.

At the center of the case stood Karim Koubriti of Fez, Morocco, who had the misfortune to win a United States immigration visa in the annual State Department lottery. He had never dreamed that going to America would be possible, and had never imagined that being in America would be a nightmare.

Koubriti seemed an affable man. Six feet tall with a shaved head and a very short goatee, he smiled a lot and laughed easily at absurdities, although it was often a bitter laugh. His dark eyes looked wounded. On a strap around his right ankle, he wore a black box, about two inches square, that sent a signal through his phone when he was home near Detroit, as he was required to be at certain times of day.

His sister in Fez had heard about the lottery first. Every year, among millions of applications throughout the world, the State Department randomly chooses 50,000 for “diversity visas” from countries with low immigration rates to the United States. “She asked me if I wanted her to fill it [out] for me,” and he still remembered his sarcastic reply: “ ‘Yeah, right, I’m lucky.’ She was like, ‘I’m gonna fill it anyway.’ ” And she did: for him, for herself, for their cousin, all sitting in Morocco hoping to win. Koubriti’s number came up, and he alone got a coveted green card, certification of legal residence. “So why not?” he asked himself. “I have the green card! This is America!”

Just twenty, he had dropped out of college after two years of courses on French law. “I got tired of studying,” he admitted, “so my father opened a coffee shop for me. It was enough for me as a single man,” but not enough for the “better future” he thought America would offer. Like many, he was charmed by the promise. “That’s why everybody comes to the United States: make more money, allow you to get married and have children and have comfortable life.”