case law update

NCIS Investigation of Civilian Computer Crimes Violated Posse Comitatus Act

Although Naval Criminal Investigative Service Special Agents are civilians, they work for the military and further military goals.  Thus, they are prohibited from enforcing purely civilian laws under the Posse Comitatus Act, according to an en banc panel of the United States Court of Appeals for the Ninth Circuit, and should not have investigated a civilian for downloading child pornography. 

The Naval Criminal Investigative Service (“NCIS”) is a law enforcement agency within the Department of the Navy which employs civilian criminal investigators.  It is limited to investigating crimes related to military interests and personnel. 

In 2010, NCIS Special Agent Chris Logan of Brunswick, Georgia, initiated an investigation into the distribution of child pornography in Washington State.  To do so, he and other NCIS agents used RoundUp, an investigative computer tool which tracks transmission of computer files known to contain child pornography across peer-to-peer file sharing networks.  RoundUp lacked the ability to tracks files shared only by Navy or military personnel; instead, searches could be limited by geographic area.  Special Agent Logan limited his search area to Washington State. 

When RoundUp detected the transmission of suspect files, Special Agent Logan downloaded copies and confirmed that they contained child pornography.  Special Agent Logan was able to determine the downloader’s Internet Protocol (“IP”) address, which was near Navy facilities in the greater Seattle and Tacoma area.  Special Agent Logan, with assistance from the National Center for Missing and Exploited Children and the Federal Bureau of Investigation, he obtained an administrative subpoena by stating in part that the IP address originated “in [an] area of large DOD and USN saturation indicating likelihood of USN/DOD suspect.”  The administrative subpoena was issued to Comcast, which in turn identified the IP address as belonging to Mr. Michael Dreyer of Algona, Washington.  Mr. Dreyer was not affiliated with the military.

Special Agent Logan’s materials were passed on to local NCIS agents and ultimately to other law enforcement officers.  From Special Agent Logan’s materials, a search warrant was obtained, and child pornography was discovered on Mr. Dreyer’s computer.  Mr. Dreyer was arrested and charged with violating state and federal child pornography laws. 

Before the United States District Court for the Western District of Washington, Mr. Dreyer moved to suppress the materials found as being obtained in violation of the Posse Comitatus Act, which generally prohibits use of the military to conduct civilian law enforcement activities. The District Court denied the suppression motion and Mr. Dreyer was convicted of possessing and distributing child pornography.  Mr. Dreyer was sentenced to 18 years imprisonment, to be followed by a life term of supervised release. 

Mr. Dreyer appealed to the United States Court of Appeals for the Ninth Circuit, which found that the Posse Comitatus Act was violated because the Navy was involved in civilian law enforcement.  The Court of Appeals further ruled that this violation required suppression, and thus the Court of Appeals reversed Mr. Dreyer’s conviction.  The Government requested an en banc review before a panel of eleven appellate judges, which was granted.

Before the En Banc Court of Appeals, the Government argued that NCIS is a civilian Agency with civilian investigators who report to a civilian agency head, and thus, they were not acting as a military entity which is generally prohibited from enforcing civilian laws unrelated to military interests.  The En Banc Court of Appeals found that while NCIS was headed by a civilian and largely made up civilians, NCIS agents still represent and further the interests of the Navy, report directly to the Navy, and are agents of the U.S. military. 

The Government then argued that NCIS’s actions did not violate the Posse Comitatus Act because they were permissibly assisting civilian law enforcement rather than enforcing civilian laws themselves.  The En Banc Court of Appeals disagreed, explaining that NCIS initiated the investigation, observed peer-to-peer file sharing, confirmed that the materials were actually child pornography, and sought an administrative subpoena.  Also, Special Agent Logan’s investigation directly led to the issuance of a warrant to search Mr. Dreyer’s computer.  Thus, NCIS was directly involved in investigating and enforcing civilian laws. 

Additionally, the En Banc Court of Appeals ruled that Special Agent Logan exceeded his authority and the scope of NCIS’s mission when he when he “used RoundUp to conduct a statewide audit of all computers engaged in file sharing.”  Given this wide area, Special Agent Logan “kn[ew] the sweep would include countless devices that had no ties to the military and thus did not fall under the jurisdiction of the Uniform Code of Military Justice.  The investigation in this case was not reasonably tied to military bases, military facilities, military personnel, or military equipment. . . .  Logan and the NCIS agents who worked with him spearheaded a law enforcement investigation that would inevitably encompass mostly civilian-owned computers.  We cannot conclude that the investigation had a legitimate independent military purpose because the methodology NCIS employed so clearly violated DoD and naval policy, as well as the boundary Congress imposed through the PCA and [10 U.S.C.] § 375.” 

The En Banc Court of Appeals recognized that because the RoundUp program was accurate to a 25- to 30-mile radius, it might reasonably be used to detect criminal activity by military personnel stationed at remote facilities with minimal risk of encompassing a large number of civilian computers.  However, under the circumstances here, the download of illicit materials in the greater Seattle and Tacoma area was not sufficient for Special Agent Logan to conclude that the targeted IP address likely belonged to military personnel just because there are military facilities in the area. 

Notwithstanding, the En Banc Court of Appeals found that a violation of the Posse Comitatus Act did not require suppression.  The En Banc Court of Appeals ruled that suppression is generally only appropriate for violation of constitutional rights.  Moreover, the En Banc Court of Appeals found that NCIS had not acted with intentional disregard for its limitations, but instead had been confused about its jurisdiction, and this suppression was not required to deter further similar conduct.  Accordingly, the En Banc Court of Appeals denied Mr. Dreyer’s suppression motion and affirmed his conviction. 

You can read the full case: U.S. v. Dreyer


This case law update was written by Michael S. Causey, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases

Posted in Case Law Update

Tags: case law update, michael s causey

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