Accessing Secure Zoom Room Is Evidence of Conspiracy, Third Circuit Affirms
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
On-camera participation in a password-protected Zoom videoconference may be relied upon as evidence of a conspiracy, the Third Circuit recently held. In that same decision, the Court held Zoom user logs are “classic business records” that may be introduced into evidence.
Dylan Heatherly and William Staples frequented a password-protected Zoom room where users frequently shared internet pornography. Rather than download images or videos, users in a Zoom videoconference room can play videos and share their screens. The software’s chat function allowed attendees to share messages with each other.
One evening in 2015, a Canadian law enforcement officer logged into a Zoom conference room that she knew was used to share child pornography. While in the room, she recorded the videos and images that were displayed and saved the public messages. One participant livestreamed himself sexually abusing a child. The chat comments during the livestream suggested the abuser was in Pennsylvania. The officer then contacted U.S. Government agents to notify them about what she was witnessing.
U.S. federal agents telephoned Zoom’s CEO to help in their investigation. Zoom gave the agents the IP address of the livestreamer, which they used to identify his grandmother’s house in Carlisle, Pennsylvania. Police obtained a search warrant for the house and found the young abuse victim there. Police eventually followed IP addresses to many of the users who were in the Zoom room on that evening of the livestream.
Federal prosecutors in the Middle District of Pennsylvania indicted fifteen defendants. Twelve pleaded guilty, one died before trial, and two made it to trial: Heatherly and Staples. At trial, over the defendants’ objections, the District Court admitted into evidence explicit videos shared in the Zoom room from the night of the livestream and user activity logs. The activity logs showed the times Heatherly and Staples logged into the room, the time videos were shared, and the user chat messages.
The jury convicted both defendants of receiving or distributing child pornography and conspiring to do the same, and Staples of conspiring to publish a notice or ad seeking child pornography. The District Court sentenced Heatherly to twenty-five years imprisonment, and Staples to thirty years. Both defendants separately appealed their convictions on multiple grounds to the U.S. Court of Appeals for the Third Circuit.
Staples and Heatherly argued on appeal that the Government presented no evidence of a conspiracy. The Third Circuit disagreed and issued a joint opinion on both appeals.
The Court first addressed Staples individually, stating that while he was logged into the Zoom room, the chatroom users asked for child pornography “countless times.” Staples argued he never agreed with those requests. But, the Court held chat logs showed the users acted together “as part of a single, coherent group,” and that Staples was an “active participant” who “publicly celebrated” when other users posted videos. The Court dismissed arguments Staples’s arguments that the chat records were impermissible hearsay, holding that Zoom’s user activity logs are admissible as “classic business records.” On that record evidence, the Court held a jury could “certainly” conclude Staples was “tacitly working” with the group to request and obtain child pornography.
The Court additionally held the Zoom room’s security measures, namely requiring a 10-digit user ID and active webcam use, were circumstantial evidence of a conspiracy. Those security measures “suggested the users were working together” because “at least, they had to tell each other what the password was and to turn on their cameras.” It did not matter, the Court held, that Staples never explicitly agreed with another user to post a notice seeking child pornography.
The Court then turned to Heatherly and summarily dismissed his arguments “for the same reasons” as it dismissed those of Staples. But, the court added, unlike Staples, Heatherly was in the room commenting during the livestream.
After dismissing the appellants’ other arguments, the Third Circuit affirmed Staples’s and Heatherly’s convictions and sentences.
Read the U.S. Court of Appeals for the Third Circuit’s full opinion in U.S. v. Heatherly and U.S. v. Staples.
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