RICHMOND, Va. (CN) - A Fourth Circuit ruling that backs the search of a house for child porn based solely on evidence that its inhabitant clicked a single link in the dark reaches of the web is stirring outrage.
“Links can be created and propagated throughout the internet, and we may not know their origin,” Electronic Frontier Foundation staff attorney Aaron Mackey said in a phone interview. “They might be shared with you; they could be used for pranks or criminality. That is a problem.”
The foundation spoke out Friday on the heels of a 2-1 ruling from the federal appeals court in Richmond that upholds the warrant police used to search the Purcellville, Virginia, home of Nikolai Bosyk.
Investigators did find child porn — thousands of images and videos on multiple digital devices — but Boysk fought to suppress the evidence against him on the basis that the government lacked probable cause for its warrant.
While the appeal has been underway, Boysk is serving five years in prison as part of a plea deal.
William Ashwell, an attorney for Boysk with the Warrenton law firm Mark B. Williams & Associates, noted that their fight is not over.
“The importance of the issues raised in this appeal cannot be overstated and will constitutionally impact countless individuals now and in the future,” Ashwell said, vowing to seek a rehearing en banc and Supreme Court relief if that fails.
“The digital age will continue to raise complicated and diverse issues for our justice system to consider,” Ashwell continued. “It is our hope that everyone recognizes the importance of safeguarding individual civil liberties in the internet age.”
Prosecutors got the warrant to search Boysk’s house as part of a federal investigation of an online message board that the government has said was “dedicated to the advertisement, distribution and production of child pornography.”
After subpoenaing a separate file-sharing site that one member used to post four videos of underage girls engaged in sex acts, investigators found the IP address that another subpoena traced to Bosyk.
Writing for the court majority Thursday, U.S. Circuit Judge Albert Diaz emphasized that the URL that Bosyk clicked cannot be separated from the rest of the post.
“Accompanying the link was a message describing its contents unmistakably as child pornography, as well as numerous thumbnail images depicting sexual molestation of a female toddler,” wrote Diaz, who was appointed to the bench by President Barack Obama. “And if you clicked the link, it took you, as promised, to multiple videos of child pornography.”
Later Diaz said: “This context provides evidence about the probable knowledge and intent of the user that is otherwise lacking from the face of the URL.”
What concerns internet-privacy groups, however, is the precedent that the case sets.
“The court made some leaps about the temporal connection between law enforcement finding this link and when the IP address associated with Mr. Boysk’s internet access accessed it,” said Mackey with the EFF.
U.S. Circuit Judge James Wynn, another Obama appointee, dissented from the court’s holding.
“I believe the majority opinion displays a troubling incomprehension of the technology at issue in this matter,” Wynn wrote before noting the affidavit included no information about Bosyk’s membership to the targeted message board or his attempt to download the offending files connected to the URL.
“The majority opinion’s finding of probable cause, therefore, rests entirely on the premise that the affidavit established a fair probability that someone using Defendant’s IP address ‘clicked the link having encountered it on [Bulletin Board A],’” Wynn wrote. “The government’s failure to establish that sequence of events fatally undermines its effort to rely on temporal proximity as a circumstantial basis for proving that someone using Defendant’s IP address navigated to the URL through Bulletin Board A.”
Mackey, who said they got involved in the case to specifically address concerns around the technological understanding of the issue like Wynn suggested, said he hopes law enforcement is more aware of how IP address and actual access intersect with civil rights when they use similar investigation techniques in the future.
“They should include [additional] information so it’s more than just a link, but we’re still worried about what this means for internet users,” he said. “We’ll continue to push for what we think is the correct view, that the single click of a link is insufficient to establish probable cause.”
Representatives for the Department of Justice did not return a request for comment. U.S. Circuit Judge Julius Richardson, a Trump appointee, joined Diaz in the majority.Follow @@BradKutner
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