Guest v. Leis

Citation
Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) (full-text).

Factual Background
Upon multiple complaints, two electronic bulletin board systems were seized by the Hamilton County Sheriff Department and investigated for online obscenity. More than hundred images were downloaded from the bulletin boards and presented to the municipal court judge, who determined many of them were obscene. A search warrant was issued which authorized the search and seizure of computer hardware, software, financial and computer records.

Users of the system filed a class action lawsuit alleging violations of the First and Fourth Amendments, the Electronic Communications Privacy Act (ECPA), and the Privacy Protection Act (PPA).

The magistrate judge issued a report with recommendation to grant the defendants' motion for summary judgment on the ECPA, Fourth Amendment, and other constitutional claims, and grant qualified immunity to the individual defendants on the Fourth Amendment. The district court adopted the recommendation. Plaintiffs appealed.

Appellate Court Proceedings
Plaintiff's First Amendment] claims asserted that investigators exceeded the scope of their [[warrant, and did not state probable cause for seizing e-mail and subscriber information from the bulletin board system. The Sixth Circuit held that although there were some technical violations of the state law because the local officer and police left before the Hamilton County Regional Electronic Computer Intelligence Task Force (RECI)'s actual seizure of computer equipment occurred, the violation did not render the search and seizure unreasonable in constitutional terms.

Further, the court held that the users lacked a legitimate expectation of privacy in the materials intended for publication or publicly posted. The court noted that even though there were some communications on the computers that was not related to the offenses, the seizure did not become invalid. Technical difficulties did not allow the officers to separate the relevant files from unrelated files and this did not make the seizure of the computers, including their contents, unreasonable under the Fourth Amendment.

Further, the plaintiffs contented that the seizure was in violation of the Fourth Amendment protection because of the access to the subscribers' information. The court held that subscribers did not have a legitimate expectation of privacy under the Fourth Amendment because they revealed that information to a third person, the system operator.

The plaintiffs further alleged violation of their First Amendment protection because the seizure of the bulletin boards was a restraint on their free speech. However, the court held that there is no absolute immunity under the First Amendment for obscene material and police was permitted to seize the evidence of a crime pursuant to a valid warrant and prior determination of obscenity by a magistrate.

Plaintiffs then allege violation of the Electronic Communications Privacy Act of 1986 (ECPA) for accessing stored communications and subscriber information. Subsection (a) of the ECPA provides "the government may have access to the contents of electronic communications that have been stored 180 days or less only by using a warrant." The government may have access to information that has been stored for more than 180 days only if there is a warrant, subpoena or court order. Further, subscriber information may be provided to the government only upon a warrant, subpoena or a court order. The court held that there were no violations of the ECPA since the officials had a valid warrant.

The court found no violations of the Privacy Protection Act which prohibits the government from seizing work product materials &mdash; materials to be communicated to the public and contain the authors' impressions, opinions, conclusions, or theories. The court held that the officials avoid the Act's constraints when the author is "a criminal suspect, rather than an innocent third party." The court noted that the obscene images would not qualify as work product and only some materials seized were potentially protected under the Act. It held that "when protected materials are commingled on a criminal suspect's computer with criminal evidence that is unprotected . . . we will not find liability under the PPA for the seizure of the PPA protected materials."

The judgment of the district court was affirmed.