September 14, 2014

I’M IN FAVOR OF STRICT OBSERVANCE OF THE POSSE COMITATUS ACT: Child pornography conviction overturned because the government violated the Posse Comitatus Act. But isn’t what’s really troubling, that a single Naval investigative agent could search every computer in a state at all?

Agent Logan’s search did not meet the required limitation. He surveyed the entire state of Washington for computers sharing child pornography. His initial search was not limited to United States military or government computers, and, as the government acknowledged, Agent Logan had no idea whether the computers searched belonged to someone with any “affiliation with the military at all.” Instead, it was his “standard practice to monitor all computers in a geographic area,” here, every computer in the state of Washington….

The record here demonstrates that Agent Logan and other NCIS agents routinely carry out broad surveillance activities that violate the restrictions on military enforcement of civilian law. Agent Logan testified that it was his standard practice to “monitor[] any computer IP address within a specific geographic location,” not just those “specific to US military only, or US government computers.” He did not try to isolate military service members within a geographic area. He appeared to believe that these overly broad investigations were permissible, because he was a “U.S. federal agent[]” and so could investigate violations of either the Uniform Code of Military Justice or federal law.

The extraordinary nature of the surveillance here demonstrates a need to deter future violations. So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over the information to civilian law enforcement when no military connection exists.

That seems like the buried lede here.

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