United States v. Jarrett
The United States Court of Appeals (4th Cir.) ruled that an anonymous person who hacked into another individual's computer and turned that individual into authorities for possessing child pornography did not act as an agent of the government. The case, U.S. v. Jarrett, 338 F.3d 339 (4tth Cir. 2003), reversed a district court ruling that the anonymous person, identified by the Associated Press as a physician in Turkey who treated victims of child abuse, had acted as an agent of the government.
The Turkish physician, named "Unknownuser" in court documents, had posted an image on the Internet with a program attached known as Trojan Horse. When individuals downloaded the Unknownuser's image to their computers, Trojan Horse would allow him to hack their computers. In July 2001, Unknownuser gained access to the computer of Dr. Bradley Steiger, where he found evidence of child pornography. He copied the files and sent them to United States law enforcement officials who were able to identify and apprehend Steiger. Steiger was subsequently convicted of sexual exploitation of minors and sentenced to 210 months in prison.
On Dec. 3, 2001, Unknownuser e-mailed Kevin Murphy of the Montgomery, Ala. police department, saying that he had found "another child molester" identified as William Jarrett and asking how to contact the FBI. The following day, Unknownuser sent Murphy files he had downloaded from Jarrett's computer. The FBI initiated an investigation, and Jarrett was eventually charged with one count of manufacturing child pornography and seven counts of receiving child pornography. Jarrett moved to suppress the evidence against him claiming it had been gathered in violation of his Fourth Amendment rights. His motion was denied.
But after Jarrett entered a guilty plea, the government revealed that there had been e-mail correspondence between Unknownuser and FBI agent Margaret Faulkner. In a Dec. 19, 2001 e-mail, Faulkner thanked Unknownuser for his help in apprehending Jarrett. In what the appeals court characterized as a "wink and a nod," Faulkner continued, "[A]s long as you are not Ôhacking' at our request, we can take the pictures (found on alleged child pornographers' computers) and identify the men and take them to court. We also have no desire to charge you with hacking. You are not a US citizen and are not bound by our laws." In a later e-mail Faulker wrote, "You have not hacked into any computer at the request of the FBI or other law enforcement agency. You have not acted as an agent for the FBI or other law enforcement agency. Therefore, the information you have collected can be used in our criminal trials."
On the basis of this new information, Jarrett asked the court to reconsider his earlier motion to suppress the evidence against him. The district court granted his motion, and allowed him to withdraw his guilty plea, finding that law enforcement agencies and Unknownuser has "expressed their consent to an agency relationship." At this point, the government appealed the case to the federal appeals court.
Circuit Judge Diana Gribbon Motz wrote the unanimous opinion for the three-judge panel. To decide the case, she applied a three-part test. First, she wrote that courts "should look to the facts and circumstances of each case in determining whether a private search is in fact a Government search." She placed the burden of proof on the defendant to show that "the Government knew of and acquiesced in the private search and the private individual intended to assist law enforcement authorities." And finally, Motz wrote that there must be "evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional. Passive acceptance by the Government is not enough."
Based on the three-part test she set forth, Motz found that Unknownuser had acted as an individual, rather than an agent for the government, because the correspondence between Unknownuser and Faulkner had occurred after Unknownuser had gained access to Jarrett's computer. Because Unknownuser had not contacted authorities for seven months between his information concerning the Steiger and Jarrett cases, Motz ruled that his communication with U.S. law enforcement did not constitute an "ongoing" relationship. She continued, "[N]othing indicates that the Government had any intention of reestablishing contact with him. . .. Although the Government's behavior in this case is discomforting, the Government was under no special obligation to affirmatively discourage Unknownuser from hacking."
At the time the Bulletin went to press, no word had been given as to whether Jarrett would appeal the ruling of the appeals court.
—Elaine Hargrove-Simon
Silha Fellow and Bulletin Editor