Aaron Morris' Business Law Alert : Orange County Business Litigation Lawyer & Attorney : Morris & Stone Law Firm : Santa Ana, Tustin, Irvine, Newport Beach, Southern California, CA

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You may recall reading of the case of Judge Kline from the Orange County Superior Court. A hacker hacked his computer, found child pornography and alerted police. The issue raised by the case was whether this illegally obtained information could be used to prosecute Kline, given that there was a connection between the hacker and police by way of certain watchdog groups.

Privacy is a fundamental interest that society has long championed in the United States, and it is that reverence that has caused some to react negatively to a recent 9^th Circuit holding that seemingly abridged the constitutionally protected right.¹ In the unpublished decision of U.S. v. Kline², the 9^th Circuit held that a Canadian hacker who had used Internet "watchdog" groups to communicate with law-enforcement personnel in furtherance of obtaining evidence of child pornography, was not an agent of the state sufficient to raise constitutional protections.

It appears that the reason the court so held was because the hacker was not in direct communication via the Internet "watchdog" group with the law enforcement agency he ultimately provided the incriminating evidence to; the Irvine Police Department of Orange County, California. The Court was not persuaded that communications with and knowledge of the intrusive investigation techniques by some government bodies was sufficient to make the hacker an agent of the state with respect to the Irvine Police Department. Rather, the Court indicated that in order to find the hacker an agent of the state the Irvine Police must have known or should have known of the hackers activities prior to the search, and further must have acquiesced in some manner to thereto.

How one interprets the effects of the holding will largely depend on their own disposition. Should one be of the inclination that constitutional rights must be guarded with fire and sword, it may be disturbing that law enforcement could passively affiliate themselves with Internet watchdog groups in order to circumvent the 4^th Amendment’s protections. Or, one could also consider that there has yet to be a level of social involvement paralleling that in ousting child-predators. When the holding is viewed in that light, the likelihood that law enforcement would have such vigorous intermediaries to work with on other criminal matters becomes increasingly slim, and the holdings impact on privacy rights abroad lessens accordingly.

Regardless of one’s position on the issue, Kline highlights the need for intensive discovery in ascertaining precisely where incriminating evidence came from, how it was obtained, and who participated in acquiring it. Moreover, even though Kline was not selected for publication, it dually reminds of the need to have secure computer storage regardless of criminal or civil settings, for the 9^th Circuit has clearly demonstrated an inclination to find in favor of admissibility where the connection between the government and the actor is particularly tangential.

1.  See Sagi Schwartzberg, Hacking Away at The 4^th Amendment, L.A. Daily Journal 4 (Dec. 2, 2008).

2.  U.S. v. Kline, 112 Fed.Appx. 562 (9^th Cir. 2004) (not selected for publication).