Friday, December 7, 2012

Weindl: Why the court got it right, and the FBI agent/father shouldn't be viewed as a government agent

You'll have to forgive my co-blogger and me for turning our blog into a blog almost entirely about this Weindl case (United States v. Weindl, No. 1:12-CR-00017 (D.N.M.I. 2012), but as you're probably well-aware by now, it's an important case on the issues presented - and one likely to be appealed to the Ninth Circuit after the trial.

It's not often that Justin and I disagree. But in this case, while I find noble his attempt to argue for strengthened privacy rights under the Fourth Amendment, I cannot say that I find his reasoning compelling (see his previous posts here, here, and here). Justin argues that FBI Agent Auther left eBlaster on the computer intentionally because he suspected Weindl of "questionable activities," which apparently means that Auther knew that not only would Weindl fail to return the computer to the proper place, but that he would also watch child pornography on it. Perhaps Auther's training and experience gives him a sixth sense about such things, but it just doesn't seem likely. What is more likely is that he simply thought eBlaster had been deleted (after all, he did try to have all data removed twice), and he returned the computer as he was supposed to have done. Does law enforcement always comply with the Fourth Amendment? No. Does this seem like a case of an agent trying to circumvent the Fourth? Not really.

The issue that Justin and many others are raising and focusing on is the fact that Auther is an FBI agent. Yes, he is that, but he's also a parent, and as a parent, he should have the right to protect his children from content he doesn't think they should be viewing. That was his intent in installing eBlaster on the computer (unless it was an elaborate attempt to catch the principal beginning months before he even knew the computer would be returned). Who cares if he didn't own the computer? The school shouldn't be allowed to give students computers, and then tell parents that they're not allowed to attempt to prevent their children from viewing pornography, learn how to make meth, or whatever else kids do on computers nowadays. If Auther didn't want his son doing illicit activities, and this was the method he chose to make sure that didn't happen, then good for him. The point is that he didn't install it because he worked for the FBI nor did he install it for the purpose of wiretapping or searching Weindl's activities - he did it because he felt it was the best method for protecting his son.

So let's suppose Auther wasn't an FBI agent. "New Auther" is a grocery store manager, a father of three, happily married for 16 years. Semi-religious, and though not entirely opposed to the viewing of pornography, he thinks that his oldest son (in his mid-teens) is too young to be viewing it. He asks a co-worker what he can do, and the co-worker suggests eBlaster. He then downloads it and installs it on the computer where it sends him reports for the next few months. When New Auther is transferred to a grocery store in another state, he asks his computer friend/co-worker to remove all of his son's files. The co-worker is unsuccessful. He takes it to a computer store where they "reimage" it, making him think the computer has received a fresh start, free of eBlaster and everything else. He then returns the laptop to the school's principal, an acquaintance (not buddies, but something above Facebook friends). A couple weeks later, New Auther gets four eBlaster reports showing that the computer is now being used to view child pornography.

Those are essentially the same acts of real Auther, and those are the reports that the court refuses to suppress. After that point, Auther's actions do arguably cross the line into a government search. But those actions of a concerned parent that looked at the e-mails he received - those actions could have come from anyone - FBI agent or not. It is irrelevant that he opened all of the e-mails he received  - even if there were four of them. This was a mistake by someone who happens to also have a full-time job as a government agent, as opposed to a government agent who happens to make a mistake (and even that doesn't always warrant suppression thanks to good faith and other exceptions). This was not the case of Big Brother installing spyware on everyone's computers in order to capture our Internet activity (as if they actually need to go through that much trouble!).

Justin also argues that Weindl "certainly was not doing anything illegal." The computer loan program was a federally funded program to give students laptops for educational purposes. My guess is that under the terms of the grant, each laptop had to be accounted for at all times, and they probably are not allowed to just loan the computers out to anyone. By policy, they were only given to students and were never given to faculty. Anyone - especially the principal of the school - should have known that it went against the terms of the grant for a non-student to take possession of the laptop. My guess is that Weindl is smart enough to know that in taking possession of property purchased with federal government money and choosing to use it for personal purposes (especially viewing child pornography!), he's probably violating some sort of law for that possession.

There is something that my co-blogger and I agree on - I absolutely agree that the installation of eBlaster onto a person's computer without their knowledge and permission is a wiretap, in violation of the federal Wiretap Act. Where Justin and I would differ, however, is whether Auther's actions were intentional (as the Act requires). He thinks Auther intentionally left eBlaster on the computer in order to intercept Weindl's activity. I, however, would likely come down on the other side.

And... done. Are we finished talking about Weindl? Maybe.


  1. I understand what and why you are believe what you wrote. But you are wrong for 1 very important reason: Auther VIOLATED the Software License Agreement by installing the software on a laptop he did NOT own. Nor had he secured permissions from either the software company or the owner of the laptop to do so.

    Being an agent of the law does NOT put you above the law. The laws apply to everyone, equally. Yes, it's understandable why he did it, but it still doesn't make it right.

    And a few other points that are not in Auther's favor: Going to the Weindl or any other place and flashing his badge was a serious misuse of his authority. 1. This was not a case assigned to him. 2. He was well outside his jurisdiction. 3. The issue involved someone he had been close friends/acquaintances with and he should have recused himself.

    No matter how you slice it, the wrongs don't add up to a right. I am not, in any fashion, saying that what Weindl did was right or acceptable, but neither were Auther's actions.

    If Auther was concerned about what his child was doing on the internet, he could have chosen to return the laptop to the school and purchased one for his son. In such a case he would have been within his rights to install the spy software.

    If he had any suspicions regarding Weindl, there were more appropriate ways to pass those concerns on and the investigation, if those in charge felt it warranted, would have proceeded. Face it, what he did smacks of entrapment. Yes, he allegedly tried to have the laptop re-imaged and cleaned up, but what person does not check to make sure that the work has been completed as contracted?

    No, there is something really fishy about the whole thing. And neither man was in any way correct in the actions he took. And I believe they both know it.

    1. In a perfect world, everyone would read software license agreements in their entirety and abide by them. This world is not that one, and Auther did violate the policy. That act, however, doesn't violate Weindl's Fourth Amendment rights, and that is what is at issue here.

      The court drew a line - holding that Auther's acts before a certain point were not as a government agent and acts afterward were. When he installed the software, returned the computer, and even checked the initial e-mails, he was not acting as an FBI agent. Anyone could have done those same acts. His 9 to 5 job is irrelevant for that analysis. His later acts were problematic. The court noted that, and ordered later evidence to be suppressed.

      The other Fourth Amendment issue is whether Weindl had an expectation of privacy in the computer. That analysis didn't turn on the software license, but instead the fact that he didn't own the computer. In fact, he possessed it contrary to school district policy and federal law. That's why he didn't have a privacy interest - not because Auther violated a license agreement.