from the files-not-forfeited-forever dept
A man convicted of child porn possession has been fighting to reclaim his personal emails and photos from the government, but so far has been rebuffed by its claims that separating the good and bad files would be too difficult to pursue. A lower court agreed with the government's assessment of the situation, but this has now been overturned by the Ninth Circuit Court of Appeals.
As the ruling notes [pdf link], the lower court failed in its duty to shift the burden of proof from the convicted man to the government.
The panel held that the district court’s decision not to put the burden of proof on the government was legal error, where the defendant filed the Rule 41(g) motion after he pleaded guilty and the government no longer needed his property as evidence. The panel held that the government could not have carried its burden of proof had the district court correctly placed it on the government, where the government failed to submit any evidence of the difficulty and costs of segregating the defendant’s data, which it claimed was a legitimate reason for retention of the noncontraband files.While keeping in mind that the government can raise legitimate concerns about the cost and difficulty of segregating data, the lower court allowed the government to make unsupported claims about the task at hand. While the government did file some paperwork along with its opposition to the release of the files, nothing it submitted bore relevance to the case at hand.
The government attached three exhibits to its opposition brief: (1) a document listing some of Gladding’s property the government found to be noncontraband; (2) email correspondence between counsel; and (3) the transcript of a hearing on a similar dispute in a different case. None of the exhibits established the burden or cost to the government of segregating contraband from noncontraband computer files.Gladding hired a digital forensics expert who was able to retrieve a great deal of the non-criminal files, despite arguments from the government that doing so was technically unfeasible. But there were still some files left that Gladding wanted returned and, again, he was stonewalled by the government, with an assist by the district court, which muffed the "burden of proof" determination.
The district court did not expressly state whether Gladding or the government had the burden of proof on the motion. However, the parties impliedly concede the court put the burden on Gladding. And the district court’s brief analysis denying Gladding’s motion sheds light as to whom the district court thought should bear the burden of proof. The district court denied Gladding’s motion because it was “satisfied” by the government’s “representations” that it is “almost impossible to separate [the noncontraband files] out.”This looks an awful lot like a deferral to the government -- contrary to the one of the main prongs of the judicial system: to act as a check against government overreach or misconduct. This failure may have only been an "error," but it's the sort of error that undermines the system's integrity.
But representations are not evidence, unless adopted by the opponent. The government failed to submit any evidence of the difficulty and cost of segregating Gladding’s data, which it claimed was a “legitimate reason” for retention of the noncontraband files. For that reason, the government could not have carried its burden of proof had the district court correctly placed it on the government. The district court’s decision not to put the burden of proof on the government was legal error.
There were multiple options available to the government to help mitigate the costs and difficulty of separating the data -- including passing those costs on to the requester -- but it was allowed to simply declare the effort to be too much trouble. By failing to shift the burden of proof, the court screwed Gladding and basically gave the government a pass to hold onto unrelated, non-criminal data for as long as it wanted to. Fortunately, the appeals court reversed the previous decision and forced the government to make an active effort to return the unneeded files. As it points out, child porn possession may be an odious offense, but a criminal's computer is rarely used solely for criminal activities.
Many people store every aspect of their lives on electronic devices. Those devices are brimming with correspondence, schedules, photographs, and music. As a result, a crashing computer or a lost smartphone can lead to catastrophic results for a person who failed to back up that data; the only record for years of a person’s life can be lost in an instant.Even if the good and bad are intermingled, the non-offending files still belong to the convicted person. The potential loss of personal data isn't presumed to be part of the "consequences" of criminal behavior. The government's unchallenged assertions about the inseparable nature of Gladding's files effectively argue that convicted persons have no right to their own files, much less the expectation that non-criminal, non-investigative data will be returned to them when no longer needed.
Criminals who possess child pornography are no different. Those criminals may likewise store important aspects of their lives on their electronic devices. But along with the normal risks of losing their personal data, such criminals also risk losing that personal data when the government seizes their devices for evidence of child pornography.