April 10, 2017

New Justice Gorsuch already ruled in favor of our argument

Can State created & funded orgs open email attachments w/o warrants?

New Justice Gorsuch referenced (Antoine) Jones precedent

New Supreme Court Justice, Neil Gorsuch, handed you another victory! But to realize the full potential of that victory, we’ll need to file an amicus curiae brief in the case…

United States v. Ackerman – involving an organization created, empowered, and funded by the federal government, opening an email attachment without a warrant.

Gorsuch was a judge on the 10th Circuit U.S. Court of Appeals. Recently, he returned the Ackerman case to the district court with a list of specific issues to address. Paramount among the issues Gorsuch listed is the precedent established by the case Jones v. United States.

Please remember…

  • The Jones decision (2012) was one of the most important victories we’ve achieved as a result of the briefs we file.
  • The landmark Jones ruling re-established the idea that the Fourth Amendment protects your PROPERTY from warrantless search and seizure.
  • From 1968 until Jones, Fourth Amendment cases were decided based on a weaker standard — did the searched person have a “reasonable expectation of privacy.”
  • That privacy standard still applies, but now as a secondary protection. The stronger property right standard is now primary.

Alas, not all judges have gotten the word about Jones. So we’ve been attempting to educate the judicial system about the Jones precedent by filing as many Fourth Amendment briefs as we can. Now, Judge Gorsuch has given us another chance to do that in United States v. Ackerman.

The case is unseemly. Ackerman is alleged to have sent a sexually explicit picture of a child via email. But all Fourth Amendment cases involve criminal charges. The point to remember is that these cases are NOT about shielding guilty people. They’re about protecting the rights of innocent people. In other words…

The Fourth Amendment is about protecting YOU!

  • Ackerman’s email attachment was flagged by AOL software.
  • Without reviewing it, AOL forwarded the picture to the National Center for Missing and Exploited Children (NCMEC).
  • NCMEC looked at the picture, then gave it to law enforcement.

Sounds fine, right? Here’s the problem…

  • The NCMEC is a government entity bound by the Fourth Amendment.
  • The NCMEC violated the Fourth Amendment the moment they opened a communication belonging to someone else, without first having a warrant.

The government contends that the NCMEC is a private, charitable corporation, NOT a government institution. The NCMEC is therefore not bound by the Fourth Amendment. Thus…

The moment the NCMEC opened the picture and saw that it was evidence of a crime, the NCMEC had a right to turn that evidence over to the police, and the police had a right to receive it, just as they can receive evidence or testimony from any other private entity. Once again, that all seems to make sense, until you realize that Congress…

  • Created NCMEC in the 1980s
  • Funds about 75% of NCMEC’s total budget
  • Requires ISPs to report actual knowledge of child pornography to NCMEC
  • Gives the NCMEC special powers and authority to receive, transmit, possess, and view child pornography
  • Requires NCMEC to report to law enforcement

In other words, NCMEC is an arm of The State, and subject to the Fourth Amendment.

Judge Gorsuch and the 10th Circuit seem to agree. But victory shouldn’t be assumed. Someone has to argue for the Jones standard to be applied in U.S. v. Ackerman. We think that “someone” should be us. We uniquely provided the rationale for the Jones ruling. Let’s do it again!

Please make your best contribution to help fund this brief…

  • We are working with the Downsize DC Foundation (home of the Zero Aggression Project) so that your donation can be tax-deductible, if you itemize. The Foundation issues annual receipts, by mail, in January.
  • We need YOUR support, regardless of the size of your contribution.
  • We are seeking a major donor who will take an interest in our Jones-based Fourth Amendment work. We have already filed a half-dozen amicus briefs in follow-up cases, including one late last month. The Jones precedent will be lost if we don’t spread the news through the court system. But it can and will expand if we spread the word by submitting amicus briefs like this one.

Thanks for being an ACTIVE DC Downsizer,

Jim Babka & Perry Willis
Downsize DC Foundation
& DownsizeDC.org, Inc.

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