Steven Walski
The state has filed an answer opposing a motion by attorneys for a Mountain Home man facing 99 counts of possessing child pornography to have all evidence in his case thrown out.
The 19-page motion filed by the defense contends the information on the affidavit used to obtain the initial search warrant in Baxter County was deficient in several areas and not valid.
There were several search warrants issued during the investigation that eventually implicated 34-year-old Steven Walski.
The team of defense lawyers claims that since the original warrant was not valid, any evidence gathered using warrants issued later in the investigation would be invalid as well.
The state contends warrants issued during the investigation of the case were valid and that evidence was gathered legally and asks the court to dismiss the defense’s motion to quash.
Sheridan attorney Jeremy Lowery told the court recently, because “there was no human being on the other side of this tip – just a corporation – that there was no way to determine how the person gathered the information and whether the person was reliable.”
The state contends the private company that first reported the suspect Child Sexual Abuse Material (CSAM), Synchronoss, uses an automated system set up to recognize suspected child porn, not a single individual.
When suspect material is detected, the company’s automated system reports the find to the National Center for Missing and Exploited Children (NCMEC).
In answer to the defense’s contention that no one person is identified in the affidavit, the state points out, “A Synchronoss employee does not view the information or image before it is reported.”
Once the suspect material is sent to NCMEC, it is viewed for the purpose of establishing that it does contains CSAM material and a cybertip is generated and sent to local law enforcement.
When the cybertip was received, a Mountain Home Police Investigator did review files using a secure access system and confirmed they did meet the criteria for CSAM.
In addition, the defense contends there was no information contained in the affidavit to give any picture as to whether or not the data was “stale.”
The state points to several factors that establish the information in the affidavit fell outside any definition of stale.
One factor is that Synchronoss’ detection system works “immediately” to identify material suspected of containing CSAM and to send it on to NCMEC.
The state also points out that the affidavit contains the phrase, “there is now being concealed” certain property – evidence of distributing, possessing or viewing matter depicting sexually explicit conduct involving a child. The word “now” is sufficient to indicate the information in the affidavit was current and not dated, the state contends.
In its answer the state says Walski, “agreed to the monitoring” of his stored material when he signed Synchronoss’ terms and conditions.” The private company “did not need probable cause to search his account.”
INVESTIGATION AND ARREST
Walski was arrested in early November last year following an investigation spanning several months.
The investigation was triggered by the tip from Synchronoss, a company that offers various services to providers such as Verizon and AT&T, sent to the National Center for Missing and Exploited Children and passed on to law enforcement in Mountain Home.
According to the probable cause affidavit, the user, later identified as Walski, had violated the company’s terms and conditions by manipulating an image containing Child Sexual Abuse Material (CSAM).
During the investigation it was determined that several downloads of CSAM were allegedly made by and traced to Walski.
According to investigative reports, a large majority of the images depicted nude pre-pubescent females engaged in sexual contact with adults or who had been “sexually posed.”
WHAT HAVE COURTS SAID
There have been rulings by a number of courts in different states on this issue.
Most have found that a “private search” for child pornography by corporate entities, such as AOL, Synchronoss and other providers, is not a violation of a persons fourth amendment rights.
As in the Baxter County case, the suspect material was identified by the use of electronic tools such as the Image Detection Filtering Process.
Once suspect material is identified, companies like Synchronoss are required by federal law to turn it over to the National Center for Missing and Exploited Children (NCMEC).
Courts have also fairly consistently held that the providers and NCMEC are not police or agents of law enforcement and not required to have a warrant to check out suspect material being sent or received through their networks.
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