A Canadian hacker breaking into a California judge's home computer to find child porn and inform authorities may have acted illegally but not as a properly defined government agent.
So said a three-judge appeals court panel that overturned a lower court order that that evidence be suppressed.
Orange County, California Judge Ronald C. Kline's 2002 re-election bid was smashed by the case well enough before Chief U.S. District Judge Consuelo B. Marshall held that Bradley Willman, a British Columbian teen, acted as a law enforcement agent when he broke into Kline's home computer and, thus, the subsequent seizure of about 1,500 images of naked boys was unconstitutional.
But a three-judge panel of the Ninth Circuit Court, in an unpublished memorandum, ruled there was no Fourth Amendment violation because Willman himself was not an agent of any government body. The panel agreed Willman acted aiming to help law enforcement but that didn't make him a government agent properly defined.
“A private person cannot act unilaterally as an agent or instrument of the state; there must be some degree of governmental knowledge and acquiescence," the panel memorandum said, agreeing that while Willman acted illegally he had still acted privately. "In the absence of such official involvement, a search is not governmental.”
Kline is due to go on trial in 2005 in the case. His arrest occurred after the filing deadline for the 2002 primary election, but when eleven write-in candidates filed to challenge him Kline got a court ruling allowing him to withdraw from the race, after his attorney argued that slamming him over the case during an election campaign would compromise his right to a fair trial.
Willman attached a Trojan horse onto child porn images online, enabling him to open, alter, and download files on an infected computer, Marshall had ruled. Marshall had held Willman to a standard set by a previous case involving a private citizen acting often enough as a paid Drug Enforcement Agency informant. The Ninth Circuit Court panel, however, leaned on Willman having used the Trojan to get evidence from Kline's computer before he tipped off the Irvine (Calif.) Police Department.
