MEMORANDUM DECISION AND ORDER ON DEFENDANT'S MOTIONS TO SUPPRESS, DISMISS AND CONTINUE
The Indictment asserts that the defendant has previously been convictedof a crime relating to sexual abuse and abusive sexual conduct involvinga minor or ward. It charges that four times thereafter, he knowingly andillegally received child pornography over the Internet, contrary to18 U.S.C. § 2252A(a)(2)((A). The defendant's motions to suppress,dismiss and continue are DENIED.
1. Students' Fourth Amendment Rights in University Computers
The Indictment charges that the images in question came over theInternet to computers at the Lewiston-Auburn College of the University ofMaine. The defendant moves to suppress the University logs identifyingwhen he used the University computers, as well as the contents of thehard drives from two University computers he used. I accept as true, forpurposes of the motion, the assertions in the defendant's motion tosuppress.
At the time, the defendant was a student enrolled in the University ofMaine system. Because he was an enrolled student, he had access to acomputer lab on the Lewiston-Auburn campus. On one occasion, he left ona University computer screen a frozen image that a University employeeconsidered pedophilia. That incident led to an investigation byUniversityauthorities, which revealed more such images on hard drives,and ultimately the police were involved. As a result, the prosecutionnow has the hard drives of two University computers, as well as sessionlogs showing when the defendant used the computers. The defendant wantsall of these suppressed as the product of searches in violation of theFourth Amendment.
To assert a right under the Fourth Amendment, a defendant mustdemonstrate both a subjective expectation of privacy and an expectationthat society judges as objectively reasonable. Kyllo v. United States,___ U.S. ___, 2001 WL 636207, *3 (June 11, 2001); Rakas v. Illinois,439 U.S. 128, 143 & n. 12 (1978); Katz v. United States, 389 U.S. 347,361 (1967) (Harlan, J., concurring).
What that objectively reasonable expectation is for computers, undercircumstances of shared usage, presents questions of some difficulty intoday's environment of rapidly changing technology and provisions ofservice. I do not have to confront these difficult issues because thedefendant has made not even a minimal showing that he had a reasonableexpectation of privacy in either his session logs or the hard drives ofthese University-owned computers.
Session logs are obviously maintained for the benefit of the Universityand therefore not suppressible on the defendant/student's motion. SeeSmith v. Maryland, 442 U.S. 735, 742-44 (1979) (holding that a telephonecustomer had no legitimate expectation of privacy in telephone numbers hehad dialed because in dialing he voluntarily conveyed the information tothe telephone company and thereby assumed the risk that the telephonecompany would disclose it); United States v. Miller, 425 U.S. 435, 442(1976) (holding that a bank depositor had no legitimate expectation ofprivacy in bank records that he voluntarily conveyed to the bank and thatthe bank used in the ordinary course of its business); United States v.Hambrick, 55 F. Supp.2d 504, 508-09 (W.D. Va 1999), aff'd, 25 F.3d 656(4th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 832 (2001). Asfor the hard drives, the defendant has pointed to no computer privacypolicies in effect at the University, no statements or representationsmade to him as a user of the computers in this lab, no practicesconcerning access to and retention of the contents of hard drives, noteven password requirements. From all that appears, he, along with otherstudents, was simply using the University computers under circumstanceswhere images on the monitor were visible to others (as occurred here),and no commitments were made as to the privacy of hard drives. SeeUnited States v. Simons, 206 F.3d 392, 398-99 (4th Cir. 2000) (finding noreasonable expectation of privacy in files downloaded from the Internetto hard drives of employee's office computer where employer had expresspolicy of monitoring Internet activities of employees).
The defendant relies upon "a legitimate and reasonable expectation ofprivacy recognized by society in any work performed on, or documents andfiles produced on, computers he used while a student at the University ofMaine." Pl.'s Mot. to Suppress at 3. Unlike the Supreme Court'streatment of generic payphone booths in 1967 in Katz, I conclude that in2001 there is no generic expectation of privacy for shared usage oncomputers at large.1 Conditions of computer use andaccess still varytremendously. The burden remains on the defendant to show that hisexpectations were reasonable under the circumstances of the particularcase. See United States v. Kimball, 25 F.3d 1, 9 (1st Cir. 1994).Without meeting that burden, he cannot challenge the University'sdecision to examine the computers he used, nor the warrant the policeobtained later to search the hard drives of the University's computers.2 (Even if he could challenge the warrant, he has also not satisfiedthe requirement for a Franks hearing for he has made no allegation ofintentional or reckless falsehood. Franks v. Delaware, 438 U.S. 154,155-56 (1978).)
2. Definition of Child Pornography
The First Circuit has already held that the definition of childpornography in 18 U.S.C. § 2256, applicable to 18 U.S.C. § 2252A,is not unconstitutionally overbroad or vague. United States v. Hilton,167 F.3d 61, 71, 76 (1st Cir.), cert. denied, 528 U.S. 844 (1999). Thefact that the United States Supreme Court has agreed to hear anapparently contrary decision from the Ninth Circuit, Free Speech Coalitionv. Reno, 198 F.3d 1083, 1095-96 (9th Cir. 1999), cert. granted sub nom.Ashcroft v. Free Speech Coalition, ___ U.S. ___, 121 S.Ct. 876 (2001),does not change the applicable law in this Circuit or call for anycontinuance. If the Supreme Court should ultimately rule differentlyfrom the First Circuit, that ruling can then be grounds for appeal.
3. Commerce Powers
The provision of the federal statute under which the defendant is beingprosecuted, 18 U.S.C. § 2252A(a)(2)(A), does not exceed Congress'scommerce powers under the United States Constitution as the statute isapplied in this case.
The defendant is charged with knowingly receiving child pornographythat had been transported in interstate and foreign commerce via theInternet to a computer at the Lewiston-Auburn College of the Universityof Maine. Thus, this prosecution involves direct regulation of the useof the channels of interstate commerce, one of Congress's traditionalareas of authority. United States v. Lopez, 514 U.S. 549, 558 (1995).3
1. The commentators seem divided. Compare 1 Wayne R. LaFave Search &Seizure § 2.6 (3d. ed. Supp. 2001) (concluding that computer users dohave a legitimate expectation of privacy in their electroniccommunications even when the system manager makes backup copies), andRandolph S. Sergent, Note, A Fourth Amendment Model for Computer Networksand Data Privacy, 81 Va. L. Rev. 1181, 1201-03 (1995) (same), with Note,Keeping Secrets in Cyberspace: Establishing Fourth Amendment Protectionfor Internet Communication, 100 Harv. L. Rev. 1591, 1602 (1997) (statingthat to be eligible for Fourth Amendment protection, a "cyberspacecommunicator" must "establish privacy vis-a-vis her systemadministrator and her communication must be hidden with some form ofpassword, or possibly a gateway").
2. I therefore do not address other interesting issues, some of whichhave been argued and some not: e.g., Could the University as owner of thecomputers consent to the police search? See generally 3 Wayne R. LaFaveSearch & Seizure § 8.6 (3d ed. Supp. 2001); Sergent, 81 Va. L. Rev.at 1213-16. Were the actions of University employees themselves a searchbecause as employees of a state institution they are state actors? Couldthe University employees nevertheless search without a warrant if thesearch was justified at its inception and reasonable in scope? Seegenerally O'Connor v. Ortega, 480 U.S. 709, 723-26 (1987) (discussinggovernment employer's search for work-related misconduct); New Jersey v.T.L.O., 469 U.S. 325, 337-42 (1985) (discussing school vice principal'ssearch of student's purse).
3. In other words, this prosecution does not involve a photographhanded over the backyard fence, or passed in a bedroom. If that were thesubject of federal prosecution, with federal power being asserted onlybecause the image in question at some previous time had moved ininterstate commerce, there might well be some constitutional commerceclause issues in light of Lopez and United States v. Morrison, 529 U.S. 598(2000). Compare United States v. Robinson, 137 F.3d 652, 655-56 (1stCir. 1998) (upholding possession statute after Lopez but beforeMorrison), and United States v. Kallestad, 236 F.3d 225, 227-31 (5thCir. 2000) (2-1 decision upholding possession statute after Lopez andMorrison), with United States v. Corp, 236 F.3d 325, 331-32 (6th Cir.2001) (striking down possession statute as applied after Morrison).