“Anger, and maybe revenge? You regard yourself as a cyber vigilante of some sort?”
“I don’t regard myself as anything. I just find the perverts and report them.”
“So you’ve done this before? How many times?”
“I don’t know exactly. A few.”
“Would a few be more than ten?”
“Not that many.”
“More than five?”
“Maybe five. Maybe six. I don’t keep a log.”
“And these reports, do they usually wind up in the hands of the police?”
“Sometimes. I guess so.”
“So what you’re doing is helping the police find people who might be pedophiles; isn’t that right?”
“What I’m doing is alerting Pedofind when illegal images of child pornography are downloaded from the Internet.”
I let out a slow, deep breath. Dillinger is doing fine. He isn’t letting Kay back him into a corner on the issue of whether he’s working specifically for the police.
“But Pedofind reports what you tell them to the police, don’t they? Isn’t that the point?”
“They do what they do.”
“Of course that’s the point,” Kay says. “You wouldn’t report it to them if you thought they were going to ignore you, would you, Mr. Dillinger?”
“I don’t know.”
“Let me ask you this. What’s to keep you from attaching your Trojan Horse virus to some other kind of file, something harmless, and then going into Mr. Carver’s computer and downloading these images yourself?”
I pop to my feet again. “Objection. Foundation. There’s absolutely no evidence in the record to suggest that Mr. Dillinger did any such thing.”
“Overruled.”
“Judge, he’s trying to suggest that Mr. Dillinger picked Mr. Carver randomly out of all the people in the world who have access to the Internet and intentionally set him up. There’s no evidence to support it. It’s ridiculous.”
“Did I stutter, Mr. Dillard? I said your objection is overruled.”
“It didn’t happen like that,” Dillinger says. He seems to be nearing his breaking point.
“But it could, right?” Kay says, holding on to the line of questioning like a bulldog to a forearm.
“I said it didn’t happen like that.”
“That’s all I have,” Kay says, and he sits down.
“Anything else, Mr. Dillard?” Judge Green asks.
“We rest, Judge.”
“You can step down, Mr. Dillinger. Do you want to say anything before I rule, Mr. Dillard?”
I’ve already laid out the argument and all the case law for the judge in a brief that I filed two weeks earlier. I’ve called two witnesses prior to Dillinger. The first was the president of Pedofind, who outlined what the organization does, how they do it, and specifically what happened in this case; the second was the Johnson City detective who investigated the report, obtained the search warrant, and arrested Buddy Carver. Both of them testified that Dillinger was not working on their behalf when he hacked into Carver’s computer. The detective testified that she’d never heard of Pedofind or Dillinger prior to the investigation. The Pedofind executive admitted that they’d obtained information from Dillinger before, but that Dillinger received no compensation, no direction, and no encouragement from their organization. He just popped up on their radar every so often and gave them information about suspected pedophiles actively downloading child pornography from the Internet. The Pedofind executive also testified that his company receives no funds from the government-no grants, no loans, no stipends, nothing. The organization is funded entirely by private donations.
As an aside, I’ve reminded the judge that Dillinger isn’t a citizen of the United States and wasn’t in the country-let alone in the city or the state-when he alerted Pedofind. Therefore, I’ve argued, he could not possibly be acting on behalf of any U.S. governmental agency. The protections of the Constitution simply do not apply.
I stand up and lay it all out for the judge one last time. He won’t look at me, which is always a bad sign.
Kay gets up and argues his side of the case again. Pedofind is obviously an agent of the government, he says. They report illegal activities to law enforcement whenever the opportunity arises. Their activities have resulted in the prosecution of more than a dozen pedophiles. Dillinger, he says, is an agent of Pedofind. He’s given them information in the past, they’ve turned it over to government authorities, and the information has resulted in criminal prosecutions. Because both are acting on behalf of the government, the search of Carver’s computer is covered by the Fourth Amendment. A warrant is required. Since there was no warrant, the search is illegal. The evidence must be suppressed.
When Kay is finished, I experience the same feeling of gloom that I experienced so many times as a defense lawyer. I’m going to lose. The judge’s attitude, his mannerisms during the hearing-his interest when Kay is talking and his distance when I’m talking-have tipped his hand. I know he’s going to rule against me as sure as I know it’s going to rain when a thunderhead rolls in over the mountains to the west.
“Do you require findings of fact and conclusions of law, Mr. Dillard?”
I remain seated, unwilling to stand and show him the respect required by tradition because I regard him as a small man in terms of intellect and morality. Despite the fact that he’s sitting above me on his throne and could possibly do the same thing to me that he’s done to Ray Miller, I can’t force myself to genuflect.
“Is there any point?” I mutter from my seat at the table.
“Speak up!”
I lift my head and glare at him. “I think you made up your mind before we walked in the door.”
Judge Green stiffens briefly but manages to control his anger. He knows the press is in the audience. He knows this is a big story. He knows he has a rare chance to deal a blow to the prosecutor’s office and me personally, and he’s relishing it.
“I am an elected official,” the judge says deliberately, “whose primary responsibility, in my view, is to interpret and uphold the law. The people of this district elected me because they trust me. They’ve trusted me for many years, and I’ve served them faithfully.”
I drop my head into my hands, certain that this is a preamble to a decision that only he can rationalize. I’ve already considered what I’ll do if he rules against me, and I resign myself to the fact that this battle will be fought elsewhere.
“However,” Green continues, “a judge must occasionally make a ruling that is not popular. He must do what’s right under the law. He must protect the very foundation of our laws and our government, the Constitution of the United States of America.”
He’s making dramatic pauses while he speaks. I want to throw up.
“I hope those who read about this in the newspaper tomorrow morning or watch it on the evening news will understand that this ruling is for all of you. It will protect you from future illegal intrusions into your privacy. There is no doubt in this court’s mind that the state’s primary witness in this case, Mr. David Dillinger, was acting as an agent of the government when he hacked into the defendant’s computer. Mr. Dillinger has testified that he was abused as a child by someone he believes was a pedophile, and that he has undertaken a mission to see that other pedophiles are exposed and brought to justice. In order to accomplish his mission, Mr. Dillinger intrudes on the privacy of other citizens by clandestinely hacking into their computers with the intent to have them prosecuted under the criminal laws of this country. The court finds that the fact that the governmental agencies involved in this particular case were unaware of Mr. Dillinger’s activities is irrelevant. At the very core of it, Mr. Dillinger is a wannabe police officer, a ‘cyber vigilante,’ as Mr. Kay so adroitly pointed out. Mr. Dillinger obviously regards himself as a sort of charitable mercenary, working on behalf of the government without the expectation of compensation or recognition, but in reality, he’s no different than a common burglar. Instead of stealing jewelry, he steals information, and he does so by secretly invading the privacy of his victims’ computers. He then expects his targets to be prosecuted, which in this court’s view, makes him an agent of the government. His warrant-less search of Mr. Carver’s computer was illegal, and any evidence obtained as a result of that search is hereby suppressed.”
Kay stands. I’m sure he wants to get out of the courtroom as quickly as possible. I also stand and turn to look at Dillinger. I want to apologize to him on behalf of the state of Tennessee, on behalf of the entire U.S. criminal
