Admissible: Utah judge rules peeking at the messages was not illegal
By Pamela Manson
The Salt Lake Tribune
Salt Lake Tribune
On his breaks, Bryan Vance Jones liked to log on at the Sumner Library near Seattle to check his electronic mail. Occasionally, he would access his e-mail on the computers at work.
This e-mail was initiated by machine [10.148.8.4] at IP [10.148.8.4].
Although his e-mail accounts were protected by passwords, the Washington state man might have gotten careless one day. Someone - maybe a librarian, co-worker or a friend - was able to get into his e-mail last year and peruse his correspondence.
The online peeker allegedly found sexually explicit conversations between the 43-year-old Jones and a 15-year-old Salt Lake City girl.
And Jones, who now is behind bars on sex charges, has just lost a legal battle over whether his e-mail was illegally intercepted.
U.S. District Judge Paul Cassell in Salt Lake City has ruled it doesn't matter how the messages were obtained.
The judge said the Federal Wiretap Act - which prohibits the intentional interception and disclosure by police or private citizens of any wire, oral or electronic communication - contains no provision to suppress as evidence e-mails that are illegally intercepted. His ruling that the suppression remedy applies only to wire and oral communications was the first in the region covered by the 10th U.S. Circuit Court of Appeals, which includes Utah.
"The [wiretap] act's plain text is unambiguous, leaving little room for argument," Cassell wrote in his opinion, handed down Tuesday.
He noted that when the act was amended in 1986 to include electronic communication, Congress failed to allow illegally obtained e-mails to be excluded as evidence.
The judge previously had rejected Jones' arguments that the e-mails were seized in an unconstitutional search, but he allowed the defendant to argue that the messages were illegally obtained under the Wiretap Act.
The case began last June when someone, identified in court records as "CI," for confidential informant, gave copies of e-mail messages from Jones' accounts to FBI agents in Seattle. The messages appeared to be correspondence Jones carried on with a Utah minor and a 14-year-old Minnesota girl.
The agents then obtained a search warrant and allegedly traced Jones as the account user on four mailboxes. They also tracked down the alleged victim in Utah, who told them she and Jones had sexual encounters during two trips he made to Salt Lake City.
Jones was indicted last summer on four counts of coercion or enticement of a minor for illegal sexual activity and was arrested at his home in Tacoma.
The case got complicated quickly.
To protect CI's safety, Cassell withheld the informant's identity and details of how the e-mails were obtained.
So lawyers could debate the issue, he asked whether this hypothetical situation would violate the Wiretap Act: Jones left his e-mail account open on a library computer and a librarian discovered the messages after he left the station.
Defense attorney Richard Mauro said that without knowing exactly how CI got the e-mails, "it seems difficult to argue the case."
Mauro also said there are other ways the e-mails could have been discovered. CI could have eavesdropped illegally on a phone conversation or intercepted a wire communication to learn the password or, more unlikely but theoretically possible, intercepted the messages as they were being relayed, he said.
But prosecutor Paul Amann said it is "virtually impossible" to intercept an e-mail unless automatic routing software is used, such as a program that copies all messages to an employee's boss.
And Cassell said the scenarios raised by the defense of illegal oral or wire interceptions also are unlikely and there are numerous ways the informant could have gotten the e-mails.
"Mr. Jones may have left his password written on a note or visible on a computer screen," the judge wrote. "Alternatively, the informant may not have needed Mr. Jones' password because the e-mail program had been left open or the password had appeared automatically from computer memory."
In the wake of the ruling, Jones is scheduled to change his plea next Tuesday as part of a deal with prosecutors. He faces a mandatory five years in prison if convicted.
pmanson@sltrib.com