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The name Bach evokes images of the 18th-century composer known for his impressive and prolific body of work. Those versed in classical music history know that one of Bach’s greatest traits was his imaginative and inventive advances in evolving chord structures and almost mathematical rhythms of the late-Baroque period. Nearly three centuries later, the name Bach again stands for newly emerging theories, but this time in the arena of computer crime case law. Dale Robert Bach of Minneapolis has been the cause of two significantly ground-breaking decisions. In October 2000, the mother of an underage male discovered a suspicious communication on the family’s computer between her son and another individual with the screen name “dlbch15.” The communication inquired when dlbch15 could see the boy again and could the boy suggest a place where dlbch15 could hide something for him. The mother reported her discovery to a sergeant with the St. Paul Police Department who specialized in handling investigations involving online crimes against children. When asked about the communication found by his mother, the boy told the sergeant he was visiting a chat room hosted by the well-known Web portal Yahoo when he first met dlbch15 in cyberspace. The boy admitted subsequently meeting dlbch15 in real life but denied having any sexual contact with him. He explained that the message found by his mother was about an impending delivery of Playboy magazines by dlbch15 which would be left for the boy near the place where they had previously met. Bach was a registered sex offender, having been convicted in 1996 for having sex with a male teen. The boy in the present investigation, however, was unable to identify Bach from a photo supplied by the sergeant. The sergeant began piecing together the clues floating around on the Internet. He sent a subpoena to Yahoo for the registered subscriber for the dlbch15 account, which produced the first name Dale, a 26-year-old resident of Minneapolis. The sergeant also developed evidence that the same screen name was active on Prodigy, another Internet service provider. A subpoena sent to that company identified the subscriber as Dale Bach and listed his address and phone number. The sergeant then sent to Yahoo a “preservation letter” in effect “freezing,” pursuant to 18 USC 2703(f)(1), the contents of any incoming or outgoing e-mail messages transmitted over the dlbch15 account until a search warrant could be obtained. On Jan. 3, 2001, a search warrant was secured by a Minnesota judge. Complicating the jurisdictional issues in the case was the fact that the data from the defendant’s account was stored in computers at Yahoo’s facilities in Sunnyvale, Calif. What would become one of the many interesting and unique facets of the ensuing litigation was the existence of a California statute (Penal Code �1524.2) authorizing the receipt of search warrants issued from other states seeking information from California-based providers of Internet service providers. The California law permitted the delivery of out-of-state warrants to the ISP via fax and also contained a provision that once the warrant was properly served, employees from the California-based ISP would provide all requested information as if the warrant were issued by a California court. RESULTS OF THE WARRANT Five days after faxing the Minnesota warrant to Yahoo, the sergeant received a zip disk containing the contents of whatever communications existed in the dlbch15 account. Included were several e-mails discussing upcoming meetings and the exchanging of pictures. One e-mail caught the attention of law enforcement. An identifiable person from Italy sent the dlbch15 account an e-mail with a digital photo attached. The sexually explicit image was of a “young nude boy” over whose face had been superimposed the face of a well-known child performer. The photo also contained the performer’s name at the bottom. Other e-mails from the dlbch15 account sent by Yahoo pursuant to the search warrant provided additional proof that the particular account belonged to Bach. Several e-mails directed the recipients to visit a Web site containing a picture of Bach that matched his driver’s license picture. Other information sent to the sergeant by Yahoo contained registration material connected to the dlbch15 account showing Bach’s correct birth date and address. Based on this information, a search warrant was obtained for Bach’s residence near the end of January 2001. It permitted the seizure of computers and digital cameras. A seized camera revealed several sexually explicit images of a young male other than the son of the original complaining mother. It was also determined that Bach had sent one of these depictions from his computer over the Internet to another minor Bach had met online. Bach was charged in both state and federal court with a variety of counts pertaining to the possession and distribution of child pornography, as well as for engaging minors in sexual activity. He was successfully convicted in both forums, but it is the federal prosecution that generated two separate appellate decisions, both of which ventured into untested or lightly tested waters. Bach brought a pretrial motion to suppress the evidence seized during the course of the investigation. On Dec. 14, 2001, a federal District Court judge in Minnesota suppressed the evidence obtained from Yahoo, U.S. v. Bach, 2001 WL 1690055. The judge ruled that the execution of the Yahoo warrant without the presence of a member of the St. Paul Police Department violated, inter alia, the Fourth Amendment of the U.S. Constitution. The decision sent shock waves throughout the law enforcement and ISP communities. The cost to law enforcement of actually sending a member of the agency that secured the search warrant every time e-mails would be sought from an ISP would cripple the budgets of even the largest of police departments. The ISPs were united with law enforcement on the issue. The last thing an ISP wants is the presence, or even worse, the direct involvement of law enforcement in the securing of communications being transmitted over its network. INTERLOCUTORY APPEAL The federal government pursued an interlocutory appeal of the District Court’s order of suppression. In U.S. v. Bach, 310 F3d 1063 (8th Cir., 2002), cert. den. 538 US 993, the appellate court fully considered the realities of the execution of search warrants at an ISP. The court specifically observed that (i) law enforcement could not execute the Yahoo warrant without the assistance of the company’s technicians; (ii) attempts by law enforcement to execute the warrant might incur unreasonable delays and interfere with the Internet company’s operation; and (iii) there would be a substantial risk of invading the privacy of the company’s other customers whose accounts were not authorized to be searched by the warrant if the courts left it up to law enforcement to peruse the company’s computers to locate the material to be seized. The 8th U.S. Circuit Court of Appeals ruled that the Fourth Amendment “does not explicitly require official presence during a warrant’s execution,” but only requires that the warrant be executed in a “reasonable” manner. It observed that several courts had previously held civilian-executed search warrants to be a “reasonable” means of execution. POST-CONVICTION APPEAL Following Bach’s conviction, the case was again reviewed by the 8th Circuit on several grounds. Bach challenged the propriety of the seizure of evidence, this time, however, focusing on the warrant that authorized the search of his home. Here, the court had to consider a very significant issue of probable cause which is often the subject of debate between prosecutors and law enforcement officers when deciding how much evidence is “enough” to justify getting a warrant to search a residence for computers. With little case law precedent to provide guidance in making such a call, the post-conviction Bach decision becomes a valuable bellwether of what information law enforcement should possess before seeking a warrant. In U.S. v. Bach, 400 F3d 622 (March 14, 2005), the 8th Circuit was faced with the fact that there was little, if any, evidence connecting the defendant’s use of his Yahoo account from a home computer. Although the account was registered to Bach at his home address, the police had no Internet protocol address information, or any other information, that would connect the e-mails involving illegal activity to Bach’s residence. The defendant argued that for all the police knew, he could have sent and received the e-mails from literally any computer in the world. Here, the circuit relied heavily on the expertise of the sergeant as described in the supporting affidavit submitted in support of the warrant. The affidavit noted the sergeant’s specialized training and experience in handling Internet crimes against children. Also included was the sergeant’s opinion that computers accessing the Internet by sexual predators of minors tended to be used as file cabinets for the storing of numerous depictions of child pornography, as well as text chats with real children, for the predator’s “later review and fantasy.” Adding the registration information of Bach from both the Yahoo and Prodigy accounts — which included his address and city of residence — with the defendant’s prior conviction as a sex offender of a minor, the circuit found this to be sufficient probable cause to support the warrant for Bach’s home. The appellate court also had to evaluate the impact of Ashcroft v. Free Speech Coalition, 535 US 234 (2002), in the Bach prosecution. On appeal, the defendant argued that the prosecution failed to prove that the depiction of child pornography charged against him was that of a “real” minor. The government countered that Bach was not prosecuted under either of the two statutes found unconstitutionally overbroad, for First Amendment purposes, in Ashcroft. There, the U.S. Supreme Court held the two provisions invalid because they used language implying that a person could be convicted for possessing or distributing child pornography that only “appeared” to be a depiction of a real child. The statutory language was so overly broad that it could include such legitimate activity “appearing to be child pornography” as adult actors portraying minors engaging in sexual activity in modern motion pictures like “Traffic” and “American Beauty.” The circuit observed a distinction between the provision held unconstitutional in Ashcroft and the crime charged against Bach, i.e., 18 USC �2252A(a)(2), which criminalizes the knowing receipt of a visual depiction that “involves the use of a minor engaging in sexually explicit conduct” or “has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” Since the sexually suggestive body of a real minor appeared in the depiction, this was not similar to the concerns raised in Ashcroft — that otherwise innocent and legal depictions could appear to be depictions of child pornography. Also, the depiction possessed by Bach contained the face of a known child performer. Hence, an identifiable real minor would be harmed every time that depiction would be viewed, a legitimate law enforcement concern regarding victimization of real children recognized in previous Supreme Court decisions such as New York v. Ferber, 458 US 747 (1982), and Miller v. California, 413 US 15 (1973). The 8th Circuit did note, in dicta, that future cases may involve “instances in which the application [of these statutes] violates the First Amendment, [but] this is not the case. The interests of real children are implicated in the image received by Bach showing a boy with the identifiable face of [the child performer] in a lascivious pose.” CONCLUSION The aftermath of the first Bach decision has already been felt. Minnesota, as a result of its first-hand experience, enacted its own version of the California statute that became so important in the Bach case. Recently, Florida became the third state to enact such legislation. With the evolution of precedent in the realm of computer crime still proceeding very slowly, the two Bach decisions are an “Ode to Joy” to law enforcement (with noted apologies to Beethoven). Comparing the impact of Bach to that of the famous composer, however, the latter had one substantial advantage over the court. Johann Sebastian had the foundation of centuries of prior composers’ work on which to build. The 8th Circuit, out of sheer necessity, was forced to venture out into some brave new worlds when dealing with Dale Robert. Stephen Treglia, is an assistant district attorney in the Nassau County District Attorney’s Office and chief of the office’s technology crime unit.

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