Does Using a University’s Internet Network Give the University the Right to Monitor Someone’s Computer and Retain Child Pornographic Images Linked to that Computer?
Docket No. A-6044-17
Decided October 1, 2021
Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.
In a recent unpublished decision from the Appellate Division of New Jersey affirmed the conviction of a man convicted of third-degree possession or viewing child pornography, arising from child pornographic images discovered on his computer from his use of a university internet network when he was a student at Stockton State University.
In Eplin the defendant contended that his conviction was based upon evidence derived from an illegal wiretap; that he was unable to consent to something he knew nothing about; the trial court’s decision to slam the door shut on defendant’s suppression hearing deprived him of an opportunity to litigate the Fourth Amendment issues in his case; that Article 1, Paragraph 1 of the New Jersey Constitution of 1947 prohibits a conviction for any individual who was simply looking at something; and finally, that it was error for the trial court not to grant the motion for judgment of acquittal notwithstanding the verdict.
The facts of the case are as follows, Defendant’s friend Katherine Cairns testified that while she was in defendant’s dormitory room, she declined his offer to see child pornography he had on his computer. Defendant, majoring in computer science, further told Cairns he had the capability to change his computer’s IP address so that when he viewed child pornography, there would be no indication that it was on his computer.
After Cairns reported her conversation with defendant to the University police, Robert Heinrich, the University’s Chief Information Officer in charge of the Division of Information Technology Services, was instructed to monitor defendant’s internet activity. Heinrich directed Brian Gormley, the University’s Associate Director of Network Telecommunications and Network Infrastructure, to monitor defendant’s internet activity and network traffic, and to “maintain those logs.” Heinrich also testified about the University’s acceptable use standards policy.
A three-month investigation ensued, resulting in Gormley finding that defendant encrypted his network traffic, which prevented––except occasionally––Gormley from observing defendant’s internet searches and viewings on the University’s network. However, Gormley was eventually able to view a large amount of child pornography that was accessed by defendant’s computer. He collected the data from the University’s network, kept it on a separate server in its original format, and turned it over to the Atlantic County Prosecutor’s Office. Gormley could neither confirm that defendant accessed specific photos after the child pornographic website was accessed nor that defendant accessed any of the thumbnails of pornography depicted on the website.
Through the testimony of Prosecutor’s Office Detective Christopher Hallett, the State displayed thirty-five files of individual thumbnails of child pornographic images that Gormley testified were accessed by defendant’s computer through the University network. Hallett stated that after defendant’s computer and cell phone were seized, an encryption software running on defendant’s computer was discovered, which prevented anyone from locating what was on his computer.
Eplin really examines whether using a university’s internet network gives the university the right to monitor his computer and retain child pornographic images linked to his computer. The Court held that the monitoring of defendant’s internet activity when he used its computer server was not a wiretap.
Defendant in this case did not argue that he accessed the internet from a non-university server. Therefore, because he was on notice that the University – to ensure compliance with its internet acceptable use standards policy – had the right to review his internet activity when he used its server, there was no violation of defendant’s federal or state constitutional rights.
Keep this case in mind if you are accessing internet servers that are public like coffee shops and school networks. If you are facing criminal charges involving a public internet server there may be a defense for you. You must contact the experienced attorneys at Hark & Hark today. At Hark & Hark, we help clients dealing with criminal charges of all types, including the type of charge outlined in this blog.
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