First Circuit Considers Admissibility Of Internet Records Under The Confrontation Clause

First Circuit reviews the admissibiliy of Internet evidence from Yahoo!, Google and the National Center for Missing and Exploited Children under hearsay and Confrontation Clause challenges; divided panel concludes that some Internet account records and reports were testimonial and therefore inadmissible under the Confrontation Clause resulting in the reversal of some counts of conviction, in United States v. Cameron, _ F.3d _ (1st Cir. Nov. 14, 2012) (No. 11-1275)

Under what circumstances are records and reports about Internet account activity inadmissible under the Confrontation Clause? The First Circuit recently considered different categories of Internet-based evidence in reviewing this issue.

Defendant Cameron was prosecuted for crimes involving child pornography. Much of the investigation was based on records about his Internet activity. At trial, the government introduced Internet account records and reports. Following his conviction, the defendant renewed his claim that the records were inadmissible as either hearsay or under the Confrontation Clause.

On appeal, the First Circuit found some evidence was inadmissible. Since the error was not harmless beyond a reasonable doubt, some of the counts of conviction required reversal while others were affirmed.

Business Records Remain Subject To Confrontation Clause Analysis

As a preliminary matter, the majority noted that the mere fact that some records may qualify as business records under FRE 803(6) does not eliminate the need to analyze whether they are testimonial under the Confrontation Clause: “even if the records at issue here are business records … we must still determine whether or not they are testimonial.” Cameron, _ F.3d at _.

Three Categories Of Internet-Based Evidence

In its review, the First Circuit considered distinct "categories of evidence": (1) Internet account information and activity records, (2) "electronic receipts of Yahoo's CP Reports to NCMEC [National Center for Missing and Exploited Children] -- these receipts were produced by Yahoo! in response to search warrants"; and (3) "NCMEC's CyberTipline Reports." Cameron, _ F.3d at _.

Internet Account Information and Activity Records

The first category included customer account information and activity records of Internet companies which included Yahoo! Account Management Tool and Yahoo! Login Tracker data, and Google Hello Connection Logs. These records were introduced as business records and were not testimonial. As Internet company witnesses testified, there records were automatically obtained and used for business purposes. Consequently they were admissible under the Confrontation Clause. As the circuit explained, these records “were totally unrelated to any trial or law enforcement purpose: namely, to provide reliable data about its customer accounts.”

Electronic Receipts Yahoo! Child Pornography Reports Sent To NCMEC

Some reports were created by the Internet company based on a “duty to report any apparent violation of federal child pornography laws to the National Center for Missing and Exploited Children (NCMEC)” (required under 18 U.S.C. § 2258A(a)(1)). These reports contained hearsay assertions linking a particular Internet Protocol Address with suspected child pornography as determined by Internet company officials. As the circuit noted, “The prosecution was seemingly operating under the impression that this IP address was the one from which the most recent image of child pornography had been uploaded, even though, as previously explained, this association is not readily apparent from the documents themselves.” Cameron, _ F.3d at _. The report conclusions were testimonial as they were made with the “primary purpose of establishing or proving past events potentially relevant to a later criminal prosecution.” Cameron, _ F.3d at _ (quoting Bullcoming v. New Mexico, 564 U.S. _, 131 S. Ct. 2705, 2714 n.6 (2011) (internal quotation marks and citation omitted)). The Internet company did not create and retain the report but forwarded it to NCMEC. While it “is not officially a government entity, it receives a grant from the government, and one of the uses to which NCMEC puts this grant money is to operate the CyberTipline and forward reports of child pornography to law enforcement.” Cameron, _ F.3d at _ (citing 42 U.S.C. § 5773(b)(1)(P)). While the information was not the product of interrogation, the Internet company was obligated to provide the report which it concluded contained incriminatory information. The circuit summarized the information contained in the report:

[R]ecall that the CP Reports and Lee's testimony clearly indicated that, to create each Report, someone at Yahoo! analyzed Yahoo!'s data, drew conclusions from that data, and then made an entirely new statement reflecting those conclusions. Each report also refers to a "Suspect" who is identified by his "Screen Name," "Email Address," "IP Address," and "URL." This means that someone at Yahoo! analyzed Yahoo!'s business records and concluded that (1) a crime had likely been committed and (2) a particular user likely committed that crime. Thus, every Yahoo! CP Report was a new statement that conveyed an analysis that had not existed previously. The new statement was, in effect, "someone has committed a crime, here is the evidence that a crime was committed, and here is how to identify the perpetrator." The primary purpose of this new statement was law enforcement-related, even if the primary purpose of the data used to support the statement was not. Our conclusion here is strengthened by the fact that in preparing the CP Reports, the Yahoo! employees removed the images they thought did not depict child pornography, as said images would presumably not be relevant to the prosecution of a child pornography crime.

Cameron, _ F.3d at _ (footnote omitted).
Without the opportunity to cross-examine the employees who created the reports containing testimonial statements, the Confrontation Clause was violated.

CyberTipline Reports

The NCMEC CyberTipline reports, which were forwarded to law enforcement, were also testimonial. As the circuit noted, “the CyberTipline Reports were introduced -- and admitted -- into evidence to prove the truth of the assertions contained therein, most importantly: that child pornography images were uploaded onto a particular Yahoo! account, and that the most recent one of those images was uploaded from a specific IP Address on a specific date and time.” Cameron, _ F.3d at _. The CyberTipline Reports provided key evidence for some of the counts and constituted the sole evidence "to establish the specific dates" of the uploads linked to the defendant's IP address.

Waiver On Review Of Defendant’s Emails

A challenge under the Confrontation Clause to the defendant’s emails was waived based on his failure to explain his constitutional argument. Cameron, _ F.3d at _ n.7 (citing Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) (“[W]e consider waived arguments confusingly constructed and lacking in coherence . . . Judges are not mind-readers, so parties must spell out their issues clearly, highlighting the relevant facts and analyzing on-point authority.”) (internal quotation marks and citations omitted)).

Harmless Error Analysis

Having concluded that some of the evidence was admitted in violation to the Confrontation Clause, the majority assessed whether the error was harmless beyond a reasonable doubt. Several of the counts could be affirmed after harmless error review based on properly admitted evidence. However, other counts relied primarily on the inadmissible evidence and therefore had to be reversed.

As the majority explained, “Our holding today does not mean that non-testimonial business records somehow become testimonial simply because the government seeks to use them as evidence against a criminal defendant. However, if business records are testimonial, then a defendant must be given an opportunity to confront the authors of those records. What the government did in this case was seek to introduce, absent confrontation of the authors, out-of-court statements that: (1) did not exist before criminal activity was discovered; (2) stated conclusions (though perhaps obvious ones) about the meaning of underlying data; (3) were created for the express purpose of reporting criminal activity and identifying the perpetrator of that activity; and (4) were reported to a government-funded entity that serves as a conduit for passing information to law enforcement.” Cameron, _ F.3d at _ (emphasis in original).


First Circuit Judge Jeffrey R. Howard dissented concerning the admission of the Yahoo! CP Reports and the NCMEC CyberTipline reports, which he concluded were non-testimonial. In his view, “the majority is taking an unjustified step beyond what current Supreme Court precedent dictates in the developing arena of what documents bearing the hallmarks of business records and offered as evidence in a criminal trial constitute or contain testimonial statements for purposes of the Confrontation Clause.” Cameron, _ F.3d at _.

For practitioners considering the admission of records created by Internet companies, the Cameron case provides recent analysis on how this evidence may be considered.


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