A Waltham police officer was arrested by FBI agents March 26 and faces federal child pornography charges. Federal prosecutors claim that the officer sent and received child pornography by way of a Yahoo! e-mail account. The officer told agents that he was conducting research to “identify perverts,” but the police department said that the officer was never assigned to such an investigation. Agents executed a warrant to search the officer’s home on March 25, at which point the officer allegedly admitted to sending and receiving the images. He faces a 5-year mandatory minimum and up to 20 years in prison.
An investigation in Australia allegedly led authorities to the officer. In February 2012, an Australian man was arrested on child pornography charges, and police obtained his e-mail records. The records indicated that 111 United States e-mail accounts had been in communication with the Australian suspect. FBI agents focused on two of the e-mail accounts, one allegedly used by the Waltham officer. Prosecutors allege that in one e-mail, the officer indicated that he touched a girl in inappropriate areas while “wrestling” her. In another e-mail, the officer allegedly wrote “Thank you! Thank you!” after receiving 25 pornographic images of children. The officer allegedly wrote “I admit it. I’m addicted,” after receiving additional images. In 2012, the officer allegedly wrote “I love the girls ages 7 to 11 or so…Just beautiful! I have no real legitamite [sic] collection organized. Only the few pics that other people have sent me. I am trying to build a library so I will have stuff when people ask.” In 2013, the officer allegedly sent four videos, described as “inappropriate” by local news, to two different e-mail addresses.
Here, there is no indication that the agents had a warrant to search the officer’s e-mails, and the e-mail search likely provided the basis for the warrant to search the home. Under federal law, the government needs a warrant before it can access e-mails if they have been in “electronic storage” for 180 days or less. If an e-mail is not in “electronic storage” or if an e-mail has been in storage for more than 180 days, the government only needs a subpoena. Whether this law is constitutional has been the subject of debate in the federal circuits for years, though the Supreme Court has yet to rule on it. This defendant might argue that the government accessed his e-mails in violation of the federal statute and/or the Fourth Amendment and that therefore, the warrant to search his home was invalid because observations resulting from an illegal search cannot support the issuance of a warrant.