Who Is the Witness to an Internet Crime: The Confrontation Clause, Digital Forensics, and Child Pornography

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TABLE OF CONTENTS  INTRODUCTION I. THE EVOLUTION AND CURRENT LANDSCAPE OF THE   SIXTH AMENDMENT'S CONFRONTATION CLAUSE   A. The Confrontation Clause: General Background   B. What Triggers Confrontation Clause Protections?   C. What is Testimonial?   D. What Is a Witness?   E. Post-Melendez-Diaz Forensic Evidence II. CHILD PORNOGRAPHY PROSECUTION COMPELS US TO   REEXAMINE THE CONFRONTATION CLAUSE   A. Child Pornography Is Cyber Crime   B. The Convictions in United States v. Cameron     1. Internet Account Information and Activity       Records     2. Receipts of Yahoo! CP     3. NCMEC's CyberTipline Reports III. CONFRONTATION CLAUSE QUESTIONS FOR THE DIGITAL   AGE   A. How Should We Weigh Logistical Concerns?   B. Is a Surrogate Witness Sufficient?   C. Is the Confrontation Clause Insulation Against Error,     or Is It Something Else? IV. CONCLUSION AND WHY THIS MATTERS   A. What's at Stake?   B. The Need for a New Dialogue 

The ideal society is not outside of the real society; it is part of it. Far from being divided between them as between two poles which mutually repel each other, we cannot hold to one without holding to the other ... [T]hese conflicts which break forth are not between the ideal and reality, but between two ideals, that of yesterday and that of to-day.

--Jurgen Habermas (1)

INTRODUCTION

In this paper I argue that as digital information becomes more prolific and data gathering operates yet more independently of human control, we will need to reconsider the Sixth Amendment's Confrontation Clause rights. The Court has attempted to untangle Confrontation Clause implications in the areas of lab forensics, including urinalysis results and DNA testing. (2) However, child pornography prosecution represents a new manifestation of constitutional questions regarding digital forensic evidence, and as an Internet crime, it forms a case study for the difficulty in applying constitutional case law to Internet evidence. (3) Child pornography prosecution involves fairly traditional business records collected in the ordinary course of Internet business, and it also includes data collected or aggregated in response to a reported suspicion of criminality. Specific questions arising from these forms of digitized, aggregated evidence prompt broad questions--Who is the witness to an Internet crime? How is that witness to be examined? Ultimately, how do we preserve the guarantees of process that foster a sense of justice in trials?

I begin in Part I with a general review of developments leading to the current landscape of the Sixth Amendment's Confrontation Clause protections, including factors informing determinations of what is testimonial and what it means to require confrontation of a witness. In Part II, I offer examples in current case law involving forensic evidence and the Confrontation Clause, which has been in urinalysis cases and the use of DNA evidence. In Part Ill, I delve into the fairly new questions raised by the use of Internet records in child pornography prosecution, looking at the First Circuit's holding in United States v. Cameron in particular. (4) Finally, in Part IV, I explore some of the broader questions that the transition to digital records raises and I argue that we need to make a decision as to the intent and therefore the substance of the Confrontation Clause in the context of digital evidence.

I. THE EVOLUTION AND CURRENT LANDSCAPE OF THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE

A. The Confrontation Clause: General Background

The Confrontation Clause of the Sixth Amendment guarantees, "In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him...." (5) That is, it proscribes the admission of hearsay statements. (6) The Supreme Court clarified that the right is one of "face-to-face" confrontation. (7)

Despite the blanket phrasing of the Confrontation Clause's guarantee, the Supreme Court recognized explicitly as early as 1895 that the right of confrontation is "subject to exceptions, recognized long before the adoption of the Constitution. …