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D. Nebraska

The following is a chronological list of opinions issued by the U.S. District Court for the District of Nebraska that involve or touch on some aspect of computer forensics. Every effort is being made to locate relevant decisions; however, this list is intended as a research aid only, and should not be considered definitive. If you have any suggestions for decisions that should be added to this list, please email them to me using the contact form.

Reminder: These case digests are provided for informational purposes only, and do not constitute legal advice. Anyone conducting legal research on a particular topic or in a specific jurisdiction is advised to supplement these materials with their own efforts or those of a qualified attorney whom they have hired for that purpose.

2010

U.S. v. Campbell, No. 4:09CR3023 (Neb. 8-26-2010) -- Defendant was charged with one count of possession of child pornography and one count of receipt after videos and images of child pornography were found on his computer during an investigation originating from Europol. Pursuant to an agreement with the government, defendant pled guilty to the possession charge and agreed to various pre-sentence evaluations, including a polygraph test and psychological evaluation. Following those evaluations, defendant moved for a sentence of probation, which would represent a significant variance from the Guidelines sentence range of 41-51 months. In a lengthy and detailed opinion, the District Court explained that it was tentatively agreeing to defendant's request for probation (albeit with significant conditions). The Court's reasoning was based on a number of factors, including defendant's lack of criminal history, close family ties, successful passing of polygraph test, positive psychological evaluation, and perhaps most importantly, the relatively benign nature of the images themselves (no images of children under 12 and no images of minors engaged in sexual activity). The Court's opening sentence: "Sometimes, judges should actually look at the child pornography that forms the basis for a conviction before fashioning an appropriate sentence." The Court recognized the significance of its proposed deviation from the Guidelines and reserved final judgment for the sentencing hearing, but noted that various Circuits have upheld sentences of probation in similar circumstance.

Doe v. State, Nos. 8:09CV456, 4:09CV3266, 4:10CV3004, 4:10CV3005 (Neb. 8-16-2010) -- Nebraska adopted a Sex Offender Registration Act (eff. 1/1/2010) that among other things, mandates that all convicted sex offenders consent to lifetime searches of their computers and ongoing monitoring of their Internet activity, even in the absence of any evidence of further criminal activity. Refusal to give consent is a felony. Various individuals challenged the law as unconstitutional, arguing that it violates both the Fourth Amendment and the ex post facto prohibition in Article I, § 10 of the Constitution. The District Court granted summary judgment on Fourth Amendment grounds for all individuals "not on probation, parole or court-monitored supervision" as of January 1, 2010, saying that the mandated consent to search and ongoing monitoring strips those individuals "of their right to be secure in their homes, `papers,' and personal effects." The Court then ordered a trial to determine the constitutionality of those provisions with respect to persons who are on probation, parole, or court-monitored supervision, as well as the potential impact of the law on persons associated with them (spouses, children, etc.).