WASILLA -- Brian Tanner, the Web surfer whose computer police seized after chasing him twice from the Palmer Public Library parking lot, has his laptop back.
Tanner, 21, said Palmer police called Saturday saying he could pick the machine up “maybe Tuesday” after police checked it for child pornography. He said he and police evidence custodian Jonathan Owen negotiated and Owen scanned the laptop and returned it Saturday.
Tanner said Thursday he has found another network outside a downtown Palmer bank that he won’t identify that he taps into at night to play online games. Once he moves out of his parents’ house he’ll set up his own connection, he said.
His parents curtail his Internet use at home after 9 p.m., he has said.
Police first found Tanner in his white 1997 Acura Integra parked late at night Feb. 17 in the library parking lot surfing the Web after hours and asked him to leave.
The following night, police spotted him there again after hours and this time warned him he could be charged with theft of services.
The officer confiscated Tanner’s computer and again chased him off.
Owen said the scan for child porn is something he does with every computer that comes through the evidence room. It has to be done, he said, to protect him and the department from charges of distributing child pornography.
“That had nothing absolutely to do with this case. It’s just a matter of policy,” Owen said.
Computer evidence in general is a confusing area of the law, and it’s best to be on the safe side where liability is concerned, Owen said.
“It’s an area that people are trying to do right by,” Owen said. “But if the police were to take a computer into custody and then release it, and let’s say it’s full of child porn, then let’s say someone said you planted it.”
Police could be held accountable for the pornography, Owen said.
“In this case he’s not looking for evidence of a crime he’s just looking to make sure he doesn’t get charged with a crime,” Palmer Police Lt. Tom Remaley said.
An expert in Internet law disagrees. An administrative search or inventory for child porn is simply an excuse to sidestep the warrant requirement, said Jennifer Granick, an attorney and executive director of the Center for Internet and Society at the Stanford Law School in California.
“It’s a pretty crafty argument on their part,” she said by phone Thursday. “I think that is thin. If the police don’t know what’s on the laptop because they only search what they’re allowed to search, no court would impose liability for failing to violate the Constitution by searching the laptop beyond what the warrant allows.”
In other words, if police have reason to search the computer, so be it. If not, it’s hands off, Granick said.
As for Tanner surfing open networks outside banks, that, too, is legal, she said. It’s up to the bank to secure its Internet access by simply turning it off or notifying outside users that it’s not available. Bank records are probably not at risk, she said. Encryption, firewalls and other measures keep ordinary Web surfers at bay, she explained.
“The concern for security is a good one, but I don’t know whether it’s a legitimate issue in this case,” depending on how the bank network is configured, she said.
If the police had found suspected child pornography on Tanner’s laptop, Remaley said he’d have turned to the district attorney. That office would, in turn, decide whether to seek a search warrant or forget the whole thing and give the laptop back. A warrant request would have gone to a judge.
Police initially seized the laptop under rules allowing them to impound property when they believe a crime has occurred, Remaley said. The same rule allows police to impound cars while waiting on a warrant to search for drugs or other contraband, he said.
A laptop, however, is not the same as an automobile, Granick said. “They’ve put together a kind of inventory kind of search but the circumstances under which those are done are quite less private than your laptop,” she said.
After many phone calls with library officials, Remaley finally decided theft of services could not have occurred and a search was unnecessary.
“I think I finally understand from the library that they don’t charge for it.
They don’t have a time limit,” Remaley said. “That means there’s no theft.”
Searching the computer for evidence of another crime would have been unlawful, Remaley said.
“First of all you lose your case and second of all you lose your credibility with prosecutors and the courts,” he said.
Tanner’s case, he said, is not yet over. He could be charged with trespassing and criminal mischief, the latter under statutes that forbid accessing a computer network without permission.
In both cases, it’s clear, Remaley said, that Tanner knew he was doing something he wasn’t supposed to.
“The day before an officer saw him there,” Remaley said. “They said ‘You can’t do that. Go away.’ ”
The case has generated a number of phone calls, letters and e-mails from residents concerned that police are harassing citizens, Remaley said.
“We have an obligation to the people who pay us to go check on suspicious activity. And that’s what this was to start with,” Remaley said.
Tanner said he regards possible criminal charge against him as something funny and no big deal. If charges are filed, he’ll probably fight them, he said.
“I’m going to talk to a lawyer first, see what my options are,” he said.
Contact Daily News reporter Andrew Wellner at awellner@adn.com or 1-907-352-6710.
