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In re Federated States of Micronesia National Police Case No NP 10-04-03 [2003] FMSC 75; 12 FSM Intrm. 248 (Pon. 2003) (12 December 2003)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as In re FSM Nat’l Police Case No. NP 10-04-03[2003] FMSC 75; , 12 FSM Intrm. 248 (Pon. 2003)

[2003] FMSC 75; [12 FSM Intrm. 248]

In the Matter of FSM NATIONAL
POLICE CASE NO. NP 10-04-03.

SEARCH WARRANT CASE NO. 2003-701

ORDER DENYING APPLICATION FOR SEARCH AND SEIZURE WARRANT

Andon L. Amaraich
Chief Justice

Decided: December 12, 2003

APPEARANCE:

For the Applicant:
Matthew W. Crabtree, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Search and Seizure
Few rights are more important than the freedom from unreasonable governmental intrusion into a citizen’s privacy. The FSM Supreme Court, mindful of these principles, must protect these rights from well-intentioned, but unauthorized, government action. In re FSM Nat’l Police Case No. NP 10-04-03[2003] FMSC 75; , 12 FSM Intrm. 248, 250 (Pon. 2003).

Search and Seizure
Article IV, section 5 of the FSM Constitution states that "[t]he right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure or invasion of privacy may not be violated." For article IV, section 5 purposes, a search is any governmental intrusion into an area where a person has a reasonable expectation of privacy. In re FSM Nat’l Police Case No. NP 10-04-03[2003] FMSC 75; , 12 FSM Intrm. 248, 250 (Pon. 2003).

Search and Seizure - Probable Cause
Before a search or seizure may occur, there must exist "probable cause," that is, a reasonable ground for suspicion, sufficiently strong to warrant a cautious person to believe that a crime has been committed and that the item to be seized has been used in the crime. In re FSM Nat’l Police Case No.

[12 FSM Intrm. 249]

NP 10-04-03[2003] FMSC 75; , 12 FSM Intrm. 248, 251 (Pon. 2003).

Search and Seizure
A subscriber to an internet service in the FSM may have a reasonable expectation of privacy in the content of e-mails that are stored on the server at the FSM Telecom’s offices. Even though e-mails are computer generated, digital images, they are "papers and possessions" that a person reasonably expects will be kept private, and they should not be subject to unchecked governmental intrusion or seizure. Thus, before the court can issue a warrant, it must find that there is evidence sufficiently strong to warrant a cautious person to believe that a crime has been committed. In re FSM Nat’l Police Case No. NP 10-04-03[2003] FMSC 75; , 12 FSM Intrm. 248, 251 (Pon. 2003).

Search and Seizure - Probable Cause
Probable cause has not been provided that a crime has been committed and an application for a search warrant will be denied when the criminal law cited requires a showing that an individual threaten harm to a public official "with purpose to influence" a public official in a decision making capacity and the e-mails’ language is ambiguous, and does not necessarily threaten harm to any public official and do not reference any decision, opinion, recommendation, vote, or other exercise of discretion by any FSM Immigration personnel and even if the court were to read the e-mails as serious threats to do harm, there is no connection between the threatened harm and any action by Immigration officials that could possibly be influenced. In re FSM Nat’l Police Case No. NP 10-04-03[2003] FMSC 75; , 12 FSM Intrm. 248, 251 (Pon. 2003).

Criminal Law and Procedure
A court cannot infer criminal conduct when the FSM statute at issue is not tailored to prohibit general threats, but only those that expressly are for the purpose of influencing a decision of a public officer. When there are no applicable criminal prohibitions in the Code of the Federated States of Micronesia, it is Congress, not the court, that must act to more specifically prohibit such threatening statements or conduct. In re FSM Nat’l Police Case No. NP 10-04-03[2003] FMSC 75; , 12 FSM Intrm. 248, 251 (Pon. 2003).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

On October 23, 2003, Officer Kelly Samuel of the National Police of the Federated States of Micronesia filed an Application seeking a Search and Seizure Warrant in the above referenced case. This Application is based upon Officer Samuel’s Affidavit, also dated October 23, 2003 and filed with the Application.

Officer Samuel’s Affidavit states that the FSM Immigration Office received two anonymous e-mails, one on October 11, 2003, and one on October 19, 2003. The October 11, 2003 e-mail reads as follows:

Dear Immigration!

Don’t play like you are innocent. You know what I am talking about. Review all what you have done for the past 6 months. I’m not supposed to be doing this but I was totally pissed off with some of your employees. "Stone from heaven, those who will get hit, LEAVE THE OFFICE!!!"

[12 FSM Intrm. 250]
Best regards,

Concern Citizen

The October 19, 2003 e-mail states:

Dear, Immigration!

As the subject implies, "NOW WHAT???". Did you already figure out what you have done? Or are you still fighting your GUILTY conscience. if I still heard and found out that your office still not doing good and fair, i will send you a good gift, you know, for appreciating what you have done.

yours truly.

Concern Citizen.

The e-mail address from which both of these messages originated was "[email protected]." Thus, the FSM Immigration Office and the national police are unable to determine from the content of the e-mails the identity of the person or people who sent these e-mails. Officer Samuel avers that the IP address[1] for the October 11, 2003 e-mail is undetermined, but can be determined by FSM Telecom, and that the IP address for the October 19, 2003 e-mail address was 206.49.137.148, and originated from the FSM Telecom mail gateway in Chuuk. Officer Samuel states that a national police officer spoke with someone in the information technology department at FSM Telecom (an entity of the FSM government seeking the search warrant) who informed the officer that FSM Telecom could ascertain from their own record the name of the account that was used to send both e-mails, if they know the IP addresses and the time that the e-mails were sent.

The FSM national police seek a warrant that would permit them to obtain account information from FSM Telecom for the FSM Telecom subscriber whose account was used to send these e-mails, including the identity of the subscriber, the account name, and the password. The FSM national police also ask that the warrant permit them to log onto the FSM Telecom account user’s e-mail account and read e-mails.

Few rights are more important than the freedom from unreasonable governmental intrusion into a citizen’s privacy. This Court, mindful of these principles, must protect these rights from well-intentioned, but unauthorized, government action. See Kosrae v. Alanso, [1985] FMKSC 1; 3 FSM Intrm. 39 (Kos. S. Ct. Tr. 1985). Article IV, section 5 of the FSM Constitution states that "[t]he right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure or invasion of privacy may not be violated." For purposes of article IV, section 5, a search is any governmental intrusion into an area where a person has a reasonable expectation of privacy. FSM Social Sec. Admin. v. Weilbacher, [1995] FMSC 22; 7 FSM Intrm. 137, 142 (Pon. 1995). Article IV, Section 5 of the

[12 FSM Intrm. 251]

Constitution requires that, before a search or seizure may occur, there must exist "probable cause," that is, a reasonable ground for suspicion, sufficiently strong to warrant a cautious person to believe that a crime has been committed and that the item to be seized has been used in the crime. Ludwig v. FSM, 2 FSM Intrm. 27 (App. 1984). See also Ishizawa v. Pohnpei, 2 FSM Intrm. 67 (Pon. 1985); FSM v. Tipen, 1 FSM Intrm. 79 (Pon. 1982).

First, the Court believes that a subscriber to internet service in the FSM may have a reasonable expectation of privacy in the content of e-mails that are stored on the server at the offices of FSM Telecom. Even though e-mails are computer generated, digital images, they are "papers and possessions" that a person reasonably expects will be kept private, and they should not be subject to unchecked governmental intrusion or seizure. Thus, before this Court can issue a warrant, it must find that there is evidence sufficiently strong to warrant a cautious person to believe that a crime has been committed. Here, the national police argue that the October 11, 2003 and October 19, 2003 e-mails establish probable cause that the sender or senders violated 11 F.S.M.C. 517(1)(b). Title 11, Section 517(1)(b) states: "A person commits a crime if he or she . . . threatens ha any public olic official with purpose to influence his or her decision, opinion, recommendation, vote, or other exercise of discretion in a judicial or administrative proceeding."

I find that the FSM national police have not provided probable cause that this crime has been committed, and accordingly will deny the application for a search warrant. This criminal law cited by the FSM national police requires a showing that an individual threaten harm to a public official "with purpose to influence" a public official in a decision making capacity. The Court finds that the language of the e-mails is ambiguous, and does not necessarily threaten harm to any public official. Furthermore, these e-mails, even if taken seriously, do not reference any decision, opinion, recommendation, vote, or other exercise of discretion by any FSM Immigration personnel. The first e-mail asks Immigration to, "[r]eview all what you have done for the past 6 months." The second e-mail asks Immigration if it has a "GUILTY CONSCIENCE," and states that the sender of the e-mail will send Immigration "a gift" if Immigration is "still not doing good and fair." It is not possible for the Court to infer from the text of these e-mails that the sender or senders actually intended to influence any exercise of discretion on any particular matter by Immigration. The Court has before it no information on any particular decision or other exercise of discretion made by Immigration officials. Even if the Court were to read these e-mails as serious threats to do harm, there is no connection between the threatened harm and any action by Immigration officials that could possibly be influenced.

The Court realizes that the world climate is such that threats against government facilities should be taken seriously, and that governments must be ever vigilant against those seeking to inflict harm against them. However, the Court cannot infer criminal conduct where the FSM statute at issue is not tailored to prohibit general threats, but only those that expressly are for the purpose of influencing a decision of a public officer. There appear to be no applicable criminal prohibitions in the Code of the Federated States of Micronesia, and it is Congress, not the Court, that must act to more specifically prohibit such threatening statements or conduct.

Accordingly, the Application for Search and Seizure Warrant filed by the National Police of the Federated States of Micronesia, is hereby denied.

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^[1] Every computer connected to the Internet is assigned a unique number known as an Internet Protocol (IP) address. Since these numbers are usually assigned in country-based blocks, an IP address can often be used to identify the country from which a computer is connecting to the Internet. See https://adwords.google.com/select/glossary.html.