Oregon Supreme Court reverses child sex abuse conviction on privacy grounds
Case was closely watched by privacy and civil liberty advocates who expressed concern about authorities trampling on the Fourth Amendment
By Shaanth Nanguneri, Oregon Capital Chronicle
SALEM, Ore. -- The Oregon Supreme Court on Thursday overturned a Lane County man’s conviction for encouraging child sex abuse, ruling that local authorities subjected him to a warrantless search when monitoring his use of a restaurant’s free wireless internet network.
In 2018 and 2019, Oakridge resident Randall De Witt Simons had accessed an A&W restaurant’s wireless internet network which extended into the range of his own home in Lane County. The network required a terms of service agreement, which noted that the restaurant chain may cooperate with legal authorities in the investigation of an alleged crime or may disclose internet activity in response to lawful requests by authorities.
After the restaurant owner discovered the suspicious activity, the business reported the information to local law enforcement, who directed the owner to continue tracking Simons’ activity. The business gave authorities more than 250,000 activity logs of all the websites Simons had accessed, including those which a firewall had flagged for “child abuse images.”
For more than a year, according to the ruling, law enforcement had the business track his activity and report it to an investigating officer, who eventually used that information to help secure a warrant and search Simons’ laptop in his home. A search of that laptop revealed that Simons, who is now 73, had accessed child pornography. He was charged and convicted on 15 counts of encouraging child sex abuse.
But in the court’s Thursday ruling, Justice Bronson D. James wrote that the way authorities and the restaurant chain went about that investigation ran afoul of the Oregon Constitution and its protections against unreasonable seizures, which extend to privacy in one’s internet browsing activities.
The state had argued that Simons did not have privacy rights for his activity on the network and that A&W had not been acting as an agent of the state. But James wrote that constitutional protections are not forgone by using a public network or agreeing to terms of service agreements allowing law enforcement investigations.
“It is a necessary concession of modern life that, to use the internet, one must access it through channels controlled by others, which make one’s browsing activity potentially viewable by third parties,” the 39-page decision reads. “That does not change the societal norm that a person’s internet searches and browsing activities are reasonably considered to be private.“
The justices partially reversed a 2023 Oregon Court of Appeals ruling which had found that Simons had no privacy interest in his internet activities performed on a third party network. The Oregon Supreme Court also sent the case back to a trial court for further consideration. That means the Lane County Circuit Court will reconsider Simons’ denied motion to challenge the information used to obtain the warrant and suppress evidence found through his internet activity on the network.
The move casts fresh uncertainty on the future of Simons’ convictions. He has been incarcerated in the Umatilla-based Two Rivers Correction Institution since 2021, and prison records currently show his earliest possible release date is in 2030.
“We are still evaluating the Court’s opinion and the impact on the case,” Lane County District Attorney Christopher Parosa said in an email. “We should have some answers early next week.”
Marta Hanson, a spokesperson for the Oregon Department of Justice, said the agency is committed to supporting justice and community safety when it represents the state for criminal appeals.
“We respect the court’s ruling, which clarified the law governing these technologies and provides guidance to law enforcement for future criminal investigations,” Hanson said in a statement. “We will continue to advocate for rules that protect our community while honoring privacy rights.”
A public defense attorney representing Simons declined to comment. A&W did not immediately respond to a request for comment on Friday.
The case also drew the attention of groups representing criminal defense attorneys and civil liberty advocates, including the American Civil Liberties Union of Oregon, which declined to comment.
The groups had pushed back on the search of Simons’ internet activity on the grounds of the Fourth Amendment to the U.S. Constitution, which bars against unreasonable searches and seizures. They argued in a legal brief that the Oregon Court of Appeals failed to understand that user agreements A&W used had “no meaningful distinction between a user of a business’s public Internet network like Simons and the millions of other Oregonians who use a paid Internet service.”
“The Court of Appeals’ holding and reasoning advances an inconsistent and unsustainable standard for conducting the reasonable expectation of privacy analysis in the realm of Internet activity,” the brief reads. “There are important constitutional questions at stake in this case, and if this Court denies Simons’s petition, it risks jeopardizing closely held Fourth Amendment rights and creating a ‘crazy quilt of the Fourth Amendment.’”
In a dissent, Justice Stephen K. Bushong did not dispute that authorities had conducted a warrantless search as argued in the majority opinion. However, he argued that Simons had accepted A&W’s network terms and that the search of his activity was limited to Simons’ use of the network to access child pornography.
“Although I share the majority opinion’s concerns about police activities that unreasonably intrude upon the people’s freedom from governmental scrutiny, I am not convinced that this limited collection of information by law enforcement violated any societal norms,” Bushong wrote.
