EDNY Magistrate Upholds Constitutionality of Adam Walsh Act's Limitations on Rule 16's Disclosure Requirements in Child Pornography Cases

The recently-enacted Adam Walsh Child Protection and Safety Act of 2006 amends Fed.R.Crim.P. 16 with regard to the disclosure of child pornography materials, providing that such material must be kept in the custody or control of the government and may not be copied by the defense.  See 18 U.S.C. § 3509(m).  Presenting facial and as-applied constitutional challenges to that provision, as well as a challenge under the separation of powers doctrine, the defendant in United States v. Spivack, 05-cr-98 (ERK)(JMA), 2007 WL 4593475 (E.D.N.Y. November 29, 2007), maintained that the provision unreasonably restricted his access to the services of a forensic computer expert. 

The court found that the "safety valve" of the provision - whereby the prohibition on production of alleged child pornography only applies as long as the material is made "reasonably available" to the defendant - satisfied any due process concerns, rendering the statute constitutional on its face.  Moreover, the court was not persuaded by the defendant's conclusory claim that problems of "time, equipment and unfettered access" meant that inspection at a government facility did not provide "ample opportunity" to inspect, and accordingly, found the statute constitutional as applied.  She also held that the safety valve rescued the provision from any separation of powers infirmities.

Importantly, however, the court held that "[i]f defendant finds inspection at the aforementioned government facilities burdensome, the Court is prepared to issue a protective order comparable to the order issued by the Honorable Carol B. Amon in United States v. Leonardo Nalini, 06-CR-272 (CBA)."  That creative order, unfortunately not reproduced in the decision but available on Pacer, directs the government to provide two copies of the hard-drive to the court, which will hold them securely in a locked cabinet and only provide them to certain defense representatives, who have signed a written undertaking, and who agree to review and index but not copy the materials on the hard drive, and using a computer that is not connected to the internet and which may be examined by the government when the review is complete.  Compliance with the order protects all parties from prosecution by the government.

Since it would be time-consuming and extremely expensive for a computer expert to review a hard-drive at a government facility, it should not be too difficult to meet the burden necessary for the issuance of a Nalini protective order in these circumstances.