Supreme Court overturns child pornography conviction of Oakridge man

The state’s highest court found Thursday, March 26, that an investigation of an Oakridge man’s activity on a public Wi-Fi network violated his right to privacy.

The Oregon Supreme Court decision reverses the conviction of Randall De Witt Simons, now 73, on multiple child pornography charges. 

Simons first gained notoriety in connection with the 1996 unsolved slaying of JonBenét Ramsey. In news articles following the Boulder, Colorado, 6-year-old girl’s death, Simons was reportedly identified in 1998 as the child’s photographer.

The decision Thursday is not related to the Ramsey murder. Instead, it focuses on the 2019 arrest of Simons after he used a neighboring A&W restaurant’s publicly accessible wireless network, according to the Oregon Supreme Court opinion.

“Over the course of a year, without a warrant, the state tracked 255,723 of defendant’s  webpage visits,” the 28-page opinion states. 

Using a tracking device with a directional antenna known as a “packet sniffer,” a police detective identified radio traffic associated with the computer accessing illicit material.

Police then used the information gathered as part of their investigation to obtain a warrant and search Simons’ personal computer. His home was within signal range for the restaurant’s wireless network.

Oakridge and Springfield police investigated Simons, according to published reports.

A lower court, the Oregon Court of Appeals, found that Simons “did not have a constitutionally protected privacy right under the circumstances.”

The Court of Appeals noted that Simons, when logging onto the network, agreed to its “terms of service,” which “prohibited the transmission of obscene materials or illegal activity” and also gave notice that A&W had the ability to monitor activity on its network and “may cooperate” with legal authorities.

But the Oregon Supreme Court found that “the mere fact that a person accesses the internet through a public network does not eliminate the Article I, section 9 right to privacy that exists for one’s internet browsing activities,” as stated in the Oregon Constitution.

The opinion cited the section that reads, “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.”

The Oregon Supreme Court ruling noted a distinction in privacy rights granted by the Oregon Constitution and the Fourth Amendment of the U.S. Constitution. The opinion stated that the Fourth Amendment protects against a warrantless police search when a person has a “reasonable expectation” of privacy. 

“By contrast, the privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right,” the opinion stated, citing a previous case decided in Oregon.

The ruling also rejected the argument that by acknowledging the terms of service, Simons lost his right to privacy.

“Given the ubiquity of terms-of-service provisions when accessing the internet, if such terms were to eliminate Article 1, section 9, privacy rights, there functionally would be no privacy in one’s internet activities, ever,” the opinion stated. “Wi-Fi hotspots and  ISPs would become access points for governmental mass surveillance without limitation.”

The Supreme Court concluded: “To whatever degree terms-of-service provisions may inform the obligations of the parties to the agreement — the service provider and the end-user — they are not reflective of the general societal and legal norms for government conduct, nor do they  dispositively  set  the  standard  by  which  governmental conduct will be judged.”

A previous Oregon Court of Appeals ruling reversed the September 2021 Lane County Circuit Court conviction on unrelated grounds. But the Supreme Court opinion now not only reverses the conviction, but states that the circuit court must now consider how to “suppress” evidence “in light of our decision.”

Justice Bronson James authored the decision on behalf of the court.

Justice Stephen Bushong wrote a 10-page dissent that agreed with the finding that surveillance by the state of Simons’ activity on the public network violated the Oregon Constitution’s right to privacy.

Bushong disagreed, however, with the way the court’s majority concluded that a “search” took place.

“Under our traditional test, we have concluded that a ‘search’ occurs for purposes of Article I,  section 9, when the government invades ‘a protected privacy interest,’” Bushong wrote, instead calling for “a commonsense approach” to what constitutes a search.