Military investigators with the Naval Criminal Investigative Service ("NCIS") launched an investigation into online criminal activity by anyone in the state of Washington without limiting their search to military personnel or computers. Through this online surveillance, NCIS officials connected Dreyer, a civilian, to criminal activity and turned him over to civilian law enforcement officials from the local police department. After Dreyer was convicted, a three judge panel of the Ninth Circuit Court of Appeals found that the NCIS surveillance violated the Posse Comitatus Act ("PCA"), a federal statute that prohibits military personnel from participating in civilian law enforcement activities. It also ruled that the evidence obtained by NCIS should have been excluded from Dreyer's trial and reversed his conviction. This was the first time a federal court has excluded evidence obtained in violation of the PCA. The government asked the court to reconsider its decision to exclude the evidence and the Ninth Circuit agreed, ordering the case to be reheard by an 11 judge en banc panel.

EFF, along with the ACLU of Washington and the National Association of Criminal Defense Lawyers ("NACDL"), filed an amicus brief in support of Dreyer, arguing that the evidence was properly excluded. Tracing the constitutional origins of the PCA and noting the egregious Internet surveillance that occurred in Dreyer's specific case, the long history of repeated improper military incursions into civilian law enforcement and the concerns that technological advancements will only exacerbate the problem, our amicus argues exclusion of evidence is a proper remedy for PCA violations.

The en banc Ninth Circuit will hear oral argument in the case on June 17, 2015 at 3:00pm at the James R. Browning Courthouse on 95 Seventh Street in San Francisco.