dissenting.
ON PETITION FOR REHEARING
I would grant rehearing in this case for the reasons stated originally in my dissent, United States v. Martin, 418 F.3d 148, 158-64 (2d Cir.2005), and those stated in the unanimous opinion in United States v. Coreas, 419 F.3d 151 (2d Cir.2005). The majority finds comfort in the distinction between the welcome messages in Martin and Coreas. I believe that this is a distinction without a difference. The majority apparently views the distinction between the welcome messages as important because, in their view, the girls12-16 message demonstrates that the “primary purpose” of the group is to exchange illegal visual depictions while the Candyman message is less clear as to the group’s “primary purpose.” This is both irrelevant and factually incorrect.
I. Probable cause cannot be based on mere group membership
As I explained in my original dissent, after redacting Agent Binney’s false statement that all members of girlsl2-16 automatically received emails containing illegal visual depictions, the affidavit supporting the warrant application contains no allegation that Martin actually downloaded, or even viewed, any illegal visual depictions. Martin, 418 F.3d at 160. Without some evidence that a specific individual possesses fruits or instrumentalities of a crime, probable cause cannot exist to search that person’s home. To make up for this lack of evidence, the majority relies on membership in an E-group whose “primary purpose” is allegedly illegal to create probable cause to search any member of the group, no matter how short or inactive their membership.
Basing probable cause solely on group membership runs counter to the well-established rule in Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Ybarra clearly held that probable cause must be particularized with respect to the person searched. Id. The majority’s attempt to distinguish Ybarra relies on the same flawed “primary purpose” analysis used throughout the opinion. Ybarra never mentions the concept of “primary purpose”; instead it categorically rejects probable cause based solely on association and imposes a strict requirement of individualized suspicion. Id.
The majority cites no case supporting the alarming proposition that probable cause may be based solely on group membership whenever the group’s “primary purpose” is illegal, rather than on, as has been required in the past, particularized information about the person or place to be searched. Such an unprecedented standard will “tend to dilute the First Amendment’s protection against guilt by association and dimmish the Fourth Amendment’s focus on particularity and on protection of the privacy of the individual to be searched.” Coreas, 419 F.3d at 158. In addition, this standard is impractical because the “primary purpose” of an organization may frequently be unclear, even to its own members.
Requiring particularized evidence will not hamper government enforcement of laws against child pornography. This is especially true in this case, since the government could easily have obtained information about a particular subscriber by *90obtaining the user’s email preferences from Yahoo! or monitoring use of the group. Coreas, 419 F.3d at 158; Martin, 418 F.3d at 160 n. 10 (Pooler, J., dissenting) (citing United States v. Perez, 247 F.Supp.2d 459, 483 (S.D.N.Y.2003)).
The majority’s analogy to a marijuana collective is inapposite. The hypothetical posits that the collective is a “means to generate, inventory, and barter and exchange marijuana.” This language, like so much of the majority opinion, is not precise. It is unclear what it means to “generate” or “inventory” marijuana and whether such activities are illegal. If the analogy is intended to describe an organization engaged solely in buying and selling marijuana in a jurisdiction where such activity is illegal under all circumstances and which excludes those who only want to discuss marijuana, then the collective would be involved only in illegal activity. An organization engaged solely in illegal activity such that the organization “becomes wholly illegitimate” presents a different case than the one before us and is more analogous to organized crime. United States v. Rubio, 727 F.2d 786, 793-94 (9th Cir.1984); see also Coreas, 419 F.3d at 158 (citing United States v. Scarfo, 711 F.Supp. 1315, 1339 (E.D.Pa.1989), aff'd sub nom. United States v. Pungitore, 910 F.2d 1084 (3d Cir.1990)). Furthermore, in the cases that base probable cause on membership in a wholly illegal organization, the underlying indictment is generally for conspiracy, making the membership itself relevant to the crime. Martin, 418 F.3d at 161 n. 12 (Pooler, J., dissenting) (citing United States v. Killip, 819 F.2d 1542, 1550 (10th Cir.1987); Rubio, 727 F.2d at 792-93). A more apt analogy to this case would exist if the collective also facilitated the discussion of legalizing marijuana or experiences with marijuana use. In addition, marijuana does not require the kind of line drawing presented by the indecent material at issue here, where some depictions are illegal child pornography, while others are merely child erotica. Analogizing child pornography to marijuana is simply unhelpful.
Since I continue to believe that individualized information, rather than mere membership in an organization whose “primary purpose” is illegal, is necessary to support a finding of probable cause, the distinction the majority attempts to draw between the welcome messages is unavailing.
II. The girlsl2-16 welcome message does not establish that the “primary purpose” of the group is illegal
It is far from clear, based on either the welcome message or other aspects of the group, that the “primary purpose” of girlsl2-16 was to trade illegal visual depictions. Defining an organization’s “primary purpose” is difficult given that any given member may understand that purpose differently, and is particularly difficult in this case because of the unstructured nature of E-groups. The welcome message of girls!2-16 actually emphasizes many of the legal functions of the group. It suggests, among other things, that the group be used to “share experiences with others, share your views and opinions quite freely without censorship,” “connect with others ... and get together sociall [sic].” While it also suggests posting pictures or video, there is no way to know whether this was intended to include child pornography, or simply child erotica, which while distasteful, is not illegal. In fact, child erotica constituted almost eighty five percent of the pictures emailed to Agent Binney while he was a member of the group, making it far more prevalent on the site than illegal child pornography. Berglas Aff. at 24.
*91The mixed uses described by the welcome message are confirmed by the fact that a number of legal and constitutionally protected activities could and did take place within the E-group. The group supported surveys, chatting, and textual postings. Berglas Aff. at 19. As discussed above, many of the pictures posted on the site were child erotica, not child pornography. Since child pornography was contained in less than eight percent of the emails sent to members of girlsl2-16, exchanging child pornography can hardly be considered the primary purpose of the group. The majority argues that the text based emails, which made up the majority of the emails, were merely a means to alert users that new pictures had been posted, majority op. at 8-9, but, even considering only the pictures that were emailed to users, the vast majority were legal child erotica, not illegal child pornography. Berglas Aff. at 24. It is therefore stretching the facts to conclude that the primary purpose of the group was to exchange illegal visual depictions. Despite this, the majority fails to even acknowledge the legal uses of girlsl2-16 and the very narrow nature of the crime at issue here.
Finally, although the Coreas panel considered the distinction between the welcome messages, they did not think they could distinguish Martin on this basis. 419 F.3d at 157. The internal structure of the two groups was essentially the same, and both welcome messages contained invitations to post pictures as well as engage in free speech. Id. Similarly, there was no evidence in either case that the particular defendant had actually downloaded any illegal visual depictions. Id. at 156. Thus, as the Coreas panel recognized, all the relevant facts were the same, despite the more explicit welcome message for girlsl2-16. The unavailing distinction the majority proposes would not remove the constraint the Coreas panel believed forced it to wrongly decide that case.
Conclusion
The majority is correct that “the internet does not present an exception to established principles of probable cause,” but by relying solely on the fact of membership in a group whose “primary purpose” is allegedly illegal, that is exactly what they have done in this case. For the reasons stated above, in my original dissent, and the unanimous opinion in Coreas, I respectfully dissent.