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Supreme Court Declines Case Over Techs' Right To Search Your PC 485

Posted by samzenpus
from the just-not-interested dept.
An anonymous reader writes "A few years back, a guy was arrested for possessing child pornography after techs at Circuit City found child porn on his computer, while they were installing a DVD player. The guy insisted that the evidence shouldn't be admissible since the techs shouldn't have been snooping through his computer — and a lower court agreed. The appeals court, however, reversed, noting that the guy had given Circuit City the right to do things on his computer — including testing out the newly installed software (which is how the tech claims he found the video). The guy appealed to the Supreme Court, who has declined to hear the case, meaning that the ruling stands for the time being. So, basically, if you hand your computer over to someone else for repairs, at least in some jurisdictions, they may have pretty free rein in terms of what they're allowed to access on your computer."
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Supreme Court Declines Case Over Techs' Right To Search Your PC

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  • by Anonymous Coward on Thursday June 11, 2009 @07:09AM (#28291497)

    Not in places in Europe it is not, there is such a thing as "laws of evidence" and it must be obtained lawfully.

    That is why if you go to a small claims court you DO NOT get your lawyer to represent you as they are bound by the laws of evidence but YOU are NOT. :) You can get away with a lot in small claims courts if you represent yourself.

  • by sigxcpu (456479) on Thursday June 11, 2009 @07:14AM (#28291537)

    If the tech is allowed to access and he sees something that is illegal to posses, he then gives a tip to the police, who now have probable cause for a search.
    Wouldn't the stuff be admissible?

    Or am I missing something?

  • Re:In other news... (Score:5, Interesting)

    by Drakkenmensch (1255800) on Thursday June 11, 2009 @07:25AM (#28291617)

    If you can't see that difference you ought to seek help quickly.

    Missing the point entirely. I wasn't implying that child porn is on the same level as ill-gotten downloads, rather that if the supreme court allows tech support to gather evidence usable in court, what's stopping the MPAA and RIAA to pay tech shops to tear through their customers' hard drives for any evidence of downloads, and report to them directly their findings along with the culprits' names and addresses?

  • by Corbets (169101) on Thursday June 11, 2009 @07:26AM (#28291629) Homepage

    No, you've got it right, though I don't see much of a difference between what you wrote and what the GP said.

    Police and agents of the state are prevented from obtaining evidence illegally; doing so makes it inadmissible in court. However, information collected by private citizens can be used in court regardless of how it is obtained, though the private citizen can of course be prosecuted for any crimes committed during the collection of that evidence.

    Look at it this way: the laws regarding collection of evidence are not designed to protect criminals, they are designed to protect individuals from an overreaching state. But if the state is handed information without doing anything wrong (which includes asking private citizens to illegally obtain evidence, mind you), then it has the right and obligation to act upon that information.

    IANAL, though I did just read the chapter on forensics in my CISSP study guide.... :)

  • by CajunArson (465943) on Thursday June 11, 2009 @07:27AM (#28291639) Journal

    No they wouldn't have been, because there is nothing about this case that is legally novel or particularly controversial. The techs were not state actors (meaning working for the government either officially or at the direction of somebody from the government). Therefore, the 4th amendment rights to protection from unreasonable search & seizure do NOT apply (notice how I'm NOT talking about expectation of privacy... you don't even get to that issue when there's no state action).
          There have been cases in the past where criminals have broken into people's houses and stole items that prove crimes (like say papers proving bank fraud or something like that). Later when the cops bust them and recover the items, those papers were completely valid as evidence against the original owners of the papers, even though the police would have needed a warrant to get the papers if they had conducted a direct search & seizure. If a criminal breaking into your house doesn't count as state action, then voluntarily handing over your computer to techs who are supposed to know how to fix the computer is not the brightest move.

  • by hacker (14635) <hacker@gnu-designs.com> on Thursday June 11, 2009 @07:41AM (#28291761)

    Years ago, I worked for $BIG_PHARMA, and in one of the labs, there was a shared printer and some shared PCs. Each PC required a user to log in, using their own credentials.

    One day, one of the female scientists walked over to the printer to retrieve some print jobs, and found full-color pr0n prints sitting on the printer that someone had printed from one of the shared PCs in that lab.

    An investigation ensued, and they found the offending machine, but couldn't pinpoint who had actually browsed to the site or printed the images. What they did find, was a VERY organized local directory of pr0n on the machine.

    When they were looking through the upstream proxy and web logs, they found the site that the images were sourced from, found the date and time they were viewed and requested, etc. They finally figured out who the culpret was... and terminated him.

    HOWEVER , they also found hundreds of other PCs across the company visiting the same site all over the logs, including some VERY high-level directors.

    So now what do you do? Do you just fire the one person who was caught because of the reported incident, or do you start firing everybody because they're guilty of the same "offense" (browsing restricted content on company resources).

    I don't know how it ended up, but I do know a lot of people were talked to and put on probation/had their public web browsing rights restricted or removed (only internal/intranet allowed).

  • by WCMI92 (592436) on Thursday June 11, 2009 @08:06AM (#28292097) Homepage

    But that's not an issue here. According to the summary (I'm not going to go digging through actual court filings), the guy argued that CC didn't have a right to snoop. He didn't argue that the evidence was untrustworthy because of the chain of custody. Thus, your point doesn't touch on this case (you can't introduce new theories in further appeals; you're limited to what you argued originally).

    A better lawyer would have argued that and likely would have won.

    There is one remedy in that case.

    Failing to bring up the "chain of custody" status of the evidence is serious malpractice in the case of the lawyer representing the defendant. Seems to me the lawyer locked in on the argument "techs shouldn't be searching hard drives for porn" (which isn't settled law) and ignored the more conventional argument. Huge mistake, and if the accused got himself a new lawyer might be able to get a new trial based on that.

  • by WCMI92 (592436) on Thursday June 11, 2009 @08:39AM (#28292637) Homepage

    How about if someone attempts to purchase drugs from an undercover DEA agent? Or solicits prostitution from a police officer undercover? In the first case, the agent has drugs in their possession, and are attempting to sell them. In the second case, a police officer is making others believe that they are a prostitute and are attempting to sell themselves. In my opinion, if law enforcement personnel break the law to catch people breaking the law, they both should be charged. I know that they claim they are not breaking the law, however it is what it is regardless of how they try to justify it. I agree with your statement.

    As a civil libertarian, this sort of thing is something I very much object to, and think rapes the spirit AND LETTER of the Constitution.

    No one should be above the law, ESPECIALLY not the government. If it's a crime for ME to have drugs in my possession and offer to sell them to someone, it should be a crime for the POLICE to do so.

    This is so fucked up. A cop can pose as a drug dealer, as a prostitute, etc, and get away with lying to you. You, however, can be busted for lying to THEM, even if they do not identify themselves as a police officer, and you don't know that they are.

    That is serious abuse of power, that unfortunately happens every day. I often wonder how many are enticed by "sting" operators into committing crimes they never would have had the police not solicited it?

  • Re:Yup! (Score:5, Interesting)

    by hairyfeet (841228) <.bassbeast1968. .at. .gmail.com.> on Thursday June 11, 2009 @08:58AM (#28293009) Journal

    As someone who has worked PC repair for ages (as my oldest says "when dinosaurs roamed the earth) allow me to enlighten the childrens here. First i have been buds with some best buy guys over the years, and I have known a few that kept external drives with .BAT files that would trawl your drive for .jpg, .avi, etc. Are you gonna trust that guy not to fuck up and drop something off of said drive while he is looking for files to steal? It is like asking the guy robbing your house not to drop crumbs on your carpet.

    Second, I can tell you from experience working on clients computers that there is some seriously nasty malware out there that will do all kinds of nasty shit to your PC, including leaving nice backdoors where Mr. Malware writer can go in and pretty much do anything he wants. I have also seen clickjack bugs that will open up 20+ windows at a time to many different topsites INCLUDING those that advertise child pron. Now according to the law that person could be rotting in jail now for having a bug. Now you may get cleared later but after how much money? What if you don't have the cash for a good lawyer?

    That is why my customers can bring their PC to me without fear. Because unless they tell me to go into the My Documents folder I ain't going there. I am working with the desktop and the system32 folder and that's it. That "I needed data to burn" bullshit is just that. The geek squad guys have piles of CDs and flash drives lying around just like I do. When I need to test a burner I simply use the software CD that came with it, or drag my repair tools folder off my flash. But trust me, anybody who has worked PC repair for any length of time knows that story is bullshit. I have known so many guys with porta drives filled with other folks stuff that it ain't even funny.

    Have I worked on somebody's PC in the past that may or may not had kiddie porn? Probably but I wouldn't have known because I don't go looking for stuff to steal. To me it is like the guy that comes in to spray your apartment looking through your underwear drawer. It ain't my job to be an undercover for the cops. I just fix the box and hand it back, which is what the geek squad guys SHOULD be doing but I can tell you from talking to quite a few ain't the case. And I think that is the heart of the matter. You know the geek squad guy was stealing, I know the geek squad guy was stealing, hell I'm sure the cops knew it to. letting the geek squad guys steal whatever they want as long as they are good snitches is bullshit and we all know it. But as long as the courts let them get away with it they'll keep right on loading their hard drives. It isn't like Best Buy corp is gonna give a fuck if they help themselves as long as your check clears.

  • by Shakrai (717556) on Thursday June 11, 2009 @09:25AM (#28293479) Journal

    The OP did say "arrested" and not "convicted." I don't know about you, but my life would be hell on earth for those fifteen months.

    Eh, you'd be amazed what you can learn to live with while going through something like that. Once upon a time I was charged with crimes (felonies) I didn't commit. It took eight months to clear my name. During that time frame life was surprisingly normal -- other than the occasional court appearance and the checks I was writing to my attorney. It really sucked knowing those charges were hanging over my head but you push it to the back of your mind and try to get on with life.

    Mind you, I wasn't charged with something that comes with the scarlet letter, but my case did get a lot of publicity when I was arrested and none when I was cleared by the grand jury. That didn't seem really fair but I still live in the same area and have been able to get on with my life without being held back by what happened. None of this is to say that it doesn't suck of course -- but I can think of far worse things that could happen to you than being charged with a crime you didn't commit and eventually being cleared.

  • Re:Justice... (Score:5, Interesting)

    by TheRaven64 (641858) on Thursday June 11, 2009 @09:28AM (#28293509) Journal
    You have something in common with many lawmakers today; you are completely missing the point behind this law. The obvious reason for not allowing evidence found illegally is that it is not trustworthy; if someone is willing to break the law to find evidence, how do you know that they are not willing to break the law to plant evidence? The more important issue, however, is that it undermines the police. If you report a crime, and there is a good chance that the result will by your conviction for some other crime, are you going to report the crime in the first place? Probably not. This is already happening in the US, where high-profile lawyers are recommending that you never talk to the police because everyone is guilty of something, and it's easier for the police to find what you are guilty of than it is to solve the crime you reported. Enforcing the law in such circumstances becomes increasingly difficult.
  • by Anonymous Coward on Thursday June 11, 2009 @09:54AM (#28293909)

    Naturally nobody gives a shit about this though

    And that is what it really comes down to. Some people complain about it, but hardly anyone (less than 1%) actually bothers to vote against it. 99% of the voting populace in the US thinks the drug war is an extremely good idea and that every politician who advocates otherwise should be utterly crushed in any election.

    The voters don't say that when you talk to them (some do, but it's no where near 99%) but they demonstrate that belief in the voting booth where it counts, every single time.

    To anyone who disagrees with me: stop bitching and start voting. If you vote for the drug war parties, then you're pro-drug-war and any protestations otherwise are so embarrassingly feeble that your hypocrisy is completely transparent.

  • by Anonymous Coward on Thursday June 11, 2009 @10:05AM (#28294109)

    imagine if they offer a reward to repair techs for information of people who may have "illegally obtained" music or movies. this was not taken up by SCOTUS because most of them are not tech savvy and fail to realize the importance of this.

  • Yet more perspective (Score:5, Interesting)

    by BenEnglishAtHome (449670) on Thursday June 11, 2009 @10:48AM (#28294797)

    First job out of college, I was an apartment maintenance man. Commonly, people would call in problems and I'd go into their place to fix things during the day while they were at work. I saw all manner of illegal stuff and it never occurred to me to call the police. I've seen coffee tables literally heaped with a kilo of weed in a very neat pyramid, but I'm not a cop and it's not my job to tattle on other folks, so I just forgot about it.

    The only time I did anything to change the status quo was when someone was taking action that damaged the property. I was an agent of the property owner, so if you painted your bedroom black (It takes gallons of expensive Killz to cover black well enough to rent the place after you move out) or if you wallpaper your bathroom with porn (I wonder what kind of impression that made on any female houseguests?), it was my job to report and take action.

    Sometimes, the action was pretty simple. For example, someone stole most of the furniture from around a pool. A few days later, I got a ticket to fix a leaky faucet. When I went into the apartment, there was our pool furniture, covered with towels, being used as a living room suite. I didn't say anything to anybody; I just put the furniture back out by the pool. Resident was a little sheepish after that.

    Nowadays, I fix computers for a living. When I see something dodgy on an employer-owned computer, it's my job to report it. But on those occasions when I've done work for friends, even when I see something that might be dodgy, I don't take the time to look. It's none of my business. I'm not a cop and outside of work, it's not my job to tattle on you.

    Now, here's where I get twisted up. What's the legal obligation of someone who sees something on your computer? I would imagine some jurisdictions have tried to make it illegal to look away when you accidentally stumble across something that might, at first glance, seem a bit to young to be doing what they're doing. In fact, wasn't there a law proposed in Texas that would have required all computer repair shops that do file recovery to have an investigator's license issued by the state just so that they'd hove some idea how to maintain a chain of custody and some legal obligation to actually report what they see rather than ignore things (like I used to do?

    I'm not sure what the law is, so I don't work for friends ever since my sisters best friends sons computer needed help and I found, in addition to multiple virus infections and no anti-virus software, a large collection of sexually explicit webcam vids he'd made with his contemporaries. (I'm sure they were all over 18 years old, of course. They may have all been freshmen in high school but I keep telling myself that there were all over 18.) I simply don't want to deal with that stuff so I no longer help people who come to me with "My kids computer is really slow; can you help?"

    Likewise, if I worked at Best Buy or some such repair depot, there's flat out no way I'd look at anything on the drive I didn't absolutely have to to get the job done. I just don't need the drama in my life.

  • Re:Justice... (Score:3, Interesting)

    by Tuoqui (1091447) on Thursday June 11, 2009 @11:27AM (#28295481) Journal

    Well if the Tech involved seen a folder on the desktop labeled 'child porn' then he'd have every reason to check to see the contents of the folder and inform police. More than likely they installed some sort of video editing software or something and went to the last opened list for a file to test it with.

    Illegal evidence typically only applies to police and those acting on behalf of the police from what I understand. The tech may be on the hook for breaching privacy laws or some obscure computer hacking laws but lets face it... Are the cops going to arrest a guy who helped them bust a Pedo? I doubt it.

  • Re:Justice... (Score:3, Interesting)

    by interkin3tic (1469267) on Thursday June 11, 2009 @11:27AM (#28295491)

    If the cops can just do whatever they want without losing their case, then they'll just do whatever they want, including door-to-door shakedowns.

    It was the circuit city guys though. They were the ones who found the stuff, they presumably called the police. And if the guys from circuit city can just do whatever they want, then they'll just do whatever they want, including playing WoW rather than helping you find anything.

    Fortunately, that dystopian vision won't come true since they went bankrupt.

    The point though is that this was NOT the cops. If it were, it would definitely (or rather, should definitely) be an open and shut case if they didn't have a warrant to search his computer. You as a private citizen though have no need to get a search warrant. If you're breaking into a neighbors house to steal something, and you see your neighbor has a kiddie porn dungeon, your testimony can be used as a basis for a search warrant, right (IANAL so I don't want to overstate that)? If the cops, on the other hand, go into your house uninvited and without a warrant, that case would be tossed out (or should, and again, IANAL.) Why should it be any different for a computer?

  • by PriceIke (751512) on Thursday June 11, 2009 @11:34AM (#28295609)

    OK I'll bite.

    A bank robber flees the crime scene in a car going 90MPH. Would you permit the police to give chase, given that they would have to violate traffic safety laws to do so? Or should the police only drive the speed limit?

    Another scenario: A man is holding a hostage at gunpoint. Should police draw their weapons and aim them, even though threatening violence (or death) against a fellow citizen is against the law?

    The police are permitted a good deal of latitude in their behavior in order to enforce laws. It would be impossible for them to do so otherwise. And yes, a cop posing as a pross or a drug dealer or a 12 year old girl in a chatroom gives people lots of reasons to reconsider engaging in illegal behaviors. That's the whole point, comrade.

  • by Maximus633 (1316457) on Thursday June 11, 2009 @11:37AM (#28295653)

    If the cops can let you off with a warning for speeding, they sure as hell have the discretionary powers to recognise a grandmother with pictures of her granddaughter in/near the bathtub.

    As for understanding the power, I'm sorry, but I can't quite accept your interpretation of mom-and-dad's world as representative. If it were, I don't think "Blue Flu" would ever have become reasonably common knowledge (and even made it into popular TV shows, such as CSI:NY, and, I'm sure, others). And I'm not sure they'd have so many other issues [police-dynamics.com] (why do they have high divorce rates, alcoholism rates, and domestic violence rates? Partly, I contend, because that power gets to their head).

    As far as the letting you off with a warning for speeding. You are talking about in most cases a misdemeanor [wikipedia.org] offense compared to a felony. You can't compare the two offense to be equals. They aren't...

    I can't speak for "Blue Flu" but how many officers compared are we talking about compared to the millions out there?

    As far as divorce rates, alcoholism rates, and domestic violence rates. How much is that stress of the job getting to them? I can personally speak of stress impacting officers. I have seen it. I have known good people that every day stress of dealing with liars, thieves, abusive prisoners, etc get to good officers. We think our jobs in the IT world are stressful. When these people have the stress of not only dealing with people who think they are "Big and Bad" but also dealing with the stress of knowing that they are a huge target. Does it make it right? No.

    Let's take some things into consideration. Officer pay is low. I mean I make more then my Mom and shes been in law enforcement for 20 years. I have only been in the work force for 5 years and never once have I had a gun pulled on me or fear for my life when I sit in my chair.

    Another thing to consider is that officers are sometimes overworked. There is a nation wide (don't have the link with me) shortage of officers. This contributes to their stress levels.

    If you ask me for the "power" they have they are paying for it more then you know. I know several officers at various agencies that do not even wear their wedding bands (My Dad and Mom both. My Dad now wheres his). What about your stressful day at the job? Do you always act level headed and never blown up? I am not saying that acting this way is right at all.

    I agree with what you said some of them get power hungry and act out. But this doesn't just happen to police officers. Politicians, Judges, Doctors, CEO's, even the managers at restaurants. But because officers are in the public and protecting the public their business is more widely distrubted.

    If you want to see what an officer does for a day go to your local police department and request a ride along. Here in Texas most departments will let any member of the public ride along with an officer as long as they are not criminals with a bad background. (Of course you will need to sign a waiver I am sure.)

  • Re:Justice... (Score:4, Interesting)

    by jc42 (318812) on Thursday June 11, 2009 @12:06PM (#28296151) Homepage Journal

    [I]f the Tech involved seen a folder on the desktop labeled 'child porn' then he'd have every reason to check to see the contents of the folder and inform police. More than likely they installed some sort of video editing software or something and went to the last opened list for a file to test it with.

    Or maybe they opened your browser and looked at the last few things that were downloaded. If you run with javascript (or other scripting tool like active-X) turned on, there are demos around the net showing how this can implicate you in all sorts of crimes. (I have a couple such demos on my own site, but I don't want it to be slashdotted, so I just suggest you google for it. ;-)

    What these demos typically do is use what's often called "preloading" to download things like images that are likely to be used in the site's other pages. This speeds up access to later pages, at the price of possibly downloading a few files that are never used. The fun part of the demos is to point out that files may be preloaded from anywhere on the net, and need not be used by any other pages. This means that, if you have JS turned on, my page can download all sorts of porn from various sites and just store them in your browser's cache. And anyone who knows how to check what you have recently downloaded will find them there, where they can easily be displayed via a file://... URL.

    On second thought, maybe I should make a copy of my demo, using URLs for images that aren't quite as innocent as the ones that I've used, and post the URL here. Then I could look at my server's logs to see if I can identify any of the visitors, and send a tipoff to their local police that you've been downloading a lot of porn, and which browser's cache they should look in to find the images.

    Maybe later ...

  • by b4upoo (166390) on Thursday June 11, 2009 @12:30PM (#28296539)

    Not only has the law gone insane in regard to a parent taking a photo of their kid in the tub the law has also gone insane on real sex offenders.
                For example Florida has a confined camp where offenders who have completed their sentences can be held for the rest of their lives. We also have two communities that have so greatly restricted permitted housing for former offenders that they are allowed to only live under a bridge as it is the only spot greater than 2500 feet from places that children gather.
                The crazy part is that molesters almost never offend near where they live as distance shields them from getting caught. The only exception being molesters who are attracted to their own kids or family members.

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