Supreme Court Declines Case Over Techs' Right To Search Your PC 485
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."
Justice... (Score:2, Offtopic)
Re: (Score:3, Funny)
Here's the keys to my house. Please clean my rug. If you find my porn/drugs/kidnapped child then it will be unusable in court.
Re:Justice... (Score:5, Insightful)
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Yes, and in Britain a white's only party managed to get two seats to the EU. Let's not make two seats more than they are, nor EU representation (and the lowest turnout ever) more than it is.
Re:Justice... (Score:5, Interesting)
Re: (Score:3, Interesting)
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 la
Re:Justice... (Score:4, Interesting)
[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 ...
From the tech's point of view (Score:4, Informative)
When working on a PC, "snooping" is the last thing I've got time or interest in doing.
However, if I install or update software (anything from a video editor to the latest version of word) and test it using the "recent files" list, you are crazy if you think I'm not going to call the police if I see something about the user being a terrorist or other kind of a criminal.
For those of you concerned about privacy laws, I think back to when I was in graduate school learning about counseling. A counselor is obligated by law (at least in Connecticut, New York, and New Jersey,) to call the authorities if the person being counseled reveals that he or she is contemplating or in the act of harming themselves or others. That applies even after promising confidentiality. (Ignore the misinformation you see so often on TV cop shows.)
I think the same principle applies here. If I work on your PC, I am obligated to keep secret your legitimate business secrets. As a matter of fact, you can and should sue me if I make public that kind of information. But reveal to me that you are a threat to yourself or others and I promise you a call to the authorities.
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somewhat related... I once worked as a network admin for a small company, as part of my job I was responsible for making sure all important data was properly backed up, We had network shares that were automatically backed up, and all work was supposed to be stored on those, however I knew full well that the president of the company never used the network shares, and had lots of important information scattered around his hard drive. Now had it been anyone else in the company I would have considered it his pr
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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 hav
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But, what's to stop law enforcement to start outsourcing more and more and more to 'private' businesses to spy on people and do their work for them?
We see this type thing already with the feds...they have trouble getting their own 'national big brother database' going (at least publicly), so they use private companie
Re:Justice... (Score:4, Informative)
Same thing that stops the cops from doing the spying themselves. Anyone working on their behalf is bound to the same laws regarding evidence.
Reading comprehension (Score:5, Informative)
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.
No, but whatever they find is admissible as evidence in court.
That something is admitted as evidence in court does not mean it was legal to obtain that evidence. Similarly, if something is inadmissible as evidence in court, it could still be legal to obtain that evidence.
Re:Reading comprehension (Score:5, Insightful)
Yeah, the real message is that you just don't hand you collection of illegal images over to anyone if you don't want them found.
Like, if you have to go to the police station to bail out a friend, leave your drugs at home. These things are common sense.
Also this guy should rot in jail.
Re:Reading comprehension (Score:5, Insightful)
Yeah, the real message is that you just don't hand you collection of illegal images over to anyone if you don't want them found.
You're assuming that "illegal images" is a cut and dry term. Not anymore. Have some myspace photos of your young looking friend in just her underwear? A "jailbait" inspirational photo in your picture folder as a joke? Manga which might be considered obscene?
No matter how innocuous you may think your hard drive is, if you are a heavy internet user there's a chance there's something on there that someone might consider child porn.
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Yeah, the real message is that you just don't hand you collection of illegal images over to anyone if you don't want them found.
You're assuming that "illegal images" is a cut and dry term. Not anymore. Have some myspace photos of your young looking friend in just her underwear? A "jailbait" inspirational photo in your picture folder as a joke? Manga which might be considered obscene? No matter how innocuous you may think your hard drive is, if you are a heavy internet user there's a chance there's something on there that someone might consider child porn.
Heavy internet users store their images on the internets. Why on earth would you store something that is more easily and quicker accessible online?
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I don't know what sort of latency you get on your HDD but mine is slightly faster than my internet.
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Or I could just leave everything rather useless on the internet. Ctrl+T to a new tab and google it within less than a second. Furthermore, I also get other fun and useless stuff related to whatever useless stuff I was looking for. win-win
Re:Reading comprehension (Score:5, Insightful)
Have any naked baby photos of your kids? Remember the mother who got arrested at Wal-Mart after taking such photos to be developed?
This sort of thing isn't nearly as black and white as it is made to seem. Child pornography is a really HORRIBLE thing, and people who create it should be castrated, and people who DESIRE it need to be put into an asylum for psychological treatment. But I just pointed out something that could be subjectively called "child pornography" that probably in in the possession of the majority parents out there...
Hell, I always HATED it when I was a kid and at the family gatherings my mom and grandparents would inevitably drag out my baby pictures... To me, that was annoying. To some freak in law enforcement who's out there trolling the `net trying to entice people to download his government sanctified stash of child porn so they can "bust" them, they were guilty of creating and disseminating child porn...
Re:Reading comprehension (Score:5, Informative)
link [reason.com]: "a WalMart worker in Pennsylvania reported 59-year-old Donna Dull to local authorities after Dull dropped off some film that included shots of her three-year-old granddaughter in and just out of the bath. Dull was arrestedâ"roughly, she saysâ"and charged with producing and distributing child pornography. The charges were dropped 15 months later..."
Re:Reading comprehension (Score:5, Insightful)
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. And probably for a long time thereafter, too, as idiots remember the arrest, and not the dropping of the charges for being stupid.
The power to arrest comes with some very serious responsibilities. The police, evidently, aren't aware of that. What I'm wondering isn't why the officer in this case arrested the woman ("stupidity" explains that in a population size of one), but why his/her superior was okay with it. Someone wasn't doing their job, and BOTH of them should be fired with extreme prejudice for simple incompetence.
Of course, I'm also wondering why it took the prosecutors 15 months to drop a case that 30 minutes of investigation could show was inept (drive to her granddaughter's house and verify the girl there matches the picture). There should have been heads rolling in the prosecutor's office, too, though I'll admit to not knowing if this was the case (I doubt it, though - I just don't trust the gubmint to get this right).
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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
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There's a good point. Cops have the authority to arrest, but take little or no responsibility for the consequences of a bad arrest.
Maybe they should have to suffer the penalties they'd tried to pin on someone, should the arrest prove bogus.. that would put a damper on it, all right.
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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 h
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No she wasn't charged $2000 [snopes.com]. She asked Maine's DEP how to clean up the mess and they said to contact a haz-mat cleanup contractor which they admit was overkill. She was given a quote of $2000 reportedly and she declined their services. Maine DEP stopped out twice, the first time there was only a detectable mercury level that would require any action within about a 8" radius of the initial spill. This is when the DEP mentioned a cleanup contractor. On a subsequent visit, there were no levels above 300ng
Re:Reading comprehension (Score:4, Interesting)
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?
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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 la
Re: (Score:3, Insightful)
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?
In an unmarked vehicle with no means of warning other drivers on the road and with a driver who has had no pursuit training? Absolutely not.
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 hostage is in imminent danger and the gunman has already broken the law. That's your latitude.
But even then, you know what reciprocation would not be acceptable? For the cops to take a member of the gunman's family hostage at gunpoint in return.
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.
In that scenario, along with all the others the OP mentioned, no one is in imminent danger and no one has already committ
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You are so wrong. It is illegal to POSSESS certain drugs. Ownership is not a requisite element of possession.
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Wrong. Drug laws are full of loopholes and exceptions. Researchers are able to obtain "illegal" drugs for the purposes of study. Cocaine has certain medical uses [wikipedia.org] and is available to hospitals.
Last but not least, if mere possession were illegal under any and all circumstances, then you'd have to arrest the cop who confiscates drugs from someone, and then you'd have to arrest the cop who arrests him
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If they can't be cured, then they need to be confined.
As long as they're not victimizing anyone why should they be confined?
As for your other example, that's not a good comparison. Men being attracted to lovely women with "huge tracts of.. land" in their prime reproductive years is normal and desired natural behavior as it perpetuates the species :) Any desire different than that represents a deviancy that isn't normal or natural.
I could have compared "curing pedophiles" to "curing gays", but that would ha
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but in the case of children, individuals who engage in that need to be kept off the streets.
Who is a child though? Is a 15 year old a child? 16 year old? In a natural setting they would be sexually mature and breeding. Mind you, I don't think that's an excuse for taking advantage of children -- we are one of the few (the only?) species with higher reasoning and should be able to control our urges.
Lock 'em up and throw away the key I say. But at the same time we need to realize the contradictions in a society that allows it's children to dress and act as ours do and then punishes those who re
Re:Reading comprehension (Score:5, Insightful)
Re:Reading comprehension (Score:5, Insightful)
> Yeah, the real message is that you just don't hand you collection of illegal images over to anyone if you don't want them found.
There's a secondary message in this story, and it doesn't apply just to computers. If you're going to use a piece of equipment for illegal activities, you'd better be able to maintain that equipment yourself. Every time someone else gets access to that equipment, you run the risk of getting caught.
Yup! (Score:3, Informative)
For one, I don't know why I'd ever hand a piece of computer equipment with a hard drive in it to the folk at Best Buy, etc. after all the exposes re: naughty technicians surfing the hard drive for porn and other things of interest. There are lots of guides out there on how to do common tasks like hard drive replacement yourself, I'd only hand over a machine with a clean drive, if that.
Secondly, one has to consider the possibility that the images stored on the computer were not deposited there by the person
Comment removed (Score:5, Interesting)
Yet more perspective (Score:5, Interesting)
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.
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Why should someone deserves to "rot in jail" just because he had pictures of illegal acts? Who are you protecting by jailing someone who has pictures?
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Unlikely. He's handing out his stash-hiding advice to strangers on t' interwebs; I'm sure his kids will get an earful.
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I agree.
It would be very surprising if mechanics asked to check a car would ignore a dead body in a truck.
Re:Reading comprehension (Score:5, Insightful)
I'd say it's more like the mechanic would rip open the door or dashboard to find drugs, when he was supposed to replace the brakepads.
Dead guy in the trunk is like putting child porn as the desktop wallpaper.
Re:Reading comprehension (Score:5, Insightful)
I'd say it's more like the mechanic would rip open the door or dashboard to find drugs, when he was supposed to replace the brakepads.
Dead guy in the trunk is like putting child porn as the desktop wallpaper.
I know nothing about the case. I know even less about car repair. However...
The fine summary is a little vague on the work that was actually done. It says they were "installing a DVD player."
If they were simply installing a piece of software to play DVDs, they probably wouldn't need to go snooping through his HDD to test it. But lots of media playback software tries to do friendly things like scanning your drive for media it can play. So the DVD player software might very well have done just that, and come up with the movie in question.
If they were installing a more general-purpose piece of software for playing back all sorts of media - VLC for example - they might very well have gone looking for a movie on his HDD to test. Depending on the hardware/software used to create a movie it can be in all sorts of different formats... And I've had clients come back and complain because we didn't associate the right filetype for their specific videos. So I always make a point of taking a quick look in My Documents to make sure everything is associated correctly.
If they were installing hardware, like a DVD drive, then they might very well have tested its burning capabilities. I'll routinely do that here at work. I've got a CD-R/W and a DVD-R/W that I carry around for just that purpose. I'll pop the disc in, grab something random off the desktop or My Documents, and try to burn it. Again, a good opportunity to stumble across something unsettling.
Again, I don't know anything about this case. Maybe the guy was just snooping. But maybe he wasn't. I know I've stumbled across some images on client drives that I wish I hadn't... Nothing illegal, that I noticed, but some stuff I really didn't need to see.
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There is a big difference between seeing drugs on the back seat, or a dead body inside the car, and reporting that, and reporting on drugs found under the carpet in the trunk or in the glovebox if the car was brought in for an oil change...
The mechanic would have had no reasonable need to have searched those two areas to perform the job he was hired to do. Same with a PC tech, if someone brings in a
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... drugs found under the carpet in the trunk or in the glovebox...
The mechanic would have had no reasonable need to have searched those two areas to perform the job he was hired to do.
Agree about the carpet. But glovebox is fair game. Maybe the mechanic only wanted to put his stamp into the service book (which is usually kept in the glovebox...)
In my case I was permanently cured of that the first time I found GAY pr0n, not the good kind, ie: girl on girl, the OTHER kind :)
Please keep your bigoted homophobia to yourself.
Just let's hope my mechanic won't freak out the next time he sees brown stains on the back seats of my car, and a mysterious white sweet & salty liquid on the filter of my air conditioning.
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Re:Reading comprehension (Score:4, Insightful)
There is a big difference between seeing drugs on the back seat, or a dead body inside the car, and reporting that, and reporting on drugs found under the carpet in the trunk or in the glovebox if the car was brought in for an oil change...
The mechanic would have had no reasonable need to have searched those two areas to perform the job he was hired to do. Same with a PC tech, if someone brings in a PC to have a CD-ROM drive replaced, there is absolutely NO REASON for the tech to need to search the browser cache or the images directory...
Now, I know, it's a rite of passage thing. We've ALL done it, looked at a customer's PC to see what pr0n he has.. In my case I was permanently cured of that the first time I found GAY pr0n, not the good kind, ie: girl on girl, the OTHER kind :)
But still, I shouldn't have done that then, and techs hired to replace a bad CD drive shouldn't be doing that NOW.
I know nothing about the case. I don't know what they found or where it was hidden. I don't know if they had to brute-force decrypt some huge stash of pornography, or if they just tripped over it. So I'm not defending anyone at this point.
But there's a big difference between whether they should have been snooping in the first place, and whether what they found should be admissible in court.
If someone breaks into my house planning to rob me blind, but finds I've got several dead people stashed in my basement, should that be admissible? Should he be able to go to the police and say "hey, this guy's got corpses in his basement!" And if he does so, should that be admissible in a court case against me? Or should that all be thrown out because he shouldn't have been in my house in the first place?
"Allowed to access" is a bit strong (Score:5, Informative)
There's a difference between what they're "allowed to access" and what's admissible in court once they've seen it. The techs aren't the government--things they've seen don't automatically get excluded because they shouldn't have seen them.
If a private citizen breaks into my house and sees something illegal, they can usually alert the cops and have knowledge of that thing be admitted in court, even though they themselves can still be prosecuted for trespassing and breaking and entering.
Re: (Score:3, Interesting)
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:"Allowed to access" is a bit strong (Score:5, Interesting)
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.... :)
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If you ever saw the movie The Rainmaker, the evidence brought forth by the plaintiff's lawyer hing
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Even if that private citizen happens to be collecting information on behalf of the RIAA?
Let's try to pick a consistent position, rather than just one that happens to agree with our cause de jour.
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Even if that private citizen happens to be collecting information on behalf of the RIAA?
Let's try to pick a consistent position, rather than just one that happens to agree with our cause de jour.
What's inconsistent about that position? Contrary to their belief, the RIAA is not a government organization. If the RIAA tells someone to break in to your house, anything that person finds is admissible in court. That person is, of course, still subject to arrest for breaking and entering. If you can also prove that the person committed the crime at the direction of a RIAA official, that official could also be subject to conspiracy charges.
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There's a difference between what they're "allowed to access" and what's admissible in court once they've seen it. The techs aren't the government--things they've seen don't automatically get excluded because they shouldn't have seen them.
Guess what? No more Fourth Amendment [msn.com]. No, really. [usatoday.com]
If a private citizen breaks into my house and sees something illegal, they can usually alert the cops and have knowledge of that thing be admitted in court, even though they themselves can still be prosecuted for trespassing and breaking and entering.
If a private citizen breaks into my house and sees something illegal, they can place you under citizen's arrest which for you is legally equivalent to being arrested by a police officer, even though they themselves can still be prosecuted for trespassing and breaking and entering. There, fixed that for you.
The difference in an arrest between a cop and an citizen is that a) the citizen is usually assumed to be a jackass in court, because the system hates com
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In both of the cases you cited, the police were acting under the impression that they were within the law in conducting the search. It would be great if every officer could know every clause of the state law book, so that the first case wouldn't happen. And it would be great if every clerk never made a mistake and let an out-of-date warrant be sent out-of-state, and that the cops in the field would recognize it as being out-dated. That's not going to happen, though.
The Fourth Amendment is still there. It st
Re:"Allowed to access" is a bit strong (Score:4, Insightful)
That's almost a good analogy, but what happened in this case, is the mechanic opened the truck and went looking around, when all he was supposed to do was to change the headlight.
That's still not quite right. Here's the better analogy:
You bring your car(computer) to the mechanic, because you need new tires(DVD drive and accompanying software). But, you've left your stash of CP in the trunk(My Documents folder). The mechanic, instead of using his own tire iron(media files to test newly installed software) to remove the lug nuts, opens your trunk to get your's(media files already present on your hard drive), and finds the CP. Now, that's the relevant car analogy.
The relevant portion of the tech's testimony can be found in the appellate court's ruling [google.com] (pages 3-4)
Shoulda remembered the 11th commandment (Score:5, Insightful)
This is right up there with handing the cop your beer or dimebag as you get your driver's license out after being pulled over - if you have something illegal, don't give it to people who A) know that it's illegal, and B) know who you are.
Not always... (Score:2, Informative)
I know of at least one PC repair company that, when doing any sort of recovery/repair work, asks the customer to sign a form giving permission for them to look at the data files on the computer.
This is just so they can verify a successful fix/file recovery. If the customer doesn't sign the form, fine, but then they have absolutely no guarantee that the repair will be okay, or that their recovered files are not just illegible garbage.
Seems the logical appr
How to beat a Child Pornography Charge... (Score:5, Insightful)
Re:How to beat a Child Pornography Charge... (Score:4, Insightful)
While I completely agree that this is the best option, this is one of those cases that would screw the rest of us if it was decided on the basis of "OMG - think of the children!" instead of on its own legal merits.
What if the repair guy had found naked pictures of the guy's wife, and posted them on the Internet? Or posted pictures of him naked with his girlfriend, and his wife saw them? What if he found plans to tempt a Senator with a bribe? What if he gave those plans to his competing candidate, instead of the police?
Each of those cases may represent a different legal case, but they could all be "colored" by precedent set in this case.
That's why it's dangerous to think of this as simply "I'll never have child pr0n on my PC." The case isn't just about the content, but about how it was dealt with. I think the SCOTUS was wise to not take this case, and they just let the guy hang for the pr0n. If they had ruled fairly that this was an illegal search, the pornographer would have walked and they would have been ridiculed as "supporting the pornographers" and labeled "activists" by a bunch of morally bankrupt wingnuts, regardless of the correctness of their decision. I think they're wisely saving the "technician searches your PC" decision for a case with less 'radioactive' content.
Another problem (Score:3, Insightful)
Is that with child porn, people get a very "witch hunt" mentality with little consideration for the whole situation. What I mean is if a 19 year old kid has a naked picture of his girlfriend, taken when she was 17, that is "child porn" in the same way that a picture of a 10 year old being sexually abused by a parent is where the law is concerned. You get charged with the same thing for possessing either. Now most rational people would agree that these are not the same things, however it doesn't matter in th
Re: (Score:3, Insightful)
Re: (Score:3, Informative)
I think they're wisely saving the "technician searches your PC" decision for a case with less 'radioactive' content.
Then they may be left waiting for a very long time indeed since most cases that I can remember where the "technician searches your PC" involve the 'radioactive' content in question.
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Yeah, it worked well for those that didn't want to be charge with illegal content distribution to have no copies of recent blockbusters...
And we're not even talking about a rather clear cut law here (steer clear of content you didn't make and you shouldn't be charged... well, you can still get charged but you have an almost 100% chance to get out clean). Look up the definition of "child porn" in your area. For me it's pretty much "anything the judge deems child porn".
So I'm at the mercy of the dirty mind of
Re: (Score:3, Interesting)
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
Not while proprietary software is involved. (Score:3, Insightful)
One would like to believe it's that easy, but I doubt most people know enough about computing to make decisions so that they can fully control what their computer does. Proprietary software + Internet access can easily equal someone else determining what's on someone's computer. Proprietary software is untrustworthy by default, no amount of testing an executable binary's behavior makes that program trustworthy because the program can be written to do something undesirable after a delay. Other than source
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"Its all about the kids".
BS
If it wasn't child porn (Score:2)
Re:If it wasn't child porn (Score:5, Interesting)
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.
From a different perspective (Score:5, Insightful)
If you see evidence of a crime you have to call the police. Thats the law where I live.
Re: (Score:3, Funny)
that may be. but you live in australia; which is entirely populated by criminals, as everyone knows
Re:From a different perspective (Score:5, Funny)
that may be. but you live in australia; which is entirely populated by criminals, as everyone knows
Not only that but we also have rodents of unusual size [wikipedia.org] to contend with.
Re:From a different perspective (Score:4, Funny)
Re:From a different perspective (Score:5, Funny)
Well, the way I've usually heard that:
Australian immigration official: "Have you ever been convicted of a felony?"
Traveller: "Is that still a requirement for getting in?"
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Is jaywalking a crime? How bout spitting on the sidewalk? Littering?
Misdemeanours.
You must be on the phone a lot.
Oddly enough I am the current record holder for issues raised in the IT bug tracking system at my work. So I am on the phone for that quite a bit. I used to work on traffic signals in the city where I live so I log a lot of faults for that. If I see an abandoned car I tend to call it in to the police. I ride a bicycle to work and I have tasks open with the Melbourne City Council for engineering work which I believe is dangerous for me. For me its a matter of keeping an eye out for problems.
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unless the guy had child pornography as his wallpaper, the techs had to actively go looking for it
Not necessarily.
A: They need the driver for the dvd drive and open up his browser, go to google, type "S" to search for 'Sony DVD rom Driver' and the auto complete history pops up 100 variations on 'sex with kids'.
B: They want to test the DVD drive so they fire up Roxio Bloatware Creator and figure the easiest thing to do is to burn a picture dvd, since there may not be music or video but there are images on every computer. At this point they discover that My Pictures is full of 10 gigs of nasty.
Of cour
In other news... (Score:5, Funny)
Re:In other news... (Score:5, Interesting)
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?
Ill-gotten what? (Score:2)
I wasn't implying that child porn is on the same level as ill-gotten downloads
You mean like ill-gotten gamez? ;-)
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Because there is no way for a tech to know whether the music is legal or not just by looking at it. Has this person ripped it themselves? Have they downloaded something they own?
The RIAA, on the other hand, are famous for being to tell all of this just by looking at your P2P port activity and IP address.
Re: (Score:2)
Give RIAA time to lobby through some new laws. After that I'd rather get caugh with childporn than MP3's. What is 20 years getting assraped in prison compared to what RIAA wants to do to filesharers?
Another cause for concern... (Score:5, Insightful)
Re: (Score:3, Insightful)
And that is seriously scary. Perfect way to plant evidence that destroys ones personal and professional life pretty much forever. No matter what you do, incriminating material can appear on your computer given someone has it for you.
I have heard on browsing history assassination nearly getting fired guy (he left machine on, did not lock it and left for lunch, someone took it for porn ride and called HR. Luckily for him, his boss was there with him when he was on lunch and took stand for him.)
I wonder, is th
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Re:Another cause for concern... (Score:4, Interesting)
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.
Easy solution (Score:4, Insightful)
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Keep your 'private' data on an external hard drive and just leave the system drive for the OS + applications. Extra paranoid people can encrypt it to for good measure.
Stupid people will continue to do the obvious.
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This is SO going to get abused (Score:4, Insightful)
While I certainly despite people who desire or who peddle in child porn (and that includes the government "sting" entrappers themselves who are the LARGEST distributor of the stuff in the country, and who keep the largest amount of it around) this decision dumps barrels of oil onto the slippery slope.
I guarantee that the aforementioned "stingers" are going to start pressuring IT shops to search for the disgusting stuff and report to them. I can even see localities passing laws REQUIRING technicians to search hard drives for illegal material, and probably not just porn, but imagine the RIAA buying themselves some laws requiring techs to report file sharing software and MP3's...
It's a HUGE loophole that needs to be closed. If the evidence would be inadmissible in a criminal court if government actors collected it in that manner (ie: no warrant, no probable cause, no witnessing something happening in front of them) then evidence collected by civilians passed to the government should also be inadmissible. Indeed, in those circumstances, a citizen getting involved in law enforcement by implication is part of the "unorganized militia" and should be subject to the same limitations because they ARE, in effect, a government actor.
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If the evidence would be inadmissible in a criminal court if government actors collected it in that manner (ie: no warrant, no probable cause, no witnessing something happening in front of them) then evidence collected by civilians passed to the government should also be inadmissible.
Hold on there. What makes you think that, if a cop had done what the Circuit City techs had, that evidence would have been inadmissible?
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The police couldn't have gotten away with doing this because that would have amounted to an illegal search without a warrant, without probable cause, done "just because I can". That hardly meets even the loosest standard applied to the 4th/5th Amendments.
A PC is private property, after all.
The reason why searches are restricted by the Constitution is to prevent exactly tha
Re: (Score:3, Informative)
I posted a comment above about this, but if the state coerces private citizens to act on its behalf, then they are in essence state actors, and illegally obtained information becomes inadmissible.
If on the other hand the citizen stumbles across some information, regardless of how, and chooses (without being ordered, requested, payed, etc. to do so) to share it with the police, the court will allow the evidence.
Frankly, I think that's fair. If I am, say, breaking into the school at night to have a little fun
Re:This is SO going to get abused (Score:5, Informative)
It has long been accepted that if someone breaks into your house and finds evidence that you committed a crime, that evidence is admissible in court, as long as they were not asked to do so by the authorities. If the person was asked to do so by a government official, courts have ruled that they become a government agent and illegal search and seizure rules apply.
what kind of defense is that? (Score:4, Insightful)
"the techs should have not snooped" is a defense that implicitly admits the guy had downloaded the video. He get jailed, that's the spirit of the law.
What's troubling is that a pc which is tampered with by a third person, that is the tech repair guy, is then admitted as proof.
A random technician is elevated to the rank of police forensic tech! but how can you trust him not making mistakes (restoring somebody else's partition) or him being corrupted into intentionally downloading illegal stuff to a client PC? nevermind child porn, all you need to ruin a person are a bunch of mp3s, in this brave new world.
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A good lawyer should, in that case, call upon another tech as an expert witness to explain to the court how easy it is, with admin/root access to a PC AND physical access to put
well well well (Score:3, Funny)
I dont work at CC .. but a larger "repair centre" in canada ...
We have, as part of our SOP, child pornography related rules. They call them "criminal images" in the verbage, however, it is the same. I have yet to "find" something criminal, but to my knowledge, no one goes "fishing" though a computer to look at a persons data. I think true repair techs don't really care WHAT is on someones computer, just get paid your paycheck to fix the thing. IF we are testing a burner and need to use data from a system (ie pictures folder) again .. drag drop, dont care what it is .. test .. label DVD "test burn" give to customer when they come to pick it up.
After doing this for 20 years now .. I can tell you what you ALWAYS will find on a computer that comes in for "repair".
1. Lime/Frostwire - the bane of my job - and telling a "customer/uneducated person" that those types of programs make it more likely to get a virus, they immediately ask you "well, how else can I download free stuff" - my response " you can't"
2. Some sort of torrent client - see #1
3. expired/outdated or no antivirus - which leads to #4
4. massive amounts of spyware/malware/virals
This is my daily grind. Trying to inform the public that just because you CAN do something doesn't mean it makes it A: legal or B: not harmful to your computer environment - "You mean downloading all that porn got me a virus? You mean my limewire folder has massive amounts of trojans in it? ---- but I paid for it ....
Sucker # 12,488 line up please ....
Re: (Score:3, Funny)
You mean downloading all that porn got me a virus?
Practice safe downloading. Put a condom on your network connector.
It's a huge barrel of worms (Score:5, Interesting)
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).
Re: (Score:3, Insightful)
If they are important they get a slap on the wrist. Termination is only for you peons, it's how capitalism works! Love it or leave it.
Some hints from a few years ago (Score:3, Informative)
"Each member of the computer crime squad (FBI) is given a list of local businesses, Laanui said, with the idea of establishing a
working relationship with all of them."
and
""We're trying to build a rapport with companies, a lot of computer guys don't necessarily know we exist," Laanui said.
"Virtually anyone in the high-tech arena is up for a visit with the FBI.""
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