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Appeals Court Rolls Back Computer Privacy Guidelines 88

Posted by Soulskill
from the let's-shoot-from-the-hip-instead dept.
Last year we discussed news of a court ruling that established a set of guidelines for how investigators can enact search warrants involving electronically stored data. Essentially, it required authorities to specify the data for which they were searching, and to take precautions to avoid the collection of unrelated data, whether it was incriminating or not. Now, a federal appeals court has thrown out those guidelines despite agreeing with the conclusion that investigators must only collect data specified in a warrant. Instead, the ruling (PDF) leaves us with a plea for "greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures."
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Appeals Court Rolls Back Computer Privacy Guidelines

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  • fp? (Score:4, Interesting)

    by jefe7777 (411081) on Tuesday September 14, 2010 @08:16AM (#33572072) Journal
    yes, let's leave it to law enforcement to strike a proper balance. that sounds like it will work. uh huh.
    • Re:fp? (Score:5, Interesting)

      by berashith (222128) on Tuesday September 14, 2010 @08:27AM (#33572166)

      agreed. There was a reason that the original rules were so strict. The founders could have requested that the powerful should just be nice in their handling of the masses, but they instead chose to be explicit. Sorry to the coppers if that gives them a little extra work, but it is nice to avoid a witchhunt.

      • but it is nice to avoid a witchhunt.

        It's funny that, despite all of the founding father's hard work and explicit instruction, we've basically been incapable of doing just that from day one....It appears that enlightened philosophy is no match for the will of the mobs.

  • by Anonymous Coward on Tuesday September 14, 2010 @08:22AM (#33572124)

    WHAT. THE. FUCK?

    I know a lot of officers in various branches (police, *BI, sheriff, etc.) and count several as close friends.. but I wouldn't trust a single one of them to not go beyond the mandate of the warrant without something official binding them. The egos of most officers I have met have all been "I _am_ the law" style of bullshit that leads to people being hanged before their guilt has been proven and then "Whoops, we made a mistake. Oh well. I'm sure s/he was guilty of something." Meanwhile, the innocent person has been vilified in the news and can't do business where they live anymore.

    We either need strict rules that our police officers have to follow, or we need psych evaluations to weed out the overzealous people who go too far, too fast, without consideration that someone is innocent until PROVEN guilty.

    • by MadKeithV (102058)

      or we need psych evaluations to weed out the overzealous people who go too far, too fast, without consideration that someone is innocent until PROVEN guilty.

      We already have those, they are called elections. Unfortunately the people still haven't figured out that the loser should be euthanized instead of given power.

    • We either need strict rules that our police officers have to follow, or we need psych evaluations to weed out the overzealous people who go too far, too fast, without consideration that someone is innocent until PROVEN guilty.

      ... in a court of law, not in their heads.

    • by alexo (9335)

      I know a lot of officers in various branches (police, *BI, sheriff, etc.) and count several as close friends.. but I wouldn't trust a single one of them to not go beyond the mandate of the warrant without something official binding them. The egos of most officers I have met have all been "I _am_ the law" style of bullshit that leads to people being hanged before their guilt has been proven and then "Whoops, we made a mistake. Oh well. I'm sure s/he was guilty of something." Meanwhile, the innocent person ha

  • Well... we're boned. (Score:5, Informative)

    by AltairDusk (1757788) on Tuesday September 14, 2010 @08:30AM (#33572192)

    Nice to know our latest appointee to the Supreme Court is looking out for our privacy rights.

    From TFA:

    Supreme Court Justice Elena Kagan, as solicitor general last year, had urged the court to reverse itself amid complaints that federal prosecutions were being complicated, and computer searches were grinding to a halt, because of the detailed guidelines.

    • by rotide (1015173) on Tuesday September 14, 2010 @08:34AM (#33572226)
      Meet the new boss?
    • by Spad (470073)

      Yeah, now we have to do things properly and document everything it takes some effort to do and we don't like that.

      • Given the chance, they'd much prefer to be given a set of calipers and a phrenology chart than to actually have to do some investigation and evidence gathering.

        Maybe a ruler to check if their eyes are too far apart / close together. I'm not sure which would result in a conviction. Probably both.

        I lose a little more faith in the judicial system every time I hear something like this.
    • Re: (Score:1, Insightful)

      by Anonymous Coward

      Supreme Court Justice Elena Kagan, as solicitor general last year, had urged the court to reverse itself amid complaints that federal prosecutions were being complicated, and computer searches were grinding to a halt, because of the detailed guidelines.

      Detailed guidelines like the forth amendment? What is with these anti-American people and why do they hate freedom?

    • Law of Evidence (Score:1, Interesting)

      by Anonymous Coward

      The law of evidence is there for a good reason.
      People have a right not to be harassed by flimsy tissue thin accusations without substance.

      The reasoning for departing from same is not stated
      Sure, let them say we are looking for a-z + anything else that might be incriminating - it will be overturned accordingly, remembering a-z searches has precedent saying exactly that is intolerable.
      Which is why you have to write it down beforehand, and not make it up AFTER the search. Normally people who have compl

    • Re: (Score:3, Insightful)

      by c0lo (1497653)

      From TFA:

      Supreme Court Justice Elena Kagan, as solicitor general last year, had urged the court to reverse itself amid complaints that federal prosecutions were being complicated, and computer searches were grinding to a halt, because of the detailed guidelines.

      Since when the job to prosecute should be easy/quick/cheap? The last I know, the principles were:
      Innocent until proved guilty and better that ten guilty persons escape than that one innocent suffer [wikipedia.org]. Nothing in there sound to me as "first and above all, do the prosecution blind-fast".

      More worrisome: the position comes from a judge...
      But maybe I'm growing too old too fast already.

    • Supreme Court Justice Elena Kagan, as solicitor general last year, had urged the court to reverse itself amid complaints that federal prosecutions were being complicated, and computer searches were grinding to a halt, because of the detailed guidelines.

      Lemme guess: they were using Bing?

  • Abusable (Score:4, Insightful)

    by Haedrian (1676506) on Tuesday September 14, 2010 @08:36AM (#33572240)

    I think the idea behind the rules was that this couldn't happen:

    "Yes sir, we have reason to believe you have terrorist training manuals on your hard-disk"
    *search*
    "Nope, none found, but we did find some music which the RIAA might be interested in, some videos the MPAA might be interested in, a particular movie Voltage might be interested in, also you said a rude joke in a chatroom which was not properly filtered and marked for adults only"

    *lawsuits to death*

    But now it can :)

    • by Haedrian (1676506)

      (cont..)

      "...and this video entitled MyGirlfriendThreeMenSomeMudAndABaseballBat.avi which we're all interested in..."

    • Re:Abusable (Score:4, Insightful)

      by Lloyd_Bryant (73136) on Tuesday September 14, 2010 @09:37AM (#33572908)

      I think the idea behind the rules was that this couldn't happen:

      "Yes sir, we have reason to believe you have terrorist training manuals on your hard-disk"
      *search*
      "Nope, none found, but we did find some music which the RIAA might be interested in, some videos the MPAA might be interested in, a particular movie Voltage might be interested in, also you said a rude joke in a chatroom which was not properly filtered and marked for adults only"

      *lawsuits to death*

      But now it can :)

      No - the rules were intended to prevent a repeat of what *did* happen:

      1. Feds get a warrant to obtain drug testing records of 10 specific baseball players (based on actual evidence against those 10 players).
      2. Judge specifically limits them, saying that they have to separate out the records of everyone else, and only keep the records on the 10 specific players.
      3. Feds ignore judge's limits, getting records on hundreds of individuals (not limited to just baseball players). No attempt is made to separate out the records on the specific players.
      4. Feds then use the info on other players (that they previously had no reason to suspect) to issue supoenas for evidence against those additional players.

      What's really scary about this whole mess is that the government is relying on the "in plain sight" doctrine, which basically states that if an officer observes something that is in plain sight during the course of a legal search, whatever the officer observes can be seized and used as evidence even if it wasn't listed on the warrant. For instance, if they're searching your house on looking for stolen goods, and they see your stash of pot, they can seize it and charge you with possession.

      But once you have access to a computer, pretty much anything on it is readily accessible (unless encrypted). So applying this doctrine to digital searches ends up being analogous to getting a search warrant for a specific set of (dead tree) files, and then claiming that *all* of the files in the file cabinet are now "in plain sight", and as such they can browse them to their heart's content.

      The court *did* uphold that the supoenas, and any information resulting from them, were invalid. But by removing the specific guidelines the earlier court had created, they've opened the door to a repeat performance of this whole mess. Which you can bet *will* happen fairly quickly.

      • But by removing the specific guidelines the earlier court had created, they've opened the door to a repeat performance of this whole mess.

        I get the impression that many people in power feel that our social problems can be cured by simply applying more law enforcement. I don't know why they think that: it has never worked in the past.

        • The more you tighten your grip, Tarkin, the more star systems will slip through your fingers.

          - Princess Leia, A New Hope

        • I get the impression that many people in power feel that our social problems can be cured by simply applying more law enforcement. I don't know why they think that: it has never worked in the past.

          It worked against Shay's Rebellion, but, no, not for the people.

  • It's time to go data fishing! Get those John Doe IP probable cause subpoenas ready, because they're gonna find "evidence" on any computer they want if they dig deep enough!
    • by Haedrian (1676506)

      Meh why bother. They should just do a "RIAA Vs Citizens of the US" class action lawsuit. Saves them a lot of trouble.

      I'm sure many of the latter class won't bother turning up.

      • You're thinking too small. Their lawyers are already drafting Entertainment Industry versus Human Population and are asking for the entire GNP of north america as lost revenue with all the money in the world as punitive damages.
  • IANAL, but I would think part of the problem with incriminating data for a completely unrelated crime being found might have something to do with the proper steps required for the discovery of evidence.

    Do any real lawyers or law professors want to weigh in on this?

  • I read "Apple rolls back computer privacy guidelines".

  • All the more reason to start using TrueCrypt now if you haven't already.

    Until the cops in the US get the authority to legally compel you to divulge passwords, your computer will be safe from prying eyes.
    • Re: (Score:3, Funny)

      by Nyder (754090)

      All the more reason to start using TrueCrypt now if you haven't already.

      Until the cops in the US get the authority to legally compel you to divulge passwords, your computer will be safe from prying eyes.

      Ya, about the password. I figure if you use the constitution as a password, there's no way the officials will ever be able to get into it.

      Or my something along the lines of "fuck you, you'll never get my password" as the password.

      • I suppose in a pinch you could settle for a weaker key by just using the Preamble to the Constitution.
    • Re: (Score:1, Interesting)

      by Anonymous Coward

      My company has a special policy for America, because of the constant laptop searches at the borders.

      Employees have to take laptops with a fresh linux image mounted readonly. Then SSH to the company servers from inside. Depending on the hotel, it can be slow, but those are the rules.
      No data, and definitely no encrypted images are to pass though customs.

    • All the more reason to start using TrueCrypt now if you haven't already. Until the cops in the US get the authority to legally compel you to divulge passwords, your computer will be safe from prying eyes.

      My understanding is that a Federal judge ruled, a couple of years ago, that a password stored in someone's head cannot be forced from him. If, on the other hand, said person writes that password down and the cops find it, that's fair game.

      • Yup, that's my understanding too.

        That's partly how the feds busted that Russian spy ring. They were using all kinds of crypto, but the dummies wrote down the passwords.
  • by BenEnglishAtHome (449670) on Tuesday September 14, 2010 @10:05AM (#33573332)

    Whole disk encryption needs to become mainstream. There are many approaches. Here are a few useful links.

    If you want your OS to encrypt everything, Fedora [linuxbsdos.com] makes it easy. So does Ubuntu. [ubuntuforums.org]

    If you want an add-on software package, PGP [pgp.com] works well. In a slightly more involved way, so does Truecrypt. [truecrypt.org]

    If you prefer a hardware solution, you can adapt regular, off-the shelf drives with an encryptor such as the Deskcrypt. [istorage-uk.com] Fully-encrypted hard drives are available from most vendors, too, but the ones I've found most generally useful (as in, "compatible with every other sort of hardware") are the Eclypt models from Stonewood. [stonewood.co.uk]

    I have owned and used all the products above and like them very much. If you feel different, feel free to Google things like "Momentus FDE" or "WinMagic" or "Guardian Edge Hard Drive" for other vendors and approaches. Take whatever path seems most reasonable and logical to you.

    But for God's sake, would everyone please start encrypting your drives? That's not everything you need to do. It's just a minimal first step toward personal security. But it's a start.

    • by Haedrian (1676506)

      I'm pretty sure that telling the feds "You can look, but the entire drive is encrypted so you can't look at anything which isn't garbled" is not going to win you a free ticket.

      Not to mention that having to encrypt/decrypt everything puts large overheads on I/O.

      • Re: (Score:3, Interesting)

        I'm not looking for a free ticket from the feds. I've been a victim of a burglary, one of those things where they throw all your stuff on bed sheets and drag it out. I mean, cleaned out to the walls. Once you've been through that, your attitude toward personal security and privacy changes. At minimum, if someone gets my computer, I don't want them to have access to anything on it.

        If this protects me from malicious prosecution, too, then all the better.

        As for the overhead, yes, it's an issue. But for no

      • Not to mention that having to encrypt/decrypt everything puts large overheads on I/O.

        That's been my number 1 concern with the idea thus far. I've been told it's not the case, but I've not had a PC I'm willing to wipe and test it with.

        • If you really want no noticeable performance penalty (I'm talking 1% or less), you can get your full disk encryption built into the drive hardware. Select a solid-state drive and it will most likely be far faster than whatever you're using now.

          Here's a good example. [stonewood.co.uk] Note that the datasheet (which may be outdated; I think they have a higher-capacity product now.) shows that a 256 gig SSD is available. It's a pain to type in your passphrase at the pre-boot login but it's only a small pain. The peace of

          • The peace of mind is priceless.

            O_O

            It would have to be at the prices they're asking.

            I'll just stick with Truecrypt for now for the actual important data. There's not a whole lot of reason to encrypt things like my Guild Wars template files and Borderlands savegames. :)

            • The problem is that Windows tosses a bunch of caching data in all sorts of random directories (good luck finding them all), so even if your main hard drive is nothing but the bare bones windows partition and you keep everything else on separate encrypted disks, if there's a file name like "illegal_picture.jpeg", they'll still point to that and say "AHA, he's done something wrong. Hang him jury!".
              • People let Windows see their important files? ;)

                Actually, I'm pretty sure that said random cache/junk you mentioned is going to factor into my Master's Thesis (Digital Forensics) somehow... as soon as I figure out what it's going to be. :P (I'm better at solving problems than coming up with them.)

      • I'm pretty sure that telling the feds "You can look, but the entire drive is encrypted so you can't look at anything which isn't garbled" is not going to win you a free ticket.

        I think the point is that the encrypted portions are no longer "in plain sight" and thus cannot be innocently browsed, evidence for an unrelated offense found and used against you. With encrypted drives/portions on the HD, it forces the gov't to actually follow the rules and get probable cause, then a warrant issued as outlined in the 4th amendment and case law, yadda yadda.

  • The whole point of civil rights is to make the legal system more reliable by protecting people from unjust and wrong prosecutions. They're a check and balance against human error, laziness, incompetence and career ambitions that would taint the results of the legal system. Judges screw with them at the peril of our legal system because once the public starts to question whether the legal system is reliable, the attitude "well hell, they're no better at enforcing the law than the next guy" becomes mainstream

  • The feds were getting mad because they had to pass up all the pronz they were finding.
  • With a warrant, approved by a judge, police may search your filing cabinets looking for a specific type of files, let's say, records related to a suspect business deal. If they find a locked drawer, they may ask you to open it, then force it open, if you refuse. In the process of that search, should they come across illicit drugs, child pornography or other incriminating evidence, they are not required to dismiss that evidence as not pertinent to the warrant. In fact, they are required to act on it.

    Why

    • If you've got very large filing cabinets, and they sift through all your personal documentation, despite one folder being very clearly labeled $Search_Warrant_Specified_Information , they damn well are going well beyond their search warrant and should be slapped down. A search warrant is not an invitation to tear someone's house apart, wall by wall until you either have what you think they have or there's no house left. It's there to find some specific information in the least intrusive manner possible (sin
  • We should let law enforcement decide what the 'proper balance' should be. After all they are 100% objective and have no ulterior motives....RIGHT?
  • by Anonymous Coward

    The stated goal "striking the right balance between the government's interest in law enforcement and the [constitutional] right of individuals to be free from unreasonable searches and seizures" is invalid. There can be NO COMPROMISE between an "interest" and a constitutional right, at least not one that can be established by a court directly.

    If the government wants to establish a compromise, they can try passing a law and if THAT is not unconstitutional then the courts can start "balancing it" within the e

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