Appeals Court Rolls Back Computer Privacy Guidelines 88
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."
I'm going to go with... (Score:5, Insightful)
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.
Re:Well... we're boned. (Score:4, Insightful)
Abusable (Score:4, Insightful)
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 :)
Re:Not sure what the big deal is (Score:5, Insightful)
I don't have anything on my computer but music, email and movies. I don't break the law. I am a average citizen in this respect, and I have nothing to hide. Let them look at my computer if they like.
I don't have any weapons or drugs in my house, I still don't want a police officer to come in unasked and search the place, or look through my windows to what I have inside, or what I am doing. My computer, and the data on it, are just as much in my house as the stuff in my drawers and closets.
And anyway, I wouldn't be so sure that you don't break the law. The fact that you don't know that you break the law does not mean you don't actually break it.
Re:Not sure what the big deal is (Score:5, Insightful)
Do you really know the laws? There are thousands on the books, and thousands created each year.
Do you really know what's on your computer? If you're the average citizen, then there's a high probability that your computer has been or will be compromised at some point. "Hello Mr. Smith, we have some bad news for you. After forensic examination of your hard drive, we found evidence of money laundering, child pornography, and several thousand instances of copyright violation. But don't worry. We're going to make you an offer you can't refuse.
And you would not be able to rely on the common sense of law enforcement and the criminal justice system. You see, this is an adversarial process. It's not "Innocent to proven guilty". Law enforcement is tasked with making convictions, among other things. Numbers count. There's also this other little problem, the one of "low hanging fruit", ever heard of it? It's a reference to the fact that people tend to do as little as possible, and when that expresses itself in agents of the state, e.g. law enforcement, what you end up with is the majority of their efforts are expended on two bit criminals, and unlucky stupid people that are of no real threat to any one.
Here in the U.S., if I'm not mistaken, we're at the top of the list for the number of people imprisoned as a percentage of population. This leads me to believe that we incarcerate people for a lot of petty bullshit, especially the poor.
Here we go: http://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate [wikipedia.org]
Re:Well... we're boned. (Score:1, Insightful)
Detailed guidelines like the forth amendment? What is with these anti-American people and why do they hate freedom?
Re:Not sure what the big deal is (Score:3, Insightful)
And anyway, I wouldn't be so sure that you don't break the law. The fact that you don't know that you break the law does not mean you don't actually break it.
And this is perhaps the biggest problem facing America right now: we have so many laws, it is hard to know whether or not you are actually breaking one. What we need is a wave of repeals, but no politician is brave enough to initiate such an action.
Re:Well... we're boned. (Score:3, Insightful)
From TFA:
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.
Re:Abusable (Score:4, Insightful)
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.
Re:Not sure what the big deal is (Score:4, Insightful)
Do you really know the laws? There are thousands on the books, and thousands created each year.
It's hard to control a free man who is innocent of any wrongdoing. He'll just tell you to fuck off. But if you make that free man a criminal, even if he doesn't know it yet, you've got him by the balls.
NO balance between interest... and constitution (Score:1, Insightful)
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 existing framework.
Re:Not sure what the big deal is (Score:3, Insightful)
It's hard to control a free man who is innocent of any wrongdoing. He'll just tell you to fuck off. But if you make that free man a criminal, even if he doesn't know it yet, you've got him by the balls.
I think you just paraphrased Ayn Rand.
Damn! I knew I heard that somewhere before.
Besides, if the current state of affairs in the United States is any indication, she was dead right.