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US Court Dings Gov't For Using Seized Data Beyond Scope of Warrant 63

Posted by timothy
from the can't-just-go-fishing dept.
An anonymous reader writes The U.S. Court of Appeals for the 2nd Circuit last week reversed a tax evasion conviction against an accountant because the government had used data from his computers that were seized under a warrant targeting different suspects. The Fourth Amendment, the court pointed out, "prevents the seizure of one thing under a warrant describing another." Law enforcement originally made copies of his hard drives and during off-site processing, separated his personal files from data related to the original warrant. However, 1.5 years later, the government sifted through his personal files and used what it found to build a case against him. The appeals court held that "[i]f the Government could seize and retain non-responsive electronic records indefinitely, so it could search them whenever it later developed probable cause, every warrant to search for particular electronic data would become, in essence, a general warrant," which the Fourth Amendment protects against. The EFF hopes that the outcome of this appeal will have implications for the NSA's dragnet surveillance practice.
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US Court Dings Gov't For Using Seized Data Beyond Scope of Warrant

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  • Subject (Score:4, Funny)

    by eyegone (644831) on Tuesday June 24, 2014 @09:31AM (#47305443)
    There's one judge who will be getting audited every year from now on.
  • by Anonymous Coward

    Just a few days after the warrant was issued.

    Hey, it works for the IRS, and this is a tax case...

    • by DragonTHC (208439)

      They will use recovery procedures down to the platter level.

      • by nabsltd (1313397)

        Useless when the "failure" is: dd if=/dev/urandom of=/dev/sda

        Even /dev/zero as the source is good enough.

      • They will use recovery procedures down to the platter level.

        If there was ever a good case for full-disk encryption, this is it.

  • Unsurprising ... (Score:5, Insightful)

    by gstoddart (321705) on Tuesday June 24, 2014 @09:36AM (#47305485) Homepage

    Cardinal Richelieu wrote:

    If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.

    When you start collecting everything, either via expanding the scope of your warrant, or just scooping everything up ... sooner or later you can come back to almost anybody and decide that they've done something.

    When law enforcement can retroactively file charges for which they had no initial probable cause or scope, that is a truly Orwellian society.

    And, governments keep saying "but we need to be able to bypass all of these things because of kiddie fiddlers and terrorists".

    I really hope we start to see the courts reign in the level of surveillance and how it can be used. Because, right now, so called 'free' societies and democracy are being eroded as government decides it needs to know everything about everybody just in case something ever comes up.

    • by Anonymous Coward

      You Commit Three Felonies a Day [wsj.com] - this of course includes the cops and IRS agents.

      People should realize this before saying stupid shit like, "If you do nothing wrong you have nothing to worry about." because you ARE doing something wrong and you most likely don't even realize it.

      Our legal system has become unjust and corrupt.

      • by Anonymous Coward

        hmmm..wasnt how the court handled this showing that it's not fully corrupt. They said NO you cannot use this for another cause.

      • by PopeRatzo (965947)

        You Commit Three Felonies a Day

        More, on a good day.

      • This post is illegal.

        Really, it is. I'm at work, violating the usage policy by going on slashdot. Unauthorised use of a computer.

        • by redmid17 (1217076)
          That statute (federal) is for unauthorized access, not using it for unauthorized reasons. You have access to the computer. If your company revokes that access and you continue to go on slashdot from that computer, then it becomes a felony (on top of a likely trespassing charge).
          • I'm not sure quite how it works. I'm in the UK - our law on the matter is similar, but different.

          • by Yakasha (42321)

            That statute (federal) is for unauthorized access, not using it for unauthorized reasons. You have access to the computer. If your company revokes that access and you continue to go on slashdot from that computer, then it becomes a felony (on top of a likely trespassing charge).

            Incorrect. The statue says "unauthorized access; or exceeding authorization." If you are authorized to use a computer for work purposes only, but also use it for personal purposes, you are exceeding authorization.

            That, by itself, I'm not sure is enough to be charged. I believe you have to do something else, such as accessing protected data. Its not difficult to do that by, say, mistyping your phone's serial number into AT&T's website and being shown records for somebody else's phone.

      • by Anonymous Coward

        Three felonies a day - really?

        The link shows some stupid misunderstandings (transferring email, seen as "wiretapping"). But that was misunderstanding of the law (and technology), not an actual law broken.

        So show us some of these laws that we break every day. Show us everyday activity that breaks laws. Not just boneheads trying to prosecute using laws that don't apply.

        Of course, if it really is that bad, the proper way is to use these laws until lawmakers gets tired of it. Start a campaign, notify the author

    • by dargaud (518470)
      And not only that, maybe you consider most of the info you collect benign and want to go after bigger the bigger fish. But in a democracy, what if there's a regime change that _you_ don't like. That you truly don't like. Do you hand them all the data collected over the years, just like that ? One example, the number 2 (or 3) of the French National party (far right) recently (may) said that he'd like to beat journalists to death and other pleasant things. A few weeks later his party was the 1st one at the Eu
  • I don't get why the EFF would think that this would have any implications on the NSA. The difference here is that the search was done with a warrant looking for something very specific - information on the accountant's computers related to criminal activity by his clients. The FBI searched for data not covered under the warrant, and the courts correctly slapped them for it. The NSA doesn't use warrants, so they don't have any limitations placed on them. This is one of the key issues of warrantless surveilla

    • by Charliemopps (1157495) on Tuesday June 24, 2014 @10:04AM (#47305697)

      Because the NSA is collecting the same kind of data, providing it to law enforcement, that then use the data to form a target and reverse engineer probable cause. The thing is, even though that sort of thing is clearly unconstitutional, they've crafted their methods in such a way that it would rarely, if ever, come up in a court room. So there is no court finding that state specifically that it's unconstitutional. Law enforcement has been pretending they're dumb in this regard and going along the lines "Well, no judge has told us we can't do this... so it must be ok" while at the same time doing everything in their power to prevent a judge from having to rule on it.

      Well, this states that it's clearly unconstitutional. But the government is taking any wiggle room they can find and just ignoring the law, court orders and the constitution, so I doubt this will change anything. The courts weren't really designed to deal with Law Enforcement trying to do an end-run around them. It's very difficult for the EFF and other like them to get a ruling on this behavior if the state never uses it in a case against someone.

      • by gstoddart (321705) on Tuesday June 24, 2014 @10:13AM (#47305789) Homepage

        And what's truly appalling is that federal law enforcement is involved in trying to make an end run around the Constitution in order to be able to trump up charges they wouldn't have been aware of if they hadn't illegally gathered intelligence.

        Given that these people swear an oath to defend and uphold the Constitution ... I'm of the opinion that this whole "parallel construction" crap more or less amounts to a serious crime, because it's done in such a way as to bypass Constitutional protections.

        Any federal agent doing this should be jailed. Or hanged maybe. Because it's a blatant ignoring of the Constitution, and undermines the credibility of the legal system when you can have a hidden actor providing evidence to law enforcement (which they shouldn't have had in the first place) and the conspiring with them to effectively lie to the court and pretend they got this information through legal means.

        They're bypassing the 4th amendment, and ignoring the legal protections of facing your accuser and seeing the evidence against you. And, in this case, once they've constructed an alternate reality, the entire thing is based on a lie that they somehow came up with this information through other means.

        • Right, but while all that makes sense, it's impossible to prove they've done it to any one particular person. What we need is a Snowden style whistle blower inside the justice department to provide direct evidence for specific cases in which this was done. Sadly the feds are making damn sure everyone in the world knows what will happen to the next person that trys that will not be good.

          Perhaps we should start crowd funding that will pay out a reward for evidence leading to a conviction? Spending the rest of

      • by kogut (1133781)
        >But the government is taking any wiggle room they can find and just ignoring the law, court orders and the constitution The courts are part of the government. Just saying. People increasingly use the term "the government" as some sort of vague, hand-waving pejorative term when referring to some aspect of governance they don't like. Which is kind of sad. In this case we're seeing an example of natural tension between executive power and statutory limitation on that power, as interpreted by the cou
    • My thought as to why the EFF thinks this has implications for the NSA's actions is that this ruling strengthens the 4th amendment protections of people in the US. If a court is willing to state that you can't through some trickery turn a specific warrant into a general one then maybe having the NSA suck up all private correspondence between American residents might actually constitute an illegal search and seizure.

      I actually find it somewhat sad that this sort of ruling is even needed but at least it set
    • by mysidia (191772)

      The NSA doesn't use warrants, so they don't have any limitations placed on them. This is one of the key issues of warrantless surveillance, because it allows the NSA to use anything they find

      So the investigators will start making their warrants more vague or lobby congress for more warrantless digital data acquisition powers.

  • ...then sift through it to file tax evasion charges, but somehow keeping email backups for top IRS employees is beyond them because the hard drive crashed and they had to recycle the backup tapes [politico.com].

    Right.

    • by cdrudge (68377)

      Never attribute to malice that which is adequately explained by incompetency. Or something like that.

      I'm sure that the best system admins around the world have deleted a file, mistakenly reused a backup tape out of order, or otherwise screwed up and lost something irretrievable sometime in their careers.

      • by Charles Duffy (2856687) on Tuesday June 24, 2014 @10:28AM (#47305895)
        Yup. My wife used to work for the feds, and I heard firsthand about the level of incompetence there on a very regular basis. Until they make it easier to fire those that need it, they have no need of malice.
      • Except that they claim the emails were stored on the desktop only.

        Which means either gross incompetence, or 'deliberate incompetence' - knowing they can't delete some records, but making sure to use inept data preservation measures so accidents happen on a regular basis.

        • by sumdumass (711423)

          It is probably just a political scam anyways. It is like Hillary's rose law firm billing records that appeared on a coffe table in the residence after being missing for years. They were found just in time to strengthen the vast right wing condpiracy claim. Of course there was nothing incriminating in them.

          I suspect the emails will be "recovered" close to an election and there will be no smoking gun or anything.

          • Quite possible. The conspiracy claim doesn't have any actual evidence at all - not even a decent statistical analysis to back up the accusation that the IRS was selectively under-prioritising tax exemption claims from right-wing pressure groups. All they have are lots of anecdotes from tea party organisations that sent in their forms and didn't get a reply for months.

            • by sumdumass (711423)

              Well, we do know from lawsuits that the IRS requested and received donor information as well as shared that with apposing groups on at least one of the claims.

              http://www.huffingtonpost.com/... [huffingtonpost.com]

              We also know that the IRS actually did create word lists and purposely stalled applications based on them. We know that from the Treasury Department Inspector General's investigation.

              http://politicalticker.blogs.c... [cnn.com]

              We also know that non tea party groups fell into that catagory and the IG report was basically only look

      • by Virtucon (127420)

        Never attribute to malice that which is adequately explained by incompetency. Or something like that.

        I'm sure that the best system admins around the world have deleted a file, mistakenly reused a backup tape out of order, or otherwise screwed up and lost something irretrievable sometime in their careers.

        Yeah, that makes me feel much better considering how unbiased and accurate the IRS is supposed to be. The whole e-mail fiasco doesn't pass the smell test.

      • by Yakasha (42321)

        Never attribute to malice that which is adequately explained by incompetency. Or something like that.

        I'm sure that the best system admins around the world have deleted a file, mistakenly reused a backup tape out of order, or otherwise screwed up and lost something irretrievable sometime in their careers.

        Sure.
        But 6 times, once for each of the top managers involved in a scandal?

        • Depends on what sort of crap computers people get. With the ridiculously inadequate retention time on the servers, the only copies were on individual hard drives. We're looking at several years here between emails and attempts to recover, and it's quite possible that low-quality disk drives could die in droves over that time. I'd like to see an investigation of drive failures in the IRS, and I'd like to see actual decent procedures observed, but it seems plausible to me.

      • by sjames (1099)

        But it stretches credulity when they claim that those little accidents just happened to wipe out 100% of the data requested on multiple people's emails requested in an investigation and yet they can't even manage to delete data they should have deleted. The fact that it is an agency notorious for not being at all understanding if any taxpayer documentation at all is destroyed is just the cherry on top.

    • Incredulity isn't helping. If you ever used Outlook/ Exchange with a quota, you understand what happened. Failure to retain server backups is probably illegal, so the IT head should be fired or in jail. Everything else is applying your personal perspective and inferring pointless nonsense.

      Keep in mind, the law enforcement division does not use the same hardware pool as the Exchange server backup team, and now you seem silly for having posted false equivalence.

      • by Rockoon (1252108)

        Everything else is applying your personal perspective and inferring pointless nonsense.

        Everything else? Really?

        So the other 5 IRS employees that also had their hard drives mysteriously crash and lose emails for the exact same time period... thats pointless nonsense?

        You Obama apologists arent even trying to sound like you have a valid point anymore, are ya?

  • I wonder who here would dispense with their principles and be for prosecuting this guy if he were a corporate multimillionaire CEO, instead of a mere accountant, evading his obligation to pay taxes. Not that I condone CEOs getting insane salaries and /or bonuses and evading taxes through loopholes, nor do I sanction the IRS's overreaching tyranny. I'm for neither.
    • I really don't see how that's being a devil's advocate, how it justifies anything, or even how it's relevant.

      • How is that not relevant? A good many users here believe the rich to be essentially evil, corrupt hoarders of money, who have stolen more than their fair share of the common wealth from us, and who do not pay their fair share of taxes; and then to add insult to injury I suppose, use that wealth as leverage to pay even less taxes or none at all. You can't deny this is a common mantra here.
        So, the ethical dilemma I proposed (and this is why it's devil's advocate): what if instead of an accountant in this
        • While I agree with your description about the average finance-industry multimillionaire (not that I'd accuse an individual one without actual evidence), I do realize that we have to allow scum the protections of law. Therefore, I'd object to such treatment for a guy who got rich in the financial industry.

        • How is that not relevant?

          Because whether or not they would change their tune has nothing to do with their argument that unconstitutional activities are bad; it doesn't debunk it. Well, I'm not sure what your point was. Random curiosity?

          So, the ethical dilemma I proposed (and this is why it's devil's advocate): what if instead of an accountant in this story, the IRS had illegally come across a multimillionaire who had cooked their books?

          The government should not violate the constitution under any circumstance.

          • Because whether or not they would change their tune has nothing to do with their argument that unconstitutional activities are bad; it doesn't debunk it. Well, I'm not sure what your point was. Random curiosity?

            Yep, actually.

            The government should not violate the constitution under any circumstance.

            I agree. The government has to be above board before it can expect anyone else to be.
            I was just curious, and honestly a little surprised that not one person defended the IRS in this case, because of the hate of large corporations or rich people we so often see expressed here. I was just expecting it. The IRS really needs to be overhauled. Though I'd also like to see this accountant slip up again in the future so he can be nabbed legally, because he's a dirtbag.

  • To be Fair... (Score:4, Interesting)

    by kevmatic (1133523) on Tuesday June 24, 2014 @12:32PM (#47307105)

    According to Washington Post, they obtained a SECOND warrant for the tax evasion investigation- they didn't just pull the DVDs out of the cabinet and had a looksee- It just so happened they already had the data they needed. This means they ALREADY had probable cause before they pulled the DVDs out again. And they never looked at any data to investigate a crime that they didn't have a warrant for.

      I feel this really could have gone either way- the judge just erred on the side of caution here, which is good. It also makes keeping data around pretty much pointless for law enforcement...

    • by MobyDisk (75490)

      Thanks for the clarification. I'm still unclear on 2 things though.

      1) While they may have obtained a second warrant: did they search the drives before they got that second warrant?
      If so, getting the second warrant was really just an administrative step so they could use the evidence. That makes it parallel reconstruction [slashdot.org] which is indeed against the 4th.

      2) Why did they even have the data?
      If the data was not part of the first warrant, then they should have deleted the data. Merely separating the data shoul

    • by Darinbob (1142669)

      The principle is sound: warrant comes BEFORE data collection.

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