US Prosecutors Say Clearing Browser Data Can Be Obstruction of Justice 308
The Nation reports that 24-year-old Khairullozhon Matanov, an associate of the since-convicted Tsarnaev brothers, faces charges not of conspiring with the Tsarnaevs, but of obstructing justice, and one aspect of the actions he took should probably concern anyone who has crossed paths online or in real life with subject of law enforcement scrutiny, and subsequently cleared their browser history. From the article:
The feds finally arrested and indicted him in May 2014. ... There were three counts for making false statements based on the aforementioned lies and—remarkably—one count for destroying "any record, document or tangible object" with intent to obstruct a federal investigation. This last charge was for deleting videos on his computer that may have demonstrated his own terrorist sympathies and for clearing his browser history.
What about using incognito mode?
Sweet! (Score:5, Funny)
I'm going to do it right now. Stuff it in your ass DOJ.
Incognito Mode - Godless Communism! (Score:5, Insightful)
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Using incognito shows you have the intent to do something illegal. Otherwise, you would have nothing to hide.
Link? (Score:5, Insightful)
Usually when you say "from the article" you make the word "article" all blue and linky.
Re:Link? (Score:4, Insightful)
Why? (Score:5, Funny)
Usually when you say "from the article" you make the word "article" all blue and linky.
Why? It's not like anyone reads TFA anyway.
Re:Why? (Score:4, Funny)
The link should take them to Reddit after deleting their account. Damn FA readers.
Re:Link? (Score:5, Funny)
There was a link, but they cleared their browser cache...
Re:Link? (Score:5, Informative)
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But I.E. can be configured to clear it's own browser cache upon being closed. What about in a corporate environment where one has the ability through policy to not replicate browser cache upon replication of user profile? Are we all obstructing justice? Is my configuration of I.E. obstructing justice? And how about that supreme law and the land thing, I'd say the white house, NSA, FBI and DC in general are obstructing justice by use of the national security apparatus to obscure the truth wouldn't you sa
Re:Link? (Score:5, Insightful)
The summary is poorly worded.
It's not that clearing your browsing history, throwing out old logs/emails or flushing your toilet are inherently illegal, it's when you use them and why.
If the cops are knocking at your door and you decide to flush the drugs, that's obstruction, if you just hacked someone's system and then wiped all of the local logs on your machine to hide the evidence, that's obstruction. If however you have as a routine process... not to retain any email older than say... 30 days and purge pretty regularly (either manually or automatically), that's not obstruction, that's just good cleanliness, and if some incriminating evidence happens to be wiped out on day 30, it's a lot harder to prove that you were doing so to hide your wrongdoing rather than simply not wanting to have to keep around old Amazon offers which clutter your inbox.
Re:Link? (Score:4, Insightful)
Re:Link? (Score:5, Insightful)
It's not obstruction to hide evidence of something before you are charged.
Or, it's not obstruction to not incriminate yourself by leaving clear evidence out.
Nothing to see here, move along. (Score:5, Informative)
If you destroy or dispose of something because you believe it likely that prosecutors will seek that something as part of an criminal investigation, you have destroyed evidence and are obstructing justice. It doesn't matter whether that "something" is a piece of paper, a computer browser history or your baby tooth that fell out when you were six. Your suspicion that prosecutors will want that item makes its destruction a crime.
And like any crime, the prosecutor will have to prove it in court... not just that you wiped the browser history but that the reasonable explanation why you wiped the browser history was to prevent the authorities from gaining access to it. Actus rea -- wiping the browsing history. Mens rea - intending to hide something from police. The prosecutor has to prove BOTH to get a conviction.
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Don't you have to be actually under investigation for that to be true?
It isn't our job to provide every piece of evidence which makes us seem guilty -- especially if we're not under investigation.
So, say I decide one day to smoke crack, and then throw out the evidence of that ... am guilty of a crime because I should have retained that evidence in case some asshole decides to retroactively charge me with a crime?
Maybe in a fascist police state it is your job to retain anything which could be incriminating.
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There has to be a dividing line. Otherwise every time I throw away a gum wrapper it's potentially "disposing of evidence".
I always considered that once you've been informed that you are part of an investigation, you're on the "don't dispose" side of that line, but that there was supposed to be some some of constitutional protection against self-incrimination that would be in effect otherwise.
Then again, I suffer from the delusion that we live in a sane country.
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Nope, doesn't work that way. For a good (and entertaining) explanation, read the Illustrated Guide to Criminal, particularly the section about Mens Rea: http://lawcomic.net/guide/?p=1... [lawcomic.net]
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NSA would have a field day with my stuff.
Agora marketplace on tor ftw
Here's an idea (Score:3)
We can outfit people's homes and offices with a special disposal slot. When you want to destroy a document, just push it in and it's incinerated per government regulations.
We can call them "memory holes".
Re:Nothing to see here, move along. (Score:5, Informative)
We have had publicized double jeopardy (supposed to be unconstitutional) since OJ
Getting acquitted in a criminal trial (no matter how appropriately or, in his case, ridiculously) has never made one immune to civil suits. Being subsequently sued for wrongful death by the family of your victim isn't "double jeopardy." It wasn't before the Simpson case, and it isn't now.
He did face subsequent criminal charges, on other matters. And he's in jail now for breaking into a hotel room (armed!) and a series of issues surrounding that event.
people with money never go to jail
People like OJ Simpson, you mean? Or Bernie Madoff? Or Phil Spector? Or Martha Stewart?
Most never face charges, let alone a trial or hearing. If they face a hearing, it's usually a closed door Grand Jury who magically and consistently decides that they should not be charged.
So pretty much you're just making stuff up. That's OK, but at least admit it.
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Yes, some rich people get put in jail for things (as you pointed out and gave examples for), but usually only when they screw over other rich people.
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You mean, who applied stupid amounts of pressure about insisting that even more mortgages be given out to people who couldn't possibly keep up with them? Ask the Democrats who were running congress at the time, maybe even read the transcripts of the hearings where people from the Bush administration sat before that congress and said what a horrible idea it was.
All that was unrelated to the mortgage-backed security fiasco. That lie is the 1%er's spin on it. The problem was the bankers that lied about risk when creating and trading securities. Nothing else was related to the problem. The default rates of the "people who couldn't possibly keep up with them" weren't high when the whole thing came crashing down.
But to answer your question ... who broke which specific law that you're thinking of?
The bankers and banking institutions that formed loans into derivatives committed fraud. The mortgage brokers that lent the "bad" money, and lied about i
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You don't have to be an extremist to think that effectively prosecuting the same crime under two different standards of evidence is double jeopardy. It doesn't matter what the man in the big house on the hill says.
Re:Nothing to see here, move along. (Score:5, Insightful)
You have to be rather dense to think a civil trial is a prosecution, though.
Re:Nothing to see here, move along. (Score:4, Interesting)
There was one trial that had prosecution going on. There was one trial that could have sent him to prison with a criminal record.
There was another trial, under somewhat different law, that had a plaintiff rather than a prosecutor, and could only get money from Simpson.
Seriously, do you think a criminal trial should immunize somebody from civil lawsuits?
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Unfortunately, there is a version of double jeopardy that has been approved by the court system. If you do something that is illegal under both federal and state law, you can be tried on both.
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If a person is found not guilty in a murder trial, how is it that they can be charged in a civil trial for damages from a murder they are not guilty of? If you don't see that as double jeopardy you are either blind, or a complete idiot who should live inside of a box and not be allowed to participate in society.
You then define a grand jury nearly absolutely incorrect. What you got right is that it's more people than a standard 12 person Jury, but 16 is the normal. You seem to imply it's a massive amount
Re:You might want to brush up on your legal studie (Score:4, Informative)
If a person is found not guilty in a murder trial, how is it that they can be charged in a civil trial for damages from a murder they are not guilty of? If you don't see that as double jeopardy you are either blind, or a complete idiot who should live inside of a box and not be allowed to participate in society.
In the murder trial, that person was found "not guilty beyond reasonable doubt". That is an extremely high standard. In the civil court, there is a much lower standard: The court just has to find that the person is more likely to be the murderer than not.
In the Simpson case, would you be willing to deny justice to the Goldman family because police didn't have enough evidence against Simpson? And if he had been convicted, would you deny justice to the Goldman family because Simpson was already convicted once? That's pathetic.
Re:You might want to brush up on your legal studie (Score:5, Informative)
No, it's not an extremely high standard. That is a constitutional defined basic standard. If a person is "not guilty" of a crime they can not be responsible for damages from that crime. That does not take rocket science level thought to understand, and prior to OJ who exactly was tried for similar civil damages for a crime they were found not guilty of? I await your list.
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The Bill of Rights states explicitly that you can not be tried for the same crime twice.
OJ was not tried for the same crime twice. He was tried once at a criminal trial and found not guilty. The subsequent civil trial was a claim for damages for wrongful death, and it was found that on the balance of probabilities he was responsible and should pay damages . He was not found "guilty" of anything and did not suffer a criminal punishment.
Deleting videos (Score:5, Insightful)
Is somewhat different from clearing browser cache.
Re:Deleting videos (Score:5, Insightful)
How does that compare to deleting 30,000 emails while Secretary of State AFTER they were subpoenaed by Congress? Because apparently that isn't worth talking about, so I'm trying to understand the difference.
Re: Deleting videos (Score:2)
Re:Deleting videos (Score:5, Informative)
Re:Deleting videos (Score:5, Interesting)
An acquaintance of mine also ran into something similar with the local law enforcement where I live. They threw him in jail for 24 hrs for "speeding and reckless driving" in the police station parking lot (which has surveillance) because he did not wait another two hours to file a complaint against a neighbor (police crony) for harassing his son. An officer stated that he witnessed the whole thing. They stormed his house with 4 officers 4 hours after the incident, through him up against the wall in front of his terrified daughter to arrest him. Come trial, the police video was "lost" or "deleted". Luckily, the much more tech savvy fire department next door had their surveillance video and graciously provided their video footage exonerating said person.
They do not "lose" them. They intentionally delete them to leave no trail which can be used against them in trial or congressional oversight committee.
Always remember, the prosecution is a human as well as the defense attorney and both will bend the truth to their liking in order to show that something/nothing wrong was done.
BTW, the attorney for the acquaintance humiliated the police department in trial who then had to issue a formal apology.
Re:Deleting videos (Score:4, Insightful)
I don't know - I have limited space on my SSD so I'm quite likely to aggressively delete cached videos just so I have some storage left to...well...do meaningful work. It's bad when the government tells ISPs to "keep everything, just in case we need it". It's worse when the government tells the public to "keep everything, just in case we need to investigate you".
Maybe ISPs can afford to have 10PB of offline archives in case they need to cooperate in an investigation, but I certainly don't have the space, power or wherewithal to keep a terabyte of permanent (uncorrupted, verifiable and backed-up) records just in case *I* need to cooperate in an investigation. I'm not the IT department for the DA office, nor am I required to incriminate myself.
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If you delete data on a day to day basis there is no issue. However, once there is an incident and this is the reason you go an delete stuff you are breaking the law. Nothing new here. Companies who have a legal deletion/shredding policy and regularly implement it are fine (and must not continue to exercise it documents subject to a subpoena once it is issued). Companies who only selectively exercise that policy when they suspect litigation may occur, or after a subpoena has been issued are breaking the
US Prosecutors (Score:2)
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Fewer and fewer checks. Judges are predisposed towards prosecutors (and police) too often.
In Massachusetts, this victim is in real peril of going to jail. In Texas, less so.
More validation of the Tenth Amendment.
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Not to be too picky but part of a prosecutors job is to only prosecute case they know they can win. If a prosecutor does not believe they have the evidence to successfully convict someone they aren't suppose to charge them just to make other people feel good. In fact, prosecutors can be brought up on charges themselves for going after defendants they didn't in good faith believe they could convict even if they knew they were guilty.
Now, there are some that take that too far and only go after slam dunk cas
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Incognito mode (Score:5, Insightful)
Incognito will be illegal for failing to create evidence.
Re:Incognito mode (Score:5, Insightful)
on the contrary, since incognito mode never creates the records sought in the first place, a federal prosecutor cannot then cite the federal statute forbidding the destruction of the records.
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Does Incognito Mode truly never store anything on the computer? Or does it store elements on the computer as it is building the page and then immediately delete them? It certainly builds an in-tab history since you can go back and forward within an Incognito tab - though this is destroyed once the tab is closed. If clearing your browser cache is really "destruction of evidence", then Incognito Mode might be this too.
Re:Incognito mode (Score:4, Insightful)
They would argue that you are pre-destroying records that could have implicated you in a crime, therefore you are guilty of whatever crime they deem you were covering up by your failure to create evidence of the crime they believe you were committing but have no evidence of.
True. Other than, you know, there being no example of that actually being the case, ever. Unless you have some you can link to? Thanks.
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IANAL, but I would think if you consistently use incognito mode, you could make the case that it's just how you work and was not an action taken in response to any sort of criminal activity or investigation. I'm not aware of any law that requires people to maintain evidence as part of their daily lives....
Linkydinky (Score:5, Informative)
Link [thenation.com].
Before or after he was served papers? (Score:4, Insightful)
There is absolutely no way I'd support charges like this for anyone that deletes anything before they've been ordered to provide it to the court. Nobody is psychic and the law should not require psychic powers.
Afterwards? Yeah, absolutely destruction of evidence assuming the government can prove that he had what they're claiming he deleted.
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I'm on the fence regarding this. Remember Arthur Andersen? Enron's accounting firm that was holding paper shredding parties to destroy several tons of documents and 30K e-mails related to Enron until federal law enforcement officers showed up with a warrant to put a stop to it? They were convicted of obstruction of justice, though the Supreme Court later overturned the conviction for procedural reasons. They allegedly knew full well what they were doing and were willfully destroying evidence of wrongdoings
Re:Before or after he was served papers? (Score:4, Insightful)
My company email is deleted after 60 days by default, even as a gov't contractor. Once we're notified to preserve then the rules change.
To me the big thing in the article is they can claim that even if you didn't know about an investigation and hadn't been ordered to preserve, they could still charge you with destruction of evidence. That's simply an astounding assertion. "You must follow orders you haven't been given" How does that work exactly?
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Browser history is by design not permanent. Old entries get shifted out in normal use. These are not "records" in any sane sense of the word.
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It says in TFA the order of what happened.
The guy recognised the brothers when their faces appeared on TV. He went to the police and told them about it. But he wasn't entirely accurate in what he said, and when he got back, he cleared his browsing history.
A year later he was charged with ...... deleting evidence. But not of any other actual crime.
So this seems to fall pretty clearly in the "uh oh" category. Apparently now if you even attempt to help police yourself, you are no longer allowed to delete your
Need to prove intent (Score:4, Insightful)
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Same. My browser is set to delete the history automatically. If I'm on a Winders box, running CCleaner every week or so is standard. Linux and OS X get cleaned up by hand when they get messy.
Re: Need to prove intent (Score:2)
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So they can, say, subpoena you for all your used toilet paper (it being "paper") and jail you if you fail to provide? Because browser history is really only very temporary storage and clearing it is what any sane person routinely does these days.
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It's why your past writings aren't excluded as 'self-incrimination'. You did them willingly so are viable evidence; the gov't didn't make you create them.
Not unusual. (Score:5, Informative)
one aspect of the actions he took should probably concern anyone who has crossed paths online or in real life with subject of law enforcement scrutiny, and subsequently cleared their browser history.
Once you learn of an investigation or a law suit, or can be reasonably expected to know one is coming, it's incumbent upon you to save all records. This is well established, and has been in existence for quite some time. It's not something new with browser history. With browser history, though, it's going to be slightly tougher to prove that it was for the purpose of obstructing the investigation, rather than his normal course of activity. His erasure of videos will help law enforcement prove that, though.
~Loyal
Disclaimer: I am not a lawyer, and this is not legal advice. Neither is this disclaimer. Neither is the disclaimer of the disclaimer ad nauseam.
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Browser history is temporary data by design, it is not a "record". Even continuing to browse will erase it over time.
Re:Not unusual. (Score:4, Informative)
Browser history is temporary data by design, it is not a "record". Even continuing to browse will erase it over time.
It is a record. If you know of a lawsuit or investigation, or can reasonably be expected to know one is coming, you have to retain those records. If you delete them for the purpose of obstructing the lawsuit or investigation, and if the plaintiff or prosecutor can establish that to the jury's or court's satisfaction, then you can be convicted of a crime.
~Loyal
Disclaimer: I am not a lawyer, and this is not legal advice. I advise you not to treat this as legal advice. That, too, was not legal advice.
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So one can't ever delete videos? How about text files? Or pictures that I painted in MS Paint for fun but having no intrinsic value? Or icons/user pictures that I haven't used in 10 years and will not use again?
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The article claims that since Sarbanes-Oxley this statement is no longer true: destruction of records can be a crime even if you had no idea there was an investigation taking place.
This sounds absurd but there are other US laws that turn people into "accidental criminals" like this.
Automate it (Score:4, Informative)
Clearing Cache Often, History Daily (Score:2)
My browser cache is cleared automatically every time I terminate the browser. Sometimes when I am having a problem viewing a particular Web site, I change some of my browser settings and manually clear the cache. Daily, I manually clear all browser history that is more than 30 days old.
Some of my computer files are encrypted using PGP. The passphrase -- more than merely a password -- exists only in my head. When I decrypt such a file to view or use it, I use a military-strength, multiple-pass file erase
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Just zero the file out, "military strength" overwrite is useless.
Evidence is evidence no matter how small. (Score:3)
Just because it is trivial to delete a browsing history doesn't mean you aren't destroying evidence by doing so. If you find yourself the subject of a police investigation, the first thing you should do is contact a lawyer and figure out what you should and should not be doing.
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The problem here is that browser history is non-permanent. You can delete it in many browsers just by continuing to browse, when older data gets shifted out for newer. Requiring people to retain data that is temporary by design is completely insane.
Incidentally, in any sane legal system, as a private citizen, you can delete and destroy any and all evidence in your possession without that being a crime in itself and finding and preserving evidence is purely a responsibility of the police. Falls in right ther
He just used the tool (Score:4, Funny)
Remember, kids... (Score:2)
Or better (if you knowingly want to destroy evidence), just reformat (non-quick) your entire HDD and reinstall a clean copy of your OS. "Yeah, it crashed last week. Bummer, huh?"
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Pretty Obvious (Score:2)
Pretty obvious that intentionally destroying evidence of a crime is considered destroying evidence of a crime. Were you to clear your cache when you have no reasonable basis to suspect it might become the subject of legal proceedings I doubt this would apply.
You could also establish a precedent of clearing your cache on a set frequency. If something happens you could make the case that you were following your standard procedure.
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It depends on whether or not he knew he was being investigated at the time. I'm sure nearly everyone does something illegal from time to time that could be uncovered if one were able to see the person's full computerized history (browser sessions, e-mails, texts, etc). Furthermore, you sometimes don't know if something will become the subject of legal proceedings. Will the e-mail I just sent cause a conversation that will spiral out of control and result in a lawsuit? By deleting it am I obstructing jus
Oh, bullshit ... (Score:5, Insightful)
Was he being investigated at the time he cleared his browser?
If not, this is retroactively constructing a legal charge out of thin air.
It's basically saying "you should have known you were guilty of thought crime and preserved the evidence in case we ever decided to come looking for you". Fuck that.
My god but law enforcement have become writers of fiction, and have completely given up on the law. They'll just make up any old shit these days.
Hey, FBI, I'm clearing my browser history right now. I'm doing it again. I'm even blocking cookies and ads, AND listening to music without paying additional royalties. I'm even going to fast forward through commercials.
Assholes.
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+1, Insightful. +1, Swearing.
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It's basically saying "you should have known you were guilty of thought crime and preserved the evidence in case we ever decided to come looking for you"
No, it's more like, "The friends you hang out with just killed and injured hundreds of people in a fit of theocratic thuggish tantrum-having, and you did things like go to one of their apartments and hide his laptop because you knew he was guilty of a terrorist bombing attack (and more). And knowing this was going to come home to roost on you, you set about cleaning up your own computer in the interests of trying to minimize the appearance that you'd been cheering on your buddies the murderers." More like
Re:Oh, bullshit ... (Score:4, Informative)
It should be fiction, but that's the current procedure apparently.
But my bank ask me to clear browser data ! (Score:2)
Should I contact the FBI ?
We've asked, lobbied, and begged for this. (Score:4, Interesting)
We've asked, lobbied, and begged for actions taken on a computer or across a network to be taken the same way by law enforcement and the courts as if they were taken offline with non-virtual items. This is a double-edged sword. It's okay to shred paper documents, but not if you're doing so with intent to destroy evidence of a crime. Well, now, they're just treating computer users the same as paper users. We asked. They answered.
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We've asked, lobbied, and begged for actions taken on a computer or across a network to be taken the same way by law enforcement and the courts as if they were taken offline with non-virtual items. This is a double-edged sword. It's okay to shred paper documents, but not if you're doing so with intent to destroy evidence of a crime. Well, now, they're just treating computer users the same as paper users. We asked. They answered.
Who is this "we" you speak of? I, for one, have never asked, lobbied or begged for what you describe. I understand that virtual and non-virtual items aren't the same in nature and have always thought that any laws or rules that try to make them the same are profoundly ignorant. I suspect many others that are not part of the "we" you speak of think similarly.
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It's OK (Score:5, Funny)
systemd uses binary logs. So no-one will be able to read anything anyway.
Everyone is a "criminal" (Score:2)
The law is structured such that everyone is a "criminal." The question is not whether you have broken some obscure law or run afoul of some perverse interpretation of the law, but whether the powers that be choose to make your life miserable.
Your personal breach of the law may be something so trivial as J-walking to get a cup of coffee, but you have broken the law.
He knew there was an investigation. (Score:2)
He already spoke to the police, then cleared his browser later. That means he knew there was some form of investigation already underway at the time he deleted the browser history.
Unfortunately, I think that means intent doesn't matter now, except when it comes to sentencing. It was evidence, by not preserving it once he knew there was an investigation, he fell into the trap. He may have been ignorant of the trap, but he stepped in it.
That sucks. But I don't see a way around them getting him for that.
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So they can force him to preserve evidence for them? That is not compatible with fundamental legal principles. But I guess "the law" in the US does not care about right or wrong, just about what they can do to people they do not like. Which is everybody but themselves.
What about doing it routinely? (Score:2)
Like my browser is configured to do on exit?
Take a page from the enterprise..... (Score:3)
Also consider using whole disk encryption that isn't from a closed source vendor. Compelling a password in a criminal case against you is, legally*, almost impossible in the US now.
*Your mileage may vary. Impact from heavy objects is not covered. Bring a towel, you may need it after the waterboarding.
Why have it turned on in the first place? (Score:2)
Personally, I don't understand why people have browser history turned on at all. I build a lot of computers for people (by happenstance it's a hobby) I build a dozen or so per year. The FIRST thing I do after the first boot is install Firefox (my preference), permanently turn off browsing history, install AdBlock+, install HTTPS Anywhere, then launch Windows update and go watch a movie.
I've never seen history help anyone. But I've seen it cause all sorts of embarrassing accidents, fights with spouses, legal
Sorry DOJ (Score:2)
My browser cache flushes every time I exit it or restart the machine. Any cookies are also deleted from only those sites that I allow cookies from. Other than that my drives are encrypted. This is standard practice. Have at it.
The message is clear (Score:4, Insightful)
All of this happened after he voluntarily shared pertinant information with the police. The message is clear:
NEVER HELP THE POLICE IN ANY WAY!
If that isn't the message they want to send, they really need to re-think their strategy.
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Electing a representative government and declaring independence, then conducting regular warfare is b>not the same thing as going around and cutting off people's heads, kidnapping and selling women and children as sex toys, blowing up innocent civilians to make some point, etc.
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We all have our own truth, and you're all, like, "there are objective differences between those two world views" and stuff, which is, like, so UNFAIR!
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You must first prove he was informed of the investigation, what it covered, etc., before you can even try to prove he intentionally deleted evidence.
Hint - he wasn't informed. If he has been informed, it would have been the moment he was arrested, which would have been the same moment they seized his computer and anything else they wanted.
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You, sir, deserve to be summarily executed.
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Sure. In particular, TAILS users will be getting a few additional years of prison time if they shut down the system as tails keeps everything in memory only.
Seriously, this is all just the evil fuckery that directly precedes totalitarianism and fascism. They can now basically claim anything, even freeing up space on your HD is "obstruction of justice". They basically force you to retain any evidence they could use against you. That is so far from fundamental legal principles, it is staggering and can only m
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Where do I send the bill for all the backup tapes I'll need to buy to meet this requirement?
Actually they send you the bill. It's usually referred to as 'Taxes'