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Security, Due Process and Convenience 200

Posted by timothy from the give-me-mumble-or-give-me-death dept.
teambpsi writes: "CNN is running an article about ISPs' concern over having law enforcement present during a court-ordered search. Since we are an ISP, I can understand the concern, however, also being a privacy freak, I think it adds a certain weight to the decision of wether to file the search in the first place. It adds a certain levity. I'm not sure what percentage of these search warrants are unnecessary, but I think that having due process in place is important. Opinions?"
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Security, Due Process and Convenience More

Security, Due Process and Convenience

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  • Law Enforcement (Score:4, Interesting)

    by 2names ( 531755 ) on Tuesday May 14, 2002 @02:45PM (#3519385)
    If the search is court ordered, it only makes sense that some law enforcement agency should be there to assist in carrying out the "warrant." However, the agency should only become directly involved if something illegal is found. They should maintain impartiality until some law has been found to have been broken, after all, in this country we are innocent until proven guilty, right?
    • If the police officer isn't present at the search, then there is a break in the chain of custody of the evidence. The ISP's credibility would be on trial. The investigation shouldn't be asking for a search if they aren't willing to put in the resources to ensure the evidence isn't tampered with.

      • This is an issue anytime evidence is aquired from someone who isn't law enforcement. This doesn't totally invalidate the evidence. It does, as you note, give the defense a new argument, namely that the ISP may have fabricated the evidence.

        However, for most ISPs and most potential cases, I think the police would likely conclude that this is such a weak defense that they are better off spending the manpower in other places, and not having an officer stand around and watch the search. If there is some reason to suspect the ISP of being dishonest, they can send someone to supervise. I don't see why it shouldn't be at their discretion to decide if it's needed or not.

      • If you think having a police officer present wil fix this you are sadly mistaken. Any ISP would be able to alter the evidence prior to or even during a search.
      • If the police officer isn't present at the search, then there is a break in the chain of custody of the evidence.

        There are plenty of other precidences that say otherwise:

        If the police want to know what numbers telephone X called, the phone company retrieves that information from their system and provides it. The same is true if they want to know who's phone it is.

        Police may go to a gun dealer and say "Who bought this gun from you?" The dealer then retrieves the information from his records and provides it.

        In these circumstances, the phone company and the gun dealer may be called upon to testify to the accuracy of the records; but, unless the business itself is being investigated, businesses are trusted to do the record retrieval themselves.

        As long as the records are delivered directly from the business to law enforcement, there's no break in the chain of custody. This could be done as easily by fax as it can in person, if not easier.

        Look. It seems pretty clear that there are legal reasons to request these records. While requiring law enforcement's presence may temporarily reduce the number of warrants, it's only a matter of time before a workaround is proposed. If law enforcement must be present where the records are kept, congress will create a national registry that ISPs will be forced to tie into. Then, police can execute warrants without leaving their desk.

        It's one thing to give police a hard time if they're crossing some ethical line, and I support that. Requiring that they fly across country to watch you type is completely unnecessary. If anything, it'll violate more due process: Police arrest suspect; they discover ISP might have evidence that exhonorates suspect; police spend 48 hours retrieving evidence in person while suspect is abused in jail; or police leave ISP record retrieval to the public defender, preserving their budget.

    • Re:Law Enforcement (Score:5, Insightful)

      by quinto2000 ( 211211 ) on Tuesday May 14, 2002 @02:57PM (#3519507) Homepage Journal
      You miss the point, I think. The issue is that no search should be ordered without "probable cause...and particularly describing the place to be searched, and the persons or things to be seized." [cornell.edu] (Find it, bookmark it). Individuals can circumvent this as long as they aren't considered direct agents of the police. No matter what, their duties to stay within Constitutional guidelines are much more minimal. So if a warrant has been issued, their better damn be a good reason for it. If they find evidence of a crime, they better damn well have expected to find that evidence. And allowing a private citizen to conduct the search allows it to become a "fishing expedition." This means that they can choose a random place to search without knowing if a crime has actually been committed, and because it's a private citizen who conducted the search, the evidence could still be used. It's a terrible idea. That's why the judge's ruling is an important one.

      So, the point is that the law enforcement agency is the most impartial, not because they have no bias, but because the evidence they can use in a court of law is more restricted when they conduct the search. They shouldn't just assist in the search, they should be conducting it.

      • I didn't miss the point. Most of the time when searches are performed they are not performed by Police officers. These searches are carried out mostly by "officers of the court", such as coroners, forensic investigators, assistant DA's, and civil servants in related fields to the scope of the investigation. The Police officers are there simply to aid the investigators IF some evidence is found.
      • At least its not as based as the laws in the U.K. surrounding ISPs and privacy.
    • Remember, "innocent until proven guilty" does not automatically prevent law-enforcement from taking any action. If it did, then they'd be forced to sit around during a bank robbery on the grounds that "they haven't proven in a court of law that the suspects did anything illegal." The standard flow of events goes: if police or other law enforcement have probable cause to suspect a crime is being/has been committed, they have the right to investigate; if they find evidence that someone has committed a crime, they can arrest him; and if a court of law determines that that evidence constitutes proof, they don't let him go.

      I'm not a lawyer and I don't play one on TV, but it seems to me that if they've got a warrant, they already have probable cause.

    • In these circumstances, Search Warrants are not used to allow law enforcement access to business premises to conduct a search, but to allow the disclosure of information. This disclosure, in the US at least, is a violation of privacy rights unless ordered by a Court.

      The use of Search Warrants or subpoenas to order disclosure is similar in Canada, however PIPEDA [privcom.gc.ca] seems to allow the disclosure of information without warrant when requested by the authorities. What would make more sense is an order simply mandating disclosure of information without being wrapped up in the auspices of a search warrant. The privacy policies of ISPs should reflect this type of scenario, which would, I'd think, invalidate concerns over unreasonable search and seizure.

  • Precautions (Score:4, Interesting)

    by Limburgher ( 523006 ) on Tuesday May 14, 2002 @02:45PM (#3519386) Homepage Journal
    Time to encrypt everything. 512-bit encryption ought to slow them down, especially on large files.
    • Why start now? What does this change? If you feel that encryption is the way to go, you should have already been using it. If you don't think that it is worth the effort, what changed your mind? I thought that the article was pretty bland and it surprises me that anyone takes it as a call to arms.

      - doug

    • Time to encrypt everything. 512-bit encryption ought to slow them down, especially on large files.

      Where would you store the keys?

      • On a slip of paper in a book at the library referencing another book at another library. The reference number is the ISBN multiplied by the reverse of the year on the Jewish calender I was born in. That book has a number in the front cover. That number of pages from the last full page of text towards the front of the book is a page with X paragraphs and Y words in the first paragraph. X chapters and Y pages into the Cryptonomicon is an underlined passage.

        ROT-13 that to get my key.
        • So I just have to try ROT-13 of all correct-length passages of fiction. That's a seriously weak 512-bit key.

          Also, doesn't it get tedious typing that ROT-13'd stuff in every time you want to read your e-mail?

    • Time to encrypt everything. 512-bit encryption ought to slow them down, especially on large files.

      So how do you run PGPDisk on linux? (no, seriously.)
  • ISP's should have no concern as to wether law enforcement is present in court ordered searches, unless they are doing something non-legit.

    • Re:ISPs... (Score:2, Informative)

      by 2names ( 531755 )
      So, following this logic, only people who are breaking the law in their homes should be concerned about the police searching their homes? We all should be concerned. This type of thing is covered in the Constitution under illegal search and seizure. Besides, for a warrant to be issued in the first place there has to be some probable cause or at least SOME evidence or implication that a crime has occured.
      • Unless its a non-warrant search for terrorist activities.

        And if you follow the propaganda, terrorists use almost every crime to raise funds. How to side step the constitution in 1 easy step, create a loophole.

        The judge was worried about the person's rights, guilty or innocent. We seem to be a loop-hole country, our legal system isn't about justice, its about politics, money, revenge and religion. Not saying the system is all bad, we have many criminals, and the cops protect us every day. But when the special interest groups muddy the whole legal system, Judges that side on the constitution are trying to protect the innocent.

        -
        3019 dead in Sept 11. 4200+ Dead civilians in Afghanistan. - You stand with us, or against us - President Bush

  • This might be a good thing (Score:5, Insightful)

    by drunkmonk ( 241978 ) on Tuesday May 14, 2002 @02:45PM (#3519393) Homepage
    If cops actually have to be there, and the city/state actually has to pay for their payroll, etc., maybe they'll be more careful and not just whip out a search warrant on a whim. I know that the local department probably wouldn't be happy having to use their officers for that rather than having them on the street doing their jobs.
    • If my ISP is in Atlanta, but the court issuing the warrant is in New York, which cop shows up at my ISP? That is, which jurisdiction bears the cost?

      And, since the laws about searches were written WELL before computers became commonplace, and that searches were physically examinations of locations, having police officers required makes sense--they are well trained in looking around. How many cops know their way around a web log or process list and the like?
      • Many police departments now have officers who specialize in (I hate cliches) "Cybercrime." These officers would be perfect for searching through logs and the like. Being knowledgeable about computers is not limited to those people who work directly in the IT field. I'm certain that the FBI and CIA etc. all have IT specialists who would look at a trivial web log and laugh their spooky behinds off.
        • You assume that all Internet providers, web hosting providers, web content providers and the like all share a common mechanism for storing data that a court would be interested in gathering. Obviously they don't. The only practical way to collect information like this is to ask the provider to collect it. To require the police to come into a provider's offices, sit down at a terminal, and pull up the information he's looking for isn't very realistic, when that information could be in a million places in any number of proprietary formats.

    • Re:This might be a good thing (Score:5, Insightful)

      by SomeoneYouDontKnow ( 267893 ) on Tuesday May 14, 2002 @02:55PM (#3519479)

      Agreed. Also, if they have to have someone present at searches, it makes it more difficult to conduct large-scale fishing expeditions, since there are only so many officers to go around. Also, it can serve to protect the ISP, since if some police official later accuses it of not conducting the search in the manner they wanted it to, the ISP can simply respond by saying that if the officer who was there had a problem, then he should have spoken up at the time.

      It might also not be a bad idea for the ISP to videotape the whole process to make sure no police officers do anything they shouldn't be doing. Document everything from the time the officer arrives at the front door to the time he leaves.

  • More fun than hanging out at the Donut shop... (Score:3, Funny)

    by sisukapalli1 ( 471175 ) on Tuesday May 14, 2002 @02:47PM (#3519402)
    Imagine having to sift through tonnes of porn material, and getting paid for it. The job itself isn't really important because most of the search warrants would be over bullshit matters anyway.

    S

  • "unreasonable" burden or not... (Score:4, Interesting)

    by quinto2000 ( 211211 ) on Tuesday May 14, 2002 @02:48PM (#3519410) Homepage Journal
    I tend to agree with the sentiment of the ruling judge in this case. Civillians shouldn't be given so much power over the conduct of a search. The police like to give them that power, because they aren't held to the same standards. When the number of searches increases, it's particularly important, however, that every search be held to a stricter scrutiny.

    The police ability to hand off the search to a third party can easily be abused to circumvent fourth amendment protections. The boundary between an agent of the police and the police themselves can be fuzzy. This removes the question altogether.

    • Are we just talking about regular patrolmen here? If so, what would they do? They would watch the ISP's technicians do the work. How is this holding anyone to a "stricter scrutiny"? While the cop can be confident that the techie is looking at something and not playing quake, what else can he say? Are we talking about specialized training for some cops and only sending them? Cops with video cameras to record the search?

      While I agree with your goals and I am all for protecting the 4th amendment, I'm kinda fuzzy on how this would be implemented in a useful fashion.

      - doug

    • Civillians shouldn't be given so much power over the conduct of a search. The police like to give them that power, because they aren't held to the same standards.

      Not true - when a civilian is conducting a search in response to a search warrant, they are held to the same standards as law enforcement because they are a law enforcement proxy. An ISP's legal right to monitor traffic is actually reduced when law enforcement presents a formal request, because they have to start monitoring by the (stricter) rules that the government lives under.

      IANAL BIPOOS

    • What a load of crap.. the case in question actually had an issued warrant so it wsan't circumventing anything.

      Picture what your proposing for a moment.. instead of the system admin handing over the required information he has to instead hand over the root password?

    • The police ability to hand off the search to a third party can easily be abused to circumvent fourth amendment protections. The boundary between an agent of the police and the police themselves can be fuzzy.

      Well, as my (hope I never actually need one) lawyer would ask the judge: just who actually executed this warrant that you signed? Finding information and giving it to the police is one thing; executing a warrant is something entirely different. Who conducted the search? The cop who had an envelope delivered to him? Hell no. Now it law enforcement just called up the ISP and asked for information, it'd be (arguably) legal. Anyone actually executing a search warrant, however, is an agent of the police, no matter where their paycheck comes from.

      I can't ransack somebody's place just because some cop has a warrant. Why, because I'm not an agant of the police. If I had necessary skills that they don't, then they would approach me and ask me (the ISP) to execute their warrant for them. That would make me an agent for them.

      That's all fine and good, but can't they work around all this with a well worded subpoena?

  • Couldn't they obtain all the information they need through other means? Carnivore, echelon, and so on...

  • hm (Score:4, Informative)

    by tps12 ( 105590 ) on Tuesday May 14, 2002 @02:48PM (#3519413) Homepage Journal
    I think it adds a certain weight to the decision of wether to file the search in the first place. It adds a certain levity.

    Aren't "weight" and "levity" opposites?

  • I know it wouldn't help the ISP's a bit, but having an ISP return a blank note with the line 'sorry, this is all we found.' on it certainly doesn't constitute good law to me.

    I'd suggest every ISP have sorta like a liason officer bound to certain laws, regular blind checks and stuff like that to confirm ISP are keeping their deal up too. Otherwise ISP's are free to act like they will

  • Yahoo is down... (Score:3, Funny)

    by aero6dof ( 415422 ) <aero6dof@yahoo.com> on Tuesday May 14, 2002 @02:49PM (#3519424) Homepage
    Please be patient, yahoo is down for search warrant maintenance. The system will be restored, minus any confiscated data, in a few hours...
  • Since the US government and a whole mess of tech groups are against this, I'm doubting whether this lower court ruling from Minnesota will stand for very long. The application of this ruling would do nothing to ensure better due process and it would only waste time/money. It seems that this entire episode is JALL (just another legal loophole) that will soon be closed in the correct manner.
  • Not only is this going on, but surveillance is increasing, and penalties are being stiffened for "cyber-crime". More info here. [internetnews.com]

  • This is stupid (Score:3, Interesting)

    by NoBeardPete ( 459617 ) on Tuesday May 14, 2002 @02:52PM (#3519456)
    The defendant in the case subsequently sought to have that evidence suppressed, arguing that his Fourth Amendment right against unreasonable search and seizure was violated because it was conducted by civilians.

    This is just stupid. If the ISP wants to cooperate with law enforcement, they could do so even without a search warrant. Once the search warrant has been drawn up, if the ISP wants to cooperate in the manner most convenient for them, and the law enforcement folks agree, there's no problem. I mean, given that the ISP is legally required to cough up the info, and given that they don't even really want to put up a fight about it, what does it matter whether or not some police officer is standing there scratching his ass while someone pulls up the data? It doesn't matter at all.

    Things might be different if there was a legal concept of strong privacy between an ISP and its customers, as with Attorney-Client Privilege, confidential medical info, or communications between spouses. The fact is that there isn't, though.

    • Re:This is stupid (Score:4, Insightful)

      by bourne ( 539955 ) on Tuesday May 14, 2002 @03:12PM (#3519614)

      This is just stupid. If the ISP wants to cooperate with law enforcement, they could do so even without a search warrant. Once the search warrant has been drawn up, if the ISP wants to cooperate in the manner most convenient for them, and the law enforcement folks agree, there's no problem.

      It's even better than that - if the ISP wants to gather evidence of wrongdoing related to their computer resources (say, someone hacking from their dialups) they have much greater leeway in their search, for they aren't bound by the fourth amendment. Once law enforcement becomes involved, it actually places limits upon what the ISP could do on its own.

      Now, once law enforcement requests the cooperation of the ISP, then the ISP IS bound by the fourth amendment, because they are an agent of the government. So, as I understand this case, the defense should be attacking whether the data was gatherable under 4th amendment and under the particular warrant used, not whether there was a policeman there or not. Evidence gathered by an ISP in response to a warrant is held to fourth amendment rules, no matter who executes the search.

      Consider this: You walk in on a convenience store shooting. Should you not be able to go up on the witness stand and testify because you aren't a law enforcement officer? As long as the defense can't prove the search was conducted in excess of fourth amendment rights, it should make no difference whether it was carried out by someone with a badge or not (assuming search was in accordance with warrant parameters, chain of custody was kept, etc. etc.)

      IANAL - YANMM

  • It's the law... (Score:2, Informative)

    by NorthDude ( 560769 )
    I find it disgusting that someone can escape justice because of en "error" in procedure, but if it was not that way, we could all be prosecuted. It's better to have one bad guy escape the justice and all the others be free, then to abandon all of our rights for one bad guy. It's the investigators obligations to make things right and honestly to catch those who brake the law. If they were to not respect any privacy rights and other rights to catch the "vilain", we would live under siege. You MUST make sure that you, as an ISP, make things the way they should be. To respect others privacy and right. And in the end, it can only help to make sure that the bad guy wont escape law.

    • Re:It's the law... (Score:3, Insightful)

      by Jaeger ( 2722 )

      A defense lawyer came to my high school government class to talk about the legal system and its exciting collaries. He told several stories of legal bumblings that let him keep various clients out of jail. At the time, he disgusted me -- he was using the letter of the law to wiggle his clients out of the punishment they deserved for the crimes they comitted.

      But then it dawned on me: that defense lawyer was fighting the border war to protect my rights. He reminded the police that they can't do whatever they want -- that the Bill of Rights is important.

      The guilty must be punished, but not at the expense of the rights of the people.

  • it adds a certain levity? Which form of levity would that be?

    1. Lightness of manner or speech, especially when inappropriate; frivolity.
    2. Inconstancy; changeableness.
    3. The state or quality of being light; buoyancy.

    Personally, I like the last one, law enforcement adds buoyancy.

  • Even if... (Score:3, Interesting)

    by GeneralEmergency ( 240687 ) on Tuesday May 14, 2002 @02:53PM (#3519465) Journal
    ..the POOOO LEEESE were a-waitin in the lobby, the challenge would still be valid. The search was still conducted by non-sworn personnel and such "evidence" should be suppressed. Maybe the ISP technician just typed the crap up?

    • What the hell? If I have some information, or access to information, that might help in solving a crime, and I give said information to the police, the fact that I, myself, am not a law enforcement officer is more or less irrelevant.

      The police get information from private citizens all the time. They ask if you saw someone in a certain place at a certain time. They ask an airline about whether or not a suspect was on a plane, or at a conference. They ask employers if an employee has a record of acting strangely or violently. They ask banks if someone had an unusually large deposit. They ask phone companies for records of phone calls to or from a given number.

      All of this information is provided by non law enforcement. I don't think this invalidates any of it.

  • Procedure (Score:3, Informative)

    by Shalda ( 560388 ) on Tuesday May 14, 2002 @02:54PM (#3519468) Homepage Journal
    I would expect proper procedure to generally be issuance of a subpoena for records. A search warrant should only be issued when the subpoena is refused, or the ISP is being investigated as an accessory. IANAL, but I do watch a lot of cop shows on TV. Search warrants should always be performed by law enforcement personel. That's probably the biggest difference between what makes it a search warrant and a subpoena.

  • I work for police as a programmer. So many times the decision on what to spend time on comes down a judgement call on the part of the officer.

    This case really highlights the intersection of "virtual" laws and legal issues with real-life space-time constraints.

  • It seems like the cost of complying with search warrants could grow exponentially for a business like an ISP with information resources relating to a large number of customers. Who pays for the time of the engineers to conduct searches? Physical world limitations used to keep these costs from getting out of hand, but now they no longer apply.

  • Don't ISP's always retain the right to copy and comply with law enforcement with or without the court order? The court order is merely ask the ISP to comply, but the ISP is not REQUIRED to ask for one. Used to be every time you signed up even with a BBS they'd flash that fact in your face, that the sysop CAN read your mail.

    The fourth amendment does not protect against companies looking at information they already have a contract with you, personally, to look at.

  • LE presence should be required... (Score:4, Insightful)

    by StenD ( 34260 ) on Tuesday May 14, 2002 @02:55PM (#3519482)
    If for no other reason than to force there to be an actual cost for LE in a search - I doubt that ISPs get to bill LE for the cost of handling searches. The cop may not be able to perform the search, but should certainly be supervising it - they aren't supposed to be sitting in the lobby eating donuts while the ISP techs are gathering data.
    • If for no other reason than to force there to be an actual cost for LE in a search

      Be careful what you wish for...

      Adding costs to law enforcement means that either fewer crimes get solved or taxes go up.

      If law enforcement is really required to be present for each warrant, you can expect a law to be passed requiring ISPs to connect their databases into some national registry; then, law enforcement can execute search warrants from their desk.

      Aside from cost to law enforcement, what is different between the following:
      • Law enforcement travels to ISP and stands around while ISP techs execute search warrant.
      • Law enforcement faxes warrant to ISP and ISP techs fax back results.

      In either scenario, the searching will ultimately be done by ISP techs. This is no different than asking any other company for information about a customer. Police present warrant; employee retrieves records. Surely no one wants to give police the necessary access to retrieve records themselves. So what's the difference.

      Besides, who wants police standing around in their office. More to the point, who wants police, who just took the red eye to cross the country, standing in their office.

      • Adding costs to law enforcement means that either fewer crimes get solved or taxes go up.

        Hopefully fewer crimes are solved. Remember the police consider perfectely reasonable things like drug trafficing and looking at pictures. When they're forced to narrow down that list of crimes to physically hurting people and or stealing significant amounts of cash or goods we will all be better of.
        • Hopefully fewer crimes are solved.

          Actually, the time a police officer spends executing one of these warrants will result in scenario's like this:

          • More speeders run red lights because of less traffic enforcement.
          • Kidnapping pedophiles, who used the Internet account to lure a child, get extra time with the child.
          • Law enforcement releases a suspected pedophile because it's too costly to fly to Yahoo to verify that it was his account distributing kiddie porn.

          While you may disagree with how law enforcement spends its time. Forcing them to waste time and money won't change their priorities.
    • In order to properly supervise it, the cops are going to need to know what they're supervising. Who's going to pay to train the cops on every proprietary information system that any possible provider of any electronic data will use? If they aren't trained to know what they're looking at, they serve no practical purpose and might as well enjoy the donuts.
  • The article stated that Yahoo! received litterally thousands of warrants in the course of a year. This is probably not an indication of any more crimes being committed using Yahoo's services, but is instead a reflection of the greater power LEO's have to violate individual's privacy, especially in the wake of the Patriot act.

    The problem here is not that there are going to be police officers in a data center around the clock carrying out warrants. It's that there are that many warrants issued in the first place.

    • This is probably not an indication of any more crimes being committed using Yahoo's services, but is instead a reflection of the greater power LEO's have to violate individual's privacy, especially in the wake of the Patriot act.

      No, it actually is a result of Yahoo begin big, cheap, and national in size. It has millions upon millions of customers, in (literally) tens of thousands of jurisdictions. That they receive thousands of warrants is no more surprising to me than hearing that Citibank receives thousands of warrants a year for credit card records....

  • Which is it ?
  • The Minnesota case involved a search warrant that was issued on Yahoo! in connection with a child pornography investigation. The warrant was faxed from Minnesota to Yahoo's headquarters in Santa Clara, California, where employees pulled up the requested information and sent it back to local prosecutors

    So, apparently all you have to do is fax over a "warrant" and Yahoo will send you everything you ask for...

    "Oh! What a world! What a world!"

  • This could be a good thing.... (Score:5, Insightful)

    by wowbagger ( 69688 ) on Tuesday May 14, 2002 @02:58PM (#3519509) Homepage Journal
    Think about it - any police department has a finite staffing, usually very understaffed.

    Now, imagine you are a police chief. You have five search warrents out against SomeISP.COM for stuff you feel is white-collar, victimless crimes.

    On the other hand, you have five tips about meth labs.

    Where do YOU send your officers?

    Consider that the key part of a DoS attack is consuming all of some limited resource, be it bandwidth, sockets, Moderator points, or police officers .

    Now, instead of the ??AA being able to crapflood the system with bogus warrents to be filled by (relatively) plentiful techs at small ISPs everywhere, they must be filled by (relatively) scarce police officers.

    Would that not tend to limit this crap?
    • Umm..."white collar" criminals are a lot more dangerous than drug users. Drug users hurt mostly themselves, drug dealers at least a finite area (say several city blocks). Take a look at Enron for an example of the worst kind of criminal white-collar behavior. Corporate crooks destroy tens of thousands of lives at a time. The best a drug dealer can do is destroy hundreds.
    • Well, the police in Sarasota, Fla sent their cops to adult movie theaters all night and caught Paul Rubens, aka, Pee Wee Herman for indecent exposure and
      masturbation. There were plenty of open homocides and other serious crimes to investigate at that time, but the detectives were used to look at adult theaters.

      Beurocrats are not well known for efficient resource management.
    • Who is the victim of the meth lab?
  • If these ISPs are really worried about the long-term effects of a rule requiring the presence of law enforcement officers to serve warrants, they shouldn't complain to the courts. They should complain to Congress . . .

    18 U.S.C. Sec. 3105. - Persons authorized to serve search warrant

    A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution. (bold added)

  • The most telling part of this article is when the Yahoo! dickhead goes and says that cops shouldn't be at Yahoo! when they could be out catching "real" criminals.

    He has just very, very clearly expressed bias. Who the fuck is Yahoo! to go around deciding that internet kiddie porn distributors aren't "real" criminals? He's publicly stated that Yahoo! doesn't have an interest in making sure that the interests of the law are looked out for.

    What's to prevent a kiddie porn distributor from working at Yahoo! just so he can cover his tracks? What's to prevent Yahoo! from deciding that they won't aid in the prosecution of holocaust sympathizers in hate crime investigations?

    Cops are sworn in for a reason. Yahoo! data entry clerks are not. Yahoo! should fire this bonehead for publicly stating that they're biased in favour of some types of investigations over others.
  • We're saying that this ruling is bad public policy. It's wasteful, it is going to be a waste of government resources, and of law enforcement resources that should be out there catching real criminals.

    Aren't the purveyors and consumers of child pornography real criminals? Upon conviction, do they serve hard time for their acts? In both cases, yes. (Or at least they should be!)

    I have real issues with this sort of thinking.

  • Law enforcement presence. (Score:4, Insightful)

    by Restil ( 31903 ) on Tuesday May 14, 2002 @03:01PM (#3519531) Homepage
    The ISP is being served the warrant, but they are not a suspect in the case. That is the difference here. Law enforcement is well aware that Yahoo is not in any way involved in the illegal activity, but they have information required by law enforcement. When they are served a warrant for information on clients, they cooperate every time by forwarding the requested information. There is no REASON for a police officer to be there, especially since they probably wouldn't know what was going on anyway. They'd be hanging around waiting for someone familiar with the system to call up the requested information, and it would then be faxed on, just as if the police officer wasn't there.

    Where police presence IS needed is when the company/individual being served the warrant is suspected of illegal activity. If Yahoo as a company was actually intentionally distributing child porn, law enforcement could not expect them to voluntarily turn over all evidence of their illegal involvement in this regard.

    As far as the 4th ammendment rights go, Yahoo has a privacy policy (as far as that goes) that states that they won't blindly hand over customer information without the customer's permission or a search warrant. If yahoo were to discover illegal activity, they could still turn over that information to the police without first being contacted by them. The 4th ammendment doesn't apply here at all. In fact, they could turn it over WITHOUT a search warrant if they wanted to. They could possibly get sued for contract violations, but it wouldn't/shouldn't save the ass of someone using their services illegally.

    -Restil
    • There is no REASON for a police officer to be there, especially since they probably wouldn't know what was going on anyway. They'd be hanging around waiting for someone familiar with the system to call up the requested information, and it would then be faxed on, just as if the police officer wasn't there.


      The whole fax-a-warrant thing worries me. Suppose a malicious employee within the ISP just makes up some data, or falsifies existing records to implicate/protect someone? I assume that's a crime, but someone could go through hell proving that it happened.

      Then again, I assume that this same process has been used with telephone call records and financial-type information for a while now, so maybe it's not as open to abuse as I imagine.
      • Or maybe it's just hard to prove that abuse has occured. That would give the same results.

        The problem is that evidence isn't proof, and the more weak links there are in the chain, the weaker it gets. Of course the other part of the problem is that there is a tendency to jump at the first plausible answer, rather than trying to prove it. Cops, prosecutors, judges, and juries all accept evidence that seems to me exteremely weak. Frequently. Generally, however, weak evidence will only be accepted if it tends to prove that things are the way that they would prefer that they were. However, it makes the job of all of the foregoing easier if they accept "probably correct" evidence as if it were proof. And sometimes they are even more eager to "just get things over and convict that bastard quickly" than others. I suspect that they usually just don't want to waste time. And I suspect that they most often jump to the correct conclusion. But there's a big difference between jumping to a conclusion and proving it. And this is frequently ignored. (Sometimes on purpose, e.g. the Rodney King affair.)

        And it has happened that I have been convinced that a person was guilty, but also convinced that it didn't get proven. Conviction is common in such cases (though not invariable).

        The chain of evidence needs to be as thoroughly documented as is at all feasible. It isn't. This leads to miscarriages of justice in both directions.

    • And if that perosn is innocent?
      What about when someone yahoo at yahoo! who isn't trained it police work, gets bored and starts fishing for "crimes"?
  • They should be there to maintain the chain of evidence. It would also give them something to do.

    About 5 years ago a radio station I listened to used to play a game called "Cop or Not." They'd get a listener to call in and have them choose "cop" or "not" and then they would ramdomly call donut shops around town and ask if there were any cops in the store. If the listener guessed correctly they'd win tickets or whatever the prize was that week. This went on for about two months until the police complained that they were "giving away their positions around town."

    I say make them be there during the search. Better there than eating donuts.

    -Goran
  • Think about small towns!

    What i'm reading into this is that if a small town of 1000 has their only police officer doing an investigation, he could be forced to fly to tokyo, finland, and south africa to obtain the info. Thats going to kill small town police budgets, and really cause manpower problems, with cops running all over the country instead of driving down the local streets. All because he wants to convict a ebay scam artist in his hometown.

    There is the issue of police not issuing as many warrants, but in small towns with small budgets, thats not really a good thing, that lets real criminals go. I think slashdot readers have forgotten that not every person lives in a huge, technology driven megatropolis where the government is out to wrongly persecute its citizens. Not every crime that touches the internet somehow is from those cities either..

  • Due process != chain of custody (Score:5, Insightful)

    by bourne ( 539955 ) on Tuesday May 14, 2002 @03:02PM (#3519547)

    This doesn't really have to do with due process, it has to do with chain of evidence.

    Oversimplification - Due process means that you get your trial, and that the trial follows certain rules. One of those rules is that evidence presented against you has to meet certain standards, such as chain of custody.

    Chain of custody says that the evidence, once gathered, is kept track of in a way that ensures it is genuine. The original case here was trying to cast aspersions on the chain for certain evidence since it hadn't been initially gathered by law enforcement.

    This new ruling should be thrown out, though, because it's certainly going way beyond the standard for chain of custody. Anybody can be part of the chain of custody as long as they follow appropriate procedures - keep good notes, don't allow the evidence to pass out of your control, make sure that law enforcement signs for it, be able to truthfully testify that no one could have tampered with it while you had custody of it. Frankly, I'm suprised any defense attorney would WANT this - they'd rather that Joe Schmoe from the ISP, who only gathers evidence once a blue moon, gets called on the stand so they can twist his words, rather than a professional law enforcement officer who generally knows the rules of the game a lot better.

    IANAL, but I'm working on my SANS GCFA certification and there's a lot of coverage of chain of custody in there that I'm pulling from.

    • Frankly, I'm suprised any defense attorney would WANT this - they'd rather that Joe Schmoe from the ISP, who only gathers evidence once a blue moon, gets called on the stand so they can twist his words, rather than a professional law enforcement officer who generally knows the rules of the game a lot better.

      Good point, but it doesn't apply to the specifics of this case. I.e. the attorney in this case got what his client wants, which is to throw out the evidence. I think in general, this will still favor defendents, or more realistically, could-be defendents, because it makes it harder for LE to ever get damning evidence to begin with.

  • A chilling effect my arse (Score:3, Insightful)

    by sanermind ( 512885 ) on Tuesday May 14, 2002 @03:03PM (#3519555)
    yahoo argued that the requirement could have a

    "chilling effect" on their subscribers, who could be concerned that a constant police presence would impinge on their privacy rights.


    ???!?!?

    I mean, how disingenous can you get? The whole point in requiring actual meat effort in order to execute a search [as opposed to massive automated electronic drag nets] is going to do nothing other than discourage any searches unless they are actually probably usefull in a real way to an ongoing investigation. By requring extra cost for the search on the part of the authorities, this isn't going to chill anyone!

    How stupid do some lawyers think people are? (...or even worse, how stupid are they)

  • As someone who is involved with the law enforcement community I will point out that in almost every search warrant to obtain information from a third party source I.E.. Phone records, Cell phone traces, ISP logs, and many others you are always working with others to gain information. Those people that you work with may not always be police officers. If this holds up it will cause a large problem. Security freaks (such as myself) want and deserve our privacy. However, when people are thinking of hurting or killing others should that information be off limits? If a police officer was able to obtain information that would stop your mother, daughter, son, etc.. from being hurt or killed would you want to give the advantage to him or the police? The person that was released was a child pornographer. Was the law protecting the rights of the children or the sicko in this case? As Sir Robert Peel said

    "...the community is the police and the police are the community"

    It is ALL of our responsibility to protect the innocent. Some people are paid to do it for a living. If you could stop a child pornographer would you? That is what this is about. This CASE LAW is saying that only the police can protect the public. It is ALL of our duty to protect the public. You shouldn't let anyone take that right away from you.

    Of course, an easy way around this is to temporarly deputize anyone you need and then they are a law enforcement officer for as long as you need them.
    • As I understand things, a search warrant is only served if there a compelling reason (ie., evidence to suggest that there is other evidence that can help to convict or clear a suspect). For the "fishing license" argument to hold would require several members of a department and/or several judges to work in collusion.

      That's not to say it can't happen, but it does make the likelihood very low.

      I think the greater problem here is that we are becoming more and more distrustful of EVERYONE and the police are an easy target because they have to do a very visible public task in a manner that is, at the time, unpleasant and confrontational.
  • C'mon folks. Think!

    If all ISP's simply provided a standard API to Law Enforcement (LE) so that LE could search anything they wanted, whenever they wanted, then this problem would be solved. We wouldn't even be discussing whether LE should be present.

    It could even be developed as a standard module for popular OSes. For instance, for Linux, a Kernel Module which provided this remote monitoring facility would be beneficial for everyone. It would conform to the standard remote monitoring API.

    Problem solved. This would be beneficial for everyone.

    It saves your manpower. You avoid LE people at your facility. Your engineers don't need to waste time performing the search. It saves LE manpower, because they don't need to visit your facility each time they want to search something. In fact, for additional savings, LE could start obtaining search warrants retroactively.
    • I know you're trying to make a point with hyperbole, but this isn't far from what's been sought. Clipper with its LEAF (law enforcement access field), the Swiss with their email archiving requirements, and the PATRIOT act don't make an LE API based on XML web services (add buzzwords as needed) sound very farfetched.

      Heck, I wouldn't be surprised to see it as a part of the Trusted PC [trustedpc.org] specification.

    • If all ISP's simply provided a standard API to Law Enforcement (LE)

      There already is a standard API. It's called "you fax us a search warrant, we'll conduct the search and send the results back to you".

      The only simple way to improve upon this would be to use digital signatures, in order that the fax could be replaced by secured email.
  • My cabinets are in a third party's cage house in New Jersey, their business office is in Santa Clara, CA, my provider CHQ is in NY, the service arm for me the customer is based in NC, the liason to the customer is in Florida and systems management is via Colorado.

    How many cops do you want to send? All of them?
  • Here's a problem with overturning the ruling -- it would mean that ISP's have the powers of police agents. Whereas in the past, ISP's could voluntarily turn over information that it thought were part of an issue, now they're additionally doing so while acting in the place of police. That means that they should also now be subject to the same terms as police with regards to all of the civil rights they are required to observe.

    Either ISP's are acting as "private" organizations or they're not. I want them off the fence, one way or the other.

  • IMHO, ISP warrant execution should be held to the same standards as local telephone service warrants. Both service providers store similar kinds of court-demandable information and both depend heavily on computers to extract it correctly.

    IANAL, so I don't know what the POTS standard is, but I doubt police officers actually have to be present. Having a flatfoot on site won't help unless s/he's intimately familiar with the database query system.
  • Why bother with a warrant at all? Wouldn't it be easier for Yahoo! to simply always send copies of their nightly differentials to the authorities? Eliminate all that silly paperwork (which is slowing down the speedy execution of justice).

    OK, that's a bit flippant, but how far off is it really? We recently eliminated the need for two branches of government to agree before issuing a warrant with the Patriotic American Jackbooted Thug Act.

    Don't get me wrong, I'm not opposed to properly executed warrants. Heck, I may not even be opposed to a totally open society (IE: trivial search and seizure), but if we're going to keep the pretense of a right to freedom from unreasonable searches and seizures, we should maintain the checks and balances that assure that those searches and seizures are authorized and executed properly. If we are choosing to make them trivial, then lets eliminate all the barriers at once and get it over with (and, of course, this should imply that the gloves come off regarding the privacy of our public officials: every sales receipt, campaign contribution, and bank transaction gets published).
  • What, this guy likes joking with cops? They'll all stand around reading some poor guy's email and laughing at how he was pretending to be a hot young girl in some chatroom?

    Me, if police came to my workplace, I think it would add a great deal of *gravity* to the situation.

    Chers
    -b

  • If the data don't fit, you must... (Score:3, Insightful)

    by John Murdoch ( 102085 ) on Tuesday May 14, 2002 @04:51PM (#3520225) Homepage Journal

    Every time I see mention of evidence "from the Internet" or "from computer files" I wonder: how much evidence produced in court is actually genuine. We all know how impressed most people are with computer technology--and we all know how simple it is to create a simple text file. An email from Nicky Scarfo, Jr. [cnn.com] admitting to loansharking? A trivial matter--just take any old email from Nicky, edit the text, and presto! "Direct" evidence that would impress 99 juries out of 99. While we're at it, why not have Nicky confess to financing the World Trade Center bombing?

    This kind of thing isn't limited to email. Want to establish an alibi? If you have access to the database that stores key pass data (or E-Z Pass data) you can write a simple INSERT statement to add records necessary to prove you were on the Tappan Zee Bridge when the dirty deed was done (dirt cheap [purelyrics.com]).

    My point is that it is brutally easy to fabricate data--and I think the technologically unsophisticated are all too willing to accept anything that is presented as coming from "the computer".

    A hypothetical example
    Let's pretend that I'm a local police officer. I've been working a case for months--we've had several complaints about a man who might be a sex offender. But they're complaints of creepy behavior--nothing criminal. But I know--I know in my bones--that this guy is a ticking time bomb, just waiting to go off. And--being devoted to protecting the children of my community--I want to stop this creep before he hurts any (more?) children.

    I'm in Pennsylvania, where judges are elected. A local judge who's up for re-election is likely to err in my favor when it comes to search warrants on suspected child molesters--so I get a warrant, and I seize the perp's computer. And--damn. The creep is evidently aware of the danger of computer evidence, because there is not a single shred of incriminating evidence on his hard drive.

    Or is there? I can copy a few choice files into his temp directory, and copy a few incriminating cookies while I'm at it. Maybe I copy more than a few. All it takes is a floppy disk of helpful evidence and a moment or two alone with the computer--and who's going to believe the creep when he claims he never saw those pictures?

    The chain of evidence? (The "chain of evidence" is a legal requirement that prosecutors be able to identify a particular person responsible for a piece of evidence from the time it is seized until it is presented in court.) I gave the perp a receipt for his computer. There's nothing that requires me to provide the perp with a listing of all the files--and no court in the world would let the perp do anything to that computer (like listing his files) when I seize it. I've provided a receipt for his computer--but who's to say what's on the hard drive?

    Could this happen?
    A frequent element of police fiction--and perhaps police reality--is that police officers carry "throw down" guns; a throw down gun is a firearm with no identifying numbers that can be dropped at a crime scene when a police officer shoots a suspect: the cop asserts that the suspect pulled a gun, but the cop shot first. There's the gun--and the suspect a) has an arrest record, b) is dead, or c) both. Who's to say?

    In the same way, an overzealous cop or prosecutor could easily use "throw down" data to "tighten up" a case. The "bad guy" gets what he deserves--the entirely theoretical child molester gets sent to prison.

    When the police come with the warrant
    I have a client who pays me a few bucks to co-locate a server--which technically makes me an ISP. Ed hosts a couple of mailing lists, and while I seriously doubt any of these lists will ever be the subject of a search warrant, if I'm ever served with one I'm going to be particularly careful to maintain copies of what I provided to the cops. Sure--I'm all in favor of law and order. But fabricating computer "evidence" is so easy that it must be a temptation that is very hard to resist.

  • It may actually force them to cut down on their searches! As a matter of fact they may go from the 'literal thousands' to a few hundred. There is NO reason for this many searches on an ISP. The problem is all the 'slandar' that poeple are suing ever, the fact that police try to find unnecessary evidence (the bank robber may have sent e-mail!), and the most important, that courts do not oversee the warrants. What to do, make Judges issue warrants, cutting down on the number of searches, and making a police presence during searches less than a burden.
  • Sounds good. If police time is wasted each time a frivolous warrant is issued, maybe that will stop the dragnetting of private information.

    I mean, it's bad enough that Yahoo! will let the U.S. police browse through my emails without any evidence of a crime, but for them to do it by fax is starting to push the limits of credibility.

    Yes, I've now deleted all the email from my yahoo account. There are some people where it's not being paranoid if you don't trust them.
  • This is a non-issue.

    The Guvmint and the ISPs can deputize one employee who is granted autority (by the power vested ... blah, blah,) to conduct information searches while employed there.

    The lawyers are shut up. The ISPs don't have a bunch of cops around underfoot. And the bad guys still get caught.

    What's the problem here?



  • IASAFTOATGDFWLTS IANAL!!!!!
    MINUIFLHOAOHIOA
    CDCR LEDMOOK Y
    K KE NL E
    ID ES
    N D
    G

    How about from now on.. on slashdot.. dunt say yert not a lawyer.. odds are if your reading and posting here.. your not a lawyer.. so we'll assume yer not.. and if you are lawyer.. then say you are and we'll be like.. ohh hey a lawyer.. wooo

    yes i'm ranting..

    get over it.

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