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The Courts Government Your Rights Online News

Precedent for Warrantless Net Monitoring Set 421

Posted by samzenpus from the only-bad-people-need-privacy dept.
highcon writes "According to this editorial from SecurityFocus, a recent case of a drug dog which pushed the limits of "reasonable search" may have implications for Internet communications in the U.S. This Supreme Court case establishes a precendent whereby "intelligent" packet filters may be deployed which, while scanning the contents of network traffic indiscriminently, only "bark" at communication indicative of illegal activity."
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Precedent for Warrantless Net Monitoring Set More

Precedent for Warrantless Net Monitoring Set

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  • Thy don't understand tech, they use metaphors (Score:5, Interesting)

    by LostCluster ( 625375 ) * on Thursday February 10, 2005 @01:43AM (#11627008)
    The current rules on Internet snooping are based on the metaphor of an envelope... anybody can look at the addressing data on the outside of an envelope, but the contents within are private. This is a pretty nice metaphor, considering the possible options...

    - Dog search metaphor: This is what the article is suggesting, a binary test can be used to see if the packet needs more inspecting. If the binary test comes back positive, it represents probible cause to break the seal.
    - Postcard metaphor: An IP packet is really closer to a postcard, in that the datagram portion isn't really secured inside anything, it's out there for plain view.
    - Shopping mall metaphor: The Internet is like a shopping mall. The government doesn't own the mall, but the owners might invite the police to establish a checkpoint at the door because any possible crime is bad for their business. Anything they see/hear from their perch there is fair game, especially if everybody sees that there are officers there.

    • Re:Thy don't understand tech, they use metaphors (Score:5, Insightful)

      by ari_j ( 90255 ) on Thursday February 10, 2005 @01:47AM (#11627037)
      It's not necessarily that they don't understand technology, but rather that they (meaning the Supreme Court) do everything they can to forge opinions that will be reasonably applicable to a variety of situations, so that people don't end up appealing fifty slightly different but analogous cases to the Court.

      The dog search metaphor may or may not be as obvious to a court as it is to the article's author. Time will tell as this decision is applied in the lower federal courts, until someone appeals one of those decisions up again and gets it either explicitly applied, explicitly limited, or explicitly overruled.
    • > Shopping mall metaphor

      Bzzt.

      The Internet is a bit like a town. There is no 'owner'. Individuals may own bits of it, but it is a common space.

      This in turn is a flawed analogy, as the main street of the Internet is privately owned by a corporation (except for those countries with government owned telcos). Only the shops and houses are owned by individuals.

      Question: if the main street is privatley owned, do individuals still have privacy rights? I say yes, as the police don't get different sear

    • Re:Thy don't understand tech, they use metaphors (Score:5, Interesting)

      by dourk ( 60585 ) on Thursday February 10, 2005 @02:39AM (#11627323) Homepage
      When the post office re-seals your envelope, they put a nice sticker on it saying that it was opened.

      If my packet is sniffed, and barked at, and later determined to be innocent (sometimes the dogs are wrong), will there be some nice header in my transmission letting me know they took a peek?

      That'll be a big hint that I need to start using encryption.
    • Whatever metaphor you use, how can this be of any real use? Are terrorists and drug dealers sending out unencrypted messages in plain text that explicitly outline their doings? I have a hard time imagining that there are lots of messages like this:

      Dear Fred Smith the drug supplier,

      Greetings, it is I, Dave Thompson the drug dealer. I am out of heroin and would like to purchase more. Please meet me in wharehouse #4 at 10pm tonight with more heroin. I will bring $10,000 in cash and you may sell me th

  • What ever happened to the Constitution? (Score:5, Insightful)

    by raistphrk ( 203742 ) on Thursday February 10, 2005 @01:44AM (#11627010)
    So law enforcement can just sit with a packet filter scanning for the word "drugs"? That's just absurd. If law enforcement has reason to believe that an individual is committing illegal acts, they can go and get a warrant. Thanks to FISA, that's not the most difficult task. However, this isn't like a drug deal on a street corner; this is more analagous to being able to tap everybody's cell phone, hoping to find one or two people selling drugs.

    A real blow to the Constitution.
    • From a practical standpoint if you rely on plaintext packets over the net for "privacy" you're not too smart. Things like SSH, SSL and GPG were invented to take care of this.

      As I've maintained in my past the biggest thing that upsets me about things like this is just the incredible waste of resources for small returns.

      They'll spend billions on super computers [from $INSERT_CORPORATION_HERE] so the "good ol boys" club gets fed then they'll catch 1 or 2 extra people a year for selling a drug....

      Meanwhile they'll let the roads, hospitals and schools rot. So that in say 20 years when kids can read only 37% of Hamlet in school [and not contigious] and get a good 43% of their Algebra lessons they'll be safe in knowing that the government sacrificed their education for a whopping 0.0001% more security!

      So really they're going to go out with your money to protect you but in the end you might as well give it up if you're relegated to a quiet life of "Welcome to walmart".

      And if you think I'm talking out of my ass, I come from Canada, a more socialist country and even our text books are "old and in disrepair". Like my shakespear texts had my cousins signatures in them... They're also about 15 years older than I am...

      Tom

    • Re:What ever happened to the Constitution? (Score:5, Interesting)

      by ari_j ( 90255 ) on Thursday February 10, 2005 @01:57AM (#11627115)
      The article is not even persuasive authority to a court. It's an amateur interpretation of a court decision that attempts to make an analogy. As you point out, the analogy is very weak. Since it is not even in a law review journal, nobody in the legal field is going to pay an iota of attention to it, and no court will care about it.

      Now, if the courts did extend the analogy as the article makes it sound has already been done, it would be a real blow to the Constitution, notwithstanding the Anonymous Coward sibling to this comment. What that sibling fails to recognize is that deciding that Internet traffic is not among the "persons, houses, papers, and effects" made safe from "unreasonable searches and seizures" by the Fourth Amendment is itself a blow to the Constitution, because it's the equivalent of saying that the Constitution is of little to no effect in the 21st century.

      Personally, I don't see the Supreme Court making the leap that the article thinks it already has. The Rehnquist Court has gone back to the text of the Constitution more than any Court since 1937, when FDR scared the Court into acceding to his wishes and giving Congress and the Presidency more power than the Constitution allows (and then giving the Presidency much of Congress's power for good measure). They have been working their way backwards and, as Justice Scalia put it, have to tear the house that was built apart, piece by piece.

      • Re:What ever happened to the Constitution? (Score:5, Insightful)

        by Aneurysm9 ( 723000 ) on Thursday February 10, 2005 @03:14AM (#11627459)
        Since it is not even in a law review journal, nobody in the legal field is going to pay an iota of attention to it, and no court will care about it.

        Sorry to burst your bubble, but I've been working on a comment for a law review on just this very topic. I'll be looking a bit more broadly at expectations of privacy in communications over publicly accessible networks, but this is certainly a decision I will have to discuss. The thing about the Supreme Court is that they don't want to have to address every situation that can conceivably come before them. So, they will often speak in broad language when they feel it is appropriate to address a whole range of issues with a single decision. This may be of that type since they discuss the legitimacy of privacy interests in illegal activity and not just the interest of this person in the privacy of the contents of his trunk. That leads to the obvious question: well, then, what is the legitimacy of an expectation of privacy in electronic communications regarding illegal activity?

        • "Sorry to burst your bubble, but I've been working on a comment for a law review on just this very topic."

          Why does that burst his bubble? He said that since the article is not in a law review journal, the courts aren't gonna pay attention to the article -- the fact that you are writing a comment on the same topic that may or may not be published has nothing to do with THIS article.

          "So, they will often speak in broad language when they feel it is appropriate to address a whole range of issues with a singl

    • So law enforcement can just sit with a packet filter scanning for the word "drugs"?

      To sum up, real law enforcement wants to be able to use the same methods the spooks have been using for some time.

      A real blow to the Constitution.

      Not as much as holding people without charge or trial for years. State sanctioned torture by the accepted international definition of torture, and contravening the Geneva convention are not contrary to the Constitution, but don't impress the neighbours.

      The USA isn't going to get

    • I like the war on Drugs. I think it's the best hundred billion we ever spent! Now, no one can get drugs, anymore. Well, I mean no seniors can get them. That's a pretty good measure of success - we started at the top!

      I can't wait until this war on Terrorism really gets rolling! That's so much better an idea than having a war on Murder, which is far too broad a category of behavior. I just hope they don't expand the Terror war into the war on Lustful Glances!

    • This is not really an issue (Score:5, Insightful)

      by cgenman ( 325138 ) on Thursday February 10, 2005 @02:28AM (#11627278) Homepage
      The court ruled that because the dog only responded to drugs, that the search was perfectly reasonable and upset no privacy concerns. It is assumed that the dog discovers only drugs and that it is infalliable. Because all it does is look for drugs or no drugs, and there is no legitimate privacy concern around having drugs, the search is legit.

      This is not applicable in many ways to the internet because the word drugs is not illegal. The words let's bomb the world trade center is not illegal. Nothing you do in your e-mail can be scanned, because nothing you do in your e-mail can be cleanly illegal.

      On the other hand, if you're trading files, your MP3's might be checksummed and used against you in a court of law. However, this has already happened anyway, so what's the point in fighting this new justification?

      This is an interesting non-issue, really.

    • If I stand on the street cornor and shout "Drugs for sale, weed, XTC, 'shrooms! Good Prices!!" should I get investigated? Sure I have free speech, but I've also given probable cause.

      Well guess what? The Internet is a public forum, a public network.

      Don't get me wrong, Carnivore offends me no end. But that's a clear cut case of our own government using the spies of other governments to spy on US citizens, since it is blatently unConstutional for the US gov't to spy on it's own citizens.

      However what

  • it is going to get a lost worse (Score:4, Insightful)

    by hsmith ( 818216 ) on Thursday February 10, 2005 @01:44AM (#11627013)
    before it gets better with regards to all of this. Everyone should be writing their rep's, running for office, something so we don't start going down that 'slippery slope'.

    They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety

  • Okay, that's a stretch. (Score:3, Insightful)

    by dgatwood ( 11270 ) on Thursday February 10, 2005 @01:45AM (#11627016) Homepage Journal
    The article attempts to compare a drug sniff after pulling someone over with randomly sniffing everyone's packets. It's completely different.

    It's common for someone who has already been caught doing something illegal to be searched.

    If the police randomly did a drug sniff at the local supermarket, they would get their asses handed to them.

    • If the police randomly did a drug sniff at the local supermarket, they would get their asses handed to them.

      That's not quite so certain. Police regularly send the drug dogs looking at school lockers. Students don't own their lockers, and part of having them is a consent to search.

      If the supermarket were to call the police and tell them that they think drug deals are going down in their parking lot, the police just might be invited to run the dogs past everybody's cars to see what happens...
      • Police regularly send the drug dogs looking at school lockers.

        You what????????

        I'm in Australia, there's as much weed around here as anywhere else, but if the cops tried that, they probably would get their asses handed to them.

        Students don't own their lockers, and part of having them is a consent to search.

        Remember having a locker is mandatory. If I could carry all my stuff in a backpack, I would. However I am not allowed.
      • Supermarkets and "big box" stores like Walmart, Home Depot, Best Buy, et cetera don't usually own the parking lot. Their property starts at the front door. Their insurance is a lot cheaper that way.

    • No, they wouldn't get their asses handed to them. Cops do it all time time in DUI checkpoints.

      My father-in-law, who is an ex-cop, once explained to me that DUI checkpoints are legal as long as the cars are searched in a pre-determined sequence (every other car, every sixth car, whatever.) Still seems unconstituional to me, but that's the law here in PA.
      • The reason it's considered OK to stop cars for a DUI check in a pre-determined sequence is that there's no question of profiling. Over the couse of a day, people from various minorities will be stopped, but in the same percentage as they're represented in the populaton. Unless there's some seriously weird shit going on, you're not going to end up stopping nobody but minorities. You're also not going to pick cars to stop because of the way the drivers are acting, meaning that you will occasiionally let a
      • Actually, they did, and they had.

        I live in Australia, where the police quite recently started spontaneously checking drivers for traces of drugs.

        Due to the inaccuracy of the tests (and one too many highly-publicized false positives), people (who didn't take drugs) sued the shit out of them for determining that they did. Bluntly put, they had their asses handed over to them tied with a cute red ribbon, and the program that was receiving a lot of publicity and marketed with a hugh media campaign was practic

        • Besides, that'll just push ip-layer encryption (IPSec) into production faster.

          You mean as fast as they are pushing IPv6 (which is way overdue) into production? Anything that requires a new protocol to be deployed will take a long time. Yeah, I know IPSec isn't technically new, but support for it would be (outside the military, NSA, CIA, etc - I am talking things like consumer and commercial grade hosts, routers and switches).

    • Re:Okay, that's a stretch. (Score:4, Insightful)

      by Lord Kano ( 13027 ) on Thursday February 10, 2005 @02:25AM (#11627262) Homepage Journal
      It's common for someone who has already been caught doing something illegal to be searched.

      It's also common for police to "find" something to cite you for to justify pulling you over and searching you.

      LK

  • Encryption Time (Score:5, Insightful)

    by Warskull ( 846730 ) on Thursday February 10, 2005 @01:46AM (#11627024)
    When you can no longer rely on the law to protect your privacy the time comes to take things into your own hands. Should this get applied to the internet I see a rather good reason to push for the encryption of all transmitted data.

    • Re:Encryption Time (Score:2, Informative)

      by Kenardy ( 737651 )
      Why wait? Start now with GPG / PGP on your email.

      I have advertised my public key for years. No one has ever used it ... but I've done my part.

      Do yours.

      If all email was encrypted there is NO way that law enforcement officers could decrypt it all. Nope ... they'd have to go back to doing what they have always done ... wait for some sort of evidence by other means.
      • Do you know about GAK? Government Accessability to Keys is a standard that is present in all encryption software nowadays, from Lotus Notes to GPG/PGP. What GAK does is take your 128 bit encryption and give the government a template that makes it 40 bit, which can then be quickly and easily cracked. Still feel secure? I Don't bother with any of the current crop of encryption programs any more than I bother tying a pretty red ribbon across my chest in place of my seatbelt, and for exactly the same reason

  • Similar to an IDS? (Score:3, Interesting)

    by PornMaster ( 749461 ) on Thursday February 10, 2005 @01:48AM (#11627040) Homepage
    This is precisely what an IDS tends to do. Unfortunately, not only is it trivial to do, it's also something that's essentially COTS (commercial off-the-shelf).

    Yet another reason encryption needs to be widespread not only in availability, but in practice.

    • Yet another reason encryption needs to be widespread not only in availability, but in practice.

      I'm assuming that you are not a criminal, and therefore have "nothing to hide" from law enforcement. Why, then, would you want to make their job much harder, by increasing the amount of encrypted traffic that currently indicates something of interest? If an encrypted packet comes down the line now, there's a pretty good chance the FBI should look into it. If everyone was using encryption, wouldn't it be muc

  • privacy protections that apply online are statutor (Score:4, Informative)

    by tpgp ( 48001 ) on Thursday February 10, 2005 @01:49AM (#11627049) Homepage
    As this anonymous post [securityfocus.com] on security focus points out:

    The obvious error in this analysis is that the relevant privacy protections that apply online are statutory, not constitutional. So they are unaffected by Caballes.

  • Oh god no (Score:4, Interesting)

    by pHatidic ( 163975 ) on Thursday February 10, 2005 @01:51AM (#11627069)
    from the only-bad-people-need-privacy dept.

    I like this


    Everyone who visited blackboxvoting.org [wwwblackboxvoting.org] before a year ago was supposedly put onto an FBI watchlist. There are more details on the website.


    I say this because I know that this includes most slashdotters, and because it is on topic to the article. I'm not sure if is true, but I do know that recently I am 7/7 for getting frisked at airports. Perhaps it is possible that everyone who visited this website is now in the airline shit list database.


    I don't mean to sound paranoid, but the issues here are very real whether people realize them or not.

    • Do you have a link to support your claim? I can't find any evidence of it on their web site -- maybe I just haven't looked hard enough.

      For the record, I've been to the web site several times (including in its early days), and haven't been frisked at an airport in the past year a single time (I've been on maybe a half dozen plane rides in that time).

    • Re:Oh god no (Score:2, Interesting)

      by billsoxs ( 637329 )
      I am 7/7 for getting frisked at airports.

      Dom't be so sure that it is your website. I get hit on a regular basis because I look Arab. (I am not - at least as best I know - not that it matters.) I now understand why African Americans complain about 'driving while black'.... If things happen as predicted, they'll be able to hit people on the net 'just because'.... (surfing from a given university or company or region of the country or emailing outside of the US.... you pick it.)

      OH and this is o

    • Re:Oh god no (Score:5, Interesting)

      by cgenman ( 325138 ) on Thursday February 10, 2005 @02:44AM (#11627341) Homepage
      For a year and a half I was traveling back and forth between Boston and Cali to see my long-distance girlfriend. I was "randomly" searched 18 times out of 18 possible. As they were "randomly" searching 1 out of 3 people, this had a probability of 1 out of 2.1 billion.

      Yet the government was insisting that no black lists existed. That they weren't keeping track, and that it was totally random.

      The only reasons that I can think of offhand to blacklist me is that I joined Calperg and the ACLU, and I saw Nader speak at a local college.

      I'm betting the reason that our government lies about what it does is not because there is a vested interest in keeping terrorists from knowing that they may be blacklisted, but rather because how the government chooses who is potentially good and potentially bad is so stereotypical, shallow, and offensive that they would get run out of office if people knew what they were doing.

      • Re:Oh god no (Score:3, Insightful)

        by kraut ( 2788 )
        (1/3)^18 = 1/387,420,489 - so the odds are not quite as staggering, although still bad. But you probably fit a common profile that they use. For example, travelling to Cali regularly. Maybe short trips? Little Luggage?

  • illegal to Americans (Drugs) is not illegal to the rest of the world (I'll give you one guess where drugs are legal, that everyone knows..). You can't possiblely monitor all traffic from "just one country", because like it or not traffic on the internet bounces like a rubber ball. No one knows where the site is hosted untill the data has been sent/recieved in many cases.

    While stuff like child porn is a HUGE issue in most of the world, some countries couldn't careless. Alot of people might even find it a go

    • You can't possiblely monitor all traffic from "just one country", because like it or not traffic on the internet bounces like a rubber ball. No one knows where the site is hosted untill the data has been sent/recieved in many cases.

      You could come darn close if you were a government agency funded by a basically limitless supply of taxpayer money.

      Setup Carnivore boxes just beyond the border routers of all the major ISPs (AOL, Earthlink, NetZero, Comcast, RoadRunner, SBC, every university (esp. publicly-fu

      • That might work...

        If carnivore wasn't retired.

        If carnivore was a complete packet logger.
        It isn't by the way. It is actually a result of actions to protect privacy. It is a modified version of a program known as omnivore which read all packets that passed through it. Carnivore only logs the requested data, the meat if you will. However the name carnivore caused a frenzy in the crackpot privacy circles because it "sounded scary".

        It was made because there weren't any privacy protective commercial software p
        • Fine, true enough about Carnivore's retirement. If you want to be pedantic, do this on my post: :%s/Carnivore/tcpdump/g ...or Ethereal, or any other packet sniffer/logger. Throw in some AI to parse all those packets and check for data the feds would consider "of interest".

          Happy? My main point remains regardless of the technology the FBI chooses...

    • Re:Define illegal - which country? (Score:4, Insightful)

      by morzel ( 62033 ) on Thursday February 10, 2005 @03:17AM (#11627468)
      (I'll give you one guess where drugs are legal, that everyone knows..)
      Which country would be that?
      It surely isn't the Netherlands, since drugs (including softdrugs) are illegal over there as well.

      It is a common misconception that drugs are legal in Holland, while actually all drugs are still forbidden by law. However there are a number of permissive regulations that state that:

      • If you are an individual with less than 5 grams of cannabis (hash/weed), police will ignore you.
      • You can grow your own plants for your personal use (maximum 5 plants, no technical aids such as lamps... otherwise everything will be impounded and you're fair game for prosecution).
      • You can open an establishment for selling cannabis, provided you abide with a whole number of regulations (including: no commercials, no admittance to minors, no selling of alcoholic beverages -- hence the name "coffeeshop", no selling of harddrugs, no selling of more than 5 grams per transaction, no total stock of more than 500 grams).
      These rules and regulations are set country-wide, municipalities can add more regulations (restrict coffeeshops to specific areas, opening times, ...)
      Ironically, there's no legal way for coffeeshops to get their drugs so even that's illegal.

      Police can still decide to prosecute for any of the above if it's causing problems in any kind of way (i.e.: you're stealing to get drugs, the clients of a coffeeshop are wrecking the street, ...)

      While the Netherlands is pretty liberal and permissive about softdrugs, it's far from legal and you still can get arrested for it.


  • Hopefully, this case will be limited to a dark dessert highway, and not find its way onto the Infobahn. But somehow I doubt it.

    The feds want to spy on wives heading down the road for some Ho-Hos?

    Why does that not surprise me...
  • Ok, while this is possible I suppose, how exactly are they gonna implement it? I mean if they have a sniffer that goes off every time it sees the word drugs in an email, or sees "I'm gonna kill him" running across the net... well... basically they're gonna have a million false positives and it will be a prohibitive waste of time and energy to follow all those leads.

    Maybe they can come up with a really solid filter.. but uh, really smart people have been trying to get a good binary filter for spam for what

  • Can a machine violate your privacy? (Score:3, Insightful)

    by mc6809e ( 214243 ) on Thursday February 10, 2005 @01:57AM (#11627108)
    The article brings up an interesting question: Can a machine violate your privacy?

    Consider the hypothetical(?) packet sniffer that alerts on packets that contain evidence of criminal activity but lets all other packets go on without an alert.

    If the authorities never see the contents of the packets for themselves, has a search really been made?

    Can a machine/program violate your privacy if no one gets to see what the program has seen?

    • If a police car drives over me while there is no-one in it, and with the accelerator stuck down have I been run over?
      • If a police car drives over me while there is no-one in it, and with the accelerator stuck down have I been run over?

        That's not the same thing.

        Consider this: the computer you're using "sees" everything you type and everything you watch and listen to.

        Is it violating your privacy?

        It seems silly to think so.

        A violation of privacy seems to require a conscious observer to gain information improperly. A maching is not a conscious observer. It can't know or learn anything about you.
    • Presume for a minute that the software and hardware were perfect in every way, meaning there is a 0% chance of security breach, false positive, false negative, delay of packet delivery, lost packet, etc. (Everyone here on Slashdot knows that anything below about 95% for these is impossible to achieve, but presume it's 0%.)

      Your original question is too broad. Privacy is a very big concept. Let's limit ourselves to "unreasonable search and seizure." And ignore "seizure" for now, because seizure is going
      • ...because you don't know which packets they are without searching them first and knowing who is innocent before you begin.

        By this reasoning, you'd have to start off by assuming certain people were guilty, then looking for evidence to support your assumption. What the author of TFA is suggesting is checking all traffic through a specific machine, to see if there's any suspicious messages being passed. No messages are stopped, and all packets considered innocent are thrown away. It's rather like listeni

  • They legitimitely pulled over someone for a violation. Technically, when this happened, you are "arrested." If they were found to have been pulled over falsely, I would hope that the conviction would have been quicly overturned (for having no probable cause at all)

    If the case were such that a dog sniffed a guy out in public just walking down the street, and he was detained and arrested for having a joint, then it would apply to random packet sniffing, but this is not quite the case.

    I don't like the supr
    • If they opened the trunk, thanks to "probable cause" and it was a false positive-- well, then their rights have been seriously violated.

      And the cops would probably have appologized right then for their mistake. The driver probably couldn't have won a suit against them in that case, as they did have reason to believe he was carrying contraband.

  • Next to impossible (Score:4, Interesting)

    by Cow007 ( 735705 ) on Thursday February 10, 2005 @02:01AM (#11627139) Journal
    If the government were to try and sniff a large number of packets in the manner described they would be impossible to collect ones that are only illegal. They would have the same sort of situation I experienced when I installed snort and turned on everything. Spade was freaking out at me about once every 5 seconds, I was getting warnings about unicast ARP attacks and port-scans all over the place. How can you tell what constitutes a packet containing illicit transmissions? There would be so many false alarms that they wouldn't be able to do anything with that data. What if it was an encrypted communication? They can't just flag all encrypted stuff because legitimate transactions are encrypted all the time. A lot of people doing nothing wrong would be put under suspicion no matter what algorithm they were using. Therefore doing what is described is next to impossible.
    • A lot of people doing nothing wrong would be put under suspicion

      How is that any different than the crurrent situation?

      Drug dogs have false positives. Poppyseeds (in muffins, bagels, etc) are practicially indistinguishable from actual heroin.

  • Sit Ubu sit... Good dog.
  • Since the article seems to imply that the search was considered valid only because they found something illegal and therefore since it was illegal they had no legitimate right to privacy.

    So, if they do the full search and find nothing, does that mean you can sue for unlawful search????

    Actually, the implications of this is really scary. It, to me, seems that this eliminates any right to privacy anyone has, because any search that finds anything illegal (however big or small) can be considered legal now. Gi
  • You know that the article writer is a hack because he's trying to write legal analysis and doing it outside of law review journals. And you know he's really bad because not only does not not cite any authority whatsoever in his article, but he doesn't even give the actual name of the case. He just says that a case about Caballes was decided by the Supreme Court last month. Lawyers are precise. Good lawyers are precise and correct. This guy is neither.

    In case anyone is wondering, the actual case is I
    • Well, what about the other two prongs to be considered?...

      1)Dog sniffed out marijuana during a legitimate traffic stop.

      2)Whether there's a legitimate privacy interest being protected.

      The first prong would still require some appropriate reason ('probable cause' created by dog) to investigate an individual's packets, and only until a reasonable point (free from being unduly detained) under the Fourth Amendment.

      Admittedly, an automated packet sniffer might fit this definition, although whether such a sniff
  • Do a google search for "Pen Registers" or "Tap and Trace". Apparently, back before the internet, the government decided that they didn't need a warrant to put a little device on people's phone lines that just gave them a list of the numbers that were called and recieved, as long as it didn't monitor the conversation.

    This carries over to email. The FBI can request a list of everyone your email account emailed, and everyone that emailed you without a warrant. Yahoo has at least 6 employees who's entire jo

  • Such a surprise (Score:2, Interesting)

    by billsoxs ( 637329 )
    Between the US Patriot (??) Act and John Ashcroft's computer program (I have forgotten the name), this is a very real possiblity. Here is the real problem. Everyone 'sins' - If they want to attack you they can do so with impunity now. It seems to me that this is how the Roman Republic and then Empire fell. Abuse of power by those at the top.. 1984 is not far away.
  • Drugs drugs overthrow the government drugs drugs BOMB drugs
    • but seriously, reading packets to find illegal activity would be difficult if not impossible to implement. Most people would mention illegal activities or words used in illegal activities as part of their usual daily internet usage. If you had a piece of software "sniffing" for references to illegal action it would get far more hits than you could ever sift through and use.

      The best way to stop such activity by the way is to ensure that as many people as possible make innocent references to key terms as

  • encrypt everything (Score:5, Insightful)

    by Facekhan ( 445017 ) on Thursday February 10, 2005 @02:22AM (#11627247)
    Criminals will just use the best available encryption to cover their crimes. This kind of thing is only going to effect regular people and the casual criminal.
    • Yes... but then this will invariably lead to their suspecting that anything which might be encrypted is being used for communication between criminals, and they will [try to] outlaw all forms of encryption for anything but military and government use.

      Or do you really think the administration isn't so clueless enough as to think that this sort of legislation would be in the slightest bit effective.

  • Drugs (Score:4, Insightful)

    by Lord Kano ( 13027 ) on Thursday February 10, 2005 @02:23AM (#11627255) Homepage Journal
    Drugs give off molecules that anything with a sensitive enough nose can detect. A drug dog need not actually inspect a package full of heroin to smell it.

    Have you ever been someplace right after someone just finished smoking weed? Same principle, but dogs can smell much better than we can.

    If they want to liken the internet and packet sniffing to drug dogs, any time someone's engages in illicit activity on their computer they would need to drop millions of post it notes declaring somewhere.

    LK

    • Re:Drugs (Score:3, Interesting)

      by ZorbaTHut ( 126196 )
      I had this friend who was a pothead.

      Not the bad kind - during school she'd keep it down, maybe only get high a few times a month. During break though? Oh man. One break - two weeks long - she flew back home to be with her boyfriend, and, apparently, spent the entire two weeks in her boyfriend's apartment getting high.

      Windows and doors closed, of course. About half a step away from a smokebox.

      She was clever enough to do laundry before getting on the plane back. What she's forgotten about was her jacket -
  • The stuff you don't like them doing, don't let them get away with it.

    The U.S. Government is suppose to be Of, For, and By the People. The People should be holding all the cards, not them.

    If everyone resisted instead of being complacent, enough said.
  • So will my regular use of encrypted protocols cause the system to "Bark", thereby providing probable cause to further investigate my suspicious activities?
  • If the routers on the internet may be used to look for potentially "criminal" packets, then new software with the potential for criminal use will have the option of point-to-point encryption. To be used by criminals and law-abiders alike.

  • At what point does the system finally fail? (Score:3, Insightful)

    by istewart ( 463887 ) on Thursday February 10, 2005 @03:46AM (#11627557)
    It seems like "they" (lawmakers, judges, whoever has the power at the moment) are constantly redrawing the lines of the law. Now, looking at this, it could be argued that an enforcement official could be required to get a warrant to examine the contents of a packet that such a watchdog system had flagged, but that's ridiculous. They can just build up a vault full of data on each user, and when the time comes, they can find a violation based on the cumbersomely large volume of laws on the books. In the long run, little adjustments in what constitutes "right," like this, are just baby steps.

    At what point will they finally abandon the rhetoric of "freedom?" At what point will the system at large collapse into totalitarianism on one extreme or anarchy on the other?

    (I myself would prefer the anarchy, as then there would be a lag time before some charismatic group of jerks convinces a majority that their version of "right" is worth imposing.)
  • I work for a communications research team that is working hand-in-hand with a major metropolitan police department. We are currently developing tools that do just this.. alert authorities of suspicious activity. The idea is similar to you allowing an alarm company (Brinks and those other companies with monitoring services..) to notifiy the police when your alarm system notifies them that a break-in has occured. The idea is precisely the same. So don't be so freakin' alarmed.

    It's like taking a satellite ima

  • Little Brothers (Score:5, Insightful)

    by Sloppy ( 14984 ) * on Thursday February 10, 2005 @04:05AM (#11627613) Homepage Journal
    What people seem to be missing here, is that the fourth amendment is just a limit to what government can do. Regardless of whether the 4th amendment is found to apply to internet packets or not, there is nothing preventing anyone else from inspecting whatever packets happen to be passing through their system. Whether the government is doing it or not, you have to assume someone may be doing it.

    What this means, is that you shouldn't be waiting for the courts to uphold the 4th, because even if they do it, your privacy will still not be very well protected.

    Everything should be encrypted. And if that happens to protect you against government intrusion, consider that a welcome side-effect.

    The pot analogy is this: suppose your car is leaking an odor into the public air. Maybe this odor is of interest to police dogs, but remember that it's also of interest to insurance companies, blackmailers, thieves, marketers, gossipers, etc. You already have a problem, regardless of whether or not you're doing anything illegal, and regardless of whether or not the government is allowed to break into your car without your consent or a warrant.

    Quit focusing on Big Brother when you have a dozen little brothers. You need to stop the information leak, not try to impose rules-of-honorable-conduct upon just one of the parties that may be spying on you.

    • What people seem to be missing here, is that the fourth amendment is just a limit to what government can do.

      The problem is the framers of the Constitution (as well as the other Englightenment writers who influenced ideas about politics in the US and elsewhere) saw government as the only major threat to freedom.

      For example, in their world, most people who counted morally (excluding slaves, "Indians" etc.) were self-employed. They did not envisage the world we live in, where almost everyone is forced to w

  • Thinking beyond the obvious and troubling privacy issues, I'm beginning to wonder if those wanting to stamp out crime completely would really want to live in a society where that wish came true. As the police, armed with tools like intelligent packet sniffers, become more efficient in detecting and rooting out criminal activity, criminals might get squeezed into a smaller and smaller corner of society. I'm not suggesting it's remotely possible, but if the world were so nearly perfect that all and only the t
    • Another problem is the too-wide definition of crime to include things like private drug use, copyright infringement (which should be a purely civil matter), refusal to surrender encryption keys, driving while black/Arab, etc., ad nauseam.

      I'm starting to agree with the paranoid people who say that governments are deliberately trying to criminalize as much of the population as possible so that everyone can be forced into submission.

  • So I made this argument in a submission [plastic.com] over on Plastic on the second. I wonder if this article about it just came up by coincedence.

    In any case I'm wondering if this means there is any actual legal merit in the speculation. It seemed a compelling argument from a logical case but I haven't heard from anyone who might have enough constitutional law experience to know.

  • Court Was Right (Score:4, Insightful)

    by reallocate ( 142797 ) on Thursday February 10, 2005 @07:39AM (#11628278)
    The Court was right: there is no right of privacy to conceal illegal material.

    If this driver had smelled of alcohol, a search of the car for containers of alcohol would have been appropriate. In this case, the dog was there, reported the odor of marijuana, and a search ensued.

    This ruling should not be interpreted as carte blanche for police to search every car stopped for soe other violation.

    The SecurityFocus piece that tries to expand on the packet "sniffing" metaphor is just one more obvious reason why geeks don't make good lawyers.

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