Supreme Court Declines Case Over Techs' Right To Search Your PC 485
An anonymous reader writes "A few years back, a guy was arrested for possessing child pornography after techs at Circuit City found child porn on his computer, while they were installing a DVD player. The guy insisted that the evidence shouldn't be admissible since the techs shouldn't have been snooping through his computer — and a lower court agreed. The appeals court, however, reversed, noting that the guy had given Circuit City the right to do things on his computer — including testing out the newly installed software (which is how the tech claims he found the video). The guy appealed to the Supreme Court, who has declined to hear the case, meaning that the ruling stands for the time being. So, basically, if you hand your computer over to someone else for repairs, at least in some jurisdictions, they may have pretty free rein in terms of what they're allowed to access on your computer."
Shoulda remembered the 11th commandment (Score:5, Insightful)
This is right up there with handing the cop your beer or dimebag as you get your driver's license out after being pulled over - if you have something illegal, don't give it to people who A) know that it's illegal, and B) know who you are.
Re:Reading comprehension (Score:5, Insightful)
Yeah, the real message is that you just don't hand you collection of illegal images over to anyone if you don't want them found.
Like, if you have to go to the police station to bail out a friend, leave your drugs at home. These things are common sense.
Also this guy should rot in jail.
How to beat a Child Pornography Charge... (Score:5, Insightful)
From a different perspective (Score:5, Insightful)
If you see evidence of a crime you have to call the police. Thats the law where I live.
Another cause for concern... (Score:5, Insightful)
Easy solution (Score:4, Insightful)
This is SO going to get abused (Score:4, Insightful)
While I certainly despite people who desire or who peddle in child porn (and that includes the government "sting" entrappers themselves who are the LARGEST distributor of the stuff in the country, and who keep the largest amount of it around) this decision dumps barrels of oil onto the slippery slope.
I guarantee that the aforementioned "stingers" are going to start pressuring IT shops to search for the disgusting stuff and report to them. I can even see localities passing laws REQUIRING technicians to search hard drives for illegal material, and probably not just porn, but imagine the RIAA buying themselves some laws requiring techs to report file sharing software and MP3's...
It's a HUGE loophole that needs to be closed. If the evidence would be inadmissible in a criminal court if government actors collected it in that manner (ie: no warrant, no probable cause, no witnessing something happening in front of them) then evidence collected by civilians passed to the government should also be inadmissible. Indeed, in those circumstances, a citizen getting involved in law enforcement by implication is part of the "unorganized militia" and should be subject to the same limitations because they ARE, in effect, a government actor.
what kind of defense is that? (Score:4, Insightful)
"the techs should have not snooped" is a defense that implicitly admits the guy had downloaded the video. He get jailed, that's the spirit of the law.
What's troubling is that a pc which is tampered with by a third person, that is the tech repair guy, is then admitted as proof.
A random technician is elevated to the rank of police forensic tech! but how can you trust him not making mistakes (restoring somebody else's partition) or him being corrupted into intentionally downloading illegal stuff to a client PC? nevermind child porn, all you need to ruin a person are a bunch of mp3s, in this brave new world.
Re:Reading comprehension (Score:3, Insightful)
I agree.
It would be very surprising if mechanics asked to check a car would ignore a dead body in a truck.
They came first for the pedos (Score:1, Insightful)
And I didn't speak up, because they are horrible nonces.
Re:Another cause for concern... (Score:3, Insightful)
And that is seriously scary. Perfect way to plant evidence that destroys ones personal and professional life pretty much forever. No matter what you do, incriminating material can appear on your computer given someone has it for you.
I have heard on browsing history assassination nearly getting fired guy (he left machine on, did not lock it and left for lunch, someone took it for porn ride and called HR. Luckily for him, his boss was there with him when he was on lunch and took stand for him.)
I wonder, is there actual defense against this?
Hmm, lets say you keep images of drive of machine you send for repair ... then its their word against your word. And considering material involved, your word will not have as much weight, as you would look like real deal trying to save his ass.
Or you have part of drive encrypted ... bad images can still appear in unecrypted part.
Or you can keep whole drive encrypted (only option when you have hardware problem), but its oh-so-easy to just wipe it and install something transparent over it and give it nice touch of being 'used' along with some pictures.
Or you can send it there without disk. Someone who is going to plant pictures can as well just plant harddrive there.
Re:Reading comprehension (Score:5, Insightful)
I'd say it's more like the mechanic would rip open the door or dashboard to find drugs, when he was supposed to replace the brakepads.
Dead guy in the trunk is like putting child porn as the desktop wallpaper.
Re:Reading comprehension (Score:5, Insightful)
Yeah, the real message is that you just don't hand you collection of illegal images over to anyone if you don't want them found.
You're assuming that "illegal images" is a cut and dry term. Not anymore. Have some myspace photos of your young looking friend in just her underwear? A "jailbait" inspirational photo in your picture folder as a joke? Manga which might be considered obscene?
No matter how innocuous you may think your hard drive is, if you are a heavy internet user there's a chance there's something on there that someone might consider child porn.
Re:what kind of defense is that? (Score:1, Insightful)
You may not want that power, but imagine the alternative. Someone ignorant of how an issue is resolved asks you to repair their computer. In order to do so, you need to browse certain files, uninstall certain programs, etc. They don't understand what you're doing, assume you're snooping around, and get law enforcement involved. Meanwhile, you were just trying to fix their computer, but because of these restrictions that you want placed on yourself, all your actions are now open to the scrutiny of others, and just fixing someone's computer places you at risk for a very inconvenient experience of defending yourself in a criminal investigation.
Re:How to beat a Child Pornography Charge... (Score:4, Insightful)
While I completely agree that this is the best option, this is one of those cases that would screw the rest of us if it was decided on the basis of "OMG - think of the children!" instead of on its own legal merits.
What if the repair guy had found naked pictures of the guy's wife, and posted them on the Internet? Or posted pictures of him naked with his girlfriend, and his wife saw them? What if he found plans to tempt a Senator with a bribe? What if he gave those plans to his competing candidate, instead of the police?
Each of those cases may represent a different legal case, but they could all be "colored" by precedent set in this case.
That's why it's dangerous to think of this as simply "I'll never have child pr0n on my PC." The case isn't just about the content, but about how it was dealt with. I think the SCOTUS was wise to not take this case, and they just let the guy hang for the pr0n. If they had ruled fairly that this was an illegal search, the pornographer would have walked and they would have been ridiculed as "supporting the pornographers" and labeled "activists" by a bunch of morally bankrupt wingnuts, regardless of the correctness of their decision. I think they're wisely saving the "technician searches your PC" decision for a case with less 'radioactive' content.
Re:Reading comprehension (Score:5, Insightful)
> Yeah, the real message is that you just don't hand you collection of illegal images over to anyone if you don't want them found.
There's a secondary message in this story, and it doesn't apply just to computers. If you're going to use a piece of equipment for illegal activities, you'd better be able to maintain that equipment yourself. Every time someone else gets access to that equipment, you run the risk of getting caught.
Re:Reading comprehension (Score:2, Insightful)
Why should someone deserves to "rot in jail" just because he had pictures of illegal acts? Who are you protecting by jailing someone who has pictures?
Re:Reading comprehension (Score:5, Insightful)
I'd say it's more like the mechanic would rip open the door or dashboard to find drugs, when he was supposed to replace the brakepads.
Dead guy in the trunk is like putting child porn as the desktop wallpaper.
I know nothing about the case. I know even less about car repair. However...
The fine summary is a little vague on the work that was actually done. It says they were "installing a DVD player."
If they were simply installing a piece of software to play DVDs, they probably wouldn't need to go snooping through his HDD to test it. But lots of media playback software tries to do friendly things like scanning your drive for media it can play. So the DVD player software might very well have done just that, and come up with the movie in question.
If they were installing a more general-purpose piece of software for playing back all sorts of media - VLC for example - they might very well have gone looking for a movie on his HDD to test. Depending on the hardware/software used to create a movie it can be in all sorts of different formats... And I've had clients come back and complain because we didn't associate the right filetype for their specific videos. So I always make a point of taking a quick look in My Documents to make sure everything is associated correctly.
If they were installing hardware, like a DVD drive, then they might very well have tested its burning capabilities. I'll routinely do that here at work. I've got a CD-R/W and a DVD-R/W that I carry around for just that purpose. I'll pop the disc in, grab something random off the desktop or My Documents, and try to burn it. Again, a good opportunity to stumble across something unsettling.
Again, I don't know anything about this case. Maybe the guy was just snooping. But maybe he wasn't. I know I've stumbled across some images on client drives that I wish I hadn't... Nothing illegal, that I noticed, but some stuff I really didn't need to see.
Re:Reading comprehension (Score:5, Insightful)
Have any naked baby photos of your kids? Remember the mother who got arrested at Wal-Mart after taking such photos to be developed?
This sort of thing isn't nearly as black and white as it is made to seem. Child pornography is a really HORRIBLE thing, and people who create it should be castrated, and people who DESIRE it need to be put into an asylum for psychological treatment. But I just pointed out something that could be subjectively called "child pornography" that probably in in the possession of the majority parents out there...
Hell, I always HATED it when I was a kid and at the family gatherings my mom and grandparents would inevitably drag out my baby pictures... To me, that was annoying. To some freak in law enforcement who's out there trolling the `net trying to entice people to download his government sanctified stash of child porn so they can "bust" them, they were guilty of creating and disseminating child porn...
Re:It's a huge barrel of worms (Score:3, Insightful)
If they are important they get a slap on the wrist. Termination is only for you peons, it's how capitalism works! Love it or leave it.
Re:Reading comprehension (Score:4, Insightful)
There is a big difference between seeing drugs on the back seat, or a dead body inside the car, and reporting that, and reporting on drugs found under the carpet in the trunk or in the glovebox if the car was brought in for an oil change...
The mechanic would have had no reasonable need to have searched those two areas to perform the job he was hired to do. Same with a PC tech, if someone brings in a PC to have a CD-ROM drive replaced, there is absolutely NO REASON for the tech to need to search the browser cache or the images directory...
Now, I know, it's a rite of passage thing. We've ALL done it, looked at a customer's PC to see what pr0n he has.. In my case I was permanently cured of that the first time I found GAY pr0n, not the good kind, ie: girl on girl, the OTHER kind :)
But still, I shouldn't have done that then, and techs hired to replace a bad CD drive shouldn't be doing that NOW.
I know nothing about the case. I don't know what they found or where it was hidden. I don't know if they had to brute-force decrypt some huge stash of pornography, or if they just tripped over it. So I'm not defending anyone at this point.
But there's a big difference between whether they should have been snooping in the first place, and whether what they found should be admissible in court.
If someone breaks into my house planning to rob me blind, but finds I've got several dead people stashed in my basement, should that be admissible? Should he be able to go to the police and say "hey, this guy's got corpses in his basement!" And if he does so, should that be admissible in a court case against me? Or should that all be thrown out because he shouldn't have been in my house in the first place?
Another problem (Score:3, Insightful)
Is that with child porn, people get a very "witch hunt" mentality with little consideration for the whole situation. What I mean is if a 19 year old kid has a naked picture of his girlfriend, taken when she was 17, that is "child porn" in the same way that a picture of a 10 year old being sexually abused by a parent is where the law is concerned. You get charged with the same thing for possessing either. Now most rational people would agree that these are not the same things, however it doesn't matter in the eyes of the law. Also, prosecutors are extremely zealous about this stuff. Maybe it is because they don't want to be labeled soft or whatever. No matter the reason, they tend to nail people to the wall even if they shouldn't.
The best example, which I can't find a link to right now unfortunately, was a boyfriend/girlfriend who sent each other naked pictures via e-mail. Both were under age, but teenagers (like 15-17). Both where charged with child porn charges and sentenced to prison, a charge that was upheld on appeal. That's right, they were charged for taking pictures of themselves and sending it to each other. No other distribution.
Re:"Allowed to access" is a bit strong (Score:3, Insightful)
Even if that private citizen happens to be collecting information on behalf of the RIAA?
Let's try to pick a consistent position, rather than just one that happens to agree with our cause de jour.
What's inconsistent about that position? Contrary to their belief, the RIAA is not a government organization. If the RIAA tells someone to break in to your house, anything that person finds is admissible in court. That person is, of course, still subject to arrest for breaking and entering. If you can also prove that the person committed the crime at the direction of a RIAA official, that official could also be subject to conspiracy charges.
Re:Another problem (Score:3, Insightful)
You are correct. That is another huge problem. The irony is that a 19 year old can (in most states) legally have sex with or even MARRY a 17 year old with their consent (but not their parents) but if they filmed the honeymoon be arrested for child pornography.
The problem is that law enforcement REQUIRES the application of common sense, from the street cop on up to the prosecutors and judges. But common sense is becoming more and more uncommon these days, thus increasing the incidents where the system is going from one that has potential for abuse to one that is ROUTINELY abused. See Mike Nifong and the the Duke Lacrosse "rape" case.
Re:How to beat a Child Pornography Charge... (Score:3, Insightful)
Yeah, it worked well for those that didn't want to be charge with illegal content distribution to have no copies of recent blockbusters...
And we're not even talking about a rather clear cut law here (steer clear of content you didn't make and you shouldn't be charged... well, you can still get charged but you have an almost 100% chance to get out clean). Look up the definition of "child porn" in your area. For me it's pretty much "anything the judge deems child porn".
So I'm at the mercy of the dirty mind of someone who probably gets to see more child porn than any heavy user of the internet, including any pedo in the world.
What's child porn? That pic of your niece in the bath (showing her only chest and up with the rest being covered by the tub)? That pic of your son at the beach in his speedos? You know, IMO the law has gone past the border between sanity and insanity when parents get charged for those kinds of pics, and teenagers for pics of their equally underage girlfriend.
Re:"Allowed to access" is a bit strong (Score:4, Insightful)
That's almost a good analogy, but what happened in this case, is the mechanic opened the truck and went looking around, when all he was supposed to do was to change the headlight.
That's still not quite right. Here's the better analogy:
You bring your car(computer) to the mechanic, because you need new tires(DVD drive and accompanying software). But, you've left your stash of CP in the trunk(My Documents folder). The mechanic, instead of using his own tire iron(media files to test newly installed software) to remove the lug nuts, opens your trunk to get your's(media files already present on your hard drive), and finds the CP. Now, that's the relevant car analogy.
The relevant portion of the tech's testimony can be found in the appellate court's ruling [google.com] (pages 3-4)
Re:Justice... (Score:1, Insightful)
Not an exact analogy. For that to work the police would need to have been invited to your house to ask questions. Of course, if you invited them there, why not just shut off the TV before they show up?
Re:Reading comprehension (Score:5, Insightful)
The OP did say "arrested" and not "convicted." I don't know about you, but my life would be hell on earth for those fifteen months. And probably for a long time thereafter, too, as idiots remember the arrest, and not the dropping of the charges for being stupid.
The power to arrest comes with some very serious responsibilities. The police, evidently, aren't aware of that. What I'm wondering isn't why the officer in this case arrested the woman ("stupidity" explains that in a population size of one), but why his/her superior was okay with it. Someone wasn't doing their job, and BOTH of them should be fired with extreme prejudice for simple incompetence.
Of course, I'm also wondering why it took the prosecutors 15 months to drop a case that 30 minutes of investigation could show was inept (drive to her granddaughter's house and verify the girl there matches the picture). There should have been heads rolling in the prosecutor's office, too, though I'll admit to not knowing if this was the case (I doubt it, though - I just don't trust the gubmint to get this right).
Not while proprietary software is involved. (Score:3, Insightful)
One would like to believe it's that easy, but I doubt most people know enough about computing to make decisions so that they can fully control what their computer does. Proprietary software + Internet access can easily equal someone else determining what's on someone's computer. Proprietary software is untrustworthy by default, no amount of testing an executable binary's behavior makes that program trustworthy because the program can be written to do something undesirable after a delay. Other than source code examination, there's no easy way to conclude that a proprietary program isn't going to grant access to someone else who could do computing on your computer without your consent. We can't examine the source code for everything we run, but we can spread out this work so people with those skills have little incentive and opportunity to mess with others. Therefore we all need the freedoms of free software to collectively help one another and get the best chance we're running binaries we can trust.
Re:Reading comprehension (Score:3, Insightful)
If they can't be cured, then they need to be confined.
As long as they're not victimizing anyone why should they be confined?
As for your other example, that's not a good comparison. Men being attracted to lovely women with "huge tracts of.. land" in their prime reproductive years is normal and desired natural behavior as it perpetuates the species :) Any desire different than that represents a deviancy that isn't normal or natural.
I could have compared "curing pedophiles" to "curing gays", but that would have been inflammatory. Needless to say, both are impossible.
We tolerate those that involve consenting adults, as we should, but in the case of children, individuals who engage in that need to be kept off the streets.
Anyone who touches a child inappropriately needs to go to jail for a long time. Those who live with the desire and don't act on it deserve to be left alone.
Re:Justice... (Score:5, Insightful)
Re:Reading comprehension (Score:3, Insightful)
You are so wrong. It is illegal to POSSESS certain drugs. Ownership is not a requisite element of possession.
Re:Reading comprehension (Score:2, Insightful)
What I think some people forget here is that the law doesn't state (in the places I know of) that possessing such pictures as bath pictures of your children is not child pornography. If the law states that having pictures of your own naked child is not pornography then yes the officer SHOULD have investigate before arresting.
When you refer to the "police not understanding the seriousness of responsibilities that comes with the power to arrest" is incorrect. Every department has their bad apples don't get me wrong and some make bone headed decisions but for the majority of the police force out there they understand that power.
Re:Reading comprehension (Score:5, Insightful)
Re:Reading comprehension (Score:3, Insightful)
but in the case of children, individuals who engage in that need to be kept off the streets.
Who is a child though? Is a 15 year old a child? 16 year old? In a natural setting they would be sexually mature and breeding. Mind you, I don't think that's an excuse for taking advantage of children -- we are one of the few (the only?) species with higher reasoning and should be able to control our urges.
Lock 'em up and throw away the key I say. But at the same time we need to realize the contradictions in a society that allows it's children to dress and act as ours do and then punishes those who respond to such behavior when such a response is encouraged by millions of years of evolution.
Re:Justice... (Score:3, Insightful)
Yes, and in Britain a white's only party managed to get two seats to the EU. Let's not make two seats more than they are, nor EU representation (and the lowest turnout ever) more than it is.
Re:How to beat a Child Pornography Charge... (Score:3, Insightful)
"Its all about the kids".
BS
Re:Reading comprehension (Score:3, Insightful)
There's a good point. Cops have the authority to arrest, but take little or no responsibility for the consequences of a bad arrest.
Maybe they should have to suffer the penalties they'd tried to pin on someone, should the arrest prove bogus.. that would put a damper on it, all right.
Re:Justice... (Score:3, Insightful)
But, what's to stop law enforcement to start outsourcing more and more and more to 'private' businesses to spy on people and do their work for them?
We see this type thing already with the feds...they have trouble getting their own 'national big brother database' going (at least publicly), so they use private companies to get around this, like Acxiom [acxiom.com] . They used them in a big way for sure shortly after 9/11...and they're a good source too. They have lots of info on at least 98% of the people in the US, and I have no idea how much on peoples outside the US borders.
Re:Reading comprehension (Score:3, Insightful)
A bank robber flees the crime scene in a car going 90MPH. Would you permit the police to give chase, given that they would have to violate traffic safety laws to do so? Or should the police only drive the speed limit?
In an unmarked vehicle with no means of warning other drivers on the road and with a driver who has had no pursuit training? Absolutely not.
Another scenario: A man is holding a hostage at gunpoint. Should police draw their weapons and aim them, even though threatening violence (or death) against a fellow citizen is against the law?
The hostage is in imminent danger and the gunman has already broken the law. That's your latitude.
But even then, you know what reciprocation would not be acceptable? For the cops to take a member of the gunman's family hostage at gunpoint in return.
And yes, a cop posing as a pross or a drug dealer or a 12 year old girl in a chatroom gives people lots of reasons to reconsider engaging in illegal behaviors. That's the whole point, comrade.
In that scenario, along with all the others the OP mentioned, no one is in imminent danger and no one has already committed a crime.
Re:Reading comprehension (Score:3, Insightful)
Wrong. Drug laws are full of loopholes and exceptions. Researchers are able to obtain "illegal" drugs for the purposes of study. Cocaine has certain medical uses [wikipedia.org] and is available to hospitals.
Last but not least, if mere possession were illegal under any and all circumstances, then you'd have to arrest the cop who confiscates drugs from someone, and then you'd have to arrest the cop who arrests him, and then you'd have to arrest the cop who arrests that guy etc, etc, etc. Handling by law-enforcement, under strict regulation, is one of the exceptions to the drug laws.
This is why we call drugs "controlled substances", and not "banned substances" or "forbidden substances".