Call Yourself a Hacker, Lose Your 4th Amendment Rights 488
An anonymous reader writes "As described on the DigitalBond blog, a security researcher was subjected to a court ordered search in which a lack of pre-notification was premised on his self description as a 'hacker.' From the court order, 'The tipping point for the Court comes from evidence that the defendants – in their own words – are hackers. By labeling themselves this way, they have essentially announced that they have the necessary computer skills and intent to simultaneously release the code publicly and conceal their role in that act.'"
They do have the ability to release code silently. (Score:4, Interesting)
The tipping point for the Court comes from evidence that the defendants â" in their own words â" are hackers. By labeling themselves this way, they have essentially announced that they have the necessary computer skills and intent to simultaneously release the code publicly and conceal their role in that act.
Sounds reasonable. Anyone with an intermediate understanding of computers and the internet would be able to publish something silently. Create an account with a seedbox, upload file, upload torrent to thepiratebay.sx.
It looks like all they did with the "hacker" identification is determine that they were intermediate level with computers and networking.
Judging from the summary, this is a standard courtroom procedure, and the submitter is trying to sensationalize it by leaving out all of the other evidence.
Re:Stallman would have something to say about this (Score:5, Interesting)
No, but the defendant's repeated advocacy of open source implies intent to publish source code. The lawsuit is alleging that the defendant stole source code from his prior employer for the purpose of open-sourcing it as his own product.
Since the defendant clearly has intent to open-source his product, and if it were indeed stolen source it would immediately cause irreparable harm, and the defendant's own statement shows he has the skill to cause such harm quickly (well within the usual timeframes of the court process), an immediately-executed warrant is reasonable.
Re:Wait, what? I'm a unicorn, arrest me? (Score:3, Interesting)
actually yes, the next logical step from this is to start searching concerned citizens and political activists who are not allied with either power party. gun activists who talk about private guns being needed to keep the power balance between government and citizens are also obviously planning an armed uprising. and if they got nothing to hide then why would they object to such searches to protect them and their fellow men from TERRORISTS???(of course such searches would also need to be done without warning by armed men who don't announce their presence)
uh and if they taught civics then they would need to answer pesky questions.
Re:Stallman would have something to say about this (Score:5, Interesting)
No, but the defendant's repeated advocacy of open source implies intent to publish source code.
In the same way my advocacy of and interest in international culture implies intent to engage in "unamerican" activities? In the same way that candidates for state senate saying "if itâ(TM)s a legitimate rape, the female body has ways to try to shut the whole thing down" implies the candidate is a rapist? We've been down that road before. It doesn't lead anywhere you want to be.
The lawsuit is alleging that the defendant stole source code from his prior employer for the purpose of open-sourcing it as his own product.
And was there evidence to back up this claim, such as server logs, statements by the defendant, etc.? Because from what I've read the answer is no, there wasn't. The only evidence cited in the ex parte order was the defendant's advocacy of open source and his prior access to the ex-employer's code.
Since the defendant clearly has intent to open-source his product...
Which is his right, if he designed it on his own, as many other people have done after working on a closed source product...
and if it were indeed stolen source it would immediately cause irreparable harm
... And yet no proof the code was stolen was provided.
an immediately-executed warrant is reasonable.
No, it isn't. They need to prove he's in possession of stolen property first. His statements about what he would or wouldn't do with it have absolutely no weight whatsoever in issuing the search warrant. That the judge is making these statements implies that the evidence he had done so was very, very weak, to the point they had to rely on circumstantial evidence that is only dubiously related to the matter at hand to secure the warrant.
This sounds more like a case of a manager acting without evidence that any wrongdoing had occurred and decided to use law enforcement resources to harass the former employee. This is, for lack of a better term... a domestic dispute. It's a he said, she said situation. Except that in this case, it's a company, not an ex.
Re:Stallman would have something to say about this (Score:5, Interesting)
Perhaps someone could update the page to include a "Controversies" section that referenced TFA? Properly written NPOV would do more to undermine his decision than posting to random tin-foil-hat sites.
Ability does not imply intent, nor should it (Score:4, Interesting)
Quoted by the OP from source material:
The Court has struggled over the issue of allowing the copying of the hard drive. This is a serious invasion of privacy and is certainly not a standard remedy, as the discussion of the case law above demonstrates. The tipping point for the Court comes from evidence that the defendants – in their own words – are hackers. By labeling themselves this way, they have essentially announced that they have the necessary computer skills and intent to simultaneously release the code publicly and conceal their role in that act. (underline added) And concealment likely involves the destruction of evidence on the hard drive of Thuen’s computer. For these reasons, the Court finds this is one of the very rare cases that justifies seizure and copying of the hard drive.
The thing I'm very uncomfortable with is the conflation of "capability" with "intent". There are many things I can do that I don't want to do, because I'm basically an ethical person and I respect other people's rights and property, and if there's one thing I'm touchy as hell about, it's the assumption that people who are able to do things outside what people of average intelligence consider "normal" skills are inherently dangerous and/or criminal if their knowledge, skills, or abilities aren't somehow sanctioned by an "authority" like a higher education institution. I'm very much a hacker in the sense of having fairly extensive self-education and hands-on experience with technology outside of the sanctioned channels. I'm not a "hacker" in the sense in which the court understands the term. (And there's a whole other rant there, in terms of how the word's meaning has been loaded with negative connotations it really shouldn't have.) In this case, the court has taken the word out of the context and applied a meaning to it that I'm sure the original author did not intend, as an excuse to sidestep 4th Amendment protections. That's troubling, to say the least.
Re:Stallman would have something to say about this (Score:5, Interesting)
"I wasn't aware that capability implied intent."
Exactly. Imagine: "By identifying themselves as CPAs, the suspects expressed an intent to launder the money and hide the evidence by manipulating the books."
Who elected this moron to be a judge?
fucking lawyers (Score:2, Interesting)
Am I the only one that is starting to think that everything wrong with society is caused by lawyers and their owners?
(Congress is 51% lawyers.)
Re:Stallman would have something to say about this (Score:2, Interesting)
While we're at it, how about a good ol'-fashioned lynch mob? Maybe we should warm up some tar and pull that old sack of feathers out of the attic?
What the fuck makes you think you have any right to "undermine his decision"? Are you an appeals judge yourself, fully informed of the details of the case? Are you even in his jurisdiction?
Vote him out, and vote in a different, more savvy judge next time.
Re:Stallman would have something to say about this (Score:1, Interesting)
The original wording of the amendment was:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms in defence of the Stat, shall not be infringed."
That bit was pulled not because they wanted open crazy, but because of several representatives who brought up the fact that several States had laws on the books requiring citizens to carry for other purposes, like laws requiring able-bodied men to shoot 20-24 head of "pest birds" before planting season to stop them from eating planted seeds or devouring huntable wildlife.
Meanwhile, the Framers also tried to do WITHOUT a standing army. Their theory - dumbasses as most of them really were - was that they could "call up the militia" whenever there was need for a war, thus avoiding the cost of actually training troops. This despite the fact that Washington, who'd been their general, strongly advised against it due to (a) the fact that the weekend wackjobs were unreliable, (b) the fact that the weekend wackjobs tended to come untrained, (c) the fact that the weekend wackjobs tended to bring weaponry incompatible with the provided munitions, and (d) the fact that the weekend wackjobs tended to grab their re-issued rifles and promptly desert from the army, going back home or reenlisting with a different militia to scam extra signing bonuses.
The end result of this was that by 1814 when the British showed back up, the weekend wackjobs showed their true colors, busy off masturbating in the woods while the British were burning the city of Washington DC, including that place we know as the "White House", so named because to repair the damage they covered basically the entire fucking thing in white paint to hide the smoke and burn marks.
And after that we never did without a standing militia again, and pretty much the entire reason for the 2nd amendment - the idea that we would have a "well regulated" (e.g. trained and capable) army full of state volunteers, called up when needed and equipped with "regulation" arms and ammunition compatible with what the army had in stock for use in war, was rendered fucking null and void.
The 2nd amendment is a remnant of a really BAD idea by some fucking stupid "founders" and we've just never gotten round to repealing it, despite its being like an inflamed appendix causing nothing but trouble for our society ever since.
Not loss of 4th Amendment rights (Score:4, Interesting)
Very shaky process the court used to determine cause, but the basic Constitutional requirements were followed.
"no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
A good lawyer would go after the warrant and get it quashed based on the crappy determination of probable cause.
So no, the 4th Amendment is not being violated here.
Re:Stallman would have something to say about this (Score:4, Interesting)
If I were the judge, I'd have likely made the same order, and informed the plaintiff that if nothing is found, then 10% of annual revenue will be paid to the defendant for reparations for civil rights violations from the unfounded accusations.
Unfortunately for you, that would be overturned on appeal. You can't censure a plaintiff for making statements that it believes are correct but later turn out to be wrong. You can only countersue for legal costs and damages, and at that, if and only if you can provide it was malicious and/or frivolous -- a very difficult thing to prove.
Because of this, it is the judge's responsibility to only grant warrants when there is sufficient evidence to justify it. You don't lower the standard simply because the other guy has money he could stand to be parted with if he's wrong.
The issue here is that someone is harassing an ex-employee by making accusations. If they are founded, then the judge did the right thing.
Incorrect. The granting or not granting of a search and seizure or arrest should be based strictly, solely, only, on probable cause. That is the standard. It is not suspicion, it is not motive-based. Only the likelihood of an actual criminal act, based entirely on the evidence presented, should be used to make that determination. It has been said the road to hell is paved with good intentions... which is precisely why you shouldn't consider intent when a person's civil liberties or freedom is at stake: Only and totally their provable actions.
One of the problems is that our system doesn't punish false accusations, only false statements.
Accusation: a charge or claim that someone has done something illegal or wrong.
Statement: a definite or clear expression of something in speech or writing.
All accusations are statements, but not all statements are accusations. Ergo, your statement is a non sequitur.
If the employer accuses someone of something so bad, they should be liable for damages if the accusations are found to be unfounded.
This is a separate issue, best decided upon in open trial, not in a judge's chambers, as this warrant has been done. There's a reason it is done this way, and it has nothing to do with convoluted logic like yours -- it is because in the several hundred years of common law and over two hundred years of case law in the United States, the way we do it has proven to be the one most likely to result in justice.
Your solution would have us forever bandaiding and ductaping over the broken parts and a neverending series of recriminations. The legal process would simply not have an end point anymore.