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Supreme Court Declines Case Over Techs' Right To Search Your PC

samzenpus posted more than 5 years ago | from the just-not-interested dept.

Privacy 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."

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Justice... (1, Offtopic)

WgT2 (591074) | more than 5 years ago | (#28291429)

...WTF!

Re:Justice... (2, Funny)

DuncanE (35734) | more than 5 years ago | (#28291959)

Here's the keys to my house. Please clean my rug. If you find my porn/drugs/kidnapped child then it will be unusable in court.

Reading comprehension (4, Informative)

Schraegstrichpunkt (931443) | more than 5 years ago | (#28291441)

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.

No, but whatever they find is admissible as evidence in court.

That something is admitted as evidence in court does not mean it was legal to obtain that evidence. Similarly, if something is inadmissible as evidence in court, it could still be legal to obtain that evidence.

Re:Reading comprehension (5, Insightful)

Nursie (632944) | more than 5 years ago | (#28291471)

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.

Re:Reading comprehension (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#28291673)

I hope your kids will be imprisoned one day for drug possession.

Re:Reading comprehension (1)

Keeper Of Keys (928206) | more than 5 years ago | (#28291709)

Unlikely. He's handing out his stash-hiding advice to strangers on t' interwebs; I'm sure his kids will get an earful.

Re:Reading comprehension (5, Insightful)

QCompson (675963) | more than 5 years ago | (#28291687)

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:Reading comprehension (1)

Swizec (978239) | more than 5 years ago | (#28291773)

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.

Heavy internet users store their images on the internets. Why on earth would you store something that is more easily and quicker accessible online?

Browser Cache (1)

conspirator57 (1123519) | more than 5 years ago | (#28291843)

Apparently the interwebs like to leave little droppings in our puters. we call them cache.

additionally, say you take an RSS feed or have a usenet scraping script for say, comp.lang.python, and some jackass / police sting operation decides to put "illegal images" on that group? your script automagically grabs them and viola you're guilty.

Re:Reading comprehension (0)

Anonymous Coward | more than 5 years ago | (#28291991)

If your browser caches the sites you check then you are, unknowingly, storing images. Moreover, you may have downloaded a zip full of images, browsed a couple of them and have decided to delete them but and even though you have deleted them, you still store copies of those images on your HD, as some software packages store thumbnails of those images. Take a look at your /tmp or ~/.thumbnails directories and you will be surprised.

Re:Reading comprehension (3, Informative)

cheftw (996831) | more than 5 years ago | (#28292001)

I don't know what sort of latency you get on your HDD but mine is slightly faster than my internet.

Re:Reading comprehension (2, Funny)

Swizec (978239) | more than 5 years ago | (#28292109)

The latency comes from having to move out of my browser. Open something to browse the hard drive. Find something on the hard drive and so on.

Or I could just leave everything rather useless on the internet. Ctrl+T to a new tab and google it within less than a second. Furthermore, I also get other fun and useless stuff related to whatever useless stuff I was looking for. win-win

Re:Reading comprehension (1)

emocomputerjock (1099941) | more than 5 years ago | (#28292087)

Because it's MY data, sitting encrypted on MY hard drive, in MY house, and I get to decide who gets to see it and how.

Re:Reading comprehension (4, Insightful)

WCMI92 (592436) | more than 5 years ago | (#28292007)

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.

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:Reading comprehension (4, Informative)

iamhassi (659463) | more than 5 years ago | (#28292131)

"Have any naked baby photos of your kids? Remember the mother who got arrested at Wal-Mart after taking such photos to be developed?"

link [reason.com] : "a WalMart worker in Pennsylvania reported 59-year-old Donna Dull to local authorities after Dull dropped off some film that included shots of her three-year-old granddaughter in and just out of the bath. Dull was arrestedâ"roughly, she saysâ"and charged with producing and distributing child pornography. The charges were dropped 15 months later..."

Re:Reading comprehension (1)

tatman (1076111) | more than 5 years ago | (#28292155)

Your so right about that....there was a case in Atlanta GA a few years ago where a family sent photos to a place to be developed. In the photos were a very young child in underwear, and at lease one with the child holding a beer bottle. The photo processing place turned these over to the authorities. The parents were run through all kinds of legal muck: kids taken outta the home at 3AM, jail, courts etc.... after investigations the authorities decided to throw out the charges because it was the parents taking the photos and there was no harm to the child. But these people were ruined for it. (I will admit they were just stupid for taking pics of their kid holding a beer bottle). It boils down to the fact that someone had their own view of what was "child endangerment". Child pornography is wrong/bad/and the bastards deserve life in jail bending over for bubba. But it is also wrong that someone can ruin the life of someone over mis-use of "perceptions". There needs to be limits placed that protect innocents.

Re:Reading comprehension (4, Insightful)

StormReaver (59959) | more than 5 years ago | (#28291755)

> 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.

Yup! (3, Informative)

Constantin (765902) | more than 5 years ago | (#28291915)

For one, I don't know why I'd ever hand a piece of computer equipment with a hard drive in it to the folk at Best Buy, etc. after all the exposes re: naughty technicians surfing the hard drive for porn and other things of interest. There are lots of guides out there on how to do common tasks like hard drive replacement yourself, I'd only hand over a machine with a clean drive, if that.

Secondly, one has to consider the possibility that the images stored on the computer were not deposited there by the person who owns it. Any technician in the store could have used the computer to do some surfing, there is no chain of custody. Next, the images may have been deposited by malware, yet another possibility that I imagine the defense will bring up. Lastly, the images may have been deposited by a previous laptop owner, roommate, etc. - issues for the courts to mull over.

Re:Reading comprehension (2, Insightful)

Anonymous Coward | more than 5 years ago | (#28291875)

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 (1, Interesting)

Anonymous Coward | more than 5 years ago | (#28291497)

Not in places in Europe it is not, there is such a thing as "laws of evidence" and it must be obtained lawfully.

That is why if you go to a small claims court you DO NOT get your lawyer to represent you as they are bound by the laws of evidence but YOU are NOT. :) You can get away with a lot in small claims courts if you represent yourself.

Re:Reading comprehension (2, Insightful)

ThePhilips (752041) | more than 5 years ago | (#28291615)

... whatever they find is admissible as evidence in court.

I agree.

It would be very surprising if mechanics asked to check a car would ignore a dead body in a truck.

Re:Reading comprehension (4, Insightful)

diskis (221264) | more than 5 years ago | (#28291667)

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 (4, Insightful)

Ephemeriis (315124) | more than 5 years ago | (#28291923)

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 (1)

WCMI92 (592436) | more than 5 years ago | (#28291689)

I agree.

It would be very surprising if mechanics asked to check a car would ignore a dead body in a truck.

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.

Re:Reading comprehension (1)

ArsenneLupin (766289) | more than 5 years ago | (#28291783)

... drugs found under the carpet in the trunk or in the glovebox...

The mechanic would have had no reasonable need to have searched those two areas to perform the job he was hired to do.

Agree about the carpet. But glovebox is fair game. Maybe the mechanic only wanted to put his stamp into the service book (which is usually kept in the glovebox...)

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 :)

Please keep your bigoted homophobia to yourself.

Just let's hope my mechanic won't freak out the next time he sees brown stains on the back seats of my car, and a mysterious white sweet & salty liquid on the filter of my air conditioning.

Re:Reading comprehension (2, Funny)

JPLemme (106723) | more than 5 years ago | (#28291883)

If your mechanic is licking your A/C filter to see what the mysterious white goo tastes like, then he's not going to be freaked out by much...

Re:Reading comprehension (3, Insightful)

Ephemeriis (315124) | more than 5 years ago | (#28292015)

I agree.

It would be very surprising if mechanics asked to check a car would ignore a dead body in a truck.

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?

"Allowed to access" is a bit strong (5, Informative)

pthisis (27352) | more than 5 years ago | (#28291465)

There's a difference between what they're "allowed to access" and what's admissible in court once they've seen it. The techs aren't the government--things they've seen don't automatically get excluded because they shouldn't have seen them.

If a private citizen breaks into my house and sees something illegal, they can usually alert the cops and have knowledge of that thing be admitted in court, even though they themselves can still be prosecuted for trespassing and breaking and entering.

Re:"Allowed to access" is a bit strong (3, Interesting)

sigxcpu (456479) | more than 5 years ago | (#28291537)

If the tech is allowed to access and he sees something that is illegal to posses, he then gives a tip to the police, who now have probable cause for a search.
Wouldn't the stuff be admissible?

Or am I missing something?

Re:"Allowed to access" is a bit strong (4, Interesting)

Corbets (169101) | more than 5 years ago | (#28291629)

No, you've got it right, though I don't see much of a difference between what you wrote and what the GP said.

Police and agents of the state are prevented from obtaining evidence illegally; doing so makes it inadmissible in court. However, information collected by private citizens can be used in court regardless of how it is obtained, though the private citizen can of course be prosecuted for any crimes committed during the collection of that evidence.

Look at it this way: the laws regarding collection of evidence are not designed to protect criminals, they are designed to protect individuals from an overreaching state. But if the state is handed information without doing anything wrong (which includes asking private citizens to illegally obtain evidence, mind you), then it has the right and obligation to act upon that information.

IANAL, though I did just read the chapter on forensics in my CISSP study guide.... :)

Re:"Allowed to access" is a bit strong (0)

Anonymous Coward | more than 5 years ago | (#28291827)

which includes asking private citizens to illegally obtain evidence, mind you

No, that makes them an agent of the state. Even Law and Order touched on that one.

Re:"Allowed to access" is a bit strong (1)

Minion of Eris (1574569) | more than 5 years ago | (#28291869)

There is a logical fallacy here - try this, if you take a car in to the local garage, but forget to empty the trunk of a load of hard-copy kiddie porn, and the mechanic needs to get at wiring via opening the trunk, can he turn over the magazines to the cops?

Re:"Allowed to access" is a bit strong (1)

Rogerborg (306625) | more than 5 years ago | (#28291871)

If a private citizen breaks into my house and sees something illegal, they can usually alert the cops and have knowledge of that thing be admitted in court

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.

Shoulda remembered the 11th commandment (4, Insightful)

ultraexactzz (546422) | more than 5 years ago | (#28291469)

"Thou shalt not get caught"
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:Shoulda remembered the 11th commandment (1)

rabbot81 (1557023) | more than 5 years ago | (#28291611)

I usually take a fairly libertarian view of these things, but I can't feel much sympathy a guy dumb enough to hand what he should know is essentially a box-o-child-porn to a third party.

Just like you wouldn't take a truck full of contraband for service at Midas, maybe the ability to work on your own computer should be a prerequisite for this hobby.

Maybe it's too much to ask child pornographers to smarten up, though...

Not always... (2, Informative)

vintagepc (1388833) | more than 5 years ago | (#28291487)

I should point out this is not always the case.
I know of at least one PC repair company that, when doing any sort of recovery/repair work, asks the customer to sign a form giving permission for them to look at the data files on the computer.
This is just so they can verify a successful fix/file recovery. If the customer doesn't sign the form, fine, but then they have absolutely no guarantee that the repair will be okay, or that their recovered files are not just illegible garbage.
Seems the logical approach to me since it protects the customer's rights;
but then again, if you are stupid enough to keep incriminating of stuff in a visible place, then you shouldn't be surprised if you get caught. I'd be interested to hear WHERE they found the files.

Re:Not always... (1)

GreenTech11 (1471589) | more than 5 years ago | (#28291653)

On the desktop under: "Stay away cops" I really doubt the techie actually spent a lot of time searching the computer, so they were most likely in an obvious place.

How to beat a Child Pornography Charge... (5, Insightful)

stewbacca (1033764) | more than 5 years ago | (#28291489)

You know, you could always choose NOT to have child pornography on your computer.

Re:How to beat a Child Pornography Charge... (3, Insightful)

plover (150551) | more than 5 years ago | (#28291741)

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:How to beat a Child Pornography Charge... (1)

DigitalReverend (901909) | more than 5 years ago | (#28291979)

So, you think that keeping this guy in jail is worth more to society than the erosion of the rights represented by this decision to not hear the case? I think that we could afford to let one child pornographer walk free if it meant that PC's and information on them were safe when bringing them to be repaired/upgraded etc. Your view seems a bit short sighted.

If it wasn't child porn (1)

mikesd81 (518581) | more than 5 years ago | (#28291495)

I wonder of the Supreme Court would have been more inclined to take the case?

Re:If it wasn't child porn (5, Interesting)

CajunArson (465943) | more than 5 years ago | (#28291639)

No they wouldn't have been, because there is nothing about this case that is legally novel or particularly controversial. The techs were not state actors (meaning working for the government either officially or at the direction of somebody from the government). Therefore, the 4th amendment rights to protection from unreasonable search & seizure do NOT apply (notice how I'm NOT talking about expectation of privacy... you don't even get to that issue when there's no state action).
      There have been cases in the past where criminals have broken into people's houses and stole items that prove crimes (like say papers proving bank fraud or something like that). Later when the cops bust them and recover the items, those papers were completely valid as evidence against the original owners of the papers, even though the police would have needed a warrant to get the papers if they had conducted a direct search & seizure. If a criminal breaking into your house doesn't count as state action, then voluntarily handing over your computer to techs who are supposed to know how to fix the computer is not the brightest move.

From a different perspective (5, Insightful)

MichaelSmith (789609) | more than 5 years ago | (#28291499)

A month ago a friend of my nephew was killed by a driver [theage.com.au] in a hit and run collision (I won't call it an accident). My brother in law told me that the way the police found the driver was that her boyfriend took the car to a repair place to be resprayed in a different color. Staff at the repair place looked at the damage and called the police.

If you see evidence of a crime you have to call the police. Thats the law where I live.

Re:From a different perspective (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28291543)

"...the way the police found the driver was that her boyfriend took..."

yo what!
women drive cars???

Re:From a different perspective (0)

Anonymous Coward | more than 5 years ago | (#28291829)

Ok now...go back to your hole in the sand you dirty goatse lover!

Re:From a different perspective (3, Funny)

Anonymous Coward | more than 5 years ago | (#28291569)

that may be. but you live in australia; which is entirely populated by criminals, as everyone knows

Re:From a different perspective (4, Funny)

MichaelSmith (789609) | more than 5 years ago | (#28291609)

that may be. but you live in australia; which is entirely populated by criminals, as everyone knows

Not only that but we also have rodents of unusual size [wikipedia.org] to contend with.

Re:From a different perspective (4, Funny)

dkleinsc (563838) | more than 5 years ago | (#28291917)

Well, the way I've usually heard that:

Australian immigration official: "Have you ever been convicted of a felony?"
Traveller: "Is that still a requirement for getting in?"

Re:From a different perspective (1)

neogramps (1432089) | more than 5 years ago | (#28291597)

That story is completely different to the situation here; unless the guy had child pornography as his wallpaper, the techs had to actively go looking for it, and would not find it doing the repair that he had asked for. That said, in cases like this, I don't care whether evidence is obtained illegally or not, you committed a crime and you got caught - you should go to jail! Dismissing damning evidence on technicalities is not just.

Re:From a different perspective (0)

Anonymous Coward | more than 5 years ago | (#28291745)

Dismissing damning evidence on technicalities is not just.

Sure. Why bother having any rules of evidence at all? Any and all methods of obtaining evidence should be allowed. These stupid "technicalities" like warrants and probable cause and miranda and lawyers just get in the way and help child pornographers, terrorists, and other criminals escape JUSTICE.

It'd be so much easier if the police could just storm into anyone's home they want and search it for any hint of possible criminal activity. This way, we can make sure everyone is not a criminal. That'll make society much safer, and we know the police would never, ever abuse such powers by harrassing people or planting evidence or secretly filming you having sex for the amusement of their colleagues.

What a truly just world we'd live in if you were in charge.

Re:From a different perspective (1)

Shatrat (855151) | more than 5 years ago | (#28291779)

unless the guy had child pornography as his wallpaper, the techs had to actively go looking for it

Not necessarily.
A: They need the driver for the dvd drive and open up his browser, go to google, type "S" to search for 'Sony DVD rom Driver' and the auto complete history pops up 100 variations on 'sex with kids'.
B: They want to test the DVD drive so they fire up Roxio Bloatware Creator and figure the easiest thing to do is to burn a picture dvd, since there may not be music or video but there are images on every computer. At this point they discover that My Pictures is full of 10 gigs of nasty.

Of course I will admit since these are probably high-school or college aged 'experts' just working for beer money, there is a possibility that they get bored and pore through every hard drive that crosses their workbench.
You can't necessarily assume they were intentionally being nosey, though.

Re:From a different perspective (1)

TheoMurpse (729043) | more than 5 years ago | (#28291865)

unless the guy had child pornography as his wallpaper, the techs had to actively go looking for it, and would not find it doing the repair that he had asked for.

Did you conduct the repair? How do you know the pics weren't on his desktop? (granted I didn't RTFA in glorious /. tradition)

Dismissing damning evidence on technicalities is not just.

That's very short-sighted. Technicalities exist for a reason, and that is to provide long-term security against infringement of rights. Here, there is no technicality upon which to dismiss the charge. The guy's lawyer tried to create a new technicality, and the courts didn't agree. But technicalities exist for a reason (assuming we're in an ideal world where lawmakers do not get bribed or make mistakes, inb4slashdotcynicism), and to do away with a technicality because in a handful of instances we'd get an unjust result would be more detrimental than to let that handful of people go freely when we "know" they did it.

Re:From a different perspective (0)

Anonymous Coward | more than 5 years ago | (#28291599)

Is jaywalking a crime? How bout spitting on the sidewalk? Littering?

You must be on the phone a lot.

Re:From a different perspective (2)

MichaelSmith (789609) | more than 5 years ago | (#28291701)

Is jaywalking a crime? How bout spitting on the sidewalk? Littering?

Misdemeanours.

You must be on the phone a lot.

Oddly enough I am the current record holder for issues raised in the IT bug tracking system at my work. So I am on the phone for that quite a bit. I used to work on traffic signals in the city where I live so I log a lot of faults for that. If I see an abandoned car I tend to call it in to the police. I ride a bicycle to work and I have tasks open with the Melbourne City Council for engineering work which I believe is dangerous for me. For me its a matter of keeping an eye out for problems.

Re:From a different perspective (1)

TheoMurpse (729043) | more than 5 years ago | (#28291797)

In the US, you have no duty to report misdemeanors (at least in all the jurisdictions I'm familiar with). There is the crime of "misprision of a felony" at the federal level:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

18 USC 4.

Of course, I think that language about concealing the felony is an important factor. I was told once by a US attorney that it's really only used against people who were around when a conspiracy occurred, may have helped, but weren't so much involved as to have taken part in the conspiracy. I could be misremembering, though.

In other news... (4, Funny)

Drakkenmensch (1255800) | more than 5 years ago | (#28291503)

... RIAA dumps Mediasentry in favor of new sweeping deal with Circuit City. Details are currently kept silent, but if you've been downloading music and your computer breaks down, you'll know.

Re:In other news... (1)

sheph (955019) | more than 5 years ago | (#28291571)

Oh bull!! There's a big difference between having a bunch of MP3s and child pornography. One could have been obtained legally, and even if they weren't having them doesn't hurt anybody. Child pornography on the other hand is not legal in any sense, and by definition requires the exploitation of children to manufacture. If you can't see that difference you ought to seek help quickly.

Re:In other news... (4, Interesting)

Drakkenmensch (1255800) | more than 5 years ago | (#28291617)

If you can't see that difference you ought to seek help quickly.

Missing the point entirely. I wasn't implying that child porn is on the same level as ill-gotten downloads, rather that if the supreme court allows tech support to gather evidence usable in court, what's stopping the MPAA and RIAA to pay tech shops to tear through their customers' hard drives for any evidence of downloads, and report to them directly their findings along with the culprits' names and addresses?

Re:In other news... (1)

NVP_Radical_Dreamer (925080) | more than 5 years ago | (#28291759)

Because there is no way for a tech to know whether the music is legal or not just by looking at it. Has this person ripped it themselves? Have they downloaded something they own? CP on the other hand is illegal no matter what.

Re:In other news... (1)

Drakkenmensch (1255800) | more than 5 years ago | (#28291771)

Because there is no way for a tech to know whether the music is legal or not just by looking at it. Has this person ripped it themselves? Have they downloaded something they own?

The RIAA, on the other hand, are famous for being to tell all of this just by looking at your P2P port activity and IP address.

Re:In other news... (1)

thebheffect (1409105) | more than 5 years ago | (#28291789)

The difference is intent. Paying someone to do something illegal would show cause of intent to commit an criminal action. Techs snooping around, while a breach of privacy, is on a different level entirely.

Of course, if anyone reads any private investigator novels (I enjoy Robert Crais enormously), you'll notice that often the PI isn't bound by the same restrictions that law enforcement agencies are in regards to obtaining evidence. A lot of the legwork can be done by the PI, often illegally, and a tip by the PI to the cops is enough to establish probable cause.

Re:In other news... (1)

Drakkenmensch (1255800) | more than 5 years ago | (#28291957)

Oh, I'm pretty sure that the RIAA will some SOME way to write off the lack of legality of tech support willfully searching your system by disguising their assistance as "anonymous whistleblowers". Wouldn't be the first time they gather evidence by illegal means (I'm looking at you, Mediasentry!)

Ill-gotten what? (1)

jonaskoelker (922170) | more than 5 years ago | (#28291841)

I wasn't implying that child porn is on the same level as ill-gotten downloads

You mean like ill-gotten gamez? ;-)

Re:In other news... (1)

diskis (221264) | more than 5 years ago | (#28291729)

Give RIAA time to lobby through some new laws. After that I'd rather get caugh with childporn than MP3's. What is 20 years getting assraped in prison compared to what RIAA wants to do to filesharers?

Re:In other news... (0)

Anonymous Coward | more than 5 years ago | (#28291831)

the detective to whom i talked with once concerning said issue(a PC containing MP3s that were obviously downloaded(limewire, etc installed)), told me that the police really don't give a shit about your MP3 collection since it's a civil matter and therefore falls in the hands of those agencies who claim copyright over the material. And, therefore, any tech or shop who doesn't "call the cops" over some MP3s is not liable in any manner. However, possession of pictures depicting sexual interaction between adults and minors IS a liability if not reported. as always, IANAL, YMMV, and this may only be relevant to my region, state, municipality, etc, etc, etc.

Another cause for concern... (4, Insightful)

Mistshadow2k4 (748958) | more than 5 years ago | (#28291511)

It would be almost brain-dead easy to put anything you want on a computer and then change the file properties to look like it was there before you gained access to the machine. I could do it on any given morning before I've even had a sip of coffee.

Re:Another cause for concern... (1)

ndavis (1499237) | more than 5 years ago | (#28291631)

It would be almost brain-dead easy to put anything you want on a computer and then change the file properties to look like it was there before you gained access to the machine. I could do it on any given morning before I've even had a sip of coffee.

In Windows wouldn't this be as easy as changing the time on the computer then copying the file over?

Re:Another cause for concern... (2, Insightful)

zwei2stein (782480) | more than 5 years ago | (#28291663)

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:Another cause for concern... (1)

Rockoon (1252108) | more than 5 years ago | (#28291775)

Circuit City put child porn on my computer! If this is the sort of "fix" I paid for, then I want my money back!

Re:Another cause for concern... (1)

TheoMurpse (729043) | more than 5 years ago | (#28291935)

But that's not an issue here. According to the summary (I'm not going to go digging through actual court filings), the guy argued that CC didn't have a right to snoop. He didn't argue that the evidence was untrustworthy because of the chain of custody. Thus, your point doesn't touch on this case (you can't introduce new theories in further appeals; you're limited to what you argued originally).

A better lawyer would have argued that and likely would have won.

Re:Another cause for concern... (3, Interesting)

WCMI92 (592436) | more than 5 years ago | (#28292097)

But that's not an issue here. According to the summary (I'm not going to go digging through actual court filings), the guy argued that CC didn't have a right to snoop. He didn't argue that the evidence was untrustworthy because of the chain of custody. Thus, your point doesn't touch on this case (you can't introduce new theories in further appeals; you're limited to what you argued originally).

A better lawyer would have argued that and likely would have won.

There is one remedy in that case.

Failing to bring up the "chain of custody" status of the evidence is serious malpractice in the case of the lawyer representing the defendant. Seems to me the lawyer locked in on the argument "techs shouldn't be searching hard drives for porn" (which isn't settled law) and ignored the more conventional argument. Huge mistake, and if the accused got himself a new lawyer might be able to get a new trial based on that.

Re:Another cause for concern... (1)

cheftw (996831) | more than 5 years ago | (#28292133)

Solution: Good practise,

1. Always keep backup images
2. Never give your computer (or root) to someone you don't trust.

They should teach that in school rather than how to do a textbox in MS Word

Easy solution (3, Insightful)

EvilGrin666 (457869) | more than 5 years ago | (#28291535)

Keep your 'private' data on an external hard drive and just leave the system drive for the OS + applications. Extra paranoid people can encrypt it to for good measure.

Re:Easy solution (1)

MichaelSmith (789609) | more than 5 years ago | (#28291575)

Keep your 'private' data on an external hard drive and just leave the system drive for the OS + applications. Extra paranoid people can encrypt it to for good measure.

Stupid people will continue to do the obvious.

Re:Easy solution (1)

QCompson (675963) | more than 5 years ago | (#28291637)

Until the circuit city lackey starts to comb through thumbnail images in your browser cache and sees something that might be considered child porn, so he calls the police, who are anxious to bust some scary pedos and take you into custody. Presto! Your life is ruined!

Mandatory car analogy... (0)

Anonymous Coward | more than 5 years ago | (#28291549)

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.

Would you really take your car to the garage with a 100lbs bag of cocaine on the back seat and then complain that the garage employee looked through the window and reported you? I don't think so... And I don't see how this is any different.

Re:Mandatory car analogy... (2, Funny)

Sebilrazen (870600) | more than 5 years ago | (#28291643)

If I had 100lbs of cocaine, I'd just buy a new car, screw the garage.

Re:Mandatory car analogy... (0)

Anonymous Coward | more than 5 years ago | (#28291931)

I certainly would complain if I took my car in for an oil change, and the employees looked in the trunk. There is no legitimate reason for them to do so.

This is SO going to get abused (3, Insightful)

WCMI92 (592436) | more than 5 years ago | (#28291551)

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.

Re:This is SO going to get abused (1)

johnsonav (1098915) | more than 5 years ago | (#28291655)

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.

Hold on there. What makes you think that, if a cop had done what the Circuit City techs had, that evidence would have been inadmissible?

Re:This is SO going to get abused (1)

WCMI92 (592436) | more than 5 years ago | (#28291809)

Hold on there. What makes you think that, if a cop had done what the Circuit City techs had, that evidence would have been inadmissible?

The police couldn't have gotten away with doing this because that would have amounted to an illegal search without a warrant, without probable cause, done "just because I can". That hardly meets even the loosest standard applied to the 4th/5th Amendments.

A PC is private property, after all.

The reason why searches are restricted by the Constitution is to prevent exactly that scenario, ie: government agents randomly or otherwise busting into people's houses "just to check".

 

Re:This is SO going to get abused (1)

johnsonav (1098915) | more than 5 years ago | (#28292083)

The police couldn't have gotten away with doing this because that would have amounted to an illegal search without a warrant, without probable cause, done "just because I can".

So, you're telling me that if you let the cops have access to your computer, and you "volitionally relinquish[] any expectation of privacy"**, anything the cops find couldn't be used in a case against you?

The reason why searches are restricted by the Constitution is to prevent exactly that scenario, ie: government agents randomly or otherwise busting into people's houses "just to check".

Yeah, but that's not anything like what happened in this case. This is more like letting the cops into your home, and getting pissed when they see child porn on your coffee table. They can use that evidence too.

**From the appellate ruling [google.com]

Re:This is SO going to get abused (1)

thesaurus (1220706) | more than 5 years ago | (#28291671)

Use of CAPS to assert your arguments without evidence DOESN'T make them more credible. Use facts, not caps. (Can we make that a motto or something?)

Re:This is SO going to get abused (2, Informative)

Corbets (169101) | more than 5 years ago | (#28291679)

I posted a comment above about this, but if the state coerces private citizens to act on its behalf, then they are in essence state actors, and illegally obtained information becomes inadmissible.

If on the other hand the citizen stumbles across some information, regardless of how, and chooses (without being ordered, requested, payed, etc. to do so) to share it with the police, the court will allow the evidence.

Frankly, I think that's fair. If I am, say, breaking into the school at night to have a little fun with my buddies, and I see the principle murdering a teacher, I'm going to come forward and say something. Even though I shouldn't have been there, and may well be prosecuted for B&E, my eye-witness testimony to the other crime should still be valid.

Re:This is SO going to get abused (4, Informative)

Attila Dimedici (1036002) | more than 5 years ago | (#28291697)

If the government required the IT shop to look for that stuff and report it, I am pretty sure the Supreme Court would intervene and rule any evidence so obtained inadmissible. Such a law would move the IT shop from private citizen to government agent. The "loophole" you are referring to has existed for quite some time.
It has long been accepted that if someone breaks into your house and finds evidence that you committed a crime, that evidence is admissible in court, as long as they were not asked to do so by the authorities. If the person was asked to do so by a government official, courts have ruled that they become a government agent and illegal search and seizure rules apply.

Re:This is SO going to get abused (0)

Anonymous Coward | more than 5 years ago | (#28291747)

Not so fast. If a state did pass such a law then you have pretty much "deputized" techies and they would then be held to the same standards of evidence collection as law enforcement.

what kind of defense is that? (4, Insightful)

Anonymous Coward | more than 5 years ago | (#28291573)

"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:what kind of defense is that? (1)

WCMI92 (592436) | more than 5 years ago | (#28291627)

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.

A good lawyer should, in that case, call upon another tech as an expert witness to explain to the court how easy it is, with admin/root access to a PC AND physical access to put ANYTHING you want onto it and phony file creation/change dates to make it look like it was there 1 day ago, 1 week ago, 1 year ago, and hide it from the system owner so that they go home with it not even knowing it's there, then tip off the cops.

A tech who has a vendetta against you could easily do such a thing.

As a career IT professional, I don't WANT to have that kind of potentially abused power... Which is why this is a BAD decision.

Re:what kind of defense is that? (1, Insightful)

Anonymous Coward | more than 5 years ago | (#28291721)

As a career IT professional, I don't WANT to have that kind of potentially abused power... Which is why this is a BAD decision.

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.

They came first for the pedos (1, Insightful)

Anonymous Coward | more than 5 years ago | (#28291641)

And I didn't speak up, because they are horrible nonces.

Truecrypt BEFORE you have issues (0)

Anonymous Coward | more than 5 years ago | (#28291705)

This is why desktops need to have truecrypt volumes on them too. At some point, almost everyone outside /. readers will need to take their PC in for support. Your Quicken files, emails, EI browsing history and **all media** will all be available to the tech. Also, you need to encrypt your PKI keys, certs, and hopefully, passwords.

I've heard of highly organized teams searching hard drives for movies and music at computer support locations to expand their personal collections. Same when you take your car in for service. If you have any media left inside it, expect that media to be copied off.

I truecrypt my financial data files (quicken and stock trading). Media isn't stored on most computers inside my home, just on the NAS, so there's really nothing on the clients besides a link to the server that is only available from inside the network.

well well well (3, Funny)

TbB_thund3rp33l (1054546) | more than 5 years ago | (#28291707)

I dont work at CC .. but a larger "repair centre" in canada ...

We have, as part of our SOP, child pornography related rules. They call them "criminal images" in the verbage, however, it is the same. I have yet to "find" something criminal, but to my knowledge, no one goes "fishing" though a computer to look at a persons data. I think true repair techs don't really care WHAT is on someones computer, just get paid your paycheck to fix the thing. IF we are testing a burner and need to use data from a system (ie pictures folder) again .. drag drop, dont care what it is .. test .. label DVD "test burn" give to customer when they come to pick it up.

After doing this for 20 years now .. I can tell you what you ALWAYS will find on a computer that comes in for "repair".
1. Lime/Frostwire - the bane of my job - and telling a "customer/uneducated person" that those types of programs make it more likely to get a virus, they immediately ask you "well, how else can I download free stuff" - my response " you can't"
2. Some sort of torrent client - see #1
3. expired/outdated or no antivirus - which leads to #4
4. massive amounts of spyware/malware/virals

This is my daily grind. Trying to inform the public that just because you CAN do something doesn't mean it makes it A: legal or B: not harmful to your computer environment - "You mean downloading all that porn got me a virus? You mean my limewire folder has massive amounts of trojans in it? ---- but I paid for it ....

Sucker # 12,488 line up please ....

Re:well well well (0)

Anonymous Coward | more than 5 years ago | (#28291951)

this is my favorite :
Customer: so how did this virus(these viruses) get on there?
Us: most likely from the porn/poker/warez sites you've been visiting / your music downloading behavior
Customer: nahhh....that can't be it. i go there/to those sites/do that all the time /facepalm

It's a huge barrel of worms (5, Interesting)

hacker (14635) | more than 5 years ago | (#28291761)

Years ago, I worked for $BIG_PHARMA, and in one of the labs, there was a shared printer and some shared PCs. Each PC required a user to log in, using their own credentials.

One day, one of the female scientists walked over to the printer to retrieve some print jobs, and found full-color pr0n prints sitting on the printer that someone had printed from one of the shared PCs in that lab.

An investigation ensued, and they found the offending machine, but couldn't pinpoint who had actually browsed to the site or printed the images. What they did find, was a VERY organized local directory of pr0n on the machine.

When they were looking through the upstream proxy and web logs, they found the site that the images were sourced from, found the date and time they were viewed and requested, etc. They finally figured out who the culpret was... and terminated him.

HOWEVER , they also found hundreds of other PCs across the company visiting the same site all over the logs, including some VERY high-level directors.

So now what do you do? Do you just fire the one person who was caught because of the reported incident, or do you start firing everybody because they're guilty of the same "offense" (browsing restricted content on company resources).

I don't know how it ended up, but I do know a lot of people were talked to and put on probation/had their public web browsing rights restricted or removed (only internal/intranet allowed).

Re:It's a huge barrel of worms (3, Insightful)

Anonymous Coward | more than 5 years ago | (#28292011)

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.

Some hints from a few years ago (2, Informative)

AHuxley (892839) | more than 5 years ago | (#28291921)

http://the.honoluluadvertiser.com/article/2004/Feb/05/ln/ln01a.html [honoluluadvertiser.com]

"Each member of the computer crime squad (FBI) is given a list of local businesses, Laanui said, with the idea of establishing a
working relationship with all of them."

and

""We're trying to build a rapport with companies, a lot of computer guys don't necessarily know we exist," Laanui said.
"Virtually anyone in the high-tech arena is up for a visit with the FBI.""

Summary copied verbatim from Techdirt (1)

c0d3g33k (102699) | more than 5 years ago | (#28292019)

... without proper attribution. The original author was Mike Masnick, to give credit where it is due. Interestingly, the link in the Techdirt story which pointed to the original AP story was changed in the Slashdot submission - following that link points back to the original version of itself. I suppose that's a form of indirect attribution, but still sloppy. And the reader has to click twice to get to the original news story. A tiny bit of editorial review would have been helpful.

Easy to prevent (1)

Aphoxema (1088507) | more than 5 years ago | (#28292037)

If I managed to be desperate enough to hand my computer over to anyone else, it would be without the hard drive in it, or at least the one with the information I care about.

I'd actually suggest to anyone who buys a new laptop and with the resources, immediately replace the hard drive with a blank one and install your OS of choice. You might even impress them when they're left with registering to Microsoft for you.

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