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How To Seize a Laptop And Make It Stick

kdawson posted more than 4 years ago | from the pretend-to-care dept.

The Courts 177

Frequent Slashdot contributor Bennett Haselton takes a look back at the recent Boston case where police seized a student's laptop but had to give it back. "The EFF was right to argue that police had no right to seize the laptop of a Boston College student who was accused of forging an e-mail from his roommate. But according to the judge's reasoning, the police probably could have gotten away with it, if they had appeared to care more about pursuing the student for downloading pirated movies instead." Click the link for Bennett's analysis.
On May 21, Justice Margot Botsford of the Supreme Judicial Court of Massachusetts ordered police to return computer equipment that they had seized from Boston College student Riccardo Calixte in March. Police had obtained a warrant and seized the computer equipment on the basis of three alleged acts committed by Calixte: (a) forging an e-mail to a Boston College mailing list purporting to be from his roommate, Jesse Bennefield, claiming to "come out" as gay and announcing his membership on a gay dating site; (b) illegally downloading movies to his computer; and (c) hacking into the school's grading system to change grades for students. Justice Botsford ruled that on the one hand, even if Calixte had sent the forged e-mail, that did not constitute a crime, and on the other hand, the documentation supporting the search warrant had made only cursory references to the downloaded movies and the grade-hacking, not enough to support the standard of evidence required for a warrant.

The EFF was right to argue on Calixte's behalf that forging an e-mail to a mailing list does not constitute "obtaining computer services by fraud or misrepresentation" and hence does not violate Massachusetts's computer crime statutes. Unfortunately for future defendants in the same situation, the judge's ruling suggests that the court might have upheld the warrant even if the police had only pretended to care more about the alleged crimes committed by Calixte -- the hacking into the school's grading system, and the downloading of movies -- and less about the sending of the forged e-mail, which the courts found not to be a crime.

A portion of the judge's decision reads:

He [Jesse Bennefield, Calixte's former roommate and the "informant" whose tip led to the issuance of the search warrant] stated, among other things, that "he has observed Mr. Calixte hack into the BC grading system that is used by professors to change grades for students"; he also told [police detective] Christopher that "Mr. Calixte has a cache of approximately 200+ illegally downloaded movies as well as music from the internet."

The affidavit does not reveal any investigatory steps taken as a result of this January 28, 2009, conversation between Bennefield and Christopher. Rather, the bulk of the affidavit is devoted to a discussion of two email messages, apparently sent from the Google and Yahoo email services...

And later:

Moreover, although Bennefield reported this allegedly criminal conduct in late January, Detective Christopher did not seek a search warrant until March 30, 2009, two months later, and the affidavit does not reveal any effort to verify or follow up on any of the complaints, even by asking Bennefield for further details. By contrast, the claim that Calixte sent false emails is supported by two pages of detailed information, listing the steps taken to determine who sent the emails, the time they were sent, and the evidence suggesting that they were sent from Calixte's computer.

In sum, the principal focus of the affidavit was on the emails. Faced with the reality that the alleged email activity was probably not illegal, the Commonwealth now seeks to justify the search warrant, post hoc, based on an affidavit that fails to indicate either the time or the place of the criminal activity its informant claims to have witnessed, and that reflects no effort or attempt to verify the sketchy information supplied...

In other words: Even if the police didn't really care about the pirated movies and the grade-hacking, it might have helped to make the warrant stick if they had made more of a passing reference to those issues in the motion for a warrant, at least according to the reasoning expressed by the judge.

Compared to the analysis that the police conducted in order to determine whether Calixte sent the e-mails (such as looking up the records to see if the IP address was registered to his user account at the time), there's probably not much that the police could have done to determine if Calixte had downloaded any movies illegally, short of seizing his computer. Even if the campus had a log of all remote sites that Calixte had connected to, there would be no way to determine what he might have downloaded over a peer-to-peer protocol that encrypts downloaded data, as most peer-to-peer programs do.

But ironically, the fact that there is so little the police could have done to follow up on that investigation, would have made it even easier for them to create the appearance that they cared about the downloaded movies, even if they didn't! All they would have to do is say, in fancier language: "We asked the campus network if they could tell us what Calixte downloaded from various IP addresses, and they couldn't tell us anything. We asked them if they had any way of knowing what files might reside currently on Calixte's laptop, and they couldn't tell us anything." Basically: "We tried. We hit a wall right away. But we tried, and that proves we care." The warrant application as it was written, might as well have said that with regard to the issue of the downloaded movies: "We didn't try at all."

From the informant's side, the judge said that there was not enough evidence to support the issuance of a warrant because Bennefield's affidavit fails

"to state Bennefield's basis of knowledge that Calixte has in fact downloaded files to his computer, or that they are 'illegal.' Contrast Commonwealth v. Beliard, 443 Mass. 79 85 (2004) (named informant's basis of knowledge established by firsthand observation, furnished with detail and specificity)."

OK, so if you're a potential "informant" planning on ratting out your roommate, and you think that your roommate has downloaded some movies illegally, just ask him point-blank if you can see a couple of seconds of his clip of Wolverine, or some other movie in current release of which the 3,000 screens it is legally playing on does not include your roommate's laptop. Then you can "furnish with detail and specificity" the accusations that you want to make later.

So maybe the police have learned their lesson and they'll know how to get around this roadblock next time. I still wouldn't call that a tragedy for civil liberties, at least with regards to the acts alleged in this case. The EFF wisely took no position on whether Calixte actually did commit any of the acts that he was accused of, only that the police had no right to seize his equipment. But if the police can ever prove that someone hacked into their school's grading system, that person should be punished; that's not a civil liberties issue. Even downloading movies, which we tend to think of as a more victimless crime, means that for every dollar saved by someone watching a movie for free in their dorm room, the shortfall has to be made up by paying ticket buyers.

And if Calixte actually did send the forged e-mail pretending to be from Jesse Bennefield, then while the courts were correct to rule that that was not a crime, Bennefield could probably sue him in civil court, especially now that the police have done all the heavy lifting of uncovering the evidence. According to the warrant affidavit, the message to the Boston College mailing lists was sent from an IP address that had been registered to a computer with the same network name as Calixte's laptop. The e-mail also included a screen shot of a fake profile for Bennefield on the www.adam4adam.com site, and the network logs showed that an IP address registered to Calixte was the only IP address in that dorm to visit the gay dating site www.adam4adam.com in the five days prior to the e-mail being sent. Everyone is innocent until proven guilty, but if you had to bet everything you owned on a "Yes" or "No" answer to the question of whether Calixte sent the e-mail, which would you pick?

The EFF was right to go to court for the narrowly prescribed legal principles that (a) forging an e-mail to a mailing list does not constitute "obtaining computer services by fraud or misrepresentation" or "unauthorized access to a computer system," and that (b) vague accounts of illegally downloaded movies or rumors of hacking into a school grading system, are insufficient for the issuance of a search warrant. But that doesn't mean that the police can't overcome those obstacles next time, and it doesn't mean we should hold up Riccardo Calixte as some kind of cyber-liberties hero.

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177 comments

Simple answer: (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28309833)

Power glue.

Yields also sticky first posts.

Fuck you Linus you destroyed my computer (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28309863)

Linux just isn't ready for the desktop yet. It may be ready for the web servers that you nerds use to distribute your TRON fanzines and personal Dungeons and Dragons web-sights across the world wide web, but the average computer user isn't going to spend months learning how to use a CLI and then hours compiling packages so that they can get a workable graphic interface to check their mail with, especially not when they already have a Windows machine that does its job perfectly well and is backed by a major corporation, as opposed to Linux which is only supported by a few unemployed nerds living in their mother's basement somewhere. The last thing I want is a level 5 dwarf (haha) providing me my OS.

Re:Fuck you Linus you destroyed my computer (0, Offtopic)

mike9989 (1237998) | more than 4 years ago | (#28311503)

I know I shouldn't reply, but does anybody have copies of these trolls? Does anybody do any research into them? It seems to me that they are very focused around a few thing that are terribly out of date. Fascinating, though as a view of how the troll sees the world. It might be fun to set up some kind of troll museum!

Re:Fuck you Linus you destroyed my computer (0, Offtopic)

kazagistar (1291564) | more than 4 years ago | (#28311711)

What you see IS the copies. Someone had a hilariously stupid troll in the past, some people thought it was worth keeping for the lols, and keep reposting them. The ones you see the most are the most absurd, yet not absurd enough, so people still respond to them as if they were serious.

tl;dr (5, Insightful)

Anonymous Coward | more than 4 years ago | (#28309937)

Follow the old adage: If you are going to break a law, only break one law at a time.

Don't speed and be drunk
Don't deal drugs and forge your taxes
Don't pretext to be someone else and have copyright infringing material on the same machine.

(P.S. I know, I know. he didn't break the law. I'm just sayin'.)

Re:tl;dr (-1, Flamebait)

spidercoz (947220) | more than 4 years ago | (#28310239)

this is not flamebait, retards

Re:tl;dr (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#28311713)

I SAID this is NOT flamebait, RETARDS, can't you fucking READ?

Re:tl;dr (3, Interesting)

donaggie03 (769758) | more than 4 years ago | (#28310311)

Al Capone, is that you? How is that posting flamebait? I think the logic is sound. If you are going to break an inane or unenforceable law, Don't break other laws that draw attention to yourself or give the authorities an easier way to get you convicted. The only way I can see that post as flamebait is if the moderator got caught drunk driving AND the post was directed at him personally. Or maybe you just have something against slashdot's newest member, Anonymous Cowardon?

Re:tl;dr (2, Funny)

StikyPad (445176) | more than 4 years ago | (#28311067)

Don't speed and be drunk

Wait, what? I thought it was while transporting bodies that we weren't supposed to speed...

Re:tl;dr (1)

KingAlanI (1270538) | more than 4 years ago | (#28311355)

Those aren't bodies, those are really heavy empty barrels. Mr. Guido will be over shortly, to re-educate your kneecaps.

My analysis....(IANAL) (4, Interesting)

Anonymous Coward | more than 4 years ago | (#28309945)

The first think I would do in this guy's situation is to sue the city under the premise that since the search warrant was illegal, all activities flowing from the warrant were performed outside of the city's normal police powers. Since the activities were carried out without any authorized police powers, they were also carried out without the normal protections granted police during the lawful execution of their duties.

Potential charges would be:

1) Breaking and entering.
2) Trespassing.
3) Illegal search and seizure.
4) Theft of personal property.
5) Possession of stolen property.
6) Vandalism.
7) Unlawful entry.
8) False arrest.
9) False imprisonment (note that this doesn't require actually being jailed).
10) Dereliction of duty.

The next two would also be levied against whatever organization the city hired to peruse through my files:

11) Unauthorized access to a computing device.
12) Circumvention of a copy-protection mechanism (my user and root passwords).

I'm sure I could come up with more if I did some research.

Re:My analysis....(IANAL) (1)

Suisho (1423259) | more than 4 years ago | (#28310047)

I wonder if hacking laws would fall under it also.

Re:My analysis....(IANAL) (2, Insightful)

Sir_Lewk (967686) | more than 4 years ago | (#28311169)

Very good question. You could probably make the argument they engaged in unauthorized access of your computer system.

Those are only for the little people. (5, Insightful)

Anonymous Coward | more than 4 years ago | (#28310165)

The Police and Government don't have to play by those rules. They are only for you.
That is why we have a Secretary of the Treasury that is a Tax cheat. That is why police can do no knock searches on the wrong location without going to jail for breaking and entering. The qualified immunity of police has become an unqualified immunity in practice.

Re:Those are only for the little people. (2, Insightful)

tsm_sf (545316) | more than 4 years ago | (#28310429)

You'll conveniently forget these points the next time a "tough on crime" politician comes up for reelection.

Can illegally obtained evidence be used ? (2, Interesting)

Lead Butthead (321013) | more than 4 years ago | (#28310315)

Can evidence illegally seized in this alleged criminal case be used in a civil case? Can MP/RIAA legal thugs use the content of this ruling as basis to sue this student for copyright infringement?

Re:Can illegally obtained evidence be used ? (1)

donaggie03 (769758) | more than 4 years ago | (#28310433)

I'm pretty sure illegally seized evidence can be used in civil cases. I'm pretty sure civil cases have a much higher "conviction rate" than criminal cases precisely because, in general, there is a much lower standard to meet. This applies to the final finding as well as how to determine if some issue or item is admissible as evidence. That's why you see things like OJ Simpson getting acquitted of murder but losing millions of dollars in the civil suit.

Re:Can illegally obtained evidence be used ? (1)

nomadic (141991) | more than 4 years ago | (#28310847)

Eh, judges have some discretion as to whether to admit illegally obtained evidence. And OJ might have lost the civil suit simply because civil suits have a lower burden of proof you have to show to win (preponderance of the evidence rather than beyond a reasonable doubt.)

Re:Can illegally obtained evidence be used ? (1)

donaggie03 (769758) | more than 4 years ago | (#28310985)

Right, I agree with what you are saying, but at the same time, if i remember correctly, there was quite a bit of testimony and physical evidence that was allowed in the civil suite that was barred from the criminal case. All that evidence probably had a role to play in the different verdict as well.

Re:Can illegally obtained evidence be used ? (1)

Anubis IV (1279820) | more than 4 years ago | (#28311181)

I don't see why not. You don't collect evidence the same way in a civil suit, after all. You go through a period of "discovery" and whatnot, where you gather evidence. What may have been illegally-obtained evidence in a criminal case could be easily discovered evidence in a civil case. Of course, IANAL.

Re:Can illegally obtained evidence be used ? (1)

cyber-dragon.net (899244) | more than 4 years ago | (#28311647)

This is going to vary from country to country and their standards for evidence.

Fairly sure in the US if it was found illegally it falls under "Fruit of the poisonous tree" laws and can't be used, civil or criminal. There are some grey areas for licensed PIs where they seem to be able to do things cops can't but I am not sure on the details of that one. It would be the equivalent of breaking into someone's house and finding a stolen painting vs police knocking on the door and seeing it hanging there from the doorway. One is legal, one is not.

Now you could break in, see it, report it and have the police come look in exchange for immunity on the break-in charge :) Though why you would want to do that is beyond me.

Re:My analysis....(IANAL) (1)

unlametheweak (1102159) | more than 4 years ago | (#28310337)

The first think I would do in this guy's situation is to sue the city...

There has to be a way of punishing the guilty without punishing the tax payer. Suing your own government is just kicking yourself in the ass. It solves nothing, makes lawyers rich, gives some money to the victim, and likely does nothing to the perpetrators of the crime who committed the offense. In the case of the police, they will be looking after each other (like in the Jeffrey Dahmer [wikipedia.org] case where the police officer who was responsible for sending a naked juvenile to his death was re-hired [after being fired by public outrage] and promoted through union pressure).

Re:My analysis....(IANAL) (2, Insightful)

Hatta (162192) | more than 4 years ago | (#28310865)

There has to be a way of punishing the guilty without punishing the tax payer. Suing your own government is just kicking yourself in the ass.

Easy, if the police take something without a warrant, that's theft. Prosecute them for that. None of this internal review board shit. If an officer steps outside his legal authority he is a criminal.

Re:My analysis....(IANAL) (2, Informative)

donaggie03 (769758) | more than 4 years ago | (#28310387)

I don't think it works that way. Just because a warrant was later found to be invalid does not necessarily mean the police were acting illegally. I think the judge would say that as long as the police were acting "in good faith" or whatever, then they can't be touched. Unless of course they did something totally heinous or overreaching, in which case the warrant issue would have nothing to do with it. Also, I think I should point out that in general, the legality of the police actions and the admissibility of any evidence found are two separate issues.

Re:My analysis....(IANAL) (2, Interesting)

Hatta (162192) | more than 4 years ago | (#28310963)

>I don't think it works that way.

It should.

Just because a warrant was later found to be invalid does not necessarily mean the police were acting illegally.

If the warrant is the only reason it was legal for them to do what they did, and the warrant is invalid, then their actions should be considered illegal.

I think the judge would say that as long as the police were acting "in good faith" or whatever, then they can't be touched.

In that case, prosecute the judge who issued the invalid warrant. Yes, I know he has immunity. This is a huge problem with our system. We need to put some TEETH into the law to stop those who violate our rights.

Unless of course they did something totally heinous

How is theft not heinous?

Re:My analysis....(IANAL) (2, Insightful)

donaggie03 (769758) | more than 4 years ago | (#28311285)

The problem I see with your argument is that at some point in time the police did have a valid warrant, signed by a judge, which directed their course of action. Based on this legal document, the police then acted accordingly, and LEGALLY. If the warrant was later found to be invalid for any reason, then all evidence stemming from the warrant is thrown out. That is how it generally works now. Just because the warrant was later found to be invalid, you can't take the police officer's legal actions and retroactively make them illegal. That would be a perfect example of an ex post facto law, which is unconstitutional. Warrants are thrown out all the time. Sometimes it is thrown out because the police officers left out some facts, or because the issuing judge gives them out too easily, or for any number of reasons. It isn't always the officer's fault and it isn't always the judge's fault, so pinning all the blame on one or the other in one fell swoop wouldn't work very well. These things should probably be worked out on a case by case basis, which is how it is currently done.

Re:My analysis....(IANAL) (2, Insightful)

Hatta (162192) | more than 4 years ago | (#28311791)

These things should probably be worked out on a case by case basis, which is how it is currently done.

Yet no one ever goes to jail for issuing false warrants.

Re:My analysis....(IANAL) (1)

donaggie03 (769758) | more than 4 years ago | (#28311885)

Yet no one ever goes to jail for issuing false warrants.

I agree that is a problem, but that signals to me that the system needs to be fixed, not overhauled. I'm not really sure what the situation is to the problem we are discussing, but I'm also fairly certain that the solution you suggest would be just as inappropriate.

Re:My analysis....(IANAL) (1)

maxume (22995) | more than 4 years ago | (#28311477)

I doubt you could find a lawyer that would take up such a case on contingency, so get out your wallet (and cross your fingers).

Re:My analysis....(IANAL) (1)

itsthesmell (1030322) | more than 4 years ago | (#28311489)

If you attempted to bring any of these charges you would lose, as the warrant was obtained and executed in good faith, meaning that, at the time of warrant execution, officers believed that their warrant was valid. If officers had falsified information on the warrant affidavit and/or lied to the judge signing the warrant then you would have a case, but no one is claiming that that occurred. The signing judge reviewed the facts of the case as listed in the warrant application and determined that there was probable cause to issue the warrant. You may fault the officers for charging a crime based on tenuous legal theory, but remember that they presented that legal theory for review to the signing judge and that judge concurred. The failure in the system occurred at the signing judge. If the only act for which sufficient probable cause was demonstrated was not actually a crime, then the signing judge should not have signed the warrant.

Re:My analysis....(IANAL) (1)

cyber-dragon.net (899244) | more than 4 years ago | (#28311565)

Unfortunately the best he can do is make all the evidence inadmissible in court.

The police had a warrant, which at least in the US means signed by a judge. That is all the police need to be protected. The fact it was found to be faulty later means nothing they found can be used, and they have to give it back and say their sorry, but at the time of the activity it was perfectly legal. No recourse available.

The judge who signed it has been embarrassed, and the police annoyed, that is as much vindication as he can get at this point.

IMHO this is a case of checks and balances in the system working. Sure they should have worked sooner, but they did work.

Have you seen my glasses? (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28309987)

The rays are BLINDING me and i am vulnerable to Italian attacks! Countrymen, brothers, hasten to my aid! I beseech you!

Shut the fuck up Bennett (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#28310023)

you were a douchebag in 96 and you're a douchebag today. Fuck you and peacefire you elitist prick

Re:Shut the fuck up Bennett (0, Flamebait)

Anonymous Coward | more than 4 years ago | (#28310167)

THIS is flamebait

Re:Shut the fuck up Bennett (2, Funny)

Anonymous Coward | more than 4 years ago | (#28310403)

THIS is flamebait

This is Spartaaaaaaaaaaaaaaaaaa!

Re:Shut the fuck up Bennett (0)

Anonymous Coward | more than 4 years ago | (#28310685)

Red sauce on pasta?

Just Great... (2, Insightful)

Suisho (1423259) | more than 4 years ago | (#28310025)

Just because one pathetic excuse doesn't work, try another to do an unlawful seizure. Its like saying "I *think* you might possibly have stolen goods in your house, so I'm going to take couch to make sure it isn't stolen." yeah, that doesn't go over well.

The legal system is too biassed (5, Insightful)

JustNiz (692889) | more than 4 years ago | (#28310029)

Why the heck does the law make an imessuarably small dent in a megacorporations profits more important than fraud being perpetrated against a citizen? its ridiculous and very wrong.

Re:The legal system is too biassed (5, Insightful)

NewbieProgrammerMan (558327) | more than 4 years ago | (#28310157)

Why the heck does the law make an imessuarably small dent in a megacorporations profits more important than fraud being perpetrated against a citizen?

Because the megacorporations can afford more lobbyists than most citizens? (Sorry for answering the rhetorical question :)

Re:The legal system is too biassed (0)

Anonymous Coward | more than 4 years ago | (#28310745)

Your post got me to thinking. I have always assumed, like you , that citizens are powerless against large corporations and in the real world this is unfortunately true.

However, hypothetically speaking if people (not just a few individuals but very a large number) could be organized to fight for a single purpose they would be able to compete with even the largest mega corporations.

I mean 10s or 100s of millions of people pooling there money together for a single cause could financially trump any corporation.

After all the richest organization in the world are countries and their money effectively comes directly from the people.

Re:The legal system is too biassed (1)

NewbieProgrammerMan (558327) | more than 4 years ago | (#28310953)

I mean 10s or 100s of millions of people pooling there money together for a single cause could financially trump any corporation.

Of course they could, and do (sometimes). I think the the problem is that there's hundreds and thousands of monied interests flooding legislators and executives with lobbyists, and in most cases there's just not enough "public outrage bandwidth" to support the effort required to push back any significant fraction of them.

I mean, how many unrelated grass-roots efforts can the average Joe support before he's out of time and/or money? Most of us are too busy earning a living to do very much.

Re:The legal system is too biassed (1)

Helix666 (1148203) | more than 4 years ago | (#28310957)

Except, to get those tens, or hundreds, of millions of people to pool their money, you'd have to peel them away from watching their latest reality TV show. And then you'd have to get them to care, and if someone even breathes the words "child pornography" or "terrorism" anywhere near this single cause, it's trashed in the court of public opinion and you'll never see any money at all.

Re:The legal system is too biassed (0, Redundant)

interkin3tic (1469267) | more than 4 years ago | (#28310875)

Because the megacorporations can afford more lobbyists than most citizens? (Sorry for answering the rhetorical question :)

Yes?

(sorry for answering YOUR rhetorical question, and for continuing it.)

Re:The legal system is too biassed (3, Interesting)

TheGratefulNet (143330) | more than 4 years ago | (#28310255)

who's your daddy?

its that simple.

the money trail is *perceived* as coming from the corps. the power base is now and always has been the rich.

you don't punish the rich when they do wrong; not usually. they can defend themselves.

attack and punish the individual since they can't.

simple. animal mentality used in human society. still.

Re:The legal system is too biassed (1)

basementman (1475159) | more than 4 years ago | (#28310761)

So it's more okay to steal from corporations than from your average citizen? Stealing is stealing.

Re:The legal system is too biassed (1, Insightful)

Anonymous Coward | more than 4 years ago | (#28310809)

You're right, stealing is stealing. But copyright infringement is not stealing. It's a dent in profits, not a dent in inventory. Apples and oranges, friend.

Re:The legal system is too biassed (0)

Anonymous Coward | more than 4 years ago | (#28311889)

So it's more okay to steal from corporations than from your average citizen? Stealing is stealing.

But remember copy right infringement != theft. IMHO both are wrong, but one is more harmful than another.

So... (-1)

dread (3500) | more than 4 years ago | (#28310041)

A couple of douchebags. They should be sentenced to 25 to life in the same cell.

Fishing recipe (2, Funny)

tverbeek (457094) | more than 4 years ago | (#28310043)

Here's a great warrant-free recipe for convictions:
1) Seize computers from random people on flimsy grounds that you know will be thrown out.
2) ???? (Go fishing through their hard drives for evidence of actual crimes.)
3) Prosecute!

Re:Fishing recipe (3, Informative)

shentino (1139071) | more than 4 years ago | (#28310277)

Won't work in theory.

The fruit of a poisoned tree doctrine will make step 1 nuke step 2.

Re:Fishing recipe (3, Interesting)

donaggie03 (769758) | more than 4 years ago | (#28310517)

Won't work in theory.

The fruit of a poisoned tree doctrine will make step 1 nuke step 2.

Except that is almost exactly what the judge in this case suggested the police should have done. The only difference, as far as I can tell, is the police already had a pretty good idea what "actual crime" they would try to find evidence for.

Re:Fishing recipe (1)

Anubis IV (1279820) | more than 4 years ago | (#28311245)

Actually, what the judge suggested was that you need to get some of the reasons for the warrant to stick. If step #1 of that recipe occurs, and all of the reasons get thrown out, then you get nothing at all. You must get something to stick, which is why that recipe doesn't work, and why it's different than what the judge was saying.

Re:Fishing recipe (1)

donaggie03 (769758) | more than 4 years ago | (#28311457)

Ok I agree there. But change the argument just a little. Instead of getting the warrant for something that will get thrown out, get the warrant for some victimless, harmless crime, that has minimal penalties. Then use the warrant to "stumble upon" incriminating evidence for harsher crimes. Now will it work?

Re:Fishing recipe (1)

Anubis IV (1279820) | more than 4 years ago | (#28311525)

Quite possibly, though IANAL, so I can't say. It seems that this analysis suggests that would work though.

Speaking of evidence... (1)

Serenissima (1210562) | more than 4 years ago | (#28310303)

I wonder what evidence they could have found about hacking into the school's computers to change grades. Would he be stupid enough to keep a log of all IP numbers he connected to so there would be a nice trail to follow right to the school's sever? If someone hacked a server, wouldn't you need to look at that server to find evidence that there was a connection with a particular person/IP number?

It seems ridiculous to the point of absurdity that they even put that in the warrant in the first place.

Re:Speaking of evidence... (1)

donaggie03 (769758) | more than 4 years ago | (#28310663)

I wonder what evidence they could have found about hacking into the school's computers to change grades. Would he be stupid enough to keep a log of all IP numbers he connected to so there would be a nice trail to follow right to the school's sever? If someone hacked a server, wouldn't you need to look at that server to find evidence that there was a connection with a particular person/IP number? It seems ridiculous to the point of absurdity that they even put that in the warrant in the first place.

You make it sound as if address tracking was the only possible evidence that could be found that would prove this type of hacking. What if the school's grade changing program had a simple web based interface, and that website was conveniently bookmarked in this guy's browser. And then let's say the police found some type of program that was commonly used to crack various passwords? Maybe this guy was stupid enough to have a long string of various emails saved from the past few months that discuss his grade changing ability? Pick two out of the above three, and you probably have enough proof to convince the university to take a closer look at their own server. If something is found, then THAT would be the proof that neatly ties up all the rest of the circumstantial evidence.

Pr0n (4, Funny)

rodrigoandrade (713371) | more than 4 years ago | (#28310045)

Depending on the amount of pr0n in its harddrive, the outcome could be pretty sticky.

Moral of the Story? (3, Informative)

Lumpy (12016) | more than 4 years ago | (#28310065)

Hide your shit better. Keep the laptop pristine and use a live cd + usb drive for your nefarious stuff.

A better moral... (2, Insightful)

Anonymous Coward | more than 4 years ago | (#28310333)

Don't do nefarious stuff.

It is also probably worth mentioning that this might simply be a case of Sore Butt Syndrome.

The roommate obviously had plenty of motive to implicate and/or frame his roommate, because his roommate had framed him as having come out as a homosexual. Not to mention, he had plenty of time to access his roommate's computer to, perhaps, hack the school grade system and download illegal material. Or, he might not have bothered, just tormenting the guy with a false arrest was enough to make him feel better.

To summarize, both of these guys are a couple of winners.

Re:Moral of the Story? (1)

MarkvW (1037596) | more than 4 years ago | (#28310777)

Thank goodness most criminals impulsively fail to plan!
Of course, if the crooks planned they probably wouldn't do most of the criminal stuff.

Nothing to see here, please move along (5, Insightful)

rhsanborn (773855) | more than 4 years ago | (#28310127)

Police seized a laptop on the wrong statute, and didn't actually do any investigative work on things for which the state allows someone to seize a laptop. Yes we can have a discussion about whether it's appropriate to be able to seize a laptop for copyright accusations, but this looks like a scare analysis rather than anything actually insightful.

Police Use Resources at Their Discretion (5, Insightful)

eldavojohn (898314) | more than 4 years ago | (#28310175)

In other words: Even if the police didn't really care about the pirated movies and the grade-hacking, it might have helped to make the warrant stick if they had made more of a passing reference to those issues in the motion for a warrant, at least according to the reasoning expressed by the judge.

I don't get it. Police use their resources at their discretion. I had a friend getting a massive speeding ticket once and in the middle of filling out the ticket, the cop's radio went apeshit. Someone had been shot nearby in DC so the cop just said, "This is your lucky day" and left. Why? Because he had better shit to do! Three times in one month my car was broken into and nothing was stolen but considerable damage was done to my vehicle. I asked cops if there was an option to dust for fingerprints ... what do you think their answer was? I was at a party in college where a bunch of people were smoking five bowls of weed when cops knocked on the door. They were there to tell us to turn the music down. They smelled/saw weed. They told everyone to shut up or go home and that's what we did. Why didn't they book everyone in the room for possession? Probably because they had more important shit to do that night.

Point being, if you're complaining about your neighbor or roommate engaging in an illegal activity, stick to investigating what the source of the complaint is. His roommate wasn't upset about illegal file sharing, that was just to spite the guy. The cops requested a warrant correctly addressing the only problem anyone was having--the fact that Calixte may have been impersonating someone. Maybe changing grades bothered his roommate, I don't know.

Let me ask you this, if your neighbor had a problem with your pool parties getting too loud and he called the police and said "Oh yeah, and he also speeds when he drives in our neighborhood and I saw him with fireworks when they're illegal in our state and sometimes he has a bonfire without the notified officials being there and and and and and ..." What would you do in a situation like that if you were the responding officer? Calm the guy down, verify if there is an issue, resolve the issue and tell the guy he needs proof if he wants to make it stick.

Now what if police implemented a template warrant for computers that had "illegal games, illegal music, illegal movies, etc" on it so that just in case they wanted icing on the cake for whatever they were going after you for, it was there? You know, just list common things. You need to know exactly what you're getting a warrant for otherwise it's an abuse just like the government wiretappings now.

Your editorial seems to consist more so of "if you really want to screw someone in a case like this, make sure you verify all this extra illegal stuff he's doing." ... or have I missed something?

Re:Police Use Resources at Their Discretion (0)

Anonymous Coward | more than 4 years ago | (#28310967)

His roommate wasn't upset about illegal file sharing, that was just to spite the guy. The cops requested a warrant correctly addressing the only problem anyone was having--the fact that Calixte may have been impersonating someone.

That doesn't really explain it. If all the cop cared about was the forging of an e-mail, why did he wait several months before serving the warrant? If the guy is frequently seen with other laptops and computers, how can he even be sure, two to three months later, that there's even any evidence to find?

Let me tell you what this is really about: sloppy police work + elected judge = illegal warrant.

Re:Police Use Resources at Their Discretion YES! (3, Interesting)

davidsyes (765062) | more than 4 years ago | (#28310997)

They sure do.

"Three times in one month my car was broken into and nothing was stolen but considerable damage was done to my vehicle. I asked cops if there was an option to dust for fingerprints ... what do you think their answer was? "

Once, my car's transmission went out. Acura had to order a replacement, but it would have been more expensive to install a new one from the factory, so they offered a rebuilt transmission, one from Japan. It would take a while, so my car was down, in the lot maybe 2 weeks or almost a month (can't recall exactly, as this was ~summer 1992). Multiple ensuing issues kept my car in the dealer's hands and i was getting antsy. I thought they were punishing me for hounding them, and my car ended up there longer.

Then, after they got all the parts replaced, they gave me a good news/bad news call. The parts were installed, the car runs great, but it's not ready. Why? Someone stole one of the wheels (i had 4 aluminum allow wheels; can't recall the tires being new, though), stole the radio, and damaged something else i can't remember.

My company president was an attorney, and told me it was bullshit, that they were responsible. Told me to press on. Acura told me that that i had signed a waiver making holding them harmless and not at fault. Then, i was livid. Shortly, the police called and told me the had a case involving my car, that it was stripped of some parts, but there were not broken windows or locks. Sounded like an inside job. I began to wonder where this was going. Was *i* being implicated? How? I don't have access to their lot, and as far as i know, they had lot security in form of doors, locks, cameras, a human, and i believe a sentry dog.

I think I asked the calling officer to dust for prints. He said they did, and that the case was suspicious. Being ex-Navy, my prints would be available to DOD and certain authorities, but i don't know if Mountain View PD would have access to them. Anyway, i was personally in the clear. The conversation ended on whether or not i was going to file a report, and that i might need one for insurance and so on. Oh, and that this particular dealership had had MULTIPLE break-ins and car parts thefts. No mention of inventory being stolen. So, it sounded like one or more persons were after specific, hard-to-order/obtain parts. So, why not take the whole car and strip it? 1989 Integra models would have sold more for parts than as a whole assembly.

I called the dealer. They tried to fall back on the disclaimer/release form. I had already had a refreshed conversation with my lawyer/boss, and i phrased my stern verbal warning to the dealership manager. Replace my parts, at no cost to me, or else i'd disclose their issues.

Another good news/bad news call. They had gotten the wheel from a central valley dealership, but it was the wrong side. They would not be able to use it because installing it in the wrong direction would cause "blue rotor", which i'd never heard of. Getting the right wheel would take another week or so. When the ordeal was over, i think i never used nor bought parts from that dealership again. Later, they relocated to a different, more accessible location (from a cul-de-sac, IIRC, to the main drag) during Mountain View's auto row remodeling spree.

Fortunately, the police seemed to already have an ongoing fraud investigation that saved MY ass shitloads of money. It seems i was at the nexus of being a pain in the ass to the dealer, my car had parts SOMEbody wanted, and there was a fraud activity going on. Fate/karma/good luck/something saved my ass. People here say the worst PD's to be on the wrong side of in the bay area are Campbell, Mountain View, Milpitas, and Daly City. Mountain View PD came to my rescue because somebody was up to no good. My car was probably the one that finally tipped the scales on likely ongoing fraud. Thankfully, fingerprints on the car didn't implicate me, and the police figured i didn't reasonably have access to commit such acts on my own car and was not involved but was yet another victim.

Re:Police Use Resources at Their Discretion YES! (1)

tsstahl (812393) | more than 4 years ago | (#28311869)

Thankfully, fingerprints on the car didn't implicate me

It is your car. Your finger prints should be all over it with impunity. Heck, you could use your finger to write "I DID IT" in the dirty wheel well and they would have nothing on you.

In essence, you got police help because you were victim X of Y, not simply victim 1. I know you said that, but this is the Cliff's Notes version.

Re:Police Use Resources at Their Discretion (2, Funny)

SoupGuru (723634) | more than 4 years ago | (#28311103)

Three times in one month my car was broken into and nothing was stolen but considerable damage was done to my vehicle. I asked cops if there was an option to dust for fingerprints ... what do you think their answer was?

That they've got four more detectives working on the case and they're working in shifts? Did the thieves at least leave your Credence?

ohnoitsbennett (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#28310187)

can we get Jon Katz back instead?

Annoying fallacy (5, Insightful)

Captain_Carnage (4901) | more than 4 years ago | (#28310259)

Even downloading movies, which we tend to think of as a more victimless crime, means that for every dollar saved by someone watching a movie for free in their dorm room, the shortfall has to be made up by paying ticket buyers.

I find this statement to be utterly false. The movie industry releases hundreds of movies per year; some of the movies do hundreds of millions of dollars in business, some do at most a few million dollars, or even less. So how do you define "shortfall" as used above? The movie industry (and apparently the contributor) apparently assume that anyone who downloads a movie illegally would have been willing to pay $10 to see it legally, if downloading it were not an option. If you downloaded 200 movies over a month's time (or even a few months time), that's $2,000 worth of movie tickets... How many people are really willing to spend that much on movie tickets, in a month or even a few months? How many college students watching illegally downloaded movies in their dorm room have $2,000 a month/semester/whatever to spend on movie tickets? Or for that matter, time to watch them? The idea that every illegally downloaded movie represents a shortfall to the movie industry is absolutely absurd.

Re:Annoying fallacy (4, Insightful)

nomadic (141991) | more than 4 years ago | (#28311035)

The movie industry (and apparently the contributor) apparently assume that anyone who downloads a movie illegally would have been willing to pay $10 to see it legally, if downloading it were not an option.

And most slashdotters assume anyone who downloads a movie illegally wouldn't have paid for the ticket if it had not been available, so no loss.

Obviously, both sides are wrong.

Re:Annoying fallacy (2, Insightful)

Logical Zebra (1423045) | more than 4 years ago | (#28311165)

As with most things, the truth lies in the middle. Does every downloaded movie immediately equate to lost revenue? No, it does not. But some downloaded movies do.

Re:Annoying fallacy (1)

Arkham (10779) | more than 4 years ago | (#28311587)

I got a $50 itunes gift card for Christmas. I have $49 left on it in June. Why? Because there hasn't been a single album that has come out that I didn't want to own the whole thing (and thus bought the CD), and there's not been a good movie out of the theater released onto DVD this year.

What the hell out there is worth stealing, when I can't even find something worth getting legally?

Re:Annoying fallacy (1)

SydShamino (547793) | more than 4 years ago | (#28311673)

And to be fully fair, some downloaded movies result in the same person seeing the movie in the theater ("It was so good I had to see it on a big screen.") or buying the DVD ("I never would have paid to see that based on the previews, but after downloading it I fell in love and bought the DVD for the extras.").

No, neither of those are tremendously likely, but just like some downloaded movies cost revenue and some downloaded movies have no effect on revenue, some downloaded movies add revenue.

I think the third category is much larger for music, because I think people are more likely to sample free music then want to buy it, rather than sample free films then want to buy them for later.

Re:Annoying fallacy (1)

chrylis (262281) | more than 4 years ago | (#28311695)

And on the other hand, some downloaded movies immediately equate to increased revenue by providing publicity and making people want to watch in the theaters; compare the studies that have found that P2P music downloaders buy more CDs and official music downloads.

Seems to me that the best we can do is to say that we don't know but that it's probably about a wash.

Re:Annoying fallacy (1)

ground.zero.612 (1563557) | more than 4 years ago | (#28311775)

You've hit on the biggest underlying problem with copyrighting art.

You see, beauty, and pleasure are subjective. Therefore, a movie/song/painting/performance that one person may enjoy, I may find complete shit. When you produce a widget who's value to the consumer is subjective and does not follow normal economics, you shouldn't be allowed to claim your widget has any value at all. At that point it's your opinion that your widget has a monetary value. If anything, the actual value would be in a strict sense, your man hours spent in production along with the cost of the raw materials... As anything above and beyond that, as I said, is subjective.

I produced a music album; I think it's worth $10,000,000USD; I think if people steal copies of it I should sue for unconstitutional damages because I lost $10,000,000. Sound familiar?

Art is not a normal commodity, it does not have an intrinsic value. The price of art is subjectively assigned only by people that value it. Ie, if I pirate 1 million copies of THE WORST selling, worst rated, album, did the distributor really lose 1,000,000 * retail price?

This is exactly why pirating digital art doesn't hurt anyone. Period. Software is a completely different story...

Maybe the police did not care (4, Interesting)

AtomicJake (795218) | more than 4 years ago | (#28310263)

Looks to me as a private war between roommates, which went out of control and then to the police. Interesting that the police cared enough to seize one computer, but probably just to calm down this war a bit. Why should they actually care too much about the other stuff? And what interest may the police have to keep the laptop for a longer time?

Re:Maybe the police did not care (1, Funny)

Nidi62 (1525137) | more than 4 years ago | (#28310815)

"And what interest may the police have to keep the laptop for a longer time?" They wanted to copy the movies for themselves?

Re:Maybe the police did not care (1)

Runaway1956 (1322357) | more than 4 years ago | (#28311419)

"And what interest may the police have to keep the laptop for a longer time?"

They haven't finished watching the movies/porn yet? "Awwww, Your Honor, can't we keep this computer for just another week? I forgot how good "Debby does Dallas" was, and with my schedule, I won't be able to watch it til the weekend!"

I'm confused: he was hacking! (2, Funny)

MobyDisk (75490) | more than 4 years ago | (#28310603)

Why is it that no one is paying attention to the fact that he was breaking into the school computer system and changing grades? Should that not have been the police's main concern? Isn't that a significantly bigger crime than the others? Shouldn't the school have been interested in this? "Hello Police, I saw this guy loitering in front of the supermarket. Oh, and he was also killing dozens of people with a machine gun." "Thank you sir, we'll get right on that loitering thing."

Re:I'm confused: he was hacking! (1)

HeronBlademaster (1079477) | more than 4 years ago | (#28311777)

Because there, apparently, wasn't any evidence (other than the roommate's apparent repetition of rumors) that he had been changing grades.

Say we start spreading rumors on the internet that MobyDisk has been changing grades on his school's computer system. Let's say your roommate (or best friend, girlfriend, teacher, whoever) hears the rumor, believes it, tells other people, and, of course, connects your screen name with your real name.

Do you want the police knocking on your door for this?

hmmm (1)

nomadic (141991) | more than 4 years ago | (#28310889)

How about Bennett stops trying to lecture me on the law, and I promise not to lecture him on programming? Why has he become slashdot's legal analyst?

Encrypt, encrypt!!!! (2, Insightful)

flajann (658201) | more than 4 years ago | (#28311023)

Yep. This is one more example of why we all should make strong and daily use of encryption. Of course, the next thing they'll try is "Use of Encryption is Suspicious!"

Well, they can prance all they wanna. They can't do diddly unless they get the passphrase from you. But, of course, you do recall how forgetful you are? Or did you forget! :-)

Sign, sign!!!! (1)

Burz (138833) | more than 4 years ago | (#28311235)

Yes, all the correspondence you send via email could be cryptographically signed, quite possibly preventing a forgery attempt (or keeping it from being taken seriously by anyone).

Re:Encrypt, encrypt!!!! (0)

Anonymous Coward | more than 4 years ago | (#28311309)

hey can't do diddly unless they get the passphrase from you. But, of course, you do recall how forgetful you are? Or did you forget! :-)

Can't do anything?

Mr. Flajann,

I regret to inform you that you are required to provide any and all passwords to law enforcement officers upon request, and that forgetting a passphrase is in violation of Section 3, Paragraph 6 of the "Keep our Kids Safe from Internet Predators Act." The minimum sentence is 5 years imprisonment. In the future, I suggest you not use encryption if you want to avoid jail time.

Ignorance of the password is not an excuse.

Reginald T. Wheeble, Internet Cop

Re:Encrypt, encrypt!!!! (0)

Anonymous Coward | more than 4 years ago | (#28311429)

The way you talk is annoying as hell. You should've been the 'Don't tase me bro' guy

Re:Encrypt, encrypt!!!! (1)

Arkham (10779) | more than 4 years ago | (#28311607)

Encryption doesn't protect you from the legal system. It may physically keep them out, but once a judge orders you to provide the password and you refuse, you get to go to jail until you comply.

I don't understand this (1)

david_thornley (598059) | more than 4 years ago | (#28311063)

IANAL, which may be painfully obvious to those who are.

I thought that the idea of a search warrant is that the police submit evidence of a crime to a judge, and while the evidence doesn't have to be enough to convict it does have to meet a certain level of credibility.

This means, that to get a warrant to search a laptop based on copied movies, I'd think there'd have to be at least a little evidence of a crime, which would presumably be felony infringement (which is significantly more than having one unauthorized copy of a movie) and there would have to be some evidence, so one person seeing one movie on my laptop that wasn't legally available on DVD wouldn't hit the criterion. Seeing one movie on my laptop that was available on DVD would indicate nothing at all, of course, since there's no reason to think it wasn' t there legally.

Changing grades is presumably a crime in most states, but the police would have to have something beyond speculation. Presumably, also, the best means of investigation would be to check computer records against paper ones, and talk to the teachers of the classes in question.

That means that I don't understand why I should be afraid of anything based on this. So, search warrants are sometimes erroneously issued, as this one was, but that's nothing new. The police tried to make a claim based on what they might have been after, and the court ruled they hadn't gotten enough information, as in hadn't investigated enough, to meet search warrant requirements. If the police investigate, they'll have to come up with evidence. I don't see a judge issuing a search warrant without some sound evidence, and I don't think "we can't get the evidence one way or another" is going to qualify.

So, it looks to me like this is just hype.

Right... (0)

Anonymous Coward | more than 4 years ago | (#28311459)

"[...] means that for every dollar saved by someone watching a movie for free in their dorm room, the shortfall has to be made up by paying ticket buyers."

Because of course the student would have spent 12 days and $2000 in the theater, if he hadn't downloaded those "200+ movies".

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