How To Seize a Laptop And Make It Stick 177
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.
tl;dr (Score:5, Insightful)
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'.)
Just Great... (Score:2, Insightful)
The legal system is too biassed (Score:5, Insightful)
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.
Nothing to see here, please move along (Score:5, Insightful)
Re:The legal system is too biassed (Score:5, Insightful)
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 :)
Those are only for the little people. (Score:5, Insightful)
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.
Police Use Resources at Their Discretion (Score:5, Insightful)
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.
..." 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.
... or have I missed something?
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
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."
Annoying fallacy (Score:5, Insightful)
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.
A better moral... (Score:2, Insightful)
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:Those are only for the little people. (Score:3, Insightful)
Re:The legal system is too biassed (Score:1, Insightful)
Re:My analysis....(IANAL) (Score:3, Insightful)
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.
Encrypt, encrypt!!!! (Score:3, Insightful)
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! :-)
Re:Annoying fallacy (Score:5, Insightful)
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 (Score:2, Insightful)
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:My analysis....(IANAL) (Score:3, Insightful)
Very good question. You could probably make the argument they engaged in unauthorized access of your computer system.
Re:My analysis....(IANAL) (Score:3, Insightful)
Re:My analysis....(IANAL) (Score:3, Insightful)
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) (Score:3, Insightful)
So you want the authorities to be tiptoeing around the citizens in fear of being punished?
Yes exactly! We are after all the ones in charge.
Re:Those are only for the little people. (Score:3, Insightful)
Innocent until proven guilty. Go get one of them convicted, and they're guilty. Until then, they're innocent.
Good luck getting one convicted.