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.
My analysis....(IANAL) (Score:4, Interesting)
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:The legal system is too biassed (Score:4, Interesting)
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.
Maybe the police did not care (Score:5, Interesting)
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:tl;dr (Score:3, Interesting)
Can illegally obtained evidence be used ? (Score:3, Interesting)
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:Fishing recipe (Score:4, Interesting)
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:My analysis....(IANAL) (Score:3, Interesting)
>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:Police Use Resources at Their Discretion YES! (Score:3, Interesting)
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:Fishing recipe (Score:1, Interesting)
Re:Those are only for the little people. (Score:1, Interesting)
Just as worrisome as the creeping spread of "immunity" is the militarization of the police force.
With the proliferation and glorification (within the law enforcement community) of SWAT teams, the switch to military-style weapons and tactics (MP-5s and door-bursting charges), and the us-vs.-them mindset of the modern police officer, is it any wonder that things like Ruby Ridge happen? (Note: I'm not a right-wing nutter--anyone who's read the details of the Ruby Ridge incident has to wonder why the FBI sniper shot an unarmed woman holding a baby. Randy Weaver should certainly have been fair game).
Far in the past are the days where an officer might try and talk someone into being reasonable--now it's go for the taser, and if that fails, pull a Glock, and escalate right through assault vehicles and machine guns as fast as you possibly can. Long gone are the days when police officers considered themselves members of the community and carried pistols. Gone too is any trust between law abiding citizenry and those tasked with enforcing the law.