A man convicted of child porn possession has been fighting to reclaim his personal emails and photos from the government, but so far has been rebuffed by its claims that separating the good and bad files would be too difficult to pursue. A lower court agreed with the government's assessment of the situation, but this has now been overturned by the Ninth Circuit Court of Appeals.
As the ruling [pdf link] notes, the lower court failed in its duty to shift the burden of proof from the convicted man to the government.
The panel held that the district court’s decision not to put the burden of proof on the government was legal error, where the defendant filed the Rule 41(g) motion after he pleaded guilty and the government no longer needed his property as evidence. The panel held that the government could not have carried its burden of proof had the district court correctly placed it on the government, where the government failed to submit any evidence of the difficulty and costs of segregating the defendant’s data, which it claimed was a legitimate reason for retention of the non-contraband files.
(Score: 2) by Subsentient on Saturday January 10 2015, @12:12AM
I had to look at the image on TFA towards the bottom to find out that it's the USA government.
"It is no measure of health to be well adjusted to a profoundly sick society." -Jiddu Krishnamurti
(Score: 1) by grammarpolice on Monday January 12 2015, @04:15PM
*WHICH government
(Score: 3, Insightful) by mechanicjay on Saturday January 10 2015, @12:14AM
Regardless of the nature of the contraband, the lower court set a dangerous precedent here.
"Can I have my non-contraband stuff back please?"
"Erm, no.
"Why not?
"We can't separate it out out..It's...It's um too hard to tell what's legal and what's not"
"How is that hard? Either an item is legal or it's not, if you can't tell what's legal and what's not, how can you possibly have a case against me?"
"Shut up, slave."
Burden of proof indeed!
My VMS box beat up your Windows box.
(Score: 0) by Anonymous Coward on Saturday January 10 2015, @02:56AM
While I agree with you in principle, I want to play devil's advocate here:
"I was arrested for possession of cocaine. The cocaine was cut with aspirin. Can I have my aspirin back, please?"
(I have no idea what legal stuff cocaine is cut with; it's just an example.)
(Score: 2) by LoRdTAW on Saturday January 10 2015, @04:11AM
Mostly cut with anything that is A:White, B: a powder and C:not likely to kill the user right away. Baking soda, baby powder, lactose, etc.
(Score: 2) by sjames on Saturday January 10 2015, @04:28AM
The court didn't determine that everything non-illegal must be returned regardless of the expense, only that the government has the burden to prove that the cost and/or effort makes doing so impractical. Even then, the judge hinted that if the defendant is willing to pay the costs, the government has a duty to allow it.
So in your example, if the defendant is willing to pay the costs of chemically separating out the aspirin, fine and dandy.
Otherwise, you end up with police deciding that a $10,000 big screen TV can't be returned because it may have a tiny trace of THC on it even though in the end the defendant was only charged with a misdemeanor.
(Score: -1, Troll) by Anonymous Coward on Saturday January 10 2015, @12:49AM
this does not belong on SN
(Score: 3, Interesting) by PinkyGigglebrain on Saturday January 10 2015, @01:57AM
I disagree. This is about people rights, and Soylent News is people.
This is about someones asking for their property, which is NOT of an illegal nature, to be returned after a court case has concluded. If the lower court ruling had been allowed to hold then the LEOs would just start to use this as a precedent to not return items to people once they have seized it.
Consider if you were to get wrongfully arrested and your laptop/PDA/smart phone with all your contacts, pictures, important emails, games and other personal files that are all completely legal to posses was seized.
Unless the SCOTUS overturns the 9th court you will have legal footing to request everything back.
Otherwise your screwed.
But I would love to hear your reasons for why this does not belong on this site. Please take a moment to log in and explain your opinion.
"Beware those who would deny you Knowledge, For in their hearts they dream themselves your Master."
(Score: 0) by Anonymous Coward on Saturday January 10 2015, @02:43AM
The lesson is, always keep back-ups?
But wait, then he could be again prosecuted for possession! Hmmm.
OK, lesson is, sort your illegal bits from the legal ones, and back-up the legal ones.
(Score: 0) by Anonymous Coward on Saturday January 10 2015, @06:21AM
You can't keep backups of your physical property.
(Score: 0) by Anonymous Coward on Saturday January 10 2015, @03:27AM
Except this guy wasn't wrongly arrested. He was convicted.
I wince anytime stories involving child molesters or kiddie porn aficionados are on this site, or Slashdot. Geeks seem to have an affinity for defending these people. I just don't get it. There are a lot better peoples' rights poster children than criminals who exploit children.
(Score: 0) by Anonymous Coward on Saturday January 10 2015, @03:39AM
Any time one of the four horsemen of the infopocalypse appear, a geek is summoned to do battle with it.
(Score: 3, Insightful) by sjames on Saturday January 10 2015, @04:37AM
That's because they know DAs and police like to push the boundaries with very unsympathetic defendants so they can later apply the precedents set against considerably more sympathetic defendants.
(Score: 2, Insightful) by Anonymous Coward on Saturday January 10 2015, @05:51AM
As another poster stated, these cases can be used to erode civil liberties. There's a saying among lawyers: "Bad facts make bad law."
There's also the issue that 9 times out of 10 the people are effectively being convicted of thought crime. There was even a case where a guy with anime -- CARTOONS -- that were deemed was charged with (and perhaps convicted of) possessing child porn. There's no fucking victim there at all: it's a drawing!
Most of the people convicted of child porn never touched a kid; they copied pictures off the Internet. Yeah, they violated some kid's privacy, and you're a sicko if you find child molestation arousing, but, as crimes go ... it's certainly less severe than, say, armed robbery, and they get harsher sentences than armed robbers.
Personally? I think people who abuse children should be sentenced harshly. I think people who like to look at children being abused, but don't actually hurt any kids, should be maybe given a slap on the wrist and sentenced to counseling or something. And I also think the FBI and whatnot should spend more of their resources chasing violent criminals and less on persecuting people because they have weird, sick fetishes.
Post anonymously not because I like child porn (I don't) but because planting digital evidence of having child porn is extremely easy and moreover stating this opinion -- even though it's not actually that out there -- is enough to give you a red letter because some people will think you're a monster. I am a coward by doing this; the name fits. But not being a coward is foolhardy in this case.
People throw reason out the window when dealing with kids. They shouldn't.
(Score: 2, Interesting) by Anal Pumpernickel on Saturday January 10 2015, @06:03AM
Because everyone has rights, even if they are guilty of something. That's enough of a reason to defend them. Or are you saying that freedom isn't for you, and you'd rather let the emotional "for the children" mob of ignoramuses infringe upon the rights of everyone in the name of saving children?
And from the looks of it, he did not exploit children. The people who did that could only be the people who raped the children. Being that I am pro-free speech, I am also against government censorship and bans of child porn possession, real or fake.
(Score: 3, Interesting) by Common Joe on Saturday January 10 2015, @06:56AM
I wince too, but for different reasons. Child abuse of any form ticks that emotional component in us. Most of us are hardwired to defend children. And police and courts and law makers know this and it's a very effective button to push with people.
From the article:
These days, I find it difficult to trust any conviction -- even child porn convictions. (This erosion of trust is also a good way to erode civil liberties.) We have evidence of people easily planting child porn on other people's computers, people who plead guilty because they cannot afford to defend themselves in long drawn out cases, a government that has more people locked up per capita than any other country in the world, prosecutors who want to lock up more and more people for political reasons, and a prison system that allows private businesses to get more money the more people they lock up.
If a person has been labeled a criminal by the system, I take that with a grain of salt of these days. It's very sad that we cannot trust our law system in any situation. Minorities have known that for a very long time. Unfortunately, it took me so long to realize that too. History is repeating itself. And we can learn a lot about what will happen from history.
(Score: 0) by Anonymous Coward on Monday January 12 2015, @02:18PM
I find it sad that you cannot trust the law system in any situation. Unfortunately, the 0.1% cases get blown way out of proportion on sites like this, and the takeaway people get is that it is the norm and not the extreme. It happens here, (especially) on cable news, blog sites, major news sites, etc. Sensationalism sells. And the very same people who strongly criticize the fact that the 0.1% of terrorist cases are used to justify strong security laws, or how the pandemic-du-jour virus gets way oversold as a public health concern, will then stand up and proclaim that police and DAs are evil and always act to screw you over.
(Score: 2) by Common Joe on Monday January 12 2015, @03:20PM
It's a lot higher than 0.1%. Not all cases are as extreme as pedophilia or terrorism, but plenty of lower profile cases point to some very significant problems. I'd be willing to place real money that over half the cases dealing with marijuana are handled incorrectly -- and not only do I not gamble, but I don't have a job. If we can't handle the little things right, how can we handle the bigger things correctly? (Where are all of those bankers who ruined the financial system? Are they in jail yet?)
This isn't to say that all police and DAs are evil. I have family and friends who are or have been police. I have good friends who are lawyers. I also have good friends who are black and others who are white. Some of them have children who are mixed. The problems extend on all sides -- both on the police / judicial side and also on the general public side. It's amazing how much all of my friends (police, lawyer, black, and white) all complain about the same things. The police, judicial system, and general public all do crazy stuff. My take away is that there are multiple sides to every story -- and usually more than two. My personal opinion is that the bigger the story, the bigger caution we should have.
(Score: 2) by cafebabe on Friday January 30 2015, @01:02AM
A very large number of bankers should be jailed. However, the adverse effect of their actions has been relatively diffuse in the manner that spamming has a diffuse effect.
If I send 1 billion spam messages, 0.1% are received and each received message wastes 10 seconds then I collectively and foreseeably waste 10 millions seconds of people's time. That's more than 1 person year of office productivity. Therefore, the externalized cost is more than one year of salary. For this anti-social behavior, some people believe that we should hunt down and kill spammers. After receiving unrelenting spam and having to upgrade mail servers to handle spam (now at 4GB per hour per published address), I am sympathetic to this cause. However, this is minor compared to financial fraud.
Bernie Madoff embezzled US$155 million(?) which is more disposable income than 100 first-world professionals could expect to earn in a lifetime. Therefore, this crime is on the scale of dashing the hopes and aspirations of 100 people. It should be punished accordingly. However, even this is minor.
Mis-selling of insurance and mortgages worldwide and the foreseeable catastrophe which it has caused is more than three times the cost of establishing a permanent base on the Moon for the purpose of moving heavy industry out of our biosphere and exploring further into space.
If we missed our chance to colonize space then, collectively, we deserve our fate.
1702845791×2
(Score: 2) by cafebabe on Friday January 30 2015, @12:52AM
I spent some of my own time helping families caught in child protection cases. My conclusion is that judges do very little to intervene when police officers and social workers have targets and quotas. Policies are routinely devised and followed which are contrary to science and law but the consequences of these schemes is suppressed [thomasjamesball.com]. And from experience with law and medicine, you're lucky if they're following any policy at all [wikipedia.org].
So, when I heard that a friend's neighbor was imprisoned for 10 years for child abuse my response was "Well, he may have been convicted but did he do it?" The best evidence my friend could muster was that the kid looked shy in a Halloween costume while a group picture was taken.
If everyone uses computers and no computer can be secured and every factoid is kept in case someone is retrospectively found to be a terrorist/pedophile/hacker/other bogeyperson then any error, accidental or malicious [bbc.co.uk] could be devastating to the subject of error. I believe Bruce Schneier suggested that watchlists should be encouraged to grow until they become ineffective. However, this may only be the position of a high-profile cryptographer who is already the subject of scrutiny. From my observations of "child protection" and "security services", a watchlist which far exceeds budget increases damage to credibility when inevitable MTBF occurs.
Maybe I'm an optimist but if profiles are going to be passed around as freely as credit records and with the same rate of errors, we may have to disregard the records and use our intuition.
1702845791×2
(Score: 2) by nukkel on Saturday January 10 2015, @10:56PM
The DA made the mistake of only ordering the contraband files forfeit. Normal procedure is to order the storage devices, and all files on them (be they contraband or not), forfeit. This, together with the lower court placing the burden of proof on the defendant (a legal error, since he had already pleaded guilty at that point), led the appelate judges to decide to revert the lower court's decision.
So this decision will be irrelevant for the majority of other cases out there.
(Score: 2) by darkfeline on Sunday January 11 2015, @12:23AM
>Normal procedure is to order the storage devices, and all files on them (be they contraband or not), forfeit.
Fuck law enforcement. Ten bucks says that the cop will just dump the files onto a storage NAS somewhere then just wipe the drives and bring them home or pawn them.
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