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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: 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.
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(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.
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