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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: 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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