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The Justice Department is set to argue Wednesday before a federal appeals court that it may prosecute people for crimes based on evidence obtained from their computers—evidence that was outside the scope of an original probable-cause search warrant.
That's a big deal in today's digital age. Society has evolved to the point that many people keep all of their papers and effects co-mingled on their computer hard drives.
The highly nuanced legal dispute initially seems innocent enough. It concerns an accountant's tax evasion conviction and two-year prison sentence in 2012 that was based on a court-authorized search and imaging of his computer files. Stavros Ganias' files were copied as part of an Army overbilling investigation into one of his clients. Holding on to the imaged files for nearly three years, Connecticut authorities discovered fresh evidence unrelated to the initial search of the files and got new search warrants to investigate more of the accountant's mirrored files that were already in the government's possession. All the while, Ganias had subsequently deleted those files from his hard drives after the government had imaged them, according to court records.
The case asks how long the government can retain somebody's computer files—files that are unrelated to a court warrant. The accountant's lawyers said that once the government got what it needed regarding the accountant's client, the remainder of Ganias' files should have been purged. Federal prosecutors disagreed and said they retained the imaged files for numerous reasons, including for authentication purposes and to allow "the government to comply with its discovery obligations imposed by the Constitution."
What if it were a 3-D capture of all things in view while executing a search warrant — like a "cop-cam" on steroids?
(Score: 3, Interesting) by ikanreed on Wednesday September 30 2015, @04:28PM
I'm usually with people thinking we need to do a better job of protecting the 4th amendment, but keeping a copy and later examining it with a judge-issued warrant doesn't bother me that much?
It just... prudent? "Our first search found something outside the scope of the initial warrant we think is relevant, and we'd like to examine it." isn't the kind of fishing expedition that the 4th amendment was intended to stop.
Maybe I'm being unreasonably lenient with law enforcement, but I feel meh towards this case.
(Score: 4, Insightful) by RamiK on Wednesday September 30 2015, @04:42PM
You'll feel differently when they'll start issuing search warrants for anonymous phone calls screaming murder and end up charging people over tax evasion and unlicensed software on a day to day basis.
compiling...
(Score: 3, Interesting) by VLM on Wednesday September 30 2015, @05:05PM
Actually no,
Connecticut authorities discovered fresh evidence unrelated to the initial search of the files
The best analogy I can come up with is something like they took crime scene photos of the search and wanted to look at the pixs later, and they were nice enough to get a new warrant to do it.
They might be faking the whole thing and did parallel construction and all that. Or in the future they might go fishing. But as reported today officially, they aren't fishing.
Something interesting to think about is local cops won't enforce immigration law, period. Also I've never heard of some dude getting arrested for having an illegal mp3 on his phone, or warez on his laptop, although I'm sure its happened somewhere once, it doesn't seem like an enforcement priority. And the reason to bring that up is if they won't arrest with the results in their hand, I don't think they're going to go back for a warrant to get them.
Also you have to be realistic. If a cop wants to F with someone, they claim to smell something, then kick the dog to make it "signal", then drop a bag of weed when you're not looking. They're not going to check and see if your "windows genuine advantage" is real or not.
(Score: 4, Insightful) by sjames on Wednesday September 30 2015, @05:11PM
Or they might have pawed through the rest of the mirror of his HD and "discovered fresh evidence unrelated to the initial search of the files" so they got a warrant.
Given the history of abuse, that easily becomes charge you with jaywalking, paw through your HD (obtained to look for potential confessions to jaywalking) and stumble over something they actually care to prosecute.
(Score: 0) by Anonymous Coward on Thursday October 01 2015, @02:36AM
If they really don't like you an "overzealous" cop might tamper with the evidence. Copy some child porn over and its the end for you.
(Score: 2) by Hyperturtle on Wednesday September 30 2015, @05:31PM
The best analogy I can come up with is that they keep rape kits for decades. They have been retesting them with modern DNA toolkits and exonerating people wrongly imprisoned, and going after people that were found to match.
The difference is that the rape kits are clear evidence of a crime.
Data on a hard drive that is sitting there is evidence of computer use, but it is not clear evidence of committing a crime. It's not like they are using some new forensic technique not available 5 or 10 years ago to determine new means of tax avoidance that clearly leads to the person's guilt, and using that on the same data reviewed previously.
In this example in the fine article, they heard about or learned of new crimes and searched for new details on the same drives -- and found compelling incriminating evidence.
This would be like going back to the rape kit and testing the substances involved for drug use, or pathogens (perhaps the person can also be accused of spreading deadly STDs or commiting the crime while high). These may not have been examined previously, and may not be DNA evidence in this case -- instead, it's the same source material, being examined for different things, with different crimes associated with the search and findings of any data of interest.
The moral of the story is don't put all your ill-gotten eggs in one basket, especially if one is in the habit of illicitly planning egg gaining operations that would be wrong, and then saving them in another folder called Evil Tax Evasion Activities That Are Totally Not Related to My Egg Thefts and crying foul about it.
(Score: 1, Insightful) by Anonymous Coward on Wednesday September 30 2015, @07:31PM
A rape kit is different, in that it is obtained from the victim, and doesn't involve a search warrant - any evidence it ever yields is fair game. This case involves evidence seized under an unrelated search warrant.
(Score: 2) by Hyperturtle on Wednesday September 30 2015, @07:58PM
perhaps the soiled clothing of the defendant obtained in pursuit of rape charges would be more apt.
(Score: 0) by Anonymous Coward on Thursday October 01 2015, @01:21AM
Not to mention rape is a violent crime, one that everyone agrees should be a crime, making it analogous to this current case in exactly zero ways.
(Score: 2) by Anal Pumpernickel on Thursday October 01 2015, @10:24AM
The moral of the story is that the government violates the constitution on a routine basis, like they're doing here. And some people will bend over backwards to defend this.
(Score: 3, Insightful) by frojack on Wednesday September 30 2015, @05:38PM
Also you have to be realistic. If a cop wants to F with someone, they claim to smell something, then kick the dog to make it "signal", then drop a bag of weed when you're not looking. They're not going to check and see if your "windows genuine advantage" is real or not.
Or, since all cops will be wearing body cams, after the door kick, they walk around and inventory everything in your house, apologize, leave, refusing to pay for the door, then charge you a month later over something they had of video for which there never was a warrant of any kind.
In many locations, cops accompany paramedics as a matter of policy when you call an ambulance, or the fire department. Free search. Your little box of Zig Zag roll-your-own papers that show up on the body cam are suddenly enough for a warrant to follow you around for a week.
No, you are mistaken. I've always had this sig.
(Score: 3, Insightful) by Anonymous Coward on Wednesday September 30 2015, @04:43PM
Let me expand on that a bit:
Your computer gets hauled off because for some reason it is implicated in a botnet. Turns out there's nothing about the botnet on your computer but lo... everything you've ever e-mailed and everyone you've ever e-mailed with is on it. And there is some mention of you "driving home that night many moons ago (but within statute of limitation) while completely drunk... you swear you'd never do that again because that was just dumb"
Oh hey, let's prosecute this guy for drunk driving too.
Oh, and here's something about money being exchanged because you sold your bike on craigslist... Did you report this income to the IRS? No? We'll sue you for tax evasion and lying on official documents too...
And so it continues until you plead guilty to whatever they want to you to (or you take a 'plea deal' after ratting out a couple of your friends) until they've reached the quota they need to keep prisons occupied.
Your hard drive is a veritable treasure trove.
(Score: 1, Interesting) by Anonymous Coward on Wednesday September 30 2015, @04:57PM
And you hit the nail on the head why we have the 4th amendment. Unfortunately the constitution has an assumption in it. You get your info/goods back when they are done. In this case it should be wiped. The gov is playing with the assumption and saying it is not there. Because legally it is not. Only by tradition/common law is it there. Even then at the discretion of the court. The courts should ask the congress to create a law stating it explicitly.
(Score: 2) by jcross on Wednesday September 30 2015, @05:18PM
But if they took pictures of your home while searching it, which is totally permissible, those wouldn't be destroyed either. So let's say that while searching your apartment they take a picture that happens to show a bloodstain in the carpet. Based on watching cop shows, I'd say they could totally pull that file and notice the bloodstain later, even if you had changed your carpet in the meantime, and I don't think they would need a warrant to do that. I'm not sure how this is different, except that imaging a hard drive allows cops to grab a whole lot of evidence without doing much work, and it's cheap to store it indefinitely "just in case". Problem is that while for traditional evidence, they're only going to pull your file if some other evidence implicates you in a major crime, dropping the barrier makes the system a lot easier to abuse. All you'd need to do is add some automated keyword searches and they could probably make trouble for almost anyone whose drive had been imaged.
(Score: 1, Insightful) by Anonymous Coward on Wednesday September 30 2015, @05:33PM
dropping the barrier makes the system a lot easier to abuse
That is exactly why we have the 4th. Abuse. The first 8 of the bill of rights are there because these are exactly the sorts of thing the English Crown was doing to the people of the England and its commonwealth. With digital it is even easier. Which is the point of digital. To be easier with respect to everything. The only thing I disagree with with the constitution is that it is not broken out enough. There are about 20+ rights being exposed in those 8. They were being too brief. They should have broken it out and apparently more clear. With a 'this is what we mean here' guide to back it up.
(Score: 3, Interesting) by kurenai.tsubasa on Wednesday September 30 2015, @10:52PM
This seem like an plain view doctrine issue. With the example of taking photographs, the bloodstain is in plain view, but say there's some evidence of some other wrongdoing concealed out of plain view that that the cops miss. They can't just come back to your home later without at least getting another warrant, and, unlike in this case, I imagine (hope) would probably be harder to get than just telling the judge, “Oh snap, we never checked that his Bible didn't have a secret compartment.”
On the one hand, maybe the plain view doctrine should apply in some kind of digital-metaphor way, and if the cops didn't find what they originally had a warrant for, they shouldn't be able to poke around other “places” on the filesystem they overlooked after-the-fact. On the other hand, perhaps people up to naughty things should keep their naughty things on removable media and keep that out of plain view.
(Score: 2) by jcross on Wednesday September 30 2015, @11:19PM
That's an interesting angle on it. I guess the question then becomes how we map the concept of visibility onto digital media. Is the accountant's drive kind of akin to a closet with all his documents pinned to the wall inside? Then if you open the closet (which you certainly could in a search) and snap a hi-res picture, you'd have copies of all those documents. If the volume were encrypted or contained encrypted directories, those would presumably not be in plain sight any longer. The wise thing for those with something to hide would be either steganography (equivalent to the Bible with a secret compartment), or encryption (equivalent to a locked box). I guess my point is that once you allow for a hard drive to be completely imaged in an investigation, the resulting "image" is probably going to be treated much like photographic evidence would be. A photo showing the closed Bible or the locked box will never prove anything by itself.
(Score: 2) by AnonymousCowardNoMore on Wednesday September 30 2015, @05:01PM
That and retroactive laws. Sure, those aren't supposed to be valid. But that's the funny thing about retroactive laws—they become valid retroactively.
(On a different can of worms: I'd argue that Common Law is sometimes retroactive anyway. You sit with a mess of legislation and previous rulings from which it is impossible to determine what is and isn't allowed in some particular case. A lawyer can give you an expensive opinion but no guarantees except in certain limited cases. Then you end up in court, and the court decides what the actual law should be henceforth. Which it immediately applies to you.)
(Score: 2) by penguinoid on Thursday October 01 2015, @02:34AM
Then you end up in court, and the court decides what the actual law should be henceforth. Which it immediately applies to you.
... unless you're a government agent who was violating the Constitution, in which case it's "Please stop doing that."
RIP Slashdot. Killed by greedy bastards.
(Score: 2) by scruffybeard on Wednesday September 30 2015, @05:06PM
As the summary said, this is a nuanced case. If your machine had been legally imaged for the botnet investigation, the government would still need to get a second search warrant to search for the incriminating email stating that you were drunk. I agree with ikanreed on this. We need to tread lightly, and perhaps create some standards for how long we retain evidence of this nature, but this is more of an edge case. The investigators had probable cause to obtain a warrant to search the machine both times, this was not a fishing expedition.
(Score: 1, Informative) by Anonymous Coward on Wednesday September 30 2015, @05:15PM
How would they know of an incriminating email about some barhopping months ago to get a search warrant if they did not already find the incriminating email by trolling around the data? Such as it is with this court case.
The detectives had no valid reason to get a search warrant for a specific piece of information they "did not know about" yet a judge gave a specific search warrant for a specific piece of information that just so happened to be in the evidence locker for a long period of time.
In a way you are right. This was not a fishing expedition. This was the aftermath of one.
(Score: 0) by Anonymous Coward on Thursday October 01 2015, @10:29AM
No, what we need to do is force the government to get rid of the data. Your worthless standards will be abused, bypassed, and/or turn out to be ineffective. Or they'll just ignore them like they do the constitution; exactly what they did here. But it's more difficult for them to decide later that they want to abuse this data if they do not even have it. Even the mere possession of the data is a violation.
I would rather let numerous Bad Guys go than allow them to do this.
(Score: 2) by K_benzoate on Wednesday September 30 2015, @04:53PM
isn't the kind of fishing expedition that the 4th amendment was intended to stop.
Funny, it seems exactly the kind of thing that's within the scope of the 4th amendment's intent to stop. Law Enforcement wasn't able to make a sufficient case the first time to get that evidence? Too bad. You lost this one. Move on. And yes, that means some criminals will escape justice. This isn't Pokemon, you can't catch 'em all because catching every criminal would require also wrongly imprisoning a lot of innocent people, and violating the privacy of many more still--and that's unacceptable.
Climate change is real and primarily caused by human activity.
(Score: 3, Interesting) by ikanreed on Wednesday September 30 2015, @05:02PM
It wasn't though.
If you go back to the 1776 Virginia Declaration of Rights, you can see the exact behaviors they were most concerned with
Now, that's not to say I don't support your reading of the 4th amendment. But I do restate my case that it wasn't the original intention of the 4th amendment, which was to stop random investigations that acted as kinda de facto bills of attainder, where you could hassle and search people without concern for why you're doing it.
In particular, my recollection of the summary history I've read is that they were annoyed at the Crown for searching every boat that came into the country. What's ironic about that is that we do that now under port authorities all the time and no one cares.
(Score: 0) by Anonymous Coward on Wednesday September 30 2015, @05:46PM
What's ironic about that is that we do that now under port authorities all the time and no one cares.
Some people do care.
(Score: 2) by ikanreed on Wednesday September 30 2015, @05:49PM
Yeah, I knew that when I said it I was making a technical error.
Not enough people, particularly people in a position to effect change, care enough for that to ever get changed.
(Score: 2) by AnonymousCowardNoMore on Wednesday September 30 2015, @05:07PM
catching every criminal would require also wrongly imprisoning a lot of innocent people
At the proverbial three felonies a day I don't think they'd imprison any innocent people even if the whole world were behind bars. But that says more about laws than people.
(Score: 3, Insightful) by tathra on Wednesday September 30 2015, @08:11PM
the fourth amendment says, and i quote:
they can look in no place except the place specifically described in the warrant, and take no evidence except what is specifically described in the warrant. imaging the whole harddrive, rather than simply taking the files in question, is outside the scope of a valid warrant. a warrant for "everything on the harddrive" is a general warrant and explicitly unconstitutional. everything except the specific files in question should have been immediately removed from law enforcement's possession.
(Score: 2) by ikanreed on Wednesday September 30 2015, @08:14PM
Yeah, and that's a fair interpretation. They just also clearly received a second warrant based on their investigations for the first for the materials examined in the second.
I really don't think there's any fruit of the forbidden tree here.
(Score: 3, Informative) by tathra on Wednesday September 30 2015, @08:46PM
the materials for which they received the second warrant were unrelated to the files which should have been the only ones seized in the first. thats what this whole article is all about - they took stuff which wasn't authorized by the warrant, and then dug through it later to find something else for which to prosecute him.
(Score: 2) by penguinoid on Thursday October 01 2015, @02:47AM
Copying your information is not a search. This is what this case is about. Either that, or that stuff on your harddrive that took them three years to find was "in plain view".
Remember, before losing your freedoms, your last words will be "That's kind of reasonable..." and next thing you know the government can copy all your emails and phone calls because copying is not searching until someone looks at it.
RIP Slashdot. Killed by greedy bastards.