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Security, Due Process and Convenience
teambpsi writes: "CNN is running an article about ISPs' concern over having law enforcement present during a court-ordered search. Since we are an ISP, I can understand the concern, however, also being a privacy freak, I think it adds a certain weight to the decision of wether to file the search in the first place. It adds a certain levity. I'm not sure what percentage of these search warrants are unnecessary, but I think that having due process in place is important. Opinions?"
If the search is court ordered, it only makes sense that some law enforcement agency should be there to assist in carrying out the "warrant." However, the agency should only become directly involved if something illegal is found. They should maintain impartiality until some law has been found to have been broken, after all, in this country we are innocent until proven guilty, right?
"I'm just here to regulate funkiness."
Time to encrypt everything. 512-bit encryption ought to slow them down, especially on large files.
You are not the customer.
If cops actually have to be there, and the city/state actually has to pay for their payroll, etc., maybe they'll be more careful and not just whip out a search warrant on a whim. I know that the local department probably wouldn't be happy having to use their officers for that rather than having them on the street doing their jobs.
Imagine having to sift through tonnes of porn material, and getting paid for it. The job itself isn't really important because most of the search warrants would be over bullshit matters anyway.
S
The police ability to hand off the search to a third party can easily be abused to circumvent fourth amendment protections. The boundary between an agent of the police and the police themselves can be fuzzy. This removes the question altogether.
Ceci n'est pas un post
Aren't "weight" and "levity" opposites?
Karma: Good (despite my invention of the Karma: sig)
Please be patient, yahoo is down for search warrant maintenance. The system will be restored, minus any confiscated data, in a few hours...
This is just stupid. If the ISP wants to cooperate with law enforcement, they could do so even without a search warrant. Once the search warrant has been drawn up, if the ISP wants to cooperate in the manner most convenient for them, and the law enforcement folks agree, there's no problem. I mean, given that the ISP is legally required to cough up the info, and given that they don't even really want to put up a fight about it, what does it matter whether or not some police officer is standing there scratching his ass while someone pulls up the data? It doesn't matter at all.
Things might be different if there was a legal concept of strong privacy between an ISP and its customers, as with Attorney-Client Privilege, confidential medical info, or communications between spouses. The fact is that there isn't, though.
Arrr, it be the infamous pirate, No Beard Pete!
..the POOOO LEEESE were a-waitin in the lobby, the challenge would still be valid. The search was still conducted by non-sworn personnel and such "evidence" should be suppressed. Maybe the ISP technician just typed the crap up?
"A microprocessor... is a terrible thing to waste." --
GeneralEmergency
I would expect proper procedure to generally be issuance of a subpoena for records. A search warrant should only be issued when the subpoena is refused, or the ISP is being investigated as an accessory. IANAL, but I do watch a lot of cop shows on TV. Search warrants should always be performed by law enforcement personel. That's probably the biggest difference between what makes it a search warrant and a subpoena.
bance.net
If for no other reason than to force there to be an actual cost for LE in a search - I doubt that ISPs get to bill LE for the cost of handling searches. The cop may not be able to perform the search, but should certainly be supervising it - they aren't supposed to be sitting in the lobby eating donuts while the ISP techs are gathering data.
Think about it - any police department has a finite staffing, usually very understaffed.
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Now, imagine you are a police chief. You have five search warrents out against SomeISP.COM for stuff you feel is white-collar, victimless crimes.
On the other hand, you have five tips about meth labs.
Where do YOU send your officers?
Consider that the key part of a DoS attack is consuming all of some limited resource, be it bandwidth, sockets, Moderator points, or police officers
Now, instead of the ??AA being able to crapflood the system with bogus warrents to be filled by (relatively) plentiful techs at small ISPs everywhere, they must be filled by (relatively) scarce police officers.
Would that not tend to limit this crap?
www.eFax.com are spammers
The ISP is being served the warrant, but they are not a suspect in the case. That is the difference here. Law enforcement is well aware that Yahoo is not in any way involved in the illegal activity, but they have information required by law enforcement. When they are served a warrant for information on clients, they cooperate every time by forwarding the requested information. There is no REASON for a police officer to be there, especially since they probably wouldn't know what was going on anyway. They'd be hanging around waiting for someone familiar with the system to call up the requested information, and it would then be faxed on, just as if the police officer wasn't there.
Where police presence IS needed is when the company/individual being served the warrant is suspected of illegal activity. If Yahoo as a company was actually intentionally distributing child porn, law enforcement could not expect them to voluntarily turn over all evidence of their illegal involvement in this regard.
As far as the 4th ammendment rights go, Yahoo has a privacy policy (as far as that goes) that states that they won't blindly hand over customer information without the customer's permission or a search warrant. If yahoo were to discover illegal activity, they could still turn over that information to the police without first being contacted by them. The 4th ammendment doesn't apply here at all. In fact, they could turn it over WITHOUT a search warrant if they wanted to. They could possibly get sued for contract violations, but it wouldn't/shouldn't save the ass of someone using their services illegally.
-Restil
Play with my webcams and lights here
This doesn't really have to do with due process, it has to do with chain of evidence.
Oversimplification - Due process means that you get your trial, and that the trial follows certain rules. One of those rules is that evidence presented against you has to meet certain standards, such as chain of custody.
Chain of custody says that the evidence, once gathered, is kept track of in a way that ensures it is genuine. The original case here was trying to cast aspersions on the chain for certain evidence since it hadn't been initially gathered by law enforcement.
This new ruling should be thrown out, though, because it's certainly going way beyond the standard for chain of custody. Anybody can be part of the chain of custody as long as they follow appropriate procedures - keep good notes, don't allow the evidence to pass out of your control, make sure that law enforcement signs for it, be able to truthfully testify that no one could have tampered with it while you had custody of it. Frankly, I'm suprised any defense attorney would WANT this - they'd rather that Joe Schmoe from the ISP, who only gathers evidence once a blue moon, gets called on the stand so they can twist his words, rather than a professional law enforcement officer who generally knows the rules of the game a lot better.
IANAL, but I'm working on my SANS GCFA certification and there's a lot of coverage of chain of custody in there that I'm pulling from.
???!?!?
I mean, how disingenous can you get? The whole point in requiring actual meat effort in order to execute a search [as opposed to massive automated electronic drag nets] is going to do nothing other than discourage any searches unless they are actually probably usefull in a real way to an ongoing investigation. By requring extra cost for the search on the part of the authorities, this isn't going to chill anyone!
How stupid do some lawyers think people are? (...or even worse, how stupid are they)
---
the pen is mightier than the sword, the sword is mightier than the court, the court is mightier than the pen.
A defense lawyer came to my high school government class to talk about the legal system and its exciting collaries. He told several stories of legal bumblings that let him keep various clients out of jail. At the time, he disgusted me -- he was using the letter of the law to wiggle his clients out of the punishment they deserved for the crimes they comitted.
But then it dawned on me: that defense lawyer was fighting the border war to protect my rights. He reminded the police that they can't do whatever they want -- that the Bill of Rights is important.
The guilty must be punished, but not at the expense of the rights of the people.
Every time I see mention of evidence "from the Internet" or "from computer files" I wonder: how much evidence produced in court is actually genuine. We all know how impressed most people are with computer technology--and we all know how simple it is to create a simple text file. An email from Nicky Scarfo, Jr. admitting to loansharking? A trivial matter--just take any old email from Nicky, edit the text, and presto! "Direct" evidence that would impress 99 juries out of 99. While we're at it, why not have Nicky confess to financing the World Trade Center bombing?
This kind of thing isn't limited to email. Want to establish an alibi? If you have access to the database that stores key pass data (or E-Z Pass data) you can write a simple INSERT statement to add records necessary to prove you were on the Tappan Zee Bridge when the dirty deed was done (dirt cheap).
My point is that it is brutally easy to fabricate data--and I think the technologically unsophisticated are all too willing to accept anything that is presented as coming from "the computer".
A hypothetical example
Let's pretend that I'm a local police officer. I've been working a case for months--we've had several complaints about a man who might be a sex offender. But they're complaints of creepy behavior--nothing criminal. But I know--I know in my bones--that this guy is a ticking time bomb, just waiting to go off. And--being devoted to protecting the children of my community--I want to stop this creep before he hurts any (more?) children.
I'm in Pennsylvania, where judges are elected. A local judge who's up for re-election is likely to err in my favor when it comes to search warrants on suspected child molesters--so I get a warrant, and I seize the perp's computer. And--damn. The creep is evidently aware of the danger of computer evidence, because there is not a single shred of incriminating evidence on his hard drive.
Or is there? I can copy a few choice files into his temp directory, and copy a few incriminating cookies while I'm at it. Maybe I copy more than a few. All it takes is a floppy disk of helpful evidence and a moment or two alone with the computer--and who's going to believe the creep when he claims he never saw those pictures?
The chain of evidence? (The "chain of evidence" is a legal requirement that prosecutors be able to identify a particular person responsible for a piece of evidence from the time it is seized until it is presented in court.) I gave the perp a receipt for his computer. There's nothing that requires me to provide the perp with a listing of all the files--and no court in the world would let the perp do anything to that computer (like listing his files) when I seize it. I've provided a receipt for his computer--but who's to say what's on the hard drive?
Could this happen?
A frequent element of police fiction--and perhaps police reality--is that police officers carry "throw down" guns; a throw down gun is a firearm with no identifying numbers that can be dropped at a crime scene when a police officer shoots a suspect: the cop asserts that the suspect pulled a gun, but the cop shot first. There's the gun--and the suspect a) has an arrest record, b) is dead, or c) both. Who's to say?
In the same way, an overzealous cop or prosecutor could easily use "throw down" data to "tighten up" a case. The "bad guy" gets what he deserves--the entirely theoretical child molester gets sent to prison.
When the police come with the warrant
I have a client who pays me a few bucks to co-locate a server--which technically makes me an ISP. Ed hosts a couple of mailing lists, and while I seriously doubt any of these lists will ever be the subject of a search warrant, if I'm ever served with one I'm going to be particularly careful to maintain copies of what I provided to the cops. Sure--I'm all in favor of law and order. But fabricating computer "evidence" is so easy that it must be a temptation that is very hard to resist.