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?"

Comments

Law Enforcement

[2names]

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?

Re:Law Enforcement

[quinto2000]

You miss the point, I think. The issue is that no search should be ordered without "probable cause...and particularly describing the place to be searched, and the persons or things to be seized." (Find it, bookmark it). Individuals can circumvent this as long as they aren't considered direct agents of the police. No matter what, their duties to stay within Constitutional guidelines are much more minimal. So if a warrant has been issued, their better damn be a good reason for it. If they find evidence of a crime, they better damn well have expected to find that evidence. And allowing a private citizen to conduct the search allows it to become a "fishing expedition." This means that they can choose a random place to search without knowing if a crime has actually been committed, and because it's a private citizen who conducted the search, the evidence could still be used. It's a terrible idea. That's why the judge's ruling is an important one.

So, the point is that the law enforcement agency is the most impartial, not because they have no bias, but because the evidence they can use in a court of law is more restricted when they conduct the search. They shouldn't just assist in the search, they should be conducting it.

Precautions

[Limburgher]

Time to encrypt everything. 512-bit encryption ought to slow them down, especially on large files.

This might be a good thing

[drunkmonk]

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.

Re:This might be a good thing

[SomeoneYouDontKnow]

Agreed. Also, if they have to have someone present at searches, it makes it more difficult to conduct large-scale fishing expeditions, since there are only so many officers to go around. Also, it can serve to protect the ISP, since if some police official later accuses it of not conducting the search in the manner they wanted it to, the ISP can simply respond by saying that if the officer who was there had a problem, then he should have spoken up at the time.

It might also not be a bad idea for the ISP to videotape the whole process to make sure no police officers do anything they shouldn't be doing. Document everything from the time the officer arrives at the front door to the time he leaves.

"unreasonable" burden or not...

[quinto2000]

I tend to agree with the sentiment of the ruling judge in this case. Civillians shouldn't be given so much power over the conduct of a search. The police like to give them that power, because they aren't held to the same standards. When the number of searches increases, it's particularly important, however, that every search be held to a stricter scrutiny.

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.

hm

[tps12]

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.

Aren't "weight" and "levity" opposites?

LE presence should be required...

[StenD]

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.

This could be a good thing....

[wowbagger]

Think about it - any police department has a finite staffing, usually very understaffed.

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?

Law enforcement presence.

[Restil]

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

Due process != chain of custody

[bourne]

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.

Re:This is stupid

[bourne]

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.

It's even better than that - if the ISP wants to gather evidence of wrongdoing related to their computer resources (say, someone hacking from their dialups) they have much greater leeway in their search, for they aren't bound by the fourth amendment. Once law enforcement becomes involved, it actually places limits upon what the ISP could do on its own.

Now, once law enforcement requests the cooperation of the ISP, then the ISP IS bound by the fourth amendment, because they are an agent of the government. So, as I understand this case, the defense should be attacking whether the data was gatherable under 4th amendment and under the particular warrant used, not whether there was a policeman there or not. Evidence gathered by an ISP in response to a warrant is held to fourth amendment rules, no matter who executes the search.

Consider this: You walk in on a convenience store shooting. Should you not be able to go up on the witness stand and testify because you aren't a law enforcement officer? As long as the defense can't prove the search was conducted in excess of fourth amendment rights, it should make no difference whether it was carried out by someone with a badge or not (assuming search was in accordance with warrant parameters, chain of custody was kept, etc. etc.)

IANAL - YANMM