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

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.

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.

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?

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.