EFF Weighs in on Computer Privacy Case

An anonymous reader writes "A case on appeal to the Washington State Court of Appeals, State v. Westbrook, recently drew the attention of the EFF. They argue that: "citizens have a reasonable expectation of privacy in the contents of their computers, and that their Fourth Amendment rights don't disappear when a computer is delivered to a technician for servicing." This ruling could threaten to 'turn your friendly neighborhood computer repair technician into a government informer' "

Comments

I demand privacy but not in the private sector!

[garcia]

"Customers who drop off their computers for servicing reasonably expect that their private data won't be handed over to the police without a warrant," said EFF Staff Attorney Kurt Opsahl.

This is completely agree with. Law enforcement should always have to get a warrant to search a computer unless we're talking about something like blatant kiddie porn as the desktop's background (and no, a picture of your child taking a bath doesn't qualify).

I have a feeling that the Gateway technician shouldn't have been poking around on the person's computer as it's doubtful that the files were of any direct relation to the problem.

It's a sad state of affairs when we have to discuss this and have the EFF come to the rescue. There is rarely ever a reason when LEOs should have the rights to look at anything w/o a warrant. Welcome to Scaredays 2005 people :(

"Allowing computer technicians to snoop on people's private data is like putting surveillance cameras in dressing rooms. The violation of so many people's privacy far outweighs any benefits that might be gained.

This I disagree with. While I am 100% against video cameras in the PUBLIC space I am not against video cameras in a private space (i.e. dressing rooms of a store). My feelings for personal privacy have no weight in a privately owned store that is using video cameras as a theft prevention mechanism. I do however have an equal weight with regards to my feelings about public spaces being spied upon.

Re:I demand privacy but not in the private sector!

[Kevin DeGraaf]

I am not against video cameras in a private space (i.e. dressing rooms of a store)

Well, now we know who works as a department store security guard...

Re:I demand privacy but not in the private sector!

[kevin_conaway]

My feelings for personal privacy have no weight in a privately owned store that is using video cameras as a theft prevention mechanism.

Do you have a daughter or a wife? Would you like a bunch of random teenage employees at the local Gap watching her everytime she tried on a piece of clothing?

Re:I demand privacy but not in the private sector!

[Alex P Keaton in da]

C'mon, who expects their stuff to be private when they allow another to look at their box. If you take your car in to be serviced, and the service has nothing to do with opening the truck, but the auto tech opens the trunk and finds 20 Keys of Coke, you are getting busted.
If you take a book in to be rebound, and you have terrorist plans written in the margins, you are going to get reported.
It seems that computers are finally entering more common law... This isn't new territory or a new rule, just a new rule as it applies to computers.
It would be interesting to hear someone try and define "in plain view" as far as the folder structure of a machine goes.
In all honesty- every time I use someone else's box, I search for images. Doesn't everyone? I won't lie, I am hoping that they have some homemade porn on there of their wifey.

Re:I demand privacy but not in the private sector!

[TiggertheMad]

I am not against video cameras in a private space (i.e. dressing rooms of a store).

When the goverment is granted survelance powers over a population, it inevitabily abuses them. Why would you expect a private company to behave any differently?

More to the point, how is it any different if you are spied upon on private property as oppoesd to public property? You are still being spied on.

Re:I demand privacy but not in the private sector!

[garcia]

Do you have a daughter or a wife? Would you like a bunch of random teenage employees at the local Gap watching her everytime she tried on a piece of clothing?

I will be married in less than a month. I would expect that their theft prevention team would be staffed by the appropriate sex as to observe that -- and most places that do have cameras note that on a large sign that you can read before you go in.

Remember, any place you shop (including ones w/cameras) is *your* choice. I choose not to give business to many different stores for many different reasons. If you have a problem w/cameras in the dressing rooms don't shop there or don't try on their clothes.

*EVERYONE* should be far more concerned w/the cameras at stop lights, intersections, lamp posts (traffic patterns my ass), etc.

Re:I demand privacy but not in the private sector!

[Alex P Keaton in da]

Umm- this could save the gap a lot of money- Instead of paying security guards, I know a ton of people who would pay to be security guards. Especially at one of those Gaps by a college campus...
"Work at the gap, see a gap!!!"

Re:I demand privacy but not in the private sector!

[Cerv]

The first clothing shop to put cameras in the dressing rooms would never survive the sudden, massive drop in sales and PR disaster. It's not going to happen so you don't really need to worry about it.

Re:I demand privacy but not in the private sector!

[einhverfr]

In each of these cases, the police would have to go through the steps of getting a warrant before doing any further searches, which they most certainly would do.

It isn't the technician-turned-informant that many of us have an issue with. It si the fact that the Police didn't feel that they needed to go through the steps of actually obtaining a search warrant. Here in the US, these processes are supposed to have judicial oversight, though the trend these days is for the Congress and the Executive to ignore these requirements. THe courts are trying to reign it in (we will see how long before portions of the USAPATRIOT act are struck down in multiple circuits.

No, IANAL.

Re:I demand privacy but not in the private sector!

[dal20402]

In all honesty- every time I use someone else's box, I search for images. Doesn't everyone? I won't lie, I am hoping that they have some homemade porn on there of their wifey.

While I don't have a wife (what do you expect on /. ?) and therefore don't have hawt wife pr0n, this kind of attitude is exactly why no one uses my boxes, even for one minute, without a new account being created for them. I've learned that people love to read private email and dig through document folders.

And if it goes in for service, the drive is backed up to an external and erased first.

I just don't understand it... I'd feel dirty about looking through someone else's private stuff... but I'm apparently the only one.

Re:I demand privacy but not in the private sector!

[ThosLives]

You have several options:
1. Don't shop at (those) stores at all.
2. Don't use dressing rooms and measure the clothing with some other means.
3. Buy clothes, take them home and try them on, then return them if they don't fit.
4. Make your own clothes. (This could even lead to "profit!!!")
5. Hire a tailor to make clothes for you.

Re:I demand privacy but not in the private sector!

[Jeremiah Cornelius]

How the Evil is Done

Sensenbrenner is your basic Fat Evil Prick, perfectly cast as a dictatorial committee chairman: He has the requisite moist-with-sweat pink neck, the dour expression, the penchant for pointless bile and vengefulness.

Re:I demand privacy but not in the private sector!

[ZeissIcon]

The core issue here is the presence of a search warrant. IANAL, but my understanding is that if you have 20 kilos in the trunk of your car, and a service technician spots them, that falls under the "probable cause" clause under which the cops can search your car. If your plumber calls the cops and says, "I think my client has a meth lab in his basement," the cops would have to provide a judge with enough evidence to obtain a warrant to search your house.

The question here is: which category is your computer in? The EFF says it's on the house side of the equation. The entire reason cops can search your car is that you agree to it when you are issued a driver's license; driving is considered a voluntary practice, and as such you are required to give up some of your 4th ammendment rights in order to do it. Taking your computer to a repair shop in no way alters your relationship with law enforcement -- you have not agreed to the suspension of your rights. Thus, it requires a warrant. To whit, your terrorism example, the cops would still have to acquire a warrant to search your house and many judges would be hesitant to issue one since writing in the margins of a book is clearly a protected 1st ammendment right. On the other hand, the cops might bring you in and ask you some questions, and they are perfectly entitled to do so.

Re:I demand privacy but not in the private sector!

[melonriel]

Not try things on before buying them? Or maybe buy them online? No one is forcing you to try anything on when buying clothes. If someone cares greatly about this sort of thing, they could always buy clothes, try them on at home and take them back. A bit awkward and time-consuming, but possible. I highly doubt there will be cameras in ALL dressing rooms in the future, anyways.

Re:I demand privacy but not in the private sector!

[MobyDisk]

Very insightful comment. But also very scary.

In all honesty- every time I use someone else's box, I search for images. Doesn't everyone? I won't lie, I am hoping that they have some homemade porn on there of their wifey.

I hope you were kidding. I do computer repair, and I take certain steps to make sure I never accidentally open the "My Documents" or "My Pictures" folders unless I need to. If I hired you to fix a customer's computer and I discovered you did that, I would fire you.

The really really scary part of this is where you say "Doesn't everyone?" as though you think this was the norm! Are you not even aware that what you are doing is unethical? It also happens to be bad for business, so you should be careful that no one finds out. I just now noticed the irony that you started that statement with "In all honesty-".

Re:I demand privacy but not in the private sector!

[Alex P Keaton in da]

I know it's wrong, I am just being honest. Of course I feel dirty searching for images on someone else's machine- but I can't help it. The truth is, there is nothing like seeing the soft supple, nude body of a woman you know. It is better than playboy. You know what you are going to see in Playboy- airbrushed perfection. But it is always a surprise, a festival for the eyes, to see a lady that you know well, yet always see clothed, in the buff. An ass taut like a snare drum, but still soft to the touch. Breasts white as milk, but with rich pink nipples.... Oh man, excuse me, I need to go to to restroom.

Re:I demand privacy but not in the private sector!

[WormholeFiend]

4. Make your own clothes. (This could even lead to "profit!!!")

I suppose "???" only applies to underpants?

Re:I demand privacy but not in the private sector!

['nother poster]

1. But what if all stores do this?
2. Yeah, right. You ever have cloths tailored? They don't just take 3-4 measurements and viola perfect fit. They take upwards of a dozen measurements for certain articles of clothing, and they then usually do a final fitting. You think you can take in a seamstreses tape and get the fit right?
3. They can simply stop taking returns, or make them prohibitvly annoying. Some stores are already doing this, and more are following the trend.
4. Most people have neither the time, talent, or experience for this.
5. See the comments on 2. for tailored clothing plus add in the prohibitive cost.

Re:I demand privacy but not in the private sector!

[Master of Transhuman]

Uhm, they DO have security guards observing you in the dressing rooms.

That's what they claimed in the Winona Ryder shoplifting case. A guard claimed to have seen Noni cutting off security tags from the clothing in the dressing room by peering through observation slats in the dressing room wall.

By the way, I consider the Ryder case to be a blatant incident of railroading, and most of the testimony against her was clearly prosecutor-coached perjury of the most obvious kind. Her lawyer, Garregos, is a spin doctor, not a trial lawyer, and his defense was pathetic.

She was charged for two reasons only:
1) the LA DA was elected on the basis that his predecessor was too soft on celebrities (Robert Downey, et al);

2) he is the son of an FBI agent and Ryder has publicly worn a "Free Pelletier" button to movie industry events (Leonard Pelletier is in Leavenworth for allegedly shooting two FBI agents twenty years ago - I met him when I was there - just about everybody in the world other than the FBI considers him a railroaded political prisoner.)

Re:I demand privacy but not in the private sector!

[pete6677]

"Reasonable expectation of privacy" is the legal standard used in privacy related lawsuits. If a store has no signs or other indications that cameras are being used in a dressing room that has a locking door, the customer has a reasonable expectation of privacy and would be entitled to sue if a hidden camera were discovered. If however, the dressing rooms were not private or a sign were posted making it obvious there was a camera, then there is no reasonable expectation of privacy and a court would not award damages.

As other posters have pointed out, no store would be likely to have cameras in their dressing rooms anyway as this would hurt their business much more than shoplifters would.

Re:I demand privacy but not in the private sector!

[Valar]

The way it usually works is that you make sure there is no way to get to or from the dressing room to a door without crossing through the coverage of cameras, but there would be no actual camera coverage of the room. If you walk out of the dressing room with less items than you walked in with, they know something is up (at the least, there are items to be reshelved laying around back there). without having to watch you in the dressing room.

I actually kind of like the solution a lot of clothing stores in our mall seem to have come up with. They simply have a staff member who minds the dressing rooms and not only keeps an eye out for shop lifting, but can grab a different size for you, if the one you have doesn't work. It ends up giving them extra security and me extra convience and once again, they don't have to watch you dress.

Re:I demand privacy but not in the private sector!

[Jim_Maryland]

Boss: My boss says we need some eunuchs programmers.
Dilbert: I think he means UNIX programmers not eunuchs and I already know UNIX.
Boss: If the company nurse stops by, tell her " never mind "

Re:I demand privacy but not in the private sector!

[mrchaotica]

No, you don't seem to get it! The store owner can't make whatever policies he wants in his store. For example, he can't refuse to serve black people, he can't murder every third customer, and he can't lock everyone in at closing time and use them for slave labor.

It should be the case that he can't spy on his customers, either!

Re:I demand privacy but not in the private sector!

[ImaLamer]

You've got a good point there, but it doesn't change the fact that as a computer repair technician you aren't working as a government agent so your "search" isn't going to be protected/restricted under the 4th Amendment.

Imagine if I broke into your home and found pot plants growing. While I was even in the commission of a crime, not being a police officer that search is legal and admissible in court.

Sorry.

I've told many people to not take their PC's in for repair because of porn (which in any form can be partially illegal in my county/city/state) and copies of software that no one paid for. Just as if you cut off your O2 sensor and catalytic converter and took your car in to get fixed you can expect the mechanic to report you.

Now, approaching someone might be a better option, but people sometimes would rather go to the police.

Re:I demand privacy but not in the private sector!

[Master of Transhuman]

I think we have to do some distinguishing here.

If you're in MY home, I have a total right to spy on you all I want, because that's an issue with MY security and MY personal property. There is no "right to privacy" in someone's personal space. You can, and certainly should if you want any friends, ALLOW a degree of privacy, but there is no "right" invokable here. The only thing you should expect in someone's personal space is freedom from physical coercion.

If I PERSONALLY own a store, I believe that same situation maintains.

However, if a store is owned by a CORPORATION with EMPLOYEES, spying is another matter. While the corporation has a reasonable basis for ensuring security, having random people spying on customers - especially in an intimate setting like a dressing room - is going a bit far. There are other ways to deploy security than violating customers privacy.

This is a problem with the notion of the corporation being an entity created by the state with the rights of a person.

Having said all that, I don't believe in "rights", in any event. Stores that spy on customers in dressing rooms should be avoided, but if all stores do it, there's nothing you can do about it because it's unlikely the retail industry will allow Congress to pass legislation prohibiting it. Only mass consumer action could change it, and that's not likely to happen either.

Compared to the other problems caused by corporations manipulating the state, it's a minor issue, so you might as well concentrate on getting rid of the state and the corporation concept.

Now, as to the original problem, employees should not be cops. First of all, if they fuck up trying to BE cops, they make their employer legally liable for lawsuits. Secondly, they AREN'T cops and don't know the law or what to do to handle a situation.

Example: tech guy finds kiddie porn on somebody's computer. Who's to say HE DIDN'T PUT IT THERE FOR HIS OWN REASONS? You have no evidence until you have a warrant and a forensic examination. Meanwhile, his very poking around has DESTROYED THE CASE. Any competent defense attorney will raise this defense, unless forensic evidence can disprove it.

So, the tech reports his find to the cops. The cops should STILL have to get a warrant as there is no distinction between this and a vehicle stop on the street. The government is prohibited from doing search and seizure of anything you own without a warrant issued by a judge based on probable cause (which is violated constantly by lying cops and lazy judges on a daily basis, but that's another story.)

And if the tech screwed up and is wrong, and the cops find nothing, your customer sues the tech, your company, and everybody else. And the rest of your customers don't trust you anymore, so you lose business.

Does your company want that hassle? It's not your job to be a cop. If you have direct, unequivocal knowledge of an IMMINENT or IN-PROGRESS crime such as a terrorist attack or child molestation or a serial killing, then it is reasonable to report it to your boss, and the company can decide whether it is reasonable to report it to the cops.

Anything beyond that isn't very smart. There have been too many cases of asshole employees interpreting some innocent picture of somebody's kid as "child porn", resulting in ridiculous persecution of some parent as a result of overzealous cops and DAs trying to make names for themselves. And this is what the Constitution was attempting to prevent with the search and seizure amendment.

Re:I demand privacy but not in the private sector!

[stinerman]

Indeed.

The Bill of Rights lists rights not granted by the government, but lists rights that are inherent and unalienable. Among these is the right to privacy.

Re:I demand privacy but not in the private sector!

[dereference]

Remember, any place you shop (including ones w/cameras) is *your* choice...
*EVERYONE* should be far more concerned w/the cameras at stop lights, intersections, lamp posts (traffic patterns my ass), etc.

You've got to be kidding. Ok, more correctly, I sure hope you're kidding, or that I'm totally misunderstanding you.

If you're saying I should be more against traffic cameras than dressing room cameras, please think about this for a moment. I (part of everyone, by the way) have not problem with cameras at stop lights, as part of a targeted enforcement effort. Yes, if you've turned the thing on constantly to monitor citizen movements, it's abusing the system. I understand, and have my tinfoil hat at the ready.

However, if you catch (or better still, prevent) somebody from running a red light, doesn't that seem like a benefit to the public good? Are you truly saying I should be against these cameras *more* than I should be against dressing room cameras?

Well, I'm not convinced. I'm against them both, but I certainly tolerate traffic cameras when used appropriately. Yes, yes, again, I realize they can and will be abused, and it's the abuse I would want to stop.

However, you might very reasonably expect that stopping even one moronic motorist from running a red light might actually keep somebody from being needlessly killed. That's right, we're talking about a crime that makes people irreversibly non-living. And now are you actually saying I should be more against this device, that can save lives, than I should be against the dressing room cameras?

Now, for a moment, please picture your bride-to-be being violently killed in a horrible traffic accient, because some low-life ran a red light. You don't want anybody to even try to prevent that, because you'd rather your privacy while breaking the law with a ton or two of steel?

I see no benefit at all to society from the dressing room cameras. More to my point, getting rid of them certainly cannot possibly change the number of lives ended. In contrast, getting rid of traffic cameras might actually cause(or more correctly, fail to prevent) needless deaths.

Re:I demand privacy but not in the private sector!

[Proteus]

Do you have a daughter or a wife? Would you like a bunch of random teenage employees at the local Gap watching her everytime she tried on a piece of clothing?

I have a wife, and I don't worry about this. I figure one of three things will happen:

1. the watcher will think my wife is beautiful, in which case someone had a good day. My wife hasn't lost anything.
   
2. the watcher will think my wife is ugly, in which case he/she will simply look away. My wife still hasn't lost anything.
   
3. the watcher will be ambivalent and just watch for shoplifting. My wife still hasn't lost antyhing.

Why does this freak everyone out so much? I mean, you certainly have the right to your privacy, and if you think the skin that lies under your clothes is a private matter, then so be it. But, why is it a private matter?

Remember, we aren't talking about nakedness — this isn't a bathroom stall camera — we're talking about someone seeing someone else in their underwear. What's private, your bellybutton? I don't think I would have married someone who felt their privacy was being invaded because someone saw her undies.

The loss of people's right to privacy is a scary thing, but what scares me more is that our society hasn't progressed beyond this idea that skin is somehow shameful, wrong, or private. And that we have a double standard to boot: when it's IP we're talking about, then we rail about how we are depriving people of something, but when it comes to privacy (another mythical construct) suddenly we aren't harming them. Or vice-versa, depending.

Re:I demand privacy but not in the private sector!

[Alex P Keaton in da]

You do have legal footing. If I have you over, and you use the loo, and look in the medicine cabinet- and you report what you find there, the cops can look.
I burglarize your home, turn on your computer, search for files, then put the computer facing the window where an illegal image can be seen plainly from the street, and a cop sees it, you are going down. Sure I may go to jail for burgulary, but you are getting busted for your crime also. You have no 4th ammendment protection from private citizens.To think otherwise would be folly...
Like the people who call teh police and say so and so stole my cocaine, and they both get arrested...
Not to be a dick, but if someone takes a computer full of illegal images to a tech and leaves it with him, they deserve to be arrested and tried for stupidity.

Re:I demand privacy but not in the private sector!

[dfetter]

I don't believe that a business owner, merely by "virtue" of being a business owner, gets a power to violate my civil rights. They get all kinds of benefits from living in a civil society, and in exchange, they have to do things like pay taxes, not put up signs that say "No niggers, kikes or faggots allowed," etc., etc.

It is deeply disturbing to me that people imagine that starting a business gives them arbitrary powers of surveillance and coercion in that sphere.

Re:I demand privacy but not in the private sector!

[gstovall]

There's a reason why fabric shops have almost gone out of existence; the cost to purchase the raw materials at retail far exceeds the cost to purchase a garment manufactured in some far off country.

My wife is a quite talented seamstress, and she has sewn a LOT of clothes for herself and our children, but now she only sews items when she is going for a particular look that's not available off the rack, because it's so bloody expensive to get the fabric, fasteners, trim, etc.

Re:I demand privacy but not in the private sector!

[ThosLives]

Actually, laws don't tell you what you can and cannot do. Laws simply state agreed-upon consequences for certain actions.

Nasty little caveat there...but it means that you are actually free to ban certain folks from entering your store or killing every third customer; but, if you choose to do that, people can either shut down your store, take all your assets, lock you up, and/or execute you (depending on the laws to which your particular society adheres).

Re:I demand privacy but not in the private sector!

[gclef]

It's not there. The folks here claim that Article 9:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Allows privacy, and also that privacy is assumed in the rights against search and seizure (#3 & 4) and against self-incrimination (#5).

But, it's not specifically mentioned anywhere (which you clearly knew, but it was fun doing the google search anyway).

Re:I demand privacy but not in the private sector!

[terrymr]

That's not quite accurate ... when a store owner opens a store he is issuing a general invitation for people to shop at his store, provided they enter with that intent there's not really much he can do.

You could be accused of trespassing if you enter the store with intent to steal or otherwise do something incompatible with the above general invitation.

He wouldn't get much sympathy from the courts if he decided to physically eject you from the store for being black if you had the proper intent when you entered.

Re:I demand privacy but not in the private sector!

[pixelpusher220]

I live in Fairfax, VA and we just had the cameras turned off because of grandstanding about such things. See here for some good info linky

lets see your points:
the vast majority of people "caught" by the red light cameras are simply average people passing safely through the intersection while it is yellow only to be caught at the last second when the light turns red
If they are IN the intersection when it turns red then they are in violation of the law. - and the sensors are actually in the pavement BEHIND the stop line, only triggered if you go over it when the light is ALREADY red.

I doubt they are suddenly going to become faithful servants of the law just because you stick a camera there.
And you attribute the significant drop in t-bone accidents at these intersections to what then? Seems clear cut proof is also in the initial increase of rear-end accidents...those are people who would have otherwise gone through stopping very quickly.

why did they not increase yellow light times in addition to the cameras?
Yellows are timed based on the posted Speed Limit. If people aren't obeying that law (or within say 5mph) then the problem isn't the yellow time, it's the road speed. A *new* traffic feature such as the cameras will take time to get used too.

Oh wait, they decreased the time at some lights... can someone say free money?
Were there less then honest implementations of the cameras? Definitely...contractors making money PER ticket thus inducing all sorts of 'incentive' to do less then ethical/legal things. Does this mean you should ban a PROVEN technology? I say no...You're welcome to not want the cameras, but the stats don't lie, they save lives and money.

Re:I demand privacy but not in the private sector!

[stinerman]

A sibling mentioned the 9th.

Some founders believed that having a bill of rights would make it seem that only the rights listed therein are the only rights one has. Many believed the Bill of Rights would be redundant since the government was one of enumerated powers and had no power to regulate religion, the press, etc.

Rule of thumb: government powers are enumerated, while rights are not. Basically, you have the right to do anything not expressly forbidden.

The right to privacy is not forbidden and is alluded to in the 4th and 9th amendments. Ergo, you have that right. QED

Re:I demand privacy but not in the private sector!

[falconwolf]

Can you tell me in which article this "right to privacy" is? I seem to have missed it.

IN THE
Supreme Court of the United States

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. amend. IV. The rights protected by the Fourth Amendment are "indispensable to the 'full enjoyment of personal security, personal liberty, and private property'; [and] they are to be regarded as of the very essence of constitutional liberty." Johnson v. United States, 333 U.S. 10, 17 n.8 (1948). And these rights apply with particular force in the home, where the expectation of privacy is historically and legally entitled to the highest protection. A thermal imager scan of a private home at night without a warrant, which gathers information about activities and objects generating heat inside the home, violates those rights.

Further down in that document:

This constitutional right of privacy in the home does not depend on notions of trespass. See Katz v. United States, 389 U.S. 347, 353 (1967) (the existence of a violation "cannot turn upon the presence or absence of a physical intrusion into any given enclosure"); United States v. United States Dist. Ct., 407 U.S. 297, 313 (1972) (government interception of telephone conversations as violative of right of privacy as physical entry into the home). As this Court recognized over a hundred years ago: "It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property. . . which underlies and constitutes the essence of"a Fourth Amendment violation. Boyd, 116 U.S. at 630.

The First Amendment Protects Privacy of Association

The "close nexus" between the First Amendment freedoms of speech and assembly assures a freedom to engage in association for the advancement of beliefs and ideas. See NAACP, 357 U.S. 449, 460 (1958). Effective advocacy of both public and private viewpoints--central to the First Amendment--is "undeniably enhanced by group association." Id. Freedom of association is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Id., citing De Jonge v. Oregon, 299 U.S. 353, 364; Thomas v. Collins, 323 U.S. 516, 530 (1992). The freedom of association encompasses the right to privacy of that association, and therefore prevents compelled disclosure of membership in an organization. NAACP, 357 U.S. at 459. Such a right is necessary to the freedom of expression, which depends upon the unrestricted flow of ideas, because the "inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." Id. at 462.

The Court Only Seventeen Years Ago: Deeply Torn Over Anti-Gay Sex Criminal Laws

In 1986, the Supreme Court took up the famous -- indeed, notorious -- case of Bowers v. Hardwick. The case arose when Michael Hardwick was arrested for violating Georgia's criminal ban on sodomy after police entered his home and found him in bed with another man.

In defending himself against the criminal charge, Hardwick challenged the constitutionality of Georgia's ban on sodomy. Specifically, he argued that his constitutional right to privacy included a right to engage in homosexual sex and, thus, meant that Georgia's sodomy law should be struck down.

As a legal matter, Hardwick's case involved one of the most difficult areas of constitutional law. The Constitution doe

Re:I demand privacy but not in the private sector!

[pixelpusher220]

Actually I hope you have a set of underwear with you as your not SUPPOSED to be trying on pants/etc without it...

Reminds me of an old Friends joke:


Chandler: What do you mean, it's soap, it's self cleaning?

Joey: Oh yeah? Think about what I wash last and what you wash first...

Chandler: -freaks out-

Re:I demand privacy but not in the private sector!

[Platupous]

I also have the ability to view many peoples private files, but what I found out early on. . . is that you *really* dont want to know most peoples private information. Most of the time is is boring, and when it's interesting, you probably didn't want to know that little tidbit, as it may shock you.

In reality... Dosen't everyone feel dirty rifling through others private info? If you do not, then I think there is something wrong with your conscience.

Re:I demand privacy but not in the private sector!

[StikyPad]

Well put. I have the same view of RF scans in airports. They're even one step removed as you're not seeing skin through the visible spectrum; rather something akin to night vision. Bodies aren't particularly private just because we call them "private parts," and Puritanical moral standards shouldn't be confused with real privacy issues, i.e. political beliefs, what you read, what you purchase, what you say in the privacy of your home, where you go, etc. The shape of our physical shells is probably the least important part of what makes us human, but we tend to place the greatest emphasis on it in all aspects of society.

Re:I demand privacy but not in the private sector!

[mrchaotica]

(Sigh) This is why some of the founding fathers didn't want the Bill of Rights -- because morons like those that ruled in Lawrence v. Texas would assume that the enumerated rights are the only ones we have. On the contrary, the reality is that we have every right not expressly prohibited, and the Bill of Rights only exists to reiterate a few particularly important ones.

Show me a law (statute, not case law) that explicitly states that we have no expectation of privacy in public restrooms and dressing rooms, and (getting back on-topic) also that service technicians can legally search our computers (which I would interpret as tresspass). Until then, the Supreme Court can go fuck themselves.

How about encrypting your important files...

[joelparker]

...before you hand over your computer and login to a complete stranger?

What's the old saying?

[saskboy]

"This ruling could threaten to 'turn your friendly neighborhood computer repair technician into a government informer' "

Does the saying, "discretion is the better part of valour" meant anything to anyone these days? If I saw something extremely dangerous on a computer I'm fixing I'd probably say something weather or not there was a law forbidding me to. Likewise, if there's something technically illegal, but not likely to threaten the safety of anyone, I'm not going to go to any lengths to be a snitch. Don't bite the hand that feeds you, and all that.

What would the EFF want the technician to do?

[KLFrosty]

Shut off the computer, and pretend he never saw the child pornography? He wasn't reading the defendant's diary looking for thought-crimes, folks.

Re:What would the EFF want the technician to do?

[BannedfrompostingAC]

It's not what the technician should have done, but what the police should have done. They should have obtained a warrant to continue searching the computer. This is simply a matter of incorrect police procedures. Somebody guilty of a crime can walk away free from court on these sorts of technicalities.

Be smart

[Pig Hogger]

Use at least TWO disk drives on your systems, one for data, the other for the system and software.

Configure temp directories and cache directories to use the second drive.

Better: at least, mount the second drive in a caddy which is removed whenever the system is shipped-out for servicing.

Better yet, remove the caddy and put it in a "safe" place whenever the computer is not being used, so in case of theft, you don't lose the data.

Lastly, if the system is shipped because it won't boot windoze, boot-up with Knoppix and delete all possible temporary files or cache directories.

Hmmmm, this could be something to do: kitbashing a boot Linux distribution that would ferret-out all cache and temporary directories and nuke them.

The last thing I want...

[Karma_fucker_sucker]

is some tech seeing pictures of my baby daughter in the bathtub and then calling the cops because of my "kiddie porn." Then having to spend the thousands of $$$ on an attourney to get myself out of custody and to prove my innocence. Because when it comes to: terrorism, drugs, taxes, and kiddie porn, you are guilty until proven innocent, maybe not legally, but that's how the system works around these crimes.

Re:The last thing I want...

[Nasarius]

Because when it comes to: terrorism, drugs, taxes, and kiddie porn, you are guilty until proven innocent, maybe not legally, but that's how the system works around these crimes.

Kiddie porn/child molestation is a modern witch hunt. One accusation, even if it's completely baseless, will label you for the rest of your life.

EFF defends right to keep child porn private

[waynegoode]

The article left out a very important fact. From the brief:

While the computer was being serviced, the service technician viewed some of the files on the computer and discovered that some of the files contained child pornography.

EFF appears to be ashamed of this "detail" because they left it out of the report on their website.

How do you balance the right of someone to have his child pornography kept private against the right of children not to be victimized by child pornography? What would your opinion be if it was pictures of your child or if you lived near the defendant?

Re:EFF defends right to keep child porn private

[utopianfiat]

Where did he find the child pornography? In a spam email sent to the defendant that was sitting in his trashcan? In his temporary files directory? In his kazaa shared folder which he doesn't even know he has because his 17-year-old son is a porno addict? In his pictures directory containing pictures of his daughter in the bathtub?
There are so many scenarios to consider here that you can't just cry "pedophile" when you find something like that on someone's hard drive. I mean, I hate letting pedos walk free just as much as every other concerned citizen, but not at the expense of my privacy, and possibly my clean legal status if we're going to witch hunt about it.
It's no secret that even an accusation of a sexual crime can possibly ruin someone for life, and it's definitely not to be taken lightly. This is where we need to strictly interpret one's right to privacy and use common sense before "exposing pedophiles".

Re:EFF defends right to keep child porn private

[RockClimbingFool]

What people are charged with doesn't matter. Groups like the EFF, and the ACLU especially, catch alot of grief for the people they defend.

You need to realize they are not fighting for the defendents in these cases. They are fighting to ensure due process is followed IN ALL CASES.

If you can't follow the rules when it comes to prosecuting people who are truly guilty of crimes, how much are the authorities willing to bend the rules when the case isn't so cut and dry.

Re:EFF defends right to keep child porn private

[Kaa]

How do you balance the right of someone to have his child pornography kept private against the right of children not to be victimized by child pornography? What would your opinion be if it was pictures of your child or if you lived near the defendant?

I am sorry, does the Fourth Amendment to the Constitution say something about child pornography? Like that it does not apply in case of?

You seem to want to make the Consitutional rights of people be conditional on the kind of crimes they are accused of committing. Are you sure you'll want to live in such a society?

Re:EFF defends right to keep child porn private

[Vip]

"EFF appears to be ashamed of this "detail" [child pornography found] because they left it out of the report on their website."

The title is very much misleading. The EFF is *not* defending child porn. FTFA, quote,
"Customers who drop off their computers for servicing reasonably expect that their private data won't be handed over to the police without a warrant."

The EFF is defending the right of the person to not have his hard disk go through an unauthorized search.

Re:EFF defends right to keep child porn private

[m50d]

EFF appears to be ashamed of this "detail" because they left it out of the report on their website.

How does it alter the case? Our rights don't mean anything if you waive them for child porn. How about we get rid of innocent until proven guilty for child porn cases too?

Re:EFF defends right to keep child porn private

[alan_dershowitz]

It's a piece of property, and I'm not aware of any rulings that have declared a PC to be an extension of one's person like a home or car. It would be different if the police had no probable cause and were just searching people's machines, but the technician found the stuff on the machine incidentally, and notified the authorities. Should such a ruling come, I would welcome it. I wouldn't have thought that aquiring such a warrant would even have been that hard. They could have siezed the computer anyway and just not searched it until they aquired the warrant.

You seem to want to make the Consitutional rights of people be conditional on the kind of crimes they are accused of committing. Are you sure you'll want to live in such a society?

Welcome to the modern United States of America, we already do this. Check out DUIBlog's ""The DUI Exception to the Constitution"" For examples for just one type of crime. You might also check out examples relating to criminal tax fraud and drug crimes for more cases where the consitution is outright ignored. Don't forget about child protective services, which can hide the identity of your accuser in a court of law, and convict you on their testimony, which is clearly and aggriegiously a violation of one of the most important rights this country was founded over.

Re:EFF defends right to keep child porn private

[waynegoode]

I am sorry, does the Fourth Amendment to the Constitution say something about child pornography?

The First Amendment to the Constitution does not say anything about child pornography either, but court ruling show that it is not covered by "Freedom of Speech". The precedents show that where the constitution is not explicit, there is more to be considered than the words of the Constitution. Supreme Court ruling often refer to balancing the rights of one group vs. the other.

I did not say the EFF was right or wrong, I merely asked how the rights of the parties should be balanced.

Get over it.

[Seumas]

Whatever your "expectation" may be, you have a right to jack shit. That's just life these days. Any pretense of privacy, presumption of innocence, independence and so forth is misplaced outside of a historical context.

All of these people jumping on the bandwagon are a little late. Whitebreads who are suddenly shocked into the situation because their precious little princess can't get on the airplane because the two year old is on a terror no-fly list or perverts who are shocked when someone turns them in for something on their computer or soccer moms who are upset when the cable guy reports to the TIA that there is "something weird about that person" are like firemen showing up to a pile of smoldering ashes.

Face it - people see the EFF, ACLU, NCAA and other organizations that have anything to do with free speech, privacy or freedom as "communist hippies" at best and "terrorists/sympathizers" at worst. Am I the only one who hasn't missed all the polls and commentaries from joe-random on the street who clearly states that the necessary cost of safety is freedom and that we have to be willing to give some of our freedom up in the modern world of "terror"?

We already lost. Your rights couldn't be any more flatlined.

Re:Get over it.

[Kevin DeGraaf]

see the EFF, ACLU, NCAA and other organizations [...] as "communist hippies" at best and "terrorists/sympathizers" at worst

While college basketball is pointless and boring, I don't think I've ever heard anyone refer to the NCAA as a terrorist group before...

Hmmmm...

[Bimo_Dude]

This is probably going to be a close call. If a cop pulls you over for speeding and sees your stash in the back seat, then he has every right to search the rest of your vehicle and arrest you (according to the law, anyway).

However, the person who found these purportedly objectionable files was NOT a cop. It was not his responsibility to call the police, nor was it Gateway's. Also, the fact that the police officers searched his entire hard disk based on heresay likely will be a big issue too. The files in question were clearly not in plain view of the police, and likely not even in the plain view of the technician (although that's moot anyway). I wonder if the technician was just looking for some good pr0n or maybe warez that he could copy.

This is yet another reason why I prefer to build and support my own systems... fewer prying eyes.

eff computer privacy case

[r1_97]

"This ruling could threaten to 'turn your friendly neighborhood computer repair technician into a government informer' "

Back in the days when photographs had to be sent to a shop for developing and printing there was a push to require the shops to report illegal photos (porn, evidence of a crime etc.) The administration of these laws boggs down because everyone has a different opinion as to what to report.

Fight for it...

[ajiva]

The only way to stop this decrease in privacy is to fight for it. If we ignore this, there will be even more issues and privacy violations.

Informing vs. Investigating

[Prospero's Grue]

I think this is one of those subtle cases that baffles.

In handing the computer over to the technician, the owner left himself open to the fact that the technician was likely to examine the contents, and he might be expected to inform the police on finding illegal material. There's no confidentiality expectation.

The police then had a right to investigate, but should have obtained a warrant to examine the computer. It does not cease being private property because it's in the care of a 3rd party.

By the same token, if I drop off my car for maintenance, and the mechanic thinks he found drugs - the police need a warrant to search my car. If I leave my house while an exterminator fumigigates, and the exterminator finds a cache of illegal weapons - the police need a warrant to search my house.

The general notion of privacy, and the legal notion are actually different. The guy was boneheaded to leave the stuff where someone else could find it; but the police can't just go in and start peeking.

As for technicians being informers - there's nothing to prevent that either way.

Re:Analogy

[Tackhead]

> OK, read the story again, only replace "computer" with "car" and "possibly illegal files" with "body in the trunk".
>
> What happens when the car gets dropped off for an oil change? If the mechanic sees blood dripping out from under the car, would he be allowed to call the cops?

Nail. Head. Hit.

Your mechanic is under no obligation to call the cops. He's also under no obligation not to call the cops.

If I hand off a hard drive full of goat pr0n to a techie, I should expect, at a minimum to get some weird stares when I get the hard drive back.

This isn't a case of "if you have nothing to hide, you have nothing to fear". This is a case of a someone being "too dumb to fear, too dumb to bother hiding", and the gene pool is improved by it.

OK my turn.

[MrCopilot]

I spent some time as a PC tech, both corp and retail.

The EFF argues the police need a warrant. This repair tech gave them all they need for a warrant. Did they get one? No. Throw it out. Doesn't matter what the files were. (PATRIOT not withstanding). Due process is the LAW. (IANAL) But the trial judges threw it out & that's good enough for me. Sloppy police work sends crimnals home everyday, this is just another one.

As for expectaion of privacy, hmm. If I give you a folder full of sensitive documents and ask you to rearrange them alphabetically, my expectation goes out the window doesn't it.

Now, do they have reasonable cause to get his ISP records, I dunno, forbidden fruit & all.

Technician Did The Right Thing, Police Erred.

[EzInKy]

When Westbrook dropped off his personal computer at a Gateway Computer store for servicing, a technician saw private files on the computer that he thought might be illegal. Gateway called the police, who searched through personal files on Westbrook's hard drive looking for more evidence -- before ever getting a warrant. The trial court found, and EFF argues in its brief to the appeals court, that this violated Westbrook's Fourth Amendment rights.


If I drop off my car and hand the keys to a mechanic I've basically surrendered my right to privacy concerning anything he finds in the car while going about the repairs so if he finds anything illegal it is perfectly right for him to report it to the police if he feels that is his duty. The same applies to the technician.

The police, on the other hand, were obviously wrong in not obtaining a warrent to search the drive.

Re:Technician Did The Right Thing, Police Erred.

[EzInKy]

Well I'm definitely not a lawyer but a Google search lead me to [URL=http://caselaw.lp.findlaw.com/scripts/getcase .pl?court=us&vol=466&invol=109]United States-vs-Jacobsen[/URL]:
"The initial invasions of respondents' package were occasioned by private action. Those invasions revealed that the package contained only one significant item, a suspicious looking tape tube. Cutting the end of the tube and extracting its contents revealed a suspicious looking plastic bag of white powder. Whether those invasions were accidental or deliberate, 10 and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character."

So, it appears that if a private party finds illegal material all expectation of privacy is out the window as far as the found items are concerned. As for the mechanics, or computer techs, there are any number of reasons why they may be looking in areas not directly related to the repair in question. Jacks are located in trunks, software that runs hardware is located on computer hard drives.

David Asimov

[HotNeedleOfInquiry]

Son of the late Issac Asimov was busted for child pornography the very same way. http://www.newsmakingnews.com/asimov3,29,01.htm

Re:I've said it before...

[Domo-Sun]

If you havn't got anything to hide then you don't have anything to worry about

The whole "We have nothing to fear" argument is dumb. We always have something to fear.

Well where do you draw the line?

[Sycraft-fu]

Is it ok for the tech to report files that are on your desktop in a folder call "Illegal stuff in here"? Ok, how about if the files are hidden in a folder, in an area that in no way relates to the service they are doing? How about if they are in an encrypted volume, the password which he gets by cracking it stored by another program withweak, reversable encryption?

Etc.

The fact of the matter is, people doing service work should be going through your shit. When I hire someone to perform matenence on my house, I am not giving them permission to come in my bedroom and start going through my personal belongings. They are allowed in my house only to fix whatever it is that is broken.

That's the problem is that it seems that the techs finding this is evidence that they were poking around and looking for stuff, which they shouldn't be doing. There is nothing ending in .jpg that has any relivance to fixing a broken system.

A real worry is that if this is decided to be ok, the police will start putting pressure on techs to go through people's files looking for things they might want to know about. They get a quiet little agreement going with Best Buy and CompUSA that if a computer is brought in for service they'll scan the drives for child porn, warez, any documents that might indicate disagreement with the government, etc.

People tend to get all knee-jerk because the test case is a child porn case and there's a real "kill them all" mentality but you have to think in more general terms. Any time you hear "Don't worry, we won't abuse this law" you know you are being told a lie. The DMCA is a wonderful example. We were told it wouldn't ever be used to suppress academic research and it already has been.

So sure, maybe you think it's great that every computer that comes in for service should be scanned for child porn but then where does it end? I mean with all the terrorist paranoia these days I'm sure they'd want to scan it for "subversive literature" as well. The media insudtry would be right on board wanting scans for MP3s and MPEGs, and probably just assume they were illegal rips and make you prove your innocence.

It is a path we do not want to walk down.

hmmm

[meatbridge]

it doesn't sound like you need a computer repairman. if you can outsmart these watchful eyes than you probably don't even need a service like these. what about those who don't have any idea about how to go about creating knoppix disc, or have to send their computer to a repairman to install a second harddrive.

Re:I've said it before...

[2$ Crack Whore]

If you havn't got anything to hide then you don't have anything to worry about

Why do I need to have something to hide in order to want privacy? Can't I simply desire to prevent others from gathering unnecessary information on me?

How it should work

[Monty845]

It should work like this:

1. Computer Repair Technician finds something he believes is illegal on your computer.
2. Tech calls the cops
3. Based on the claims of the tech the cops apply for and get a warrant
4. Cops search your computer
5. You go to jail, cops profit

What the EFF is upset about is that they skipped step #3. What is so hard about getting the warrant and then searching the computer?

Re:Analogy

[Anakron]

Get a grip, people!
This isn't about whether the tech was "allowed" to call the cops, but the fact that the cops didn't see fit to get a search warrant before searching the drive. The tech has a legitimate reason to be delving into files. The cops don't.

Re:Analogy

[99BottlesOfBeerInMyF]

What happens when the car gets dropped off for an oil change? If the mechanic sees blood dripping out from under the car, would he be allowed to call the cops?

Sure he would, but they' should still need a search warrant to open the trunk. This case is actually quite a bit beyond that. We're not talking about bodies in a trunk, we're talking about files on a computer. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." Are you telling me computer files are not a persons papers and government agents should not have to get a warrant to browse through them all?

It's hard to stick to principals in this case because the defendant was doing the wrong thing. At the same time that does not excuse the police from also doing the wrong thing. What if a Gateway employee called the police because he saw a picture of a young looking porn star and the police then seized your computer without a warrant and searched through it all? They could then determine that the picture was not illegal, but still bust you for tax evasion based upon your receipts and tax records stored on your computer.

The police need warrants, signed by a judge to look at your personal papers, even if they are on a computer instead of in a file cabinet and even if that computer or file cabinet is not in your home. The warrant must specify the reason the police think you have something illegal and what specifically they are looking for.

In this particular case the police could easily have obtained a warrant. If a child pornographer goes free it is their fault. And we should not all sacrifice our civil liberties and legal protections against an unreasonable or oppressive government and set a legal precedent just so one person can be convicted.

Re:I've said it before...

[utopianfiat]

Depends on what you want to hide and who you want to hide it from...
If you waive privacy rights when you bring your computer into a technician, then anything's fair game,
from reporting that child porn in the folder marked "college essays" to giving your email address to spammers to doing a search on your hard drive for anything that looks like a credit card or social security number, username and password, the possibilities are endless.

It's not the Tech at question, it's the Police

[jevvim]

The Fourth Amendment limits the powers of the Government (aka, the Police), not of private individuals. The decision on appeal is that the Police erred in not obtaining a warrant before following up the lead received from the Technician.

This is quite correct, in the limited scope - Police should not be allowed to search through data on your computer without a warrant, as this data is as private as papers in a closed filing cabinet. Even when the cabinet is in transit, a police officer cannot decide to open it except when duly authorized, usually by a warrant. This is a position that needs to be defended, even if the individual at question isn't someone who we feel is entitled to the defense.

On the question of the Tech... well, that's a matter between the customer and the technician. I doubt any laws were broken by the Tech's report to the police - but, then, you would also be open to the "well, prove the data was there BEFORE it came into your hands, Tech" question - the computer didn't come right from the accused's hands, leaving a wide opening for "reasoanble doubt" when/if it came to trial.

Re:Just a pet peave

[utopianfiat]

I was going to mod you down, but then I thought:
What if it was my karma?

I do.

[RatBastard]

It's none of the tech's business what files are on my computer. Unless I specifically say "Hey, I can't open BackDoorSluts9.avi" the tech has no business looking at that, or any other file. Their job is to fix the computer, not to root through my things looking for porn for their private collections.

What the hell happened to professionalism? I used to do computer repair and I NEVER snooped on peoples machines. I addressed the problem as laid out in the service ticket and left the rest alone.

"But kiddie porn is sick!" some of you will whine. Yes. Yes it is. But your job is not to search for criminal activity. Your job is to fix the computer. Stick to your job. Let the police trace the perverts download patterns on the Net.

Would you search his hard drive for illegal music downloads and call the cops because he has that unreleased Fatboy Slim Cd on it?

And to the parent, you need to grow the hell up and learn about property rights. Someone else's computer is not yours. You don't trespass on their data.

Re:I do.

[ad0gg]

Its like going to a doctor for a physical and having him perform some routine tests, but doctor decides to drug test you without your consent and report the findings to the police.

Re:There's always a choice

[mikiN]

Just put 2 ASD's (anti-shoplifting devices) like EM or RFID labels in the item, one very large, visible and obvious, the other very hard to detect by humans.
As soon as the client tampers with one of them, the larger one sends out a signal to set off a silent alarm to warn security to be extra alert. If the client pays up, both ASD's get deactivated and the larger one gets removed. If the client tries to leave the shop without paying and at least one of the ASD's is still functioning, the sirens go off. If both are dead, it is up to security to spot suspicious behaviour.

It's called Probable Cause.

[nlinecomputers]

The parent poster is exactly correct. The computer owner looses the right to privacy when he invites someone to view and repair my computer.

If I invite guests over to my house and serve cocaine to my guests then I can't expect privacy either if one of them reports me the cops. In either case the cops can't just bash my door in they must get a warrant. But swore testimony of a witness is usually enough to land said warrant.

Simply put EFF is correct about needing a warrant and most likely they would have easily obtained one with a phone call. Cops screwed up here.

Re:It's called Probable Cause.

[Tim C]

You don't have the right NOT to have nosy people snoop through your things.

I'm going to have to disagree with you there. There are laws against people standing on the pavement outside my house staring in through my windows. There are laws against people wandering in to my house through my open front door and going through my things. You have the right to expect that workers you invite into your home (eg plumbers, electricians, builders, etc) won't be going through your drawers and cupboards except where it is necessary to access areas relating to or assess the work for which you have commisioned their services.

Why is it any different for a PC technician? If I drop my PC off to have the graphics card replaced, what right does the tech have to go looking through my documents?

Plenty of immoral reasons but nothing illegal about it.

I don't know about the US, but here in the UK I suspect you could argue a case that this is in violation of the Computer Misuse Act, in that you did not explicitly grant the right to access the files in question, and that such access was not necessary for the completion of the work. I'd be surprised if a similar law doesn't exist in the US.

No, the 4th Amendment doesn't apply, but that doesn't mean that *no* law applies.

Oh, horseshit.

[RatBastard]

Don't give me that crap. Unless the problem is data file specific the tech has no reason to look at anything other than teh hardware and the OS directory.

I used to do tech work and while I never searched other people's machines (because I value my proprty rights and I respect other's property rights) I know a lot of techs that did. And they did it for one reaon: to get new stuiff for their collections. They'd copy off all of their porn, MP3s, etc... and add it to their collections. Their searches had nothing to do with fixing the computer and everything to do with data theft.

No *searching* without cause.

[Chagrin]

The footnote in the brief reveals why the EFF's case has (IMHO) merit:

• Appellants assert that the technician was required to actually view the files on the hard drive in the course of performing the requested services; however, this assertion is not supported in the record

If the technician was unreasonably searching through the computer for files he might find interesting, then there's a definite privacy problem. In other words, Gateway should not be allowed to run tasks on your computer that have no relevance to the repair, just as a plumber has no right to search your underwear drawer if he's just fixing a leaky faucet.

It really looks like the EFF is ensuring that proper procedure was used in this search. If the technician cannot reasonably explain why he was looking at the files (and that the files were relevant to the task of repairing the computer) then the search should most definitely be declared illegal. As the case stands now, there's nothing preventing technicians from acting as agents of the police and performing unnecessary searches of your computer.

Bad alternators don't put bodies in the trunk.

[MacDork]

Your analogy does not work for one simple reason. This is computer repair. You know, viruses, root kits. These things could have been used to place the illegal files on the drive in the first place.

An example: What happens when evil kiddie porn hacker roots your box and uses it as an FTP server for all his kiddie porn hacker friends? Your machine becomes kiddie porn central, slows to a crawl because of bandwidth saturation, and your directories are stuffed with illegal files. You, not being a 1337 HAX0R DUD3 unhook it, take it to the computer repair guy, and the computer repair guy finds illegal files you were unaware of. Instead of fixing the problem, he instead turns you in to the cops as a kiddie porn wanker. Your life is ruined. You loose your job, your wife leaves you, and you aren't allowed to see your own kids without a social worker present.

Thanks Gateway!

Re:Bad alternators don't put bodies in the trunk.

[MacDork]

And people can break the lock and put a body in the trunk, hide drugs under your seat, tape a handgun underneath the car, use the car to commit a crime.

Compare the number of those events to the number of Windows exploits in a year. Furthermore, if I'm having a problem locking my trunk, I'm probably going to notice the body and call the police myself.

What you are describing is a legal defense argument. It doesn't change the fact that illegal material was found on the computer.

It also doesn't change the fact that simply being an accused child pornographer is enough to thoroughly ruin your life in this country.

Instead of fixing the problem, he instead turns you in to the cops as a kiddie porn wanker.

What if he does fix the problem, but the person actually was a criminal, continues to download, is caught. After poking around the cops find that the tech had infact serviced the computer and seen the illegal material. They accuse him of covering up the crime, and his life is ruined, etc. etc. Would you risk going to jail over somebody who couldn't properly maintain their computer?

If the files were not related to the problem, then the technician had no excuse looking at them in the first place. The technician was hired to fix a problem, not snoop. If the files WERE related to the problem, then we're back to square one of my assertion.

If you don't agree, then don't make a peep when the next Window's virus of the week drowns the internet in a crapflood. You can't expect users to fix their problem if doing so results in them being framed up on child porn charges. Also expect a lot more child porn websites, child porn spam, and innocent people in prison as users are reluctant to fix zombied boxes serving up child porn for the real traffickers.

You can't have it both ways. In the long run, your way will result in a lot MORE child porn on the internet. Happy now?

If you know that much about computers...

[colin_young]

I've seen a few responses here suggesting that before you take your computer in for repair you should encrypt your files, move them to to a removable drive, etc. (or should be doing so as a matter of course). My only question: if you know how to do that, why are you taking your computer to Gateway to get it repaired? Fix the damn thing yourself.

what if...

[socreets]

All you people who are so happy to report others for their crimes because of moral issues should be more than happy to have their own children call the police whenever the parents have commited a crime.

For example, dad and mom are cheating on their income taxes and jr. overhears them so he calls the cops like a good "citizen".

How about this one, you the parent steals stuff from your employer (nothing expensive just small time things) and your little angel has been told at school that this is a crime so he calls the police.

Just a couple of examples why the state has no business having it's citizen sqealing or reporting on each other for their own good. I hear this prctice was encouraged and became really popular in the USSR and Nazi Germany.

CSI: The Matrix

[CyberSp00k]

A very interesting topic and one that reveals how much mythology and folklore there is about US Constitutional Rights, police procedures, and technical/professional ethics.

IANAL, however ...

I did RTFA and from what was presented there, the police blew it on this one. Gateway's privacy policy and the tech's morals/ethics may have required them/him to notify the police. Police procedures and legal guidelines SHOULD have mandated a warrant, once the "probable cause" evidence was shown them by the tech and before they so much as touched the machine to adjust the viewing angle. That's the way it's SUPPOSED to work (in most U.S. jurisdictions, YMMV).

Computer forensics 'sperts come in like the CSIs from the TV shows, with all sorts of techie gizmos and gimmicks. They can, and do, create a bitwise, forensic clone of the hard drive, take photos, make notes, and maintain a chain of evidence. For them, it's routine. Some of the toys they have are enough to make you drool with envy. It doesn't sound like any of that happend here - instead the locals came in like the guy in the Swiffer commercial.

Computer forensics cuts both ways. A good defense expert CAN show that the bomb-making instructions ended up on the computer without your consent or knowledge, just as a good prosecution expert can demonstrate that you really did keep two sets of Quicken books for your money-laundering home business.

But as has been noted here before, when it comes to drugs, taxes, terrorism, or kiddie porn, it's guilty until proven innocent. A computer forensics consultant I know had to obtain "Get Out of Jail Free" cards from the State DAs in two states to carry evidence back and forth across a state line for one case he was involved with. Had he been stopped, and his evidence bag examined, without them, he could have ended up incarderated for "possession" of kiddie porn. Talk about mindless, knee-jerk situations.

Oh, well, if you want to experience a wild life of techno-crime, consider a career in computer criminal forensics. The pay is great, you get to play with neat toys, and if you are really unlucky you'll get to meet a lot of VERY interesting people.

Re:You sound like...

[Anonymous Coward]

And you said exactly like the folks he's talking about--the very hint, not even conclusive, just the mere suspicion, and you've already made a judgment and misleading statement.

btw, I have been falsely accused before, although usually not in a legal situation.

The most socially pointed was when I passed a girl with a group of her girl friends on a busy DC street corner one (September I believe) weekend in Georgetown (SW corner of M and Wisconsin if I recall right). I'm one and a half steps passed the group, and the girl closest near the back turns around and goes utterly ballistic. I turn to see what the ruckus is about, I'm met with one really PO'd person, who apparently thinks I did something to her; I was taken back at getting screamed at for no apparent reason so I suspect she believed I had felt her up. I did nothing of the sort. I had simply weaved my way through her group getting past a crowd. There were also at least 1 other guy that walked around her on the other side at the same time, and I didn't see him (although I wasn't paying attention) do anything either, and I think there was another small group north of her as well.

Nonetheless, I got screamed at for half a block and got accusing stares from the other folks on the street the entire time. My suspicion afterwards was that she was a freshman or sophomore college new in town, vaguely pretty (hard to tell when you're trying to figure out what's going on in the first place in that mill of people) shopping with friends who had been getting hit on or felt up that entire afternoon and just thought someone had groped her or run into her on purpose, and she directed her verbal assault on the nearest person.

I gave up shortly trying to figure out what was up and eventually just walked away. Staying was just making things volatile and escalating something bad was going to get directed to me, and she and her friends were of no mind to really figure out what happened much less actually saw or knew themselves. All I knew was that I hadn't done anything.

Its implicit in Amendments IV, V, IX, and XIV

[Skjellifetti]

Amendment IX,

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

coupled with IV,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

V,

No person shall ... be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ...

and XIV,

... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ...

add up to a Right To Privacy. Between them, what the Framers were saying was that if the state wants to invade your personal space, they had better be able to show a pretty compelling reason.

Oh, and when the Feds institute that system of internal passports that some folks are worried about in connection with the new driver's license law, remember that the Constitution guarantees no explicit Right To Travel either.

Re:Bad analogies

[Mr Guy]

Without more details, you can't apply that label. Child porn is never legal, but not all naked pictures of children is child porn, even though I'd like to see Anne Geddes stopped as much as the next guy.