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No Right to Privacy When Your Computer Is Repaired
Billosaur writes "ZDNet's Police Blotter bring us the interesting story of a Pennsylvania man who brought his computer into Circuit City to have a DVD burner installed on his computer and wound up being arrested for having child pornography on his hard drive. Circuit City employees discovered the child pornography while perusing Kenneth Sodomsky's hard drive for files to test the burner, then proceeded to call the police, who arrested Sodomsky and confiscated the computer. Sodomsky's lawyer argued in court that the Circuit City techs had no right to go rifling through the hard drive, and the trial court agreed, but prosecutors appealed and the appeals court overturned the lower court's decision, based on the fact that Sodomsky had consented to the installation of the DVD drive."
When the perp has a name like "Sodomsky", I really gotta wonder if this is for real...
Cheers,
"What in the name of Fats Waller is that?"
"A four-foot prune."
Ultimately it doesn't matter whether you have a right to privacy or not. It's not a right you can rely on. Expect the monkeys to paw through your private photos & videos regardless of where you get your PC repaired.
The answer is routine encryption, but let's face it - if you need help installing a DVD drive, you're unlikely to have any idea what encryption even is....
There are shills on slashdot. Apparently, I'm one of them.
Yeah. What the fuck kind of name is "Kenneth"???
-The Car Analogy (obligatory): take to mechanic for repair, leave illegal material in an unlocked glovebox. Fuses are in the glovebox, mechanic finds illegal material. Arrested, trail court dismisses on evidentiary grounds, prosecution appeal currently pending. Al Sharpton somehow becomes involved in media coverage.
-The Kitchen Appliance Analogy: take mini fridge in for repair. Leave severed hand of (former) roommate in freezer. Hand is found when test of ice cube tray attempted. Convicted to 30 year sentence, paroled in 9 years. Begin anew with career as tech security consultant.
-The Post Office Analogy: Take large, heavy package to post office. Deliver using media mail rate, the cheapest shipping option. Miss sign claiming that any media mail package is subject to inspection by any PO employee. Box is lined with child pornography. Arrested, sentenced in federal court, killed in prison after 2 years.
-The 19th Century Tech Analogy: take daguerreotype plates in for annual silver halide tune up and focus lens coal-cloth polishing. Leave illegal woodcuts of "ladies of the night" wearing bloomers and baring arms and shoulders(!) underneath stack of plates. Illegal woodcuts & etchings located when technician reaches bottom of stack. Immediately jailed, lynched by angry torch-bearing mob by evening. Grave marker doubles consonants and adds "e"s to the ends of first and last names.
"when you get arrested because the mechanic notices the 5 kilos of coke in your back seat." ... especially if your last name happens to be Peruvianmarchingpowderski
I don't know about anyone else, but 'poking around for files' is pretty damn intrusive. Just burn a couple of files on the desktop to the CD rom.
I hate child porn as much as anyone else, but this stinks of people looking for personal details on their clients that are none of their business. This shady shit has to stop.
The constitutional Right To Privacy, to the extent that it exists at all, applies only to govenment agencies.
The defendant might try bringing a civil action.
But no matter hiw you frame the issues, there is only a snowball's chance in hell that a jury will punish Circuit City for reporting a crime it discovered in the ordinary course of business.
One huge difference:
The people at the photo development place can be very sure that a person under 18 was molested by the person who brought in the roll of film.
The person with under-18 porn on their computer might never have molested a minor
Thus I think that child porn should only be considered as evidence for someone molesting a child, but not a crime in its own right, as that makes it very easy to frame someone just by emailing them some pictures. Or what if the tech in this case planted the pictures on the hard drive? And then if you make having artifically generated pictures or text stories that depict people under 18 having sex illegal, that is just crazy, as no kids were ever harmed there. What about someone under 18 taking a picture of themselves?
Of course, if you like the idea of thought police, where you can be arrested for creating something from your imagination that is evil, then where does it stop?
If I have nothing to hide, don't search me
What makes it worse is that the people who installed the drive are being made out to be the bad guys here, it said they looked for files they could use to test the drive, they weren't randomly looking through his pictures, they most likely just searched for any media files so they could try burn them, saw child porn and reported it, like any responsible person would do.
Responsible, my ass. If what those technicians did wasn't criminal, it should be and it was at best unprofessional.
It is possible to be a criminal and a victim simultaneously. Actually, if you knew anything about the American Justice System, you'd know that merely being accused of a crime makes you a victim, because the results of an accusation are punitive, regardless of whether you committed any wrongdoing. You don't want to be in the system, you really don't: it's a surreal alternate universe where the normal rules simply do not apply. I've never been there myself, but I have enough lawyers in my family to have a pretty good idea what goes on. It's terrifying to an ordinary citizen, disruptive and costly.
Regarding TFA, I'll accept that the techs needed to test his burner, that's only what a good technician should do. However, they didn't need to use his personal picture files, didn't have to view them, and could have just used some files from the \Windows folder and verified the burn. There was also no reason to search his drive for anything! Period! End-of-the-goddamn-statement.
Regardless of what criminal acts this man may have performed, the fact is that the techs were unethical and untrustworthy, and I'd sure never take my computer there. I mean, at what point did they become part of law enforcement? Hell, they should have been fired, and be up on charges too (but they won't be, because government likes technical types that snoop around and snitch on people.) Over the years, my job has required access to confidential information from a number of multi-billion-dollar corporations, as well as private citizens. Never once did I go snooping around just to see what I could find, because it's not my goddamn business. Furthermore, if you want people to trust you, you just don't do things like that. What those techs is highly unprofessional, and once word of this gets out I have no doubt that shop will be out of business in a hurry: "Oh, you mean your technicians will search my computer for any sign of illicit activities? Yeah, right." What a bunch of dumb fucks. If there was every a reason for Joe Sixpack to learn how to fix his own machine, this is it.
Plus which, having worked as a service tech, I can tell you this: you're right, they weren't randomly looking through his pictures. They were systematically searching his drive looking for anything entertaining. Just his bad luck that they found kiddie porn, and the only reason it got reported was probably because their supervisor was looking over their shoulder enjoying the show right along with them! Otherwise they'd just have made copies for their own consumption and nobody would have been the wiser.
The higher the technology, the sharper that two-edged sword.
If I had been the guy's lawyer, the first thing I would have argued is that since the evidence was not uncovered by a sworn police officer, it could have been planted. What if this guy was a rude on the clerk, who was a vindictive bastard and decided to frame him? Or maybe a jolly clerk may have decided to pull a prank that went out of control when someone in the shop contacted the police ("hey Jimbo! this guy's name is Sodomsky, guess what I found on his drive!").
Yes, the courts could have checked the last-modified filestat, but that can be tampered too.
Victims of 9/11: <3000. Traffic in the US: >30,000/y
No-one is arguing that child porn should be protected (although elsewhere some *would* argue, that only producing it should be an offense).
What's at issue is that next time a repair guy goes through your files and sees "...whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it..." and is going to report *that* too.
Next thing you know, you'll have your ass hauled from workplace to the county jail. Apologies will be slow in coming, and your work buddies may not be joining you at lunch for a while.
WHat's also at issue is that submitting a computer for repairs does not give the service people a blank check to read my email or browse through my vacation pictures. I fix my own machine, but I don't fix my car myself, and I expect the technician not to rummage through stuff I may have left in the boot, looking for thrills.
"Only the small secrets need to be protected. The big ones are kept secret by public incredulity." - Marshall McLuhan
The kind of "Freedom" you guys enjoy in the USA has been earned. You had a great consitution and proper personal freedoms but you let various people scare you into shredding that constitution and those freedoms.
Engineering is the art of compromise.
Or better yet ... don't download child porn.
The above raises a good point -- store your data in a manner that's not easily accessed.
But, this case raises TWO different questions that are getting confused.
1 -- Did the service technician violate the privacy of the computer owner by looking at files on the hard drive that might not have been required to perform the repair work? This is a question of civil law, and possibly of the contract between the user and technician.
2 -- Can the police use the evidence found by the technician to prosecute the computer owner? This is a question of constitutional law and criminal procedure.
The answers to 1 and 2 are not necessarily linked.
The constitution provides protection against GOVERNMENT searches of your property. The government can't, without a warrant or an emergency, take your computer away and look through your files. Nor can the government pay a repairman to do what the government can't do directly--for example, if the government paid repairmen to snoop through computer.
But, the constitution doesn't say anything about what OTHER people can do. If the repairman did snoop beyond the limits of his authorization then the computer owner might be able to sue the repairman. But, just because the repairman did a bad thing doesn't mean that the protections in the constitution against government invasion are automatically triggered. Take a different example -- a burglar breaks into a home, steals a lot of stuff, and also sees child porn on the way out the door. If the burglar gives an anonymous tip to the police (or bargains for a lighter sentence in exchange for testimony) then the evidence can probably still be used, even though the burglar had no right whatsoever to be in your house. In fact, it was CRIMINAL for the burglar to be inside your house at the time he saw the child porn, but it's still probably fair game in a prosecution.
The key difference is whether the STATE has violated your right to privacy. You can't bargain with the state to set a higher or lower expectation of privacy; we have a Constitution that sets a minimum floor of privacy for everyone. But, you can negotiate with a computer repair service--if one service offers "no privacy-we'll read all your files" and the other say "complete privacy, for a little bit more money" then you get to pick which one you like, and to sue the "complete privacy" company if they break their word.
Disclaimer: Before you do something dumb, speak with YOUR attorney. I am not an attorney and the law often turns on what seem like very small differences in facts; your situation is probably different and will require personalized advice.
How about telling the tech to supply his own data for burning? Even if there is material on the HD that's legal, how can the tech assert he has the right to make a copy of it? E.g. if someone made movie on his PC, had to send it in for repairs and the tech makes a copy of that movie, isn't the tech liable for copyright infringement?
Justice is the sheep getting arrested while an impartial judge declares the vote void.
The crime of allowing your computer to keep a local digital copy of a file that someone has deemed "illegal"? Was this guy generating the CP or was he just saving photos that caught his sick fancy? Was he paying for a subscription to access areas where he could get these photos and therefore financially rewarding and encouraging another to assault a child or did he stumble accross them on *chan?
Except for the fact that he isn't arguing the point, what *proof* do we have that the tech themselves didn't plant the CP? If I had it in for someone, that'd be a pretty good start. All you have to do is mention CP and the witch hunt begins.
I know I'm going to get flamed into oblivion for this (not to mention accused of being a pedophile, homophobe and everything else in the book), but, if we take it as proven that homosexuality (being sexually aroused by your own gender) is genetic (or at least something you're born with) and therefor an "abnormality" and at best a "normal variant in human sexual preference" how is pedophilia, necrophilia, and bestiality different? Are we saying it's a choice of "lifestyle" and not something you're born with? How do we prove that?
In many countries of the world it is still illegal to be gay. If someone is born with the abnormality of being attracted to "those below the [arbitrary] age limit", and goes through life never once molesting a child, but only collects images that titillate their particular twisted interests, should they be branded a pariah and be sent to prison for years and years?
"But", you say, "seeing those pictures will encourage them to rape a child!". Hmmm... Does that mean that seeing pictures of naked men will force my gay coworker to rape me?. If I download rape photos, will I be driven to rape, should I be charged with the rapes in the photos? It's like the whole "violent games" argument all over again. Maybe this is some sort of release valve for some people.
Don't get me wrong. I think the exploitation of children is wrong, but I also think that the irrational fear and associated draconian laws are so ridiculous that we can't even hold a rational discussion on the matter any more. I mean, really, a 14 year old girl takes a picture of herself naked in the mirror with her cell-phone and she is convicted of creating and possessing child pornography. A 13 year old girl has sex with her 12 year old BF and is charged as a sexual predator and the victim? WFT?!
Something in me says that the same people who make the most noise in government about pedophilia are the ones that are probably hiding something in themselves, sorta like those politicians that bash gays so bad then get caught soliciting strange men.
C'mon people! If pedophilia is a "genetic disease" we should be working for a cure. If it is a sociopathic "choice" then we should be allowing those "suffering" from it to get treatment, not cart them off to jail.
And if someone assaults a child, charge them with the assault and lock them up. Rape is rape. Kidnapping is kidnapping. Child abuse is child abuse. There are already laws for that. Use them. But destroying someone's life because some pictures were found of a child without proper clothing on is ridiculous. Where I grew up it was normal for a girl to be married off and start having children as soon as she started menstruating. That often made her 12 or 13 years old. That was life. That's the way it had been for untold generations. Suddenly, there's something terrible about those people. My grandmother was married at 14. I guess my grandfather was a sick bastard. Funny, he never struck me that way. They were married for almost 70 years.
Well, I've got my flame-proof panties on and karma to burn. Flame on!
"terrorism" and "pedophilia" are the root passwords to the Constitution