US District Court Says Calculating a Hash Value = Search

bfwebster writes "Orin Kerr over at The Volokh Conspiracy (a great legal blog, BTW) reports on a US District Court ruling issued just last week which finds that doing hash calculations on a hard drive is a form of search and thus subject to 4th Amendment limitations. In this particular case, the US District Court suppressed evidence of child pornography on a hard drive because proper warrants were not obtained before imaging the hard drive and calculating MD5 hash values for the individual files on the drive, some of which ended up matching known MD5 hash values for known child pornography image and video files. More details at Kerr's posting." Update: 10/28 16:23 GMT by T : Headline updated to reflect that this is a Federal District Court located in Pennsylvania, rather than a court of the Commonwealth itself.

Comments

It's good to see.

[UseTheSource]

The courts are finally getting up to speed on technology.

Re:It's good to see.

[larry bagina]

Or the joys of child porn

Re:It's good to see.

[UseTheSource]

It's not that child pornographers shouldn't be prosecuted, but like it or not, they're still entitled to the same due process as normal, "non-pervert" criminals. This "it's for the children" stuff shouldn't fly when we claim to follow the rule of law.

Re:It's good to see.

[jollyreaper]

It's not that child pornographers shouldn't be prosecuted, but like it or not, they're still entitled to the same due process as normal, "non-pervert" criminals. This "it's for the children" stuff shouldn't fly when we claim to follow the rule of law.

And anything we can do to deflate the "think of the children" hysteria will help protect our society. It's not that protecting children is a bad thing, it's that turning people into frothing flesh-rending mobs at the drop of a hat is a bad thing. If I were a nasty sort of black-hatted individual, the quickest way I can think of for destroying an enemy would be planting kiddie porn on his computer and dropping a dime to the authorities. Kiddie porn will be the new "baggie of drugs to plant on a perp." I wouldn't be surprised to see cops dropping usb drives on accidentally shot guys. "No, don't worry, I just planted kiddie porn on the guy. Disciplinary action? We'll probably get a medal for this."

Incidentally, your tagline: "Ein Volk, Ein Reich, Ein Messiah." Is that an inept slam against Obama?

Re:It's good to see.

[nahdude812]

You misunderstand the parent post. He's not saying, "it's only children, who cares," he's saying, "whether or not it's children has nothing to do with whether a suspect's constitutional rights should be violated."

The thing is that you don't have perfect knowledge of whether the suspect is a child pornographer or not. Lacking perfect knowledge, you should seek it out by following the appropriate channels.

If you are sure that someone is involved in any crime (whether or not it involves children), you should be sure enough that you can convince a judge to issue a search warrant. If you don't have enough evidence to convince a judge to set aside this person's rights, then you shouldn't just go ahead and set aside those rights even if you're really, really sure.

That's due process. That's how we protect the rights of innocent citizens from being abused by the power granted to police and other government agents. It completely doesn't matter what the nature of the crime you're investigating is. I'll say that again. It is wholly immaterial what crime you suspect someone has participated in; if you don't have enough evidence to convince a judge to issue a search warrant, you should not take the law into your own hands anyway.

The only time you might convince me otherwise is if there was an imminent threat - such as in the case of kidnappings or (since you're talking about child porn), a live feed of a child being abused, and the only as far as is necessary to secure the immediate safety of that child. This again has nothing to do with it being children though - this is just as true in my mind for securing the immediate safety of adults.

Re:It's good to see.

[jedidiah]

These children will have to one day live with the mess that we have created for them in their name.

Re:It's good to see.

[theaveng]

>>>>>The man was clearly guilty

A lot of you are missing the point, so let me put it in bold:

Without the requirement for search warrants (obtained from an impartial judge), the police, FBI, or other government officials/politicians can go from house-to-house-to-house taking PCs simply because they feel like it. Do YOU want to be a victim of these random, harassing, and very inconvenient confiscations. I certainly Do Not! The Constitution was written because that's precisely what was happened in the 1760 and 1770s, and the American people were stick and tired of the bullshit.

"[Our government] has erected a multitude of new offices by a self-assumed power, & sent hither swarms of officers to harrass our people" - Declaration of Independence, 1776

So they setup a Supreme Law of the Land that would prevent this from ever happening again.

Re:It's good to see.

[Foobar of Borg]

These children that you speak of aren't some imaginary thing you can airly dismiss. They are the hopes and dreams of the parents who raised them, the future of our society, innocent and worthy of our very best efforts to protect them. Honestly, I'd have to question the humanity of someone who is NOT outraged by any crime against a child, and least we can understand now that, that, given the active choice to let child molestors walk, that, all this other so-called liberal talk about children is a lie

You know, you're right. And I think *you* are a child molester. So much so that I'll report you to the police. Under the new Think of the Children Act, the police I tipped off will be at your door to kick it in, drag you out of your house, and shoot you dead at the side of the road. What, you don't like this idea? Then you support child molesters!

You see how it works? Due process is needed for everyone, no matter how vile.

Re:It's good to see.

[Anonymous Coward]

Those who deal in child pornography and prey on children are, to my mind, some of the worst exxamples of humanity out there. I wouldn't bat an eye if they increased the prison sentences for them to life or allowed capital punishment. But it still has to remain within the bounds of our laws, the core of which is the Constitution.

Granted. Those who take advantage of, say, 5-year-old kids should be flayed and burned where they stand.

It's the grey areas that concern me, though. The difference between a naked 17-yo and a naked 18-yo is 15 years in jail vs. perfectly legal. If you have a picture of a kid a day before his 18th birthday and a day after, what's the huge difference that makes you a heinous pervert vs. just another horney guy?

Re:It's good to see.

[ObsessiveMathsFreak]

Those who deal in child pornography and prey on children are, to my mind, some of the worst exxamples of humanity out there.

Well, to my mind, they are still fellow human beings and fellow citizens who deserve every moral and legal right as to the rest of us.

I wouldn't bat an eye if they increased the prison sentences for them to life or allowed capital punishment.

I would shed a tear for each such measure as yet another branch was torn from the tree of liberty. I would mourn the needless waste of human life.

But it still has to remain within the bounds of our laws, the core of which is the Constitution.

The law, and even constitutions, are ultimately subject to the will of the people. People like you and others in this thread who would rather join a rabid mob than go against one and stand up for what is right. If you're too afraid of unpopularity, or condemnation, or guilt by association, to defend the rights of others, then you don't deserve a single one of those right yourself.

You, and every poster in this thread panders to hysteria by sycophantically declaring your own inflated revulsion at these crimes. Every time you do so, you further strengthen the forces that are eating away at the foundations of law and freedom in the western world. No reasonable person need declare their revulsion for these crimes. Yet everyone insists on doing so, loudly and explicitly at the earliest opportunity.

Because they are afraid.

"Find out just what a people will submit to, and you have found out the exact amount of injustice and wrong which will be imposed upon them" - Frederick Douglass. The west has submitted to the howls, intimidation and demagoguery of the Outrage Brigade. We will suffer whatever injustice or wrong they now choose to impose upon us, and it seems, will do so indefinitely. Please read the rest of the Douglass quote, and think next time before you obediently proclaim your moral standing.

Re:It's good to see.

[Free the Cowards]

I could hack into your computer and plant pictures. Then you would have the pictures on your computer. Are you then guilty? Is that situation cut and dry?

It seems to me that most people, on this site and elsewhere, don't really believe in evidence, due process, or innocent until proven guilty. They think that suspects are guilty, period. The rest of the stuff is just a formality meant to please the judges. According to this attitude, if the crime is heinous enough and the publicly-available evidence damning enough, the trial becomes redundant and pointless.

This attitude, quite frankly, scares the everliving shit out of me. Everyone deserves a fair trial, and that means properly obtained evidence. You can't simply throw this out because you think a particular crime is really extra special bad.

Re:It's good to see.

[nahdude812]

You're speaking in the past-perfect tense. You're speaking only with perfect knowledge of what transpired.

The problem is that is not how decisions are made. Decisions are made with imperfect future knowledge. When they decided to search this guy's computer, the did not know if they would find evidence of child pornography. Whether or not they found anything, once again, is completely irrelevant to whether they should have looked at all, because you cannot know before hand if you will find anything; you can only suspect you will.

I agree, there is a balancing act, and we should balance the rights of victims with the rights of criminals, but also with the rights of non-criminals. Fortunately exactly how we balance that is very clearly defined for us by the legal system. When you suspect someone has committed a crime, and you need to violate their 4th amendment rights to prove it, we have this excellent system already set up to facilitate it. It's called the warrant system, and its whole purpose is to balance the rights of victims with the rights of citizens which we do not yet know to be a criminal or not.

You're completely ignoring an entire class of citizen. There's victims, criminals, but most significantly there are people who are neither. THAT is the purpose of the 4th amendment.

I'm not saying, "4th amendment, therefore you can never search," I'm saying, "4th amendment, therefore you need to follow the procedures we have in place which provide checks and balances to protect innocent citizens from abuse by people in authority."

If this guy wasn't a criminal, he still would have had people searching his stuff. Or maybe you don't believe in privacy for innocent citizens at all. If that's the case, then you and the 4th amendment are incompatible, and you should return to Tudor England and stop taking advantage of the freedoms the blood of patriots have purchased for you.

Re:It's good to see.

[nacturation]

TSR? What?! Are you still using DOS as your main OS in 2008?

Today we call stuff that run in the background while you do other stuff "Programs", "Services" or "Daemons". Get with the times, man.

Note the user ID of 1263. I believe you're on his lawn.

Re:It's good to see.

[bzipitidoo]

I also find this "hang 'em high" attitude troubling.

Those who used and abused real children for porn or any other purpose are the ones who should be in trouble. Think Oliver Twist. I have heard that in Africa, some have used children as soldiers, training them to commit atrocities, and even occasionally using them on suicide bombing missions. Next to that, the transgression of merely having data seems pretty mild. That crime may be on the order of buying diamonds from murderous regimes. I have heard of some countries (Indonesia) imposing the death penalty not only for dealing drugs but simply for using them, so desperate were they to stop the damage drugs were doing to their society. I can't see child porn reaching quite that level of danger to society.

The data may not even have been purposely collected or known about by the holder, and that person is therefore just as much a victim if railroaded into jail over it. Many have pointed out this possibility.

There are many other possibilities. Suppose the data is actually pediatric medical records? We might have a respected children's doctor behind bars or even shot before anyone realizes it's a mistake.

Suppose the possessor of the data really is into child porn. But what if the pictures are all generated, and no children were involved in any way in the making? Then what? Or, what if we discover a way to "cure" pedophilia? I would guess many pedophiles hate themselves, and wish they didn't find children attractive, and would jump on such a cure if it existed. Alcoholics have similar feelings about their cravings. But of course impossible to cure someone if they've already been hastily executed in a fit of righteous indignation.

that's basically what they were doing.

[yincrash]

you can't generate md5s w/o actually looking at all of the data in the file.

Bad way to search for kiddie porn

[betterunixthanunix]

This sounds like the worse possible way to search for kiddie porn, because a suspect who wanted to conceal his activities could just change a single pixel, and the entire hash would change. They would need a signature method that doesn't change dramatically when a single bit changes, like something based on a frequency analysis.

I dont see how the 4th amendment applies here

[Phizzle]

The guy whose computer was searched, abandoned the computer and gave up any rights at that point, the person who found the porn was computers new owner. Just like any trash tossed out becomes public domain, there should have been zero expectation of privacy at that point. I am not a legal scholar, but I do not see how the 4th amendment applies here. It would be no different than if this was a diary in a different language and the person who inherited the diary found a translator, upon finding criminal evidence it would be fully admissible.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:search = search

[characterZer0]

To calculate the hash values they had to read the contents of the drive. That is a search of a person's effects without a warrant.

Error made by Slashdot in headline

[bfwebster]

When I submitted this story, I gave it the headline "US Court:...". Someone changed that to "PA Court Says...". That's wrong. This is a ruling from a US District (Federal) court, not a Pennsylvania state court, and so carries much more weight. ..bruce..

Re:That's a terrible argument

[BLKMGK]

Or maybe get a proper warrant and follow procedures properly? Sorry, I am no fan of kiddie abusers but if we bent the rules the way you'd like them for this instance then what comes next? I break down your door as an officer, find nothing, and suffer a fine for having made a mistake? Sorry, the officers must follow rules same as you and I or they will become simple bullies. Oh wait....

Better a few guilty men go free on a technicality than allow officers to become a law unto themselves.

Re:That's a terrible argument

[Volante3192]

Quite honestly, the judicial tradition of suppressing evidence entirely because it was produced without a proper warrant is absurd.

So you're saying you have no problem with warrentless searches? Shall we continue this thought to it's logical extreme conclusion?

There's a reason the judicial system has the structure it does: so there's a strong trail of evidence, to ensure the rights of everyone involved have not been broken by law enforcement, to ensure nothing has been tampered with.

The law HAS to follow the law, otherwise what authority does it really have to enforce it?

Re:That's a terrible argument

[InsaneMosquito]

How would you feel about this man if it was your child's photograph on this man's notebook.

How would you feel if it was your laptop that was seized without a warrant? "Oh I don't have child porn" you say. Sure...but without that warrant the cops may just plant the evidence. Now what say you?

Or, that friend you let borrow your machine last week, remember him? Yeah, he's not the church going fun loving person you thought. On that USB key with all of his work related stuff was a nice folder of child porn. Its a good thing he copied everything to your machine so you could work together on that big project that boss is asking about.

Or, that teenager in your house, yeah dirty young man. He's out browsing the internet looking for pictures. He accidently clicks on a link with under age "actors". Fortunately, he's a good kid and backs out of the site right away. Didn't look at anything, didn't mean to go there. Hell, you've even trained him well enough to erase cookies and temporary files. Hear that knocking? Yeah, that's the police showing up without a warrent and taking your machine. Oh look, they just found deleted child porn images on your computer. You sick bastard.

Without the warrant you have one more leg to stand on to fight these charges. Its there to protect the innocent.

Re:I love how...

[MikeBabcock]

Bad police work is bad police work, no matter the criminal.

Here's a clue: be upset with the stupid officers that could've followed procedure and actually nabbed the guy instead of being lazy and screwing up the case instead of the judge for enforcing the law.

These are YOUR freedoms too.

Re:That's a terrible argument

[theaveng]

>>>"Oh I don't have child porn" you say. Sure...but without that warrant the cops may just plant the evidence. Now what say you?

Even if they don't plant evidence, who wants to go through the hassle of losing their PC for one or two months while the cops scan it for hidden porn (or even stashed drugs). It's not about dishonesty by police, but stopping harassment of citizens. Nobody wants one or two months of their lives wasted just because the government agents have nothing better to do than grab private property.

"[the British government] has erected a multitude of new offices by a self-assumed power, & sent hither swarms of officers to harrass our people & eat out their substance;" - Declaration of Independence, 1776

Cops blow it again

[russotto]

Not only did they search the drive without a warrant, but they also got the defendant to confess to putting the files there by questioning him without reading his rights and telling him that he didn't need an attorney. Genius.

Even dumber: Based on the testimony of the guy who originally found the child porn, they could have gone to a magistrate and gotten a warrant. Then there would have been no issue of a warrantless search.

BTW, for those considering the abandoned-property angle -- the court goes into that. It wasn't a legal eviction and the defendant hadn't abandoned his stuff; he merely hadn't removed it all yet.