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Supreme Court Declines Case Over Techs' Right To Search Your PC
An anonymous reader writes "A few years back, a guy was arrested for possessing child pornography after techs at Circuit City found child porn on his computer, while they were installing a DVD player. The guy insisted that the evidence shouldn't be admissible since the techs shouldn't have been snooping through his computer — and a lower court agreed. The appeals court, however, reversed, noting that the guy had given Circuit City the right to do things on his computer — including testing out the newly installed software (which is how the tech claims he found the video). The guy appealed to the Supreme Court, who has declined to hear the case, meaning that the ruling stands for the time being. So, basically, if you hand your computer over to someone else for repairs, at least in some jurisdictions, they may have pretty free rein in terms of what they're allowed to access on your computer."
So, basically, if you hand your computer over to someone else for repairs, at least in some jurisdictions, they may have pretty free rein in terms of what they're allowed to access on your computer.
No, but whatever they find is admissible as evidence in court.
That something is admitted as evidence in court does not mean it was legal to obtain that evidence. Similarly, if something is inadmissible as evidence in court, it could still be legal to obtain that evidence.
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There's a difference between what they're "allowed to access" and what's admissible in court once they've seen it. The techs aren't the government--things they've seen don't automatically get excluded because they shouldn't have seen them.
If a private citizen breaks into my house and sees something illegal, they can usually alert the cops and have knowledge of that thing be admitted in court, even though they themselves can still be prosecuted for trespassing and breaking and entering.
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I should point out this is not always the case.
I know of at least one PC repair company that, when doing any sort of recovery/repair work, asks the customer to sign a form giving permission for them to look at the data files on the computer.
This is just so they can verify a successful fix/file recovery. If the customer doesn't sign the form, fine, but then they have absolutely no guarantee that the repair will be okay, or that their recovered files are not just illegible garbage.
Seems the logical approach to me since it protects the customer's rights;
but then again, if you are stupid enough to keep incriminating of stuff in a visible place, then you shouldn't be surprised if you get caught. I'd be interested to hear WHERE they found the files.
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I posted a comment above about this, but if the state coerces private citizens to act on its behalf, then they are in essence state actors, and illegally obtained information becomes inadmissible.
If on the other hand the citizen stumbles across some information, regardless of how, and chooses (without being ordered, requested, payed, etc. to do so) to share it with the police, the court will allow the evidence.
Frankly, I think that's fair. If I am, say, breaking into the school at night to have a little fun with my buddies, and I see the principle murdering a teacher, I'm going to come forward and say something. Even though I shouldn't have been there, and may well be prosecuted for B&E, my eye-witness testimony to the other crime should still be valid.
If the government required the IT shop to look for that stuff and report it, I am pretty sure the Supreme Court would intervene and rule any evidence so obtained inadmissible. Such a law would move the IT shop from private citizen to government agent. The "loophole" you are referring to has existed for quite some time.
It has long been accepted that if someone breaks into your house and finds evidence that you committed a crime, that evidence is admissible in court, as long as they were not asked to do so by the authorities. If the person was asked to do so by a government official, courts have ruled that they become a government agent and illegal search and seizure rules apply.
The truth is that all men having power ought to be mistrusted. James Madison
For one, I don't know why I'd ever hand a piece of computer equipment with a hard drive in it to the folk at Best Buy, etc. after all the exposes re: naughty technicians surfing the hard drive for porn and other things of interest. There are lots of guides out there on how to do common tasks like hard drive replacement yourself, I'd only hand over a machine with a clean drive, if that.
Secondly, one has to consider the possibility that the images stored on the computer were not deposited there by the person who owns it. Any technician in the store could have used the computer to do some surfing, there is no chain of custody. Next, the images may have been deposited by malware, yet another possibility that I imagine the defense will bring up. Lastly, the images may have been deposited by a previous laptop owner, roommate, etc. - issues for the courts to mull over.
http://the.honoluluadvertiser.com/article/2004/Feb/05/ln/ln01a.html
"Each member of the computer crime squad (FBI) is given a list of local businesses, Laanui said, with the idea of establishing a
working relationship with all of them."
and
""We're trying to build a rapport with companies, a lot of computer guys don't necessarily know we exist," Laanui said.
"Virtually anyone in the high-tech arena is up for a visit with the FBI.""
Domestic spying is now "Benign Information Gathering"
I think they're wisely saving the "technician searches your PC" decision for a case with less 'radioactive' content.
Then they may be left waiting for a very long time indeed since most cases that I can remember where the "technician searches your PC" involve the 'radioactive' content in question.
I'm one of the people who works both on problem PCs and who supervises others who do.
When working on a PC, "snooping" is the last thing I've got time or interest in doing.
However, if I install or update software (anything from a video editor to the latest version of word) and test it using the "recent files" list, you are crazy if you think I'm not going to call the police if I see something about the user being a terrorist or other kind of a criminal.
For those of you concerned about privacy laws, I think back to when I was in graduate school learning about counseling. A counselor is obligated by law (at least in Connecticut, New York, and New Jersey,) to call the authorities if the person being counseled reveals that he or she is contemplating or in the act of harming themselves or others. That applies even after promising confidentiality. (Ignore the misinformation you see so often on TV cop shows.)
I think the same principle applies here. If I work on your PC, I am obligated to keep secret your legitimate business secrets. As a matter of fact, you can and should sue me if I make public that kind of information. But reveal to me that you are a threat to yourself or others and I promise you a call to the authorities.
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Same thing that stops the cops from doing the spying themselves. Anyone working on their behalf is bound to the same laws regarding evidence.
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