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US Court Dings Gov't For Using Seized Data Beyond Scope of Warrant
An anonymous reader writes The U.S. Court of Appeals for the 2nd Circuit last week reversed a tax evasion conviction against an accountant because the government had used data from his computers that were seized under a warrant targeting different suspects. The Fourth Amendment, the court pointed out, "prevents the seizure of one thing under a warrant describing another." Law enforcement originally made copies of his hard drives and during off-site processing, separated his personal files from data related to the original warrant. However, 1.5 years later, the government sifted through his personal files and used what it found to build a case against him. The appeals court held that "[i]f the Government could seize and retain non-responsive electronic records indefinitely, so it could search them whenever it later developed probable cause, every warrant to search for particular electronic data would become, in essence, a general warrant," which the Fourth Amendment protects against. The EFF hopes that the outcome of this appeal will have implications for the NSA's dragnet surveillance practice.
There's one judge who will be getting audited every year from now on.
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Cardinal Richelieu wrote:
When you start collecting everything, either via expanding the scope of your warrant, or just scooping everything up ... sooner or later you can come back to almost anybody and decide that they've done something.
When law enforcement can retroactively file charges for which they had no initial probable cause or scope, that is a truly Orwellian society.
And, governments keep saying "but we need to be able to bypass all of these things because of kiddie fiddlers and terrorists".
I really hope we start to see the courts reign in the level of surveillance and how it can be used. Because, right now, so called 'free' societies and democracy are being eroded as government decides it needs to know everything about everybody just in case something ever comes up.
Lost at C:>. Found at C.
...then sift through it to file tax evasion charges, but somehow keeping email backups for top IRS employees is beyond them because the hard drive crashed and they had to recycle the backup tapes.
Right.
Lawrence Person (lawrencepersonh@gmailh.com (remove all "h"s to mail)
http://www.lawrenceperson.com/
Because the NSA is collecting the same kind of data, providing it to law enforcement, that then use the data to form a target and reverse engineer probable cause. The thing is, even though that sort of thing is clearly unconstitutional, they've crafted their methods in such a way that it would rarely, if ever, come up in a court room. So there is no court finding that state specifically that it's unconstitutional. Law enforcement has been pretending they're dumb in this regard and going along the lines "Well, no judge has told us we can't do this... so it must be ok" while at the same time doing everything in their power to prevent a judge from having to rule on it.
Well, this states that it's clearly unconstitutional. But the government is taking any wiggle room they can find and just ignoring the law, court orders and the constitution, so I doubt this will change anything. The courts weren't really designed to deal with Law Enforcement trying to do an end-run around them. It's very difficult for the EFF and other like them to get a ruling on this behavior if the state never uses it in a case against someone.
And what's truly appalling is that federal law enforcement is involved in trying to make an end run around the Constitution in order to be able to trump up charges they wouldn't have been aware of if they hadn't illegally gathered intelligence.
Given that these people swear an oath to defend and uphold the Constitution ... I'm of the opinion that this whole "parallel construction" crap more or less amounts to a serious crime, because it's done in such a way as to bypass Constitutional protections.
Any federal agent doing this should be jailed. Or hanged maybe. Because it's a blatant ignoring of the Constitution, and undermines the credibility of the legal system when you can have a hidden actor providing evidence to law enforcement (which they shouldn't have had in the first place) and the conspiring with them to effectively lie to the court and pretend they got this information through legal means.
They're bypassing the 4th amendment, and ignoring the legal protections of facing your accuser and seeing the evidence against you. And, in this case, once they've constructed an alternate reality, the entire thing is based on a lie that they somehow came up with this information through other means.
Lost at C:>. Found at C.
Yup. My wife used to work for the feds, and I heard firsthand about the level of incompetence there on a very regular basis. Until they make it easier to fire those that need it, they have no need of malice.
According to Washington Post, they obtained a SECOND warrant for the tax evasion investigation- they didn't just pull the DVDs out of the cabinet and had a looksee- It just so happened they already had the data they needed. This means they ALREADY had probable cause before they pulled the DVDs out again. And they never looked at any data to investigate a crime that they didn't have a warrant for.
I feel this really could have gone either way- the judge just erred on the side of caution here, which is good. It also makes keeping data around pretty much pointless for law enforcement...