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In a First, Judge Throws Out Evidence Obtained from FBI Malware (vice.com)
An anonymous reader cites an article on Motherboard: For the first time, a judge has thrown out evidence obtained via a piece of FBI malware. The move comes from a cased affected by the FBI's seizure of a dark web child pornography site in February 2015, and the subsequent deployment of a network investigative technique (NIT) -- the agency's term for a hacking tool -- in order to identify the site's visitors. "Based on the foregoing analysis, the Court concludes that the NIT warrant was issued without jurisdiction and thus was void ab initio," Judge William G. Young of the District of Massachusetts writes in an order. "It follows that the resulting search was conducted as though there were no warrant at all. Since warrantless searches are presumptively unreasonable, and the good-faith exception is inapplicable, the evidence must be excluded," it continues. Young's order came in response to a motion to suppress from the lawyers of Alex Levin, who was arrested as part of the investigation into the child pornography site Playpen. After seizing the site, the FBI ran Playpen from a government facility from February 20 to March 4, 2015, and used a NIT to obtain over a thousand IP addresses for US-based users of the site, and at least 3000 for users abroad, according to Motherboard's investigations.
On the one hand, I have little concern for those who traffic in anything that genuinely hurts children. On the other hand, the FBI abuses their position regularly, lying to the courts and ignoring the courts' orders when lying doesn't work, so seeing them told, "Sorry. Try again," when another questionable procedure is reviewed is welcome news.
So who exactly does have jurisdiction over the Internet? It doesn't have an established location. It probably needs a special court. Maybe we can add it to our collection of trade and military courts- the Internet Court. Just a thought.
Doesn't really matter how guilty (or innocent) he is, being charged for kiddy porn is a good life killer.
Your hair look like poop, Bob! - Wanker.
On the one hand, I have little concern for those who traffic in anything that genuinely hurts children. On the other hand, the FBI abuses their position regularly, lying to the courts and ignoring the courts' orders when lying doesn't work, so seeing them told, "Sorry. Try again," when another questionable procedure is reviewed is welcome news.
The people who most defend our liberties are the scum of the earth, because they are the people against whom it is easiest to justify the departure from the rights and privileges we recognize in or grant to all human beings.
Because Courts have no other practical way to censure law enforcement for violation of rights, they exclude evidence produced in violation of the Constitution. There are other ways you could work the system in practice--you could fine law enforcement, fire police officers, and have good, responsible, and accountable culture in law enforcement. But that's not something the courts can do effectively or without unwavering support from the law enforcement community and the community's true acceptance of neutral judgment. So the courts let the guilty go free as the only way they have to protect the rights of the innocent. It makes law enforcement be much more careful about at least following a script that reminds them what someone's rights are.
It comes as no surprise, that cases to defend civil liberties or other constitutional transgressions by the state will involve unsavory characters. No one wants this guys to go free if he actually did what he is accused of, however, a society HAS to ignore evidence that has been illegally obtained. Before the defenders say "you let this scum free on a technicality" I'd say if you couldn't catch this guy with legal evidence, you didn't catch him at all. They got a warrant, so they can't complain that time was a constraint. They just didn't stay within the bounds of the warrant. Basically, bad policing let this alleged scum bucket off.
If only we could fall into a woman's arms without falling into her hands
As someone said already, it is with great regret that real offenders get away with doing something that is universally unethical at the highest order (if you take into account some religions are pretty unethical...). Yet the fact they have to resort to such "techniques" is the pinnacle of hypocrisy - they are, ultimately, helping these offenders TWO-FOLD. They are running the site creating conditions to prosecute for one, and now there's evidence exclusion... I don't fancy a state using easy-to-through-out-of-court measures that will pretty much question the next case against the individuals. They will play it safe afterwards - they know they're watched now - and that's bad for us all as they won't get caught so easily. They are pretty much making a case to DEFEND sexual offenders with these techniques and that really hits my nerves.
With that said, I will transpose this to something much less important, yet more broad: online piracy. There are currently tens, maybe hundreds of websites run by the MPAA, the RIAA, and their henchmen, who will eventually use collected data for the sake of their business. They are obviously supplying, tampering with but also gathering the torrenting habits of all unsuspecting users. Two actual examplea comes to mind: PopcornTime's original domain, which was part of a deal struck between the prosecuted operators and effectively found to be owned by the MPAA; and of course a lot of torrent trackers and usenet aggregators also "seized" with such types of deals. So the question is: will the same principle the judge used apply here? I mean, this won't probably even go to court, and that's an issue - harbored by the DMCA et al, the MPAA/RIAA/henchmen can just directly affect the offender by notifying him or his ISP, who has to comply. And they don't even need a court order to "run" the illegal service, as they can defend themselves the same way the original operators could, with the added fact they won't sue themselves over it!
I know it was a big rant, and ultimately pointless as I just state facts. But it does make one guy think of the nuances around the orthodox American habit of MAKING CONDITIONS TO PROSECUTE, as opposed to, you know, finding evidence of wrongdoing, and then prosecuting. John Woo's Minority Report also comes to mind...
Just release the child porn visitors information to pastebin or something, say it was a hacked data leak, and call it a fuckin day. Society will do the rest.
-Nelson Mandela Muntz
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Prince died as well.... :(
You're messin' with my Zen Thing, man.....
This is from the article:
UPDATE: Peter Carr, a spokesperson for the Department of Justice, sent a statement.
“We are disappointed with the court’s decision and are reviewing our options. The decision highlights why the government supports the clarification of the rules of procedure currently pending before the Supreme Court to ensure that criminals using sophisticated anonymizing technologies to conceal their identities while they engage in crime over the Internet are able to be identified and apprehended.”
When I read this I understand that the criminals don't play by the rules so the rules need to change for enforcement. I'm happy to see this judge challenge the FBI but I'm worries it's become the popular thing to do. I tried to find the first name of this Judge Young but could not. I wanted to see if this guy is showing interest in going into politics. It wouldn't be the first time one uses his power to enhance one's public image (since it's the popular thing to do).
If I carry out an action sitting in the UK that has serious effects in America, the USA will attempt to extradite me, and the UK courts won't raise a jurisdictional issue. So the conclusion is that it's the location of the server that constitutes the location of the crime. For accessing child porn, it will be the local jurisdiction - where the material is viewed - that will have jurisdiction. So yes, there is an established location even if the crime is 'over the internet'.
I'm sure you'll be happy when the vigilante mob burns down your house because your wi-fi was insecure and a neighbour or someone sitting in a car outside used it to do the deed.
That would be interesting in this case since the FBI knowingly distributed child pornography AND engaged in blackhat hacking.
But I have to say that nothing will do more to discourage the FBI from going in to the child porn business than getting their evidence tossed.
In order for your plan to work, it would have to be a crime to violate the supreme law of the land. Right now, you don't even get so much as a moving violation.
I disagree with this outcome, but for an entirely different reason. The exploit that was used was analyzed and fixed, so it cannot be used again except on people who keep using old versions of the browser. The FBI's claims that they can't reveal it because then it would stop working as hollow as they did in the Apple case, this looks like just more grandstanding for the sake of getting a free pass around the Constitution.
The FBI should have provided the details to the court as requested and proceeded with the case.
If I have been able to see further than others, it is because I bought a pair of binoculars.
I just heard some sad news on talk radio - horror/fiction writer Stephen King was found dead in his Maine home this morning. There weren't any more details yet. I'm sure we'll all miss him, even if you weren't a fan of his work there's no denying his contribution to popular culture. Truly an American icon.
Where did you get this info? Nothing mentioned anywhere else. The wrestler Chyna and Prince are the only folks I am aware of that passed away today.
You're messin' with my Zen Thing, man.....
>Evidence. Is. Evidence. No matter how it was obtained.
Cops beat you until you confess to crimes you didn't commit. Evidence?
Cops entrap you in a crime you would never otherwise commit. Evidence?
Cops enter your house without permission and ransack your belongings until they find a poem you wrote in college about how beautiful two-year-olds are, with which they frame you on child porn charges. Evidence?
You, sir, are an idiot who has obviously never read any history about what government and the law will do unless their actions are carefully restrained and confined.
The entire exclusionary rule of evidence needs to change.
Right. Until you are some big business and some whistle-blower sneaks some damning internal memos out to the cops or regulators. Then it's 'Muh Constitutional rights!' So, no. Nothing will change. Because a couple of dead bodies in trunks and a bunch of children pimped out for perverts aren't worth nailing some manufacturer who skips QA testing.
Have gnu, will travel.
So you feel that not following your warrant, so basically breaking the law, to collect data in an illegal fashion is somehow on the wrong track ? Screw that. Follow the law, don't take short cuts to get your job done.
If only we could fall into a woman's arms without falling into her hands
It's certainly on the wrong track all right - when the people enforcing the laws can't even follow them, we know we're fucked.
The definition of pedophile under the law is NOT restricted to people creating content. The definition of pedophile under the law is that you possess material which can be called child pornography. Law enforcement does not care how the material got into your possession, nor do they care if you were aware of the material. They care that the material exists so that they can prosecute you, and that is the extent of it.
If a guy on the bus slips pictures of naked children into your shopping bag and calls the police, you WILL be arrested. A prosecution may not stick, but your life will be ruined regardless of the outcome.
Look, we all have this vision which comes to mind when we hear the word. We all know what it should be, but that's not what it is. Just like many drug charges today it's a State weapon to attack people as often as it is a valid case of what we think of when we hear the word pedophile. We also know that depending on who you are, you will never face charges for it. (See The Franklin Cover-up).
Yes, I personally know and have known many Police officers who left Public Law because they did not want to be used as political hammers for shifty thugs holding office.
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
Good lord, man ... and judging by your UID you're not even that new here!
Breakfast served all day!
If the method of obtaining it was illegal, *let the facts stand as they are*--use them to prosecute the first crime, but *also* prosecute the 2nd crime that was committed!
You're using an everyday, dictionary-definition version of the word "illegal." If evidence was obtained through illegal means, no crime was committed. The only penalty is that the evidence is excluded from trial. You would need a whole new set of laws to be passed if you wanted to start prosecuting cops for failing to get a proper search warrant. Those laws would never be passed because they would grind law enforcement to a halt.
Breakfast served all day!
...we're the FBI... ...and we've been tapping your phone for ten years and feel your appreciation for the canine species(*) would be appreciated by the world's media unless you reconsider.
(*) Replace eith tge actual non-conformist freakery.
Requiem for the American Dream
That's been getting posted for years. It's its own joke. Here's one from 13 years ago with that same text line for line.
16-4-20-Order-Motion-to-Suppress.pdf The order notes that a district judge may have the authority to issue the NIT warrant. "The jurisdiction of district courts is usually defined by subject matter and parties rather than strictly by geography." Magistrate judges (such as the one who actually issued the warrant) must follow additional rules which confine their authority essentially to within their own district.
IANAL, but this was not a slam dunk for privacy. If a sharp U.S. Attorney had reviewed the request, it might have been sent to the proper judge. Also, a proposed amendment to the Federal Rules of Criminal Procedure would negate this specific issue.
Stephen King is 68.
And did you exchange a walk on part in the war for a lead role in a cage? - Pink Floyd.
IANA US Lawyer, but most jurisdictions explicitly ban entrapment. Does serving an illegal web content from government facility count as one?
Yeah, but that troll is 14 years old.
Wow, almost old enough to drive!
the preceding comment is my own and in no way reflects the opinion of the Joint Chiefs of Staff
If evidence was obtained through illegal means, no crime was committed.
The illegal means is the crime. What is illegal for us commoners is just as illegal for a police officer acting without a warrant. That is the entire point of a warrant: authorization to perform otherwise-illegal actions with impunity.
The accused in this case has every moral right to counter-sue the FBI under the Computer Fraud and Abuse Act, just as if any random person off the street had done the same.
"The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat