It's called a subpoena, and if that doesn't work it's called contempt of court." How does the 5th amendment apply to this?
It doesn't. The Fifth only applies to testimony. Your hard drive contents are non-testimonial evidence. It's just like any other subpoena requiring you to surrender your own documents as evidence.
Can you imagine what a ridiculous situation this would be if NAS was calling for CRIMINAL liability for the writers of bad code?
"Sir, we have reason to believe that you released a program, GNU/donothing, which has a buffer overflow in line 1723. You're under arrest. Please turn around, put your hands behind your head, and lace your fingers. Do you have any guns, knives, needles, pins, atomic bombs, or PalmPilots with more bad code that I should know about?"
I've made just a little under two thousand arrests in my career, but none quite like that. And frankly, I'd like to be able to go all the way to my pension and keep it that way.
And let's be realistic. Who is going to write a definition of "secure" that'll actually fit into a statute, that 80% of the judges out there will be able to understand?
Actually, now that I think about it, even expanded civil liability is a questionable idea. My Windows box isn't going to get out of control on the freeway and flatten twelve kids because Microsoft did a crappy job on the brakes. And KDE has crashed on me seven times this week (!) If we expand liability, without taking a lot of care, then I could 0wn at least one of the programmers in court.
Interesting -- I've heard the legal-to-shoot-tresspassers thing from two Texas residents (one former and one current), but looking for a definitive (ie. legal) source on the subject, I'm unable to find one. I'll ask one of my ex-Texan friends for more details...
I got it from http://www.law.cornell.edu, which has a link to the Texas state statutes maintained by the state government.
That's a good reference. If this is a concern to you, an even better reference would be to read it and then consult a Texas attorney-he may know of case law that'll help you to understand what a judge and jury will actually do.
A good general rule is "Deadly force ONLY when you fear death or great bodily injury to yourself or another, and you have reason to believe that lesser force will not save you." Despite things like fleeing-felon rules, that's pretty much how we're approaching the subject in police academies now.
YADATROT: I'm just itching for some BSA inspector to show up at my home. "I'm a real cop. You're not. You can either leave this private property or you can turn around, put your hands behind your head, and lace your fingers."
Probably won't happen, but it's worth a giggle anyway.
I have the feeling it's probably the same up here. After all, the guy did take the warrant to the cops.
That's probably the wise thing to do anyway. Even if he could legally serve the warrant himself, the cops probably had the training to handle the evidence (and more importantly: the training to handle interference)
Maybe his angle was that he could certainly get the warrant, but just couldn't execute it.
Plausible. Here in the US, a private citizen can get orders from the judge to turn over evidence, but isn't allowed to do the searches himself. (The way it works is, the judge or court clerk issues a subpoena and the person named in the subpoena is expected to comply voluntarily. If he doesn't, then the judge sends Federal marshalls or the county sheriff to seize the named items and starts thinking about contempt proceedings.)
As for citizen's arrest.. same up here. It's on the books (The police really have no more power to arrest someone than the common citizen, technically). You just don't have the training to stand up in court and defend your actions.
I don't know how Canada's structured in terms of the national/federal system. Here in the US, though, each of the fifty states retains some degree of sovereignty, and therefore has its own laws regarding arrest powers. That means that my answers will be correct here in Colorado and probably dead wrong in most of the other states.
For instance, a private citizen has the same powers of _warrantless_ arrest as a peace officer. Felonies and misdemeanors, on view or upon probable cause. However, certain classes of misdemeanors and all petty offenses and all (CIVL!) traffic infractions are pretty much non-arrestable. A private citizen who arrests on a non-arrestable violation will end up in some pretty hot water.
OTOH, here in Colorado, private citizens have NO authority to serve warrants. It doesn't matter if the arrest warrant is for whoever killed JonBenet Ramsey. A private citizen can probably detain someone with an active and valid warrant and call the cops, but he can't arrest them.
And there are states which forbid ALL warrantless misdemeanor arrests, to both police and the public. And others which don't allow citizen's arrest when a citizen didn't actually see the crime, but allow a peace officer to arrest. And a few other ways.
Never mind that there's a common thread here called "Happy Go Lucky is talking about the US and doesn't know Canadian law well enough to comment." If Alberta allows private citizens to get and serve search warrants, then I guess they have their reasons for doing so.
But where I'm going with this is, any answer to any legal question here on/. is probably going to be wrong more often than it's going to be right.
You can shoot people for tresspassing... in Texas.
Oh, yeah? Well, I say that Section 9.32 of the Texas criminal code (dealing with the use of deadly force) does not allow for the use of deadly force to repel trespassing. And Section 9.42 (Use of Deadly Force in Defense of Property) has two problems: It does not allow trespassing as sufficient cause, and it'll get tossed on Constitutional grounds as being inconsistent with _Tennessee v. Garner_ (which specifies that the use of force is a "seizure" under the Fourth Amendment and as such must be reasonable under the circumstances.)
Yes, I looked at Section 9.41, and it allows force. NOT deadly force. There's a very, very big distinction between the two. A gun is ALWAYS deadly force in the US, including Texas.
When you mess with president Brown." - Dead Kennedys, 'California Uber Alles' Too bad 'President Davis' doesn't rhyme with it.
It rhymes well enough. They did a version of the song for Reagan. I think it was on "In God We Trust, Inc." Anyway, "Davis" rhymes well enough with "Reagan" for bad slashdot punk filk purposes.
I *think* you're agreeing with me. Basically I said that private parties CAN use entrapment (BSA tactics would qualify). AFAIK only law enforcement agencies and personnel are prohibited from entrapment.
Not quite. In a criminal case, it doesn't matter who's doing the entrapment. If there's entrapment, then the case is going to get tossed even if it's a private person doing it.
If it's civil, then I don't know. However, I'm going to guess that entrapment is also a defense to civil claims, and that it doesn't matter whether its a cop or a donut salesman who does it.
I'm not sure which BSA tactics count as "entrapment." Unless they planted it in your head to install an illicit copy of Windows ME, and you wouldn't have done so otherwise, then I doubt that the "e" word applies to their behavior.
But you should REALLY REALLY look in your state's laws about this. What I've been saying is true in Colorado, which only leaves 49 states where it could be wrong. Look in the criminal code, in the sections dealing with "affirmative defenses," and you should find your state's rules governing entrapment.
Also try a community college bookstore-specifically, a college with a criminal justice program. They should have the statute books available.
Actually... and I have no idea whether this is the same in the US or not...
But technically, if a private citizen (not a cop, I mean) showed up with a warrant, you'd have to let him exercise it, just as if he were a cop.
The US (or at least part of it) is different.
In Colorado, only peace officers are allowed to serve warrants. That means that only someone who's actually designated as a peace officer by statute (CRS 18-1-901) can show up at the door with a warrant and any expectation of being let in.
One dodge that the Pinkertons used to use was, they would have their agents actually be commissioned as deputy sheriffs. Traditionally in the US, sheriffs' deputies were commissioned or fired at the pleasure of the sheriff, and he could name anybody he wanted. That, combined with bribes, ended up giving company troops police powers.
However, that's not as common as it used to be. Some states are now requiring that even reserve officers and reserve deputies have full certifications (three-four months of full-time training, the way we do it in Colorado) which makes it harder to commission company cops. Also, in this state, no cop has statewide authority unless he works for a state agency (like I did when I was a park ranger) and reservists have no authority unless they're actually on duty and under supervision.
Now, private citizens here do have citizen's arrest powers. However, exercising them opens them to the same lawsuit risks for civil rights violations that peace officers have. And the average private citizen can't define "probable cause" and wouldn't be able to identify a state statute for software piracy and therefore wouldn't be able to articulate his basis for making that arrest. Translation: Arrest without probable cause == false arrest == 42 USC 1983 lawsuit for civil rights violations filed against BSA and the specific arresting person.
I personally would also try to get the DA interested in a criminal case for kidnapping, if a BSA agent tried to "arrest" me.
Simple : Tell them you don't own a business, since you're at home. Then tell them to fsck off before you sue/shoot them. Or you could just go straight to shooting without warning (they are trespassing, after all).
Incredibly bad idea.
That's how YOU go to jail for attempted murder. That's also how you become civilly liable to them to a degree that will make a couple of software licenses look like half a can of Coke.
Don't get me wrong: If you want to spend ten years in prison because you needed to wave your dick at some BSA assholes, feel free. But that's what'll happen (even in Texas.)
IANAL either, but to my understanding of the law, "entrapment" only applies to what law enforcement agencies and personnel can do. Private individuals (including corporations) are not so constrained in their efforts to assemble "evidence".
Not quite true.
A private individual can also engage in entrapment. Earth First and other terrorist groups have had a joke for a long time: "You can recognize the FBI informant, because he's the one who wants to blow things up." Informants are not actually cops. Some of them want to pretend to be, but they're not. They're just people who know things and talk to cops about what they know.
And "entrapment" has a specific meaning. It basically requires that the cop actually plant an idea in someone's head that they didn't have before. That's why vice cops have to let the lady-of-the-evening make the offer of sex for money. That's why drug agents' reverse stings (cops pretend to SELL the drugs) often can get tossed. That's why FBI agents in militias and environmental groups aren't so hot to blow things up anymore.
And the BSA's web complaint form doesn't count. If they weren't already interested in doing raids of questionable legality, then they wouldn't have that form up.
Because Verio is censoring many other people's email beside John Gilmore's, and he is going to bat for them and trying to solve the problem, instead of simply switching service providers and ignoring the censorship.
By keeping an open relay, one of the most-used items for harassing or spamming other people. If open relays serve any other purpose anymore, I'd be curious to know what it is.
Analogous situation: I believe that every adult with a clean criminal record should be able to carry a knife, handgun, or bazooka concealed. However, I'm firmly opposed to handing out weapons in prisons or day care centers, or just leaving them lying around where any child or criminal can pick one up.
But Gilmore's open relay is 50% of why I no longer support the EFF. Brad Templeton's constant spam-apologetics on usenet (and here) are the other 50%. If the EFF is so concerned about privacy, then why can't they be concerned about my privacy?
Innocent until proven guilty, at least in the U.S., if you aren't on Herr Ashcroft's list. They can prove that you over-wrote the file, but in the case you list, they can't prove what was originally on the file.
No, that approach pre-dates Ashcroft, pre-dates Herr Reno, pre-dates pretty much everyone, and is used throughout the civilized world.
When a court subpoenas ANY evidence, the evidence's custodian is expected to be able to either produce it or produce a convincing explanation of why it was destroyed.
Now think about that. Let's say your employer is facing a civil complaint for sexual harassment. "Kierthos, why haven't you brought the documents on your company's sexual harassment policy?" "Um, they've been destroyed." "Ok, then do you have a copy of your company's document-destruction policy?" "Well, we don't exactly have a written policy on that." "Then why were those documents destroyed, with a pending court case related to them and a pending subpoena for them?" "Um...."
What happens then is the judge will probably tell the jury that the documents may have been unfavorable to the defense, but since the defense destroyed them the jury will have to draw its own conclusions.
They do they same thing with criminal cases. Ever wonder what happens when you refuse the chemical test after being stopped on suspicion of DUI? It's physical evidence, not testimony, so a jury is going to draw its own conclusions over just why you didn't hand over evidence when legally required to do so.
Ashcroft had nothing to do with it. And if you think the US is rough about such things, you should check out the rules of evidence in western Europe at some point. And the sentences. The US are relative wimps.
The real reason that they're prosecuting him is that Økokrim (The department responsible for investigating computer crimes here in Norway) and their state prosecutor Inger Marie Sunde are dreaming about a police state where they have absolute control. A week or so ago, she said she wanted to outlaw the use of anonymous email. Normally, one would just ignore such a person, but her high position makes her really dangerous if she ever manage to pass the laws she want to.
I'm going to guess that that's just how senior prosecutors behave.
I don't know how Okokrim is structured or if it's anything like the US Dep't of Justice, under the US Attorney General. DOJ employs all of the US' federal prosecutors, who hold the job title of United States Attorney. There's one for each of 90-odd Federal judicial districts, and each and every one of them is a political appointee with ambitions of high elective office.
If Norway is similar, then Sunde is just preparing to run for Congress/Parliament/whatever-Norway-calls-it in a few years. Just think-if you're Norwegian, then you'll be able to vote against her soon enough.
If the spam included a fax number, then find out which telco supports that number. For instance, a 303 or 720 area code would be metro Denver and therefore Qworst.
When you file against your John Doe defendant, you can subpoena that number's owner from the phone company.
Frankly, I'd use both of these avenues. A judge would probably be more receptive to the phone company angle, since he might not understand your header-reading tutorial completely. Tracing through the IP could then be used as confirmation.
Also, the mail could have been relayed. Probably 75% of my spam is English-language with a payload site connected through a US provider, or a US phone/fax number. Easily a third of that 25% is relayed through an overseas mail server (usually a badly-misconfigured and ancient sendmail on some APNIC IP=read as China) which doesn't accurately report the originating IP. In theory, you could try to subpoena the info from the relay's owner. In practice, a Chinese sysadmin would wipe his ass with your subpoena even if he could read it.
In other words, the headers may or may not have the information that you need.
Also, spams may carry a PO box or another box number. The USPS will give out POB boxholder information to the public on any box used to do business with the public.
I don't know if that applies to the private pack-and-ship businesses like MBE. It's worth asking them, though.
The flower shop was called flowers.com. A spamming piece of shit (like Bernie Shiftman) named Craig Nowak forged them into the From: lines of his spam. They got hammered with the bounces and bitches from people who couldn't read headers.
They identified Nowak (who is a spamming piece of shit like Bernie Shiftman) and sued him. And won.
I can't find the actual cite from the case. However, it was from 1997 in the District Court for Travis County, Texas. Tracy Parker, Zilker Internet Park, and others vs. Craig Nowak and C.N. Enterprises or something like that.
One of the 'university diploma' spams was illegal under Iowa law (invalid return address), but, of course how do you sue for something like that? I tried looking on reverse phone number sites to see who owned the phone number advertised, but nothing showed up.
When you opened up the full headers on the spam, I assume you found the Received: lines going back from your mail server to the sending mail server, and from the originating IP to the sending mail server.
I also assume that Iowa law provides for John Doe lawsuits, in which you can identify the defendant as a specific individual even if you don't have his name, and has a long-arm statute whereby torts that occur partly in Iowa can be filed in Iowa courts.
Given those things: File your case with a John Doe defendant. Identify the defendant as the person who was using IP 123.456.789.012 at July 4, 2001, at 12:00 noon CDT. If you can explain what that means to the judge (in writing!) you can make a pretty strong case that that's one distinct individual.
When you file, have a subpoena ready for the court clerk's signature. You'll want to send it to the ISP or whoever owns the IP number, and it's for all billing or other records which would show the identity of the person using that IP at that time. Once the subpoena gets served and gets compliance, you have your defendant.
As for "large expense," I frankly don't know what it's going to cost you. Some states mandate civil spam-related stuff to go through small-claims, and some states don't give their small-claims courts the power of compulsory process. Obviously, a court that can't subpoena evidence is a joke, but don't ask me to explain it.
Why not just refuse to accept mail that isn't PGP-signed?
At least 80% of the securityfocus.com mailing list traffic is unsigned. So is the EFF newsletter. So are most of the other lists out there.
When you have people come into your home without permission (spammers), you have a problem no matter what spam-apologists say. However, when you require all of your visitors to wear photo-ID badges, you don't get too many visitors. Even the people you want to have visiting aren't as likely to do it.
From what I understand, getting waste TO Nevada would be a problem. Many states will not let the waste pass through their state, so unless the Federal Government intervenes, there might not be a way to get it there.
It doesn't matter what the state governments want. State governments have zero authority to interfere with a project of the Federal government.
Remember how, a few years ago, some city in California declared itself a "nuclear-free" zone in order to ensure that the armed forces would never bring a nuclear weapon into town? The city had no leg to stand on.
And surely you didn't expect so much money being put into the Interstate Highway System without the expectation that Uncle Sam might actually use it someday.
I could dig up the relevant statute number, but the simple fact is that I'm feeling lazy today.
National interest be dam(n)ed; people need to start taking responsibility for their own actions instead of dumping problems -- like nuclear waste -- on the conveniently powerless.
They may be "powerless" in Nye County. Well, except when it comes to bombing forest rangers anyway. Bombing someone's house is pretty damn brave and powerful.
But there ain't too many people there. The damage is minimized if there's a problem on site.
Or, are you saying we should just store the stuff in Chicago? Let's do the math: Nevada has a few hundred people within shouting distance of the site. Chicago has a few million. And that corner of Nevada is damn near the only place in the US which is absolutely useless for anything other than Sagebrush Revolutions and nuclear waste dumps. It's not like any great number of people actually live there. I don't hold out much hope for discovering oil there, or stocking it with fish, or building condos, or anything else of importance to much of anyone other than the very few people who actually live there.
When you're pulled over for DUI in one province/state, they take your licence away for that place.
You'd think Canada could adopt something like the US's Interstate Compact on Traffic Offenders. It's an agreement among about 30 or 40 of our states to coordinate enforcement of traffic laws.
What the compact provides is that any violations committed in one state are reported to a driver's home state Dep't of Motor Vehicles. That means that if I write a Colorado speeding ticket to a driver with a Kansas license, the points are assessed by Kansas DMV. If I pop an Illinois driver for DUI, then I can seize his Illinois license and Illinois DMV revokes it. And when Illinois revokes his license and he drives again in Nebraska, a Nebraska officer can arrest him for driving on a revoked license.
In other words, our state governments can share information amongst themselves. Therefore, it doesn't really matter where a license is issued.
And we can query that information fairly easily. If I have someone's name and his state of residence, I'll have the status of his driver's license in about a minute. That comes with an address which he gave DMV. It can also give his criminal and driving history, aliases used, and that in turn...
..Anyway, this new development is absolutely meaningless. The states already can and do talk to each other.
2. In my experience, people who use the term 'anti-spam zealots' are either spambags themselves, of members of the mainsleaze spam lobby, (i.e. Ken Magill of the Direct Marketing Associations, or various random clueless marketdroids who occasionally write for mainstream rags).
I don't think I deserved that.
[Insert the whole "i'm not a spammer or anything else you just called me" rant here].
Not speaking for Mr. Sam, but it's not a question of "deserved." It's a question of the fact that it's extremely rare for someone to use the term "anti-spam zealot" without being a spam apologist. It's sufficiently rare that in eight years online I've never seen it. If you're really using the term without being a spam apologist, you're literally the first that I've seen.
Freedom of speech means you can say what ever you want even if others find what you say offensive. Freedom of speech has NOTHING to do with the consent of anyone who might hear your message.
When the venue for the speech is private property, then the consent of the venue's owner is indeed an issue.
Maybe the town square is public property. However, spammers aren't making announcements in the square. They're dumping their messages down MY pipe, which costs me good money. Their crap then takes up space in MY/var/spool/mail/happygolucky, and I don't get a dime for the space and CPU cycles they take up. And then it takes MY time to wade through it all, and I'm not getting a paycheck. In other words, they're appropriating MY labor for THEIR benefit WITHOUT my consent.
That was banned in the US by the Thirteenth Amendment over a century ago.
I don't care if the spam is for penis enlargement, appreciation of Aldo Leopold's writings, or encouraging people to vote for Saint Michael the Archangel for County Sheriff. They didn't pick up any of the cost of receiving it, and didn't even have my permission before wasting my time and using my resources.
In other words, spam may be legitimate expression, but only to the extent that breaking into someone's apartment and taking a dump on their kitchen counter is also legitimate expression. And if I catch someone doing the latter, he goes to jail and rightfully so.
Nitpick: Spam isn't criminal, in most states. However, US law is based upon a distinction between civil and criminal laws. Spam can very much be a civil violation against the recipients/owners of the receiving networks, and there's considerable precedent to support that. The original article was less than helpful, but I'd be willing to bet that the tort was Trespass to Chattel, which is a legal term meaning that Hamidi used Intel's machines without Intel's permission.
Libel is not an issue in Hamidi's case. In other words, it doesn't matter whether Hamidi's statements were true or not. What matters is that Hamidi sent a boatload of messages to a machine that didn't belong to him, down a pipe that didn't belong to him.
As for the other case in the article, I can't speak to that. I'm just not familiar with it.
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How does the 5th amendment apply to this?
It doesn't. The Fifth only applies to testimony. Your hard drive contents are non-testimonial evidence. It's just like any other subpoena requiring you to surrender your own documents as evidence.
"Sir, we have reason to believe that you released a program, GNU/donothing, which has a buffer overflow in line 1723. You're under arrest. Please turn around, put your hands behind your head, and lace your fingers. Do you have any guns, knives, needles, pins, atomic bombs, or PalmPilots with more bad code that I should know about?"
I've made just a little under two thousand arrests in my career, but none quite like that. And frankly, I'd like to be able to go all the way to my pension and keep it that way.
And let's be realistic. Who is going to write a definition of "secure" that'll actually fit into a statute, that 80% of the judges out there will be able to understand?
Actually, now that I think about it, even expanded civil liability is a questionable idea. My Windows box isn't going to get out of control on the freeway and flatten twelve kids because Microsoft did a crappy job on the brakes. And KDE has crashed on me seven times this week (!) If we expand liability, without taking a lot of care, then I could 0wn at least one of the programmers in court.
I got it from http://www.law.cornell.edu, which has a link to the Texas state statutes maintained by the state government.
That's a good reference. If this is a concern to you, an even better reference would be to read it and then consult a Texas attorney-he may know of case law that'll help you to understand what a judge and jury will actually do.
A good general rule is "Deadly force ONLY when you fear death or great bodily injury to yourself or another, and you have reason to believe that lesser force will not save you." Despite things like fleeing-felon rules, that's pretty much how we're approaching the subject in police academies now.
YADATROT: I'm just itching for some BSA inspector to show up at my home. "I'm a real cop. You're not. You can either leave this private property or you can turn around, put your hands behind your head, and lace your fingers."
Probably won't happen, but it's worth a giggle anyway.
That's probably the wise thing to do anyway. Even if he could legally serve the warrant himself, the cops probably had the training to handle the evidence (and more importantly: the training to handle interference)
Maybe his angle was that he could certainly get the warrant, but just couldn't execute it.
Plausible. Here in the US, a private citizen can get orders from the judge to turn over evidence, but isn't allowed to do the searches himself. (The way it works is, the judge or court clerk issues a subpoena and the person named in the subpoena is expected to comply voluntarily. If he doesn't, then the judge sends Federal marshalls or the county sheriff to seize the named items and starts thinking about contempt proceedings.)
As for citizen's arrest.. same up here. It's on the books (The police really have no more power to arrest someone than the common citizen, technically). You just don't have the training to stand up in court and defend your actions.
I don't know how Canada's structured in terms of the national/federal system. Here in the US, though, each of the fifty states retains some degree of sovereignty, and therefore has its own laws regarding arrest powers. That means that my answers will be correct here in Colorado and probably dead wrong in most of the other states.
For instance, a private citizen has the same powers of _warrantless_ arrest as a peace officer. Felonies and misdemeanors, on view or upon probable cause. However, certain classes of misdemeanors and all petty offenses and all (CIVL!) traffic infractions are pretty much non-arrestable. A private citizen who arrests on a non-arrestable violation will end up in some pretty hot water.
OTOH, here in Colorado, private citizens have NO authority to serve warrants. It doesn't matter if the arrest warrant is for whoever killed JonBenet Ramsey. A private citizen can probably detain someone with an active and valid warrant and call the cops, but he can't arrest them.
And there are states which forbid ALL warrantless misdemeanor arrests, to both police and the public. And others which don't allow citizen's arrest when a citizen didn't actually see the crime, but allow a peace officer to arrest. And a few other ways.
Never mind that there's a common thread here called "Happy Go Lucky is talking about the US and doesn't know Canadian law well enough to comment." If Alberta allows private citizens to get and serve search warrants, then I guess they have their reasons for doing so.
But where I'm going with this is, any answer to any legal question here on /. is probably going to be wrong more often than it's going to be right.
You can shoot people for tresspassing... in Texas.
Oh, yeah? Well, I say that Section 9.32 of the Texas criminal code (dealing with the use of deadly force) does not allow for the use of deadly force to repel trespassing. And Section 9.42 (Use of Deadly Force in Defense of Property) has two problems: It does not allow trespassing as sufficient cause, and it'll get tossed on Constitutional grounds as being inconsistent with _Tennessee v. Garner_ (which specifies that the use of force is a "seizure" under the Fourth Amendment and as such must be reasonable under the circumstances.)
Yes, I looked at Section 9.41, and it allows force. NOT deadly force. There's a very, very big distinction between the two. A gun is ALWAYS deadly force in the US, including Texas.
Too bad 'President Davis' doesn't rhyme with it.
It rhymes well enough. They did a version of the song for Reagan. I think it was on "In God We Trust, Inc." Anyway, "Davis" rhymes well enough with "Reagan" for bad slashdot punk filk purposes.
Not quite. In a criminal case, it doesn't matter who's doing the entrapment. If there's entrapment, then the case is going to get tossed even if it's a private person doing it.
If it's civil, then I don't know. However, I'm going to guess that entrapment is also a defense to civil claims, and that it doesn't matter whether its a cop or a donut salesman who does it.
I'm not sure which BSA tactics count as "entrapment." Unless they planted it in your head to install an illicit copy of Windows ME, and you wouldn't have done so otherwise, then I doubt that the "e" word applies to their behavior.
But you should REALLY REALLY look in your state's laws about this. What I've been saying is true in Colorado, which only leaves 49 states where it could be wrong. Look in the criminal code, in the sections dealing with "affirmative defenses," and you should find your state's rules governing entrapment.
Also try a community college bookstore-specifically, a college with a criminal justice program. They should have the statute books available.
The US (or at least part of it) is different.
In Colorado, only peace officers are allowed to serve warrants. That means that only someone who's actually designated as a peace officer by statute (CRS 18-1-901) can show up at the door with a warrant and any expectation of being let in.
One dodge that the Pinkertons used to use was, they would have their agents actually be commissioned as deputy sheriffs. Traditionally in the US, sheriffs' deputies were commissioned or fired at the pleasure of the sheriff, and he could name anybody he wanted. That, combined with bribes, ended up giving company troops police powers.
However, that's not as common as it used to be. Some states are now requiring that even reserve officers and reserve deputies have full certifications (three-four months of full-time training, the way we do it in Colorado) which makes it harder to commission company cops. Also, in this state, no cop has statewide authority unless he works for a state agency (like I did when I was a park ranger) and reservists have no authority unless they're actually on duty and under supervision.
Now, private citizens here do have citizen's arrest powers. However, exercising them opens them to the same lawsuit risks for civil rights violations that peace officers have. And the average private citizen can't define "probable cause" and wouldn't be able to identify a state statute for software piracy and therefore wouldn't be able to articulate his basis for making that arrest. Translation: Arrest without probable cause == false arrest == 42 USC 1983 lawsuit for civil rights violations filed against BSA and the specific arresting person.
I personally would also try to get the DA interested in a criminal case for kidnapping, if a BSA agent tried to "arrest" me.
Incredibly bad idea.
That's how YOU go to jail for attempted murder. That's also how you become civilly liable to them to a degree that will make a couple of software licenses look like half a can of Coke.
Don't get me wrong: If you want to spend ten years in prison because you needed to wave your dick at some BSA assholes, feel free. But that's what'll happen (even in Texas.)
Not quite true.
A private individual can also engage in entrapment. Earth First and other terrorist groups have had a joke for a long time: "You can recognize the FBI informant, because he's the one who wants to blow things up." Informants are not actually cops. Some of them want to pretend to be, but they're not. They're just people who know things and talk to cops about what they know.
And "entrapment" has a specific meaning. It basically requires that the cop actually plant an idea in someone's head that they didn't have before. That's why vice cops have to let the lady-of-the-evening make the offer of sex for money. That's why drug agents' reverse stings (cops pretend to SELL the drugs) often can get tossed. That's why FBI agents in militias and environmental groups aren't so hot to blow things up anymore.
And the BSA's web complaint form doesn't count. If they weren't already interested in doing raids of questionable legality, then they wouldn't have that form up.
That's yesterday's news. I mean, didn't AOL pioneer HTML email? (You know, the crap that non-AOL and non-Outlook clients can't read)
By keeping an open relay, one of the most-used items for harassing or spamming other people. If open relays serve any other purpose anymore, I'd be curious to know what it is.
Analogous situation: I believe that every adult with a clean criminal record should be able to carry a knife, handgun, or bazooka concealed. However, I'm firmly opposed to handing out weapons in prisons or day care centers, or just leaving them lying around where any child or criminal can pick one up.
But Gilmore's open relay is 50% of why I no longer support the EFF. Brad Templeton's constant spam-apologetics on usenet (and here) are the other 50%. If the EFF is so concerned about privacy, then why can't they be concerned about my privacy?
Yeah, but does GPG have a file-wipe or freespace-wipe tool included? I don't think it does. It doesn't on my machine, anyway.
No, that approach pre-dates Ashcroft, pre-dates Herr Reno, pre-dates pretty much everyone, and is used throughout the civilized world.
When a court subpoenas ANY evidence, the evidence's custodian is expected to be able to either produce it or produce a convincing explanation of why it was destroyed.
Now think about that. Let's say your employer is facing a civil complaint for sexual harassment. "Kierthos, why haven't you brought the documents on your company's sexual harassment policy?" "Um, they've been destroyed." "Ok, then do you have a copy of your company's document-destruction policy?" "Well, we don't exactly have a written policy on that." "Then why were those documents destroyed, with a pending court case related to them and a pending subpoena for them?" "Um...."
What happens then is the judge will probably tell the jury that the documents may have been unfavorable to the defense, but since the defense destroyed them the jury will have to draw its own conclusions.
They do they same thing with criminal cases. Ever wonder what happens when you refuse the chemical test after being stopped on suspicion of DUI? It's physical evidence, not testimony, so a jury is going to draw its own conclusions over just why you didn't hand over evidence when legally required to do so.
Ashcroft had nothing to do with it. And if you think the US is rough about such things, you should check out the rules of evidence in western Europe at some point. And the sentences. The US are relative wimps.
I'm going to guess that that's just how senior prosecutors behave.
I don't know how Okokrim is structured or if it's anything like the US Dep't of Justice, under the US Attorney General. DOJ employs all of the US' federal prosecutors, who hold the job title of United States Attorney. There's one for each of 90-odd Federal judicial districts, and each and every one of them is a political appointee with ambitions of high elective office.
If Norway is similar, then Sunde is just preparing to run for Congress/Parliament/whatever-Norway-calls-it in a few years. Just think-if you're Norwegian, then you'll be able to vote against her soon enough.
If the spam included a fax number, then find out which telco supports that number. For instance, a 303 or 720 area code would be metro Denver and therefore Qworst.
When you file against your John Doe defendant, you can subpoena that number's owner from the phone company.
Frankly, I'd use both of these avenues. A judge would probably be more receptive to the phone company angle, since he might not understand your header-reading tutorial completely. Tracing through the IP could then be used as confirmation.
Also, the mail could have been relayed. Probably 75% of my spam is English-language with a payload site connected through a US provider, or a US phone/fax number. Easily a third of that 25% is relayed through an overseas mail server (usually a badly-misconfigured and ancient sendmail on some APNIC IP=read as China) which doesn't accurately report the originating IP. In theory, you could try to subpoena the info from the relay's owner. In practice, a Chinese sysadmin would wipe his ass with your subpoena even if he could read it.
In other words, the headers may or may not have the information that you need.
Also, spams may carry a PO box or another box number. The USPS will give out POB boxholder information to the public on any box used to do business with the public.
I don't know if that applies to the private pack-and-ship businesses like MBE. It's worth asking them, though.
They identified Nowak (who is a spamming piece of shit like Bernie Shiftman) and sued him. And won.
I can't find the actual cite from the case. However, it was from 1997 in the District Court for Travis County, Texas. Tracy Parker, Zilker Internet Park, and others vs. Craig Nowak and C.N. Enterprises or something like that.
When you opened up the full headers on the spam, I assume you found the Received: lines going back from your mail server to the sending mail server, and from the originating IP to the sending mail server.
I also assume that Iowa law provides for John Doe lawsuits, in which you can identify the defendant as a specific individual even if you don't have his name, and has a long-arm statute whereby torts that occur partly in Iowa can be filed in Iowa courts.
Given those things: File your case with a John Doe defendant. Identify the defendant as the person who was using IP 123.456.789.012 at July 4, 2001, at 12:00 noon CDT. If you can explain what that means to the judge (in writing!) you can make a pretty strong case that that's one distinct individual.
When you file, have a subpoena ready for the court clerk's signature. You'll want to send it to the ISP or whoever owns the IP number, and it's for all billing or other records which would show the identity of the person using that IP at that time. Once the subpoena gets served and gets compliance, you have your defendant.
As for "large expense," I frankly don't know what it's going to cost you. Some states mandate civil spam-related stuff to go through small-claims, and some states don't give their small-claims courts the power of compulsory process. Obviously, a court that can't subpoena evidence is a joke, but don't ask me to explain it.
At least 80% of the securityfocus.com mailing list traffic is unsigned. So is the EFF newsletter. So are most of the other lists out there.
When you have people come into your home without permission (spammers), you have a problem no matter what spam-apologists say. However, when you require all of your visitors to wear photo-ID badges, you don't get too many visitors. Even the people you want to have visiting aren't as likely to do it.
It doesn't matter what the state governments want. State governments have zero authority to interfere with a project of the Federal government.
Remember how, a few years ago, some city in California declared itself a "nuclear-free" zone in order to ensure that the armed forces would never bring a nuclear weapon into town? The city had no leg to stand on.
And surely you didn't expect so much money being put into the Interstate Highway System without the expectation that Uncle Sam might actually use it someday.
I could dig up the relevant statute number, but the simple fact is that I'm feeling lazy today.
They may be "powerless" in Nye County. Well, except when it comes to bombing forest rangers anyway. Bombing someone's house is pretty damn brave and powerful.
But there ain't too many people there. The damage is minimized if there's a problem on site.
Or, are you saying we should just store the stuff in Chicago? Let's do the math: Nevada has a few hundred people within shouting distance of the site. Chicago has a few million. And that corner of Nevada is damn near the only place in the US which is absolutely useless for anything other than Sagebrush Revolutions and nuclear waste dumps. It's not like any great number of people actually live there. I don't hold out much hope for discovering oil there, or stocking it with fish, or building condos, or anything else of importance to much of anyone other than the very few people who actually live there.
When you're pulled over for DUI in one province/state, they take your licence away for that place.
You'd think Canada could adopt something like the US's Interstate Compact on Traffic Offenders. It's an agreement among about 30 or 40 of our states to coordinate enforcement of traffic laws.
What the compact provides is that any violations committed in one state are reported to a driver's home state Dep't of Motor Vehicles. That means that if I write a Colorado speeding ticket to a driver with a Kansas license, the points are assessed by Kansas DMV. If I pop an Illinois driver for DUI, then I can seize his Illinois license and Illinois DMV revokes it. And when Illinois revokes his license and he drives again in Nebraska, a Nebraska officer can arrest him for driving on a revoked license.
In other words, our state governments can share information amongst themselves. Therefore, it doesn't really matter where a license is issued.
And we can query that information fairly easily. If I have someone's name and his state of residence, I'll have the status of his driver's license in about a minute. That comes with an address which he gave DMV. It can also give his criminal and driving history, aliases used, and that in turn...
I don't think I deserved that.
[Insert the whole "i'm not a spammer or anything else you just called me" rant here].
Not speaking for Mr. Sam, but it's not a question of "deserved." It's a question of the fact that it's extremely rare for someone to use the term "anti-spam zealot" without being a spam apologist. It's sufficiently rare that in eight years online I've never seen it. If you're really using the term without being a spam apologist, you're literally the first that I've seen.
When the venue for the speech is private property, then the consent of the venue's owner is indeed an issue.
Maybe the town square is public property. However, spammers aren't making announcements in the square. They're dumping their messages down MY pipe, which costs me good money. Their crap then takes up space in MY /var/spool/mail/happygolucky, and I don't get a dime for the space and CPU cycles they take up. And then it takes MY time to wade through it all, and I'm not getting a paycheck. In other words, they're appropriating MY labor for THEIR benefit WITHOUT my consent.
That was banned in the US by the Thirteenth Amendment over a century ago.
I don't care if the spam is for penis enlargement, appreciation of Aldo Leopold's writings, or encouraging people to vote for Saint Michael the Archangel for County Sheriff. They didn't pick up any of the cost of receiving it, and didn't even have my permission before wasting my time and using my resources.
In other words, spam may be legitimate expression, but only to the extent that breaking into someone's apartment and taking a dump on their kitchen counter is also legitimate expression. And if I catch someone doing the latter, he goes to jail and rightfully so.
Nitpick: Spam isn't criminal, in most states. However, US law is based upon a distinction between civil and criminal laws. Spam can very much be a civil violation against the recipients/owners of the receiving networks, and there's considerable precedent to support that. The original article was less than helpful, but I'd be willing to bet that the tort was Trespass to Chattel, which is a legal term meaning that Hamidi used Intel's machines without Intel's permission.
Libel is not an issue in Hamidi's case. In other words, it doesn't matter whether Hamidi's statements were true or not. What matters is that Hamidi sent a boatload of messages to a machine that didn't belong to him, down a pipe that didn't belong to him.
As for the other case in the article, I can't speak to that. I'm just not familiar with it.