I believe there should be no law regulating private matters. Such as the matters between MS and me.
MS is corporation not a person. They are an artificial, legal entity created by the government. By definition, no matter between them and you is not public and involving the government.
You must believe that the government should regulate all human activites. Is this correct?
I'm not the original poster, but consider this: without government interference I could make copies of Windows all I wanted because there would be no patents or copyrights or trademarks to restrict my freedom of expression. There would be no corporate entity to collect my money.
The EU is well within their rights to make stipulations about any interaction that breaks the law. If, for example, MS paid you $100,000 US dollars to murder a man, should the EU government not get involved because that is a private matter between you and MS? What about the rights of the man who you have been hired to kill? Are they less important?
Monopolies are regulated to protect competitors in separate markets from being destroyed, despite the fat that they produce superior products. Capitalism works because the person who makes the best, cheapest product tends to get the most money and people are motivated by greed. When a monopoly can be used to introduce artificial problems in your competitor's product, then the best and cheapest does not get the most money and we end up with markets consolidating into the control of one company whose products tend to be inferior and who has no reason to innovate. It basically takes the bad parts of capitalism and combines them with the bad parts of socialism, while producing the benefits of neither. Did you complain this loudly about when the US convicted MaBell and stopped them from renting crappy telephones to people for upwards for of $10,000 over the course of their lifetime because that was a private transaction between the two of you?
Seems what this really boils down to is the EU doesn't like paying for Windows because it is an imported product.
Yeah it might seem that way if you're completely ignorant and have not bothered to note that MS is violating criminal law and this is part of their punishment.
The EU can impose whatever laws they want on Microsoft, but ultimately the WTO is going to decide this issue, not the Europeans.
Please. The WTO will do jack and shit against the US, EU, and China. The US is ignoring numerous WTO sanctions right now.
If the EU slaps around Microsoft too much, the WTO will find them in violation of free-trade agreements and European manufacturers will be the ones suffering as tariffs limit their exports.
I doubt the WTO is going to do anything about the EU enforcing antitrust laws against MS when the US has already convicted and punished them for the same crime in the US.
At what point do these fines equal up to more then what microsoft is getting from its cudtomersd there.
The fines max out at about half of what the EU gets from sales there. Right now they are more like 1/500th what they are making.
Even with microsoft, europe would be in serious trouble because it would take time to change over to linux.
So? What is MS going to do, stop doing business in the EU? That would be the most blatant anti-trust violation possible and would make them all wanted criminals. How then are they supposed to get the EU courts to enforce any copyright laws in the EU? Why wouldn't EU businesses freely copy, distribute, and even modify the source to Windows? MS only has something to sell in the EU because they obey EU law. Copyright, patents, corporations, etc. are all legal entities created by the government. The EU would have all the time it wanted to switch to Linux or to develop a competing OS from the Windows code base.
Why doesn't MS just give the EU a big "F- you" and stop selling it's products in Europe?
Imagine you buy a second home in Europe and vacation there every summer. You like it there and a lot of your family lives there. You take out a loan from an international bank to pay for the second home (mortgage). Now imagine, while you're in Europe you're convicted of a white-collar criminal offense, say fraud. Why don't you just fly to the US and never go back?
Well for one, that would make you a criminal refusing to comply with the law in Europe, and there are extradition treaties so they might ship you back to sit in a prison cell for a long time. Two, you would no longer get to see your friends and family there. Three, you have a lot of money invested there and the EU is not going to let you sell the house you own and ship the money back to the states when you're a wanted criminal. Four, that big loan you took out with the international bank, they still expect to be paid and if you're not making payments and have lost the house to the EU courts, they're going to go through the US courts and take your house in the US too. Five, what makes you think you can make it out of the country without being arrested for fleeing your warrant?
MS pulling out of the EU would be sacrificing billions in annual income for the sake of millions. The shareholders would fire that CEO in hours for losing them that much money. Also, being a convicted criminal with lots of assets in the EU, including all your patents and copyrights and trademarks and buildings and cash means they might confiscate some or all of that. Also, a lot of MS employees work there. If you worked at MS in a given country and MS told you one thing and the police told you to do another or go to prison, what would you do? MS saying "we're not doing business in the EU, does not mean the MS assets there are not considered a separate company that keeps developing and selling Windows. MS has business contracts with thousands of international organizations. If they stop doing business in the EU, they just broke all of those contracts and will be sued in the US courts by each and every one of those companies that has a US branch until MS is completely broke. If MS somehow managed to stop selling Windows in the EU, suddenly they would have created their own largest competitor. Whether that is the new MS-EU, or a Linux provider, or Apple, or Sun or IBM or some combination thereof, they would have just given up 20% market share to another OS, strongly motivating every developer on the planet to look into offering software on that other platform and removing the biggest lock-in MS has over customers elsewhere.
You know, the more governments interfere on how a private company should price its products the more worrying it is to me.
I agree micromanagement is a bad idea and won't work in the long term and is subject to abuse.
Rules and regulations are one thing on how a company should conduct itself, but a company should be able to price its product as it damn well pleases.
We're not talking rules and regulations. We're discussing the law. MS is breaking the law. For example, what if MS started charging, "you must kill one black person" and we'll give you a copy of our OS. Should that be legal? I mean should the government interfere with that pricing? When the pricing itself constitutes an illegal act because it is undermining the free market economy using a monopoly, then it is certainly appropriate for the government to do whatever it takes to stop that illegal action (whether it is soliciting a murder, or antitrust abuse).
If people don't think its value for money then they can go elsewhere and look at the competition - thats what a free market is all about.
Ahh, but that is exactly the problem. We have a fairly capitalist economy not for moral reasons, but because it works. Capitalism motivates innovation and low prices and everyone benefits. If that were not the case, we'd all be socialist and avoid all the unnecessary duplication of resources. So here's the problem. If you have a monopoly and tie that monopoly to a new market, you undermine capitalism. The market is no longer free. The cheapest and best product is no longer the best deal for people because you can introduce artificial problems with your competitors. No economy on the planet that I know of is unregulated with regard to monopolies because of this. If you don't stop them they expand until they control all the markets not controlled by another monopoly and then you no longer have capitalism, you have feudalism.
I think you're right that micromanaging MS's pricing is a bad idea, but the EU is in a bad place. Any competent economist will tell you the only real solution is to break up MS into multiple, competing companies and then let capitalism sort it out again as each now has direct financial interest in innovating and lowering prices and has no ability to leverage themselves illegally. The problem is that MS bought the US politicians with huge donations and after being convicted we reversed the judge's sentence of doing that, and instead did nothing at all. So if the EU breaks them up, it is a diplomatic problem with those same corrupt U.S. politicians and if they don't they have to micromanage and stop each and every illegal act, which simply does not work with as inefficient of a court system as the EU has.
As for my original point it was making the assumption that the company was complying with the law, and saying that a legitimate company should be able to comply with the law and make a profit (otherwise the company is going to fold)
But Microsoft is not a legitimate company complying with the law. They built their entire business model on breaking antitrust law and then paying off all the lawsuits. This entire case is about MS's punishment for continuing to break the law.
I don't think thats an issue for microsoft - the issue as I'm sure they see it is they want to make a huge profit with minimum competition and minimum effort - technically thats not illegal, fortunately the goverments do tend to try and do something about that - as in this case.
MS has a monopoly as ruled by courts around the world including the US and EU. MS is breaking the law by tying that monopoly to other markets, in this case tying their desktop operating system (monopoly) with their server OS (non-monopoly). That is blatantly illegal. If shutting Microsoft down completely is what it takes to get them to obey that law, which they have repeatedly been convicted of breaking now and are breaking today as we speak, then it is not unreasonable for the EU to do that. This isn't some instance of the EU seeing something they don't like and trying to force it to change, this is the EU upholding long established laws they uphold against other companies every day. The only difference is this company has gone to absurd length to try to claim they are obeying the law when it is clear they are not.
Maybe it's because I don't pretend to know what I'm talking about, or maybe I am just stupid...why does ANYONE care what Microsoft charges for ANYTHING?
I don't know if you're stupid. You are ignorant, as you yourself has professed. Why does the government grant basic human rights to an abstract concept called a corporation that exists only on paper? Why does the abstract entity called "Microsoft" have the ability to restrict my natural freedom of expression by making a copy of Windows? Why is our economy strongly capitalist in most ways?
All of these are practical conventions governments use to promote the common good. Microsoft the entity exists only because of these conventions called "laws." Those "laws" are written to promote a common good. Microsoft broke some of those laws. Ignoring for the moment your understanding of how the law promotes the common good, do you think Microsoft should just be able to ignore the laws it does not feel like obeying while every other company is forced to comply?
Moving on to why this particular law promotes the common good assumes a basic understanding of economics, particularly capitalism, feudalism, and monopolies. Our economy is mostly capitalist because it works. It uses human nature to motivate innovation, low prices, and growth. Monopolies, when leveraged in certain ways break capitalism by motivating innovation being stopped and prices being raised. Monopolies, when leveraged in certain ways constantly expand carrying these trends into other markets. Without monopoly controls, capitalism devolves into feudalism where only a few own most wealth and then there is an uprising of the poor who kill those few and redistribute the wealth. Antitrust law is designed to stop that and keep capitalism working.
Why do people care what they charge? Just like any other company, if you don't like the price....DON'T FUCKING BUY IT.
Ahhh, so if the electric company were to stop selling electricity by itself and start selling electricity, plus a year's supply of groceries, would you just not buy electricity from the electric company anymore? Since almost everyone else would have to due to the realities of the market, where would you buy your food once all the grocery stores closed down?
Contrary to what daytime TV may be telling you, ignorance is not a virtue. Why don't you go read up on the economics of monopolies and come back with an educated viewpoint?
The EU has already overstepped their bounds. No government should be allowed to tell a company what it is they can charge for a product nor whether their individual products are "innovative" or just "patentable".
You do know this is part of a settlement for criminal activity right? You might as well argue that just because a cat food manufacturer put poison in their cat food, the government should not be allowed to mandate that they enact stricter testing measures as part of their punishment for breaking the law in the first place.
Forget the fact that the entire process is a blatant example of socialism...
Do you even know what socialism is?
...it's just purely one-sided...
It's strange how the punishment phase of a convicted criminal is often one-sided isn't it? I mean how come car thieves have to go to jail and aren't really given anything positive, like a new motorcycle?
...no matter what Microsoft does at this point the EU will just continue to abuse this implied authority that they've been granted until they can drive Microsoft off their shores or make all of the products free in EU.
The EU commission has very limited authority, but it does include stopping MS from breaking the same laws they stop everyone else from breaking. Once MS stops breaking the law, their complaints might have merit.
As for installing applications: even if she had a Mac or even a Linux machine, it is clear that she still can be tricked in installing something bad for her.
Anyone can be tricked into installing something bad if someone puts enough effort into it. No one has time to exhaustively audit all the code they install for backdoors. It could be in your OS security update. The point is, on other OS's she is highly unlikely to ever be tricked into installing something "bad" because there is so little of it out there and if it were to become more common both Linux developers and Apple developers have a direct motivation for introducing ways to stop it, while MS has no such motivation.
So, no, normal users should not be installing applications without being informed and they are not informed mainly because it is not their area expertise.
It shouldn't have to be an area of expertise. Is installing a game in your Playstation an area of expertise that should also be limited to professionals? Of course not. The point is you shouldn't have to be an expert to use a computer safely and that includes installing software.
And, no, running malware, even sandboxed (meaning, it can't damage your system, nor send data over the network, which usually makes the software non-functional), for the simple reason that you should not support or even promote malware applications. That's a principle thing, not a technical limitation.
Umm, if the malware operators aren't gaining any benefit, how does it support them? The point is to greatly increase functionality for the user who wants to run arbitrary software easily and safely, but is not "expert" enough to be able to tell which of the 10 applications he or she wants to install are malicious.
Oh, and finally, I quote you "Because both of those are huge wastes of time made necessary by MS's design choices.". That is a false statement.
MS has clearly failed to adapt their OS to deal with the current malware environment. That is a design choice.
True windows 9x had no security and that was BAD(tm). However the NT line has had security in mind from the beginning.
The NT core includes some great security framework, but most of it is not implemented at all in any version of Windows and it certainly is not brought to the average user in such a way as to make it of any real benefit.
What really happened is that the application writers didn't bother to write software to run on machines that had user separation and probably didn't understand the system in the first place.
Why would they? They wrote for the default user settings in Windows, which are settings MS chose. If MS wanted them to write for limited users they would have created a limited user by default and made that the account users logged into by default.
So, even today, software is being developed that only runs as Administrator. Often completely unneeded!
You're talking about user level privileges, which are a step in the right direction (largely a finished step in Vista) but they are decades out of date as a sufficient security mechanism for today. MS is just now starting to motivate application developers to write for limited user accounts when 5 years ago they should have been motivating them to write for ACL limited application spaces with self-contained application bundles and official services for common network access like software registration. MS is still 10 years behind the security curve and they are the only ones who really need improvements in order for the average user to not be bothered by malware. They should be the leading edge in this area, but since they have no motivation because they are a monopoly, they ignore it as less profitable.
Sure, Microsoft made the bad decision that the first user created was Administrator (but so does Mac OS X) thus implicitly keepi
What other features were we expecting that was cut apart from WinFS? And what was meant to be so great about them?
On feature which did not make it was a usable shell environment, codenamed "monad." MS claimed it would make using a shell on Windows as functional as bash on Linux and had a long list of things bash did, but that was really, really hard on Windows. When they delayed the feature all the publications of what Windows was lacking also disappeared. They now claim it will be included in a service pack.
Other cut features I can think of include ubiquitous use of.NET bringing the core of Windows up to date (dropped for everything but a few parts of Vista), UNIX application layer (dropped), NFS 3 and 4 support (dropped), and full IPv6 support (questionable). I'm sure there were a lot more random features I don't recall that also went away. In fact, about the only area where nothing was dropped was DRM where I suspect the focuses a lot of their resources.
Why is it a waste of time, when it saves me time in the long run? The parent poster said he had to reinstall or clean his wifes machine every two months!
Because both of those are huge wastes of time made necessary by MS's design choices. Compared to doing no work and getting the same result because software runs and installs fine as a regular user, spending a lot of time to manually investigate, edit, and test the permissions for each application seems like a waste to me.
Yes, it's a good thing my wife cannot install anything. That way I protect her from herself. She doesn't know that those smilies advertised are in fact spyware.
It is sad that the state of computing has gotten to such a bad state on some platforms that a normal adult can't install and run software without a great likelihood of being compromised. Don't you think it would be better if she could install whatever she wanted in her own account, but that it was sufficiently limited to keep it from being useful to a malware writer? Don't you think it would be better yet if she could run all the malware she wanted but that it would be sandboxed by default?
Malware writers are not interested in corrupting your data, what do they have to gain from that?
Actually, while malware writers may not be interested in specifically corrupting data they do have motivation to mess with it. There has been malware that mined use machines for online account info and credit card numbers. There has been malware that deleted chunks of data and used disk space for temporary data storage of illicit materials. There has been a lot of malware that hides among data, making your data unsafe. There has been an enormous number of malware infections that unintentionally destroy data.
Restricting access of applications to data by default makes a lot of sense in my opinion. For example, there is no reason the OS cannot determine if a user is manually opening a file with a piece of software, or if the software is doing it without going through the file selection API. If the latter, why should a random executable have access to my address book, or my credit card receipts, or even my work files?
Running a full desktop environment and expecting your computer to be secure......doesn't really add up, when you get down to it.
Is that you Mr. Gates?
At present that probably means binary drivers, that wont load into your hardened kernel or X...
Most desktop users are concerned about malware and trojans and the like. They are less concerned about commercially supported applications and binaries which they have a more reasonable expectation of. A reasonable person might be willing to trust a binary driver from HP in order to get their Webcam working, while that same user might not be willing to trust SpaceBlast45.exe with their machine's security just to play a game. The goal of a reasonable security system is to allow the user to do the latter while still being able to run the executable if it behaves properly.
Why is she running Administrator at all? My wife runs as Limited user (just as my father, my mother, my brother and my sister, and some other family I manage computers for) Now, I do realise that it take quite some work to set up a computer in such a way that all applications run under Limited User.
Holy crap! You actually waste time sorting out permissions to get everything running for a normal user under WinXP? Even most corporate places I've worked with centrally managed installations give up on that eventually and give a significant number of users admin rights. What an enormous waste of effort.
Of course, they cannot install applications themselves, but that is actually a good thing.
It is a good thing that your wife can't install applications? Do you let her wear shoes? This is why my mother has a Mac. She can run as a regular user and install applications and I've spent about an hour worth of work doing support for her over the last 5 years (much of which involved asking "did you accidentally kick the power cord out... well plug it back in.")
You're right, permissions by user isn't enough. But if we set permissions by app, eventually, Windows users will become accustomed to clicking "Accept" to every app permission that occurs, creating the same state we're in now.
You're right that just adding application level privileges isn't enough either, but no one said we have to only add application level privileges and not the rest of what is needed to make them useful as well. First, the UI needs to be fixed to eliminate all the current, spurious pop-ups. Then you need to build in good default settings. Right now users are clueless about firewall configuration, and yet many machines ship with one running out of the box without being prompted all the time. This is the result of reasonable defaults.
As I see moving to application level privileges is the only way to mitigate trojans. Such a system requires three parts:
application level access controls to actually regulate the system
a trust/functionality determination mechanism
a well crafted UI that integrates it into the system
The basic problem is users don't know what legitimate software should be able to touch. So, change the format of applications to include an ACL in every one. Next, verify the source of the application with a certificate. Next, check that application against intelligence provided by verification services. These could be pay services that have blacklists (like current anti-virus), but they should also include simple verification services that run software and make sure it never tries to exceed the included ACL, or to provide ACLs for legacy software. This could include input from an open source project. This could include intel provided by the OS vendor. The user will, of course, need to be able to add and remove these as well as determine how much they trust each source.
Once that is done, the system can determine without user intervention what the vast majority of all software can and can't do without having to bug the user. Exceptions would be unsigned or invalidly signed software (most of which would be malware) or when some software tries to exceed its authority (due to a bug or because the process was hijacked by a buffer overflow or the like). User will want to deny almost all of this.
Given a trust level and ACL for each app, the OS can further restrict it using an ACL for the trust level. A well crafted UI is still needed to present those few queries that do happen in a usable way, without conditioning people (unique button names that are actions, not OK/Cancel).
All of this takes a significant change in the way desktop OS's currently operate, but it is pretty much the minimum that is required to really solve the malware problem.
What I propose is that we shift from permissions by user to permissions by application.
If you're in a hurry to add this functionality, it is freely available from the port of TrustedBSD to OS X which you can get here. It is still pretty difficult for everyday use, however, because applications are not designed to accommodate it very well. In other news Apple had posted mention on an application signing framework and a mandatory access control framework on their public facing developer pages for leopard, but it was pulled with no explanation at the end of 2006. Keep your fingers crossed as this may be coming to OS X a lot sooner than you had anticipated.
Since when is evidence that a crime has occured in a particular neighborhood ever been probable cause for searching one particular house? That is basically what you're advocating.
I disagree. Actually there was additional evidence to establish probable cause. The service used to perform the operation was owned and paid for by a person in that given house and in general short range open wireless points are not discovered and used by others, although that is possible. To me that sounds like probable cause to search the residence (although they should have specified the residence and not the one individual's possessions).
s not just that "someone in the neighborhood has been misbehaiving" but "someone in the neighborhood, or someone that may have just visited the neighborhood" has been misbehaiving. You're advocating a weak standard that's far too easily abused.
Perhaps. It is hard to be too careful when it comes to handing the police authority. I would have preferred to see the police follow up via other means and try to contact the person involved while at least correlating that the person was in the house at the time. I can see both sides of the argument.
So if you stick a gun on a table at the edge or your yard and put up a big sign that says "This gun is loaded and I am unlikely to be looking out the window" and someone walks up, picks up the gun with their gloved hands and shoots a bunch of holes in a car parked in the street, there is evidence that a crime was committed nearby, but no reason to assume you were involved? That's just rich.
Actually, that is more or less the case, if not for the fact that leaving loaded firearms around is almost certainly a crime in and of itself. Think instead if (to be nice) you had, in your yard, a table with baseball equipment on it that you always let the neighborhood kids use, provided they promised to return said equipment. Then someone came up and used the baseball bat to smash up a car on the street and steal the stereo. There may be enough evidence, based upon that, for the police to get a warrant to look in your house to see if the car stereo is there, but certainly not enough to convict you of the vandalism/theft if they don't find any stereo or other evidence.
If the coke was in plain sight from pulic[sic] property and not once they got inside, yep they could bust you for it.
I'm pretty sure if the coke is in plain sight to the officer from anywhere, while they are not already violating your rights, such as while they are executing a legally obtained warrant.
However if the search didn't turn up the stolen piano, it does open the door to trying to have the whole thing thrown out. I wouldn't rely on it, but I would certainly explore the possibility.
In case you're interested, the piano analogy was not mine, but was from the lawyer who taught my law class. He talked about how the cops could open any door they wanted since a piano might be behind any of them, but could not look inside a drawer because a piano could not reasonably be expected to be inside a drawer. So long as officers are acting in "good faith" while executing a warrant, anything they find is admissible. If they open a drawer, they are no longer acting in good faith, because they have exceeded the scope of their warrant. Perhaps what might be confusing you is if the cops have a warrant, but did not have a real reason to believe the piano was in that house and were simply using it as a pretext to search for either the drugs or simply anything they could that might be illegal. In that instance that evidence could be thrown out.
I am guessing in the case of a capital crime, they would try to invoke the "good faith" rule a little harder than in a simple non-felony drug case.
Are you joking? You honestly believe the cops and courts would be bending the law in all such instances?
In any case these are merely my interpretations of the law, and IANAL.
I think your interpretations are very creative, but do not reflect the reality of how the law is enforced.
To be honest, I wouldn't take legal advice from anyone but your own attorney - you, me, or any other Slashdotters included.
Absolutely positively no one should consider either of our opinions legal advice and should ask a lawyer in their own jurisdiction. I mainly commented because I did not want people falsely counting on your assertions which I very strongly believe to be in error.
I know someone who had a crop of marijuana and his growing equipment seized because the cops showed up searching for a felon with an arrest warrant with his address listed. (felon had never been there, probably gave a fake address at some point) Because they were specifically looking for the felon and found the plants by accident, they were unable to charge for the marijuana.
More likely he was not convicted because the cops took the pot home and smoked it.
If you have a firsthand experience that contradicts this, I'd love to hear it.
I have no firsthand experience but this was specifically covered by my law classes both in high school and undergrad.
From answers.com: "In Mapp v. Ohio (1961) the U.S. Supreme Court mandated states to exclude from trial evidence obtained in illegal searches, such as those without a proper warrant. This "exclusionary rule" has been the subject of great controversy and subsequent litigation. In recent years, the Supreme Court has narrowed the scope of the rule, in many circumstances permitting the introduction of any evidence gathered in "good faith.""
It goes on to include: "Warrants are not required for the gathering of evidence in some circumstances. These exceptions include evidence gathered after a lawful arrest, inspections by customs or border officials, searches made with the suspect's consent, searches of items in plain view, and searches of the belongings of secondary students on school property."
If the cops could use anything they find as evidence with a search warrant, why must they list the items they are specifically searching for beforehand??
Exactly for the reason I listed in my previous example. If you're searching for a stolen piano and you find cocaine in a drawer you just violated the 4th amendment. If you're searching for a piano and you find a bag of coke sitting in plain sight on a coffee table it is admissible evidence of drug possession.
You need to read up on the 4th ammendment[sic] especially the concept of "exclusinary[sic] rule" and the Katz vs. United Staes[sic] case dealing with "reasonable expectation of privacy".
I understand the 4th amendment just fine, and I'm pretty sure I have a better grasp of the case law surrounding warrants and seizures. So long as officers are attempting to execute a warrant in good faith and are in the process of looking for the objects/persons named, anything they find is not protected by the 4th amendment just because it is not in the warrant. If it was, one could easily get around murder charges by placing the body and murder weapon in the middle of a room, then tipping off the cops that there is marijuana in the room. When they execute their warrant do you really think they could take the body and weapon but not use them as evidence in court since they were "illegally" discovered?
If the cops have a search warrant for child porn, and they find pot plants, they will seize the plants and growing equimpment, but most likely will not be able to charge them with any crimes related to the pot.
And this, my friends, is why you should not take legal advice from someone called "Mister Whirley" on Slashdot.
A search warrant isn't a "blank check" that can be used to search for anything.
Assuming you live in the US, a search warrant only allows the police to search for specific items... but anything they find during the course of that search is admissible as evidence of other crimes. For example, if the police get a search warrant to look for a stolen piano, and they look in your desk drawer and find cocaine, a judge will throw out the discovery because it is not reasonable to believe that the officer thought a piano might be in your desk drawer. If, however, the police search your person looking for a gun (either because they have a warrant or in the course of a traffic stop for their own safety) and they find cocaine, it is perfectly legal and you go to jail.
I don't see the problem here. If someone was using his open WAP to send the IM authorities wouldn't have discovered child porn when they searched his house and/or computer and there would be no prosecution.
For the most part, I agree with you and with this court ruling. With the latter, I would quibble that the warrant should specify a search of the premises and computers that could be connecting, rather than a search of one particular resident's possessions.
The danger here is the potential for abuse. You assert that if the person had not been dealing in child pornography that the police would not have been any prosecution. This is not necessarily so. What if the person had been sitting on the couch with a bag of marijuana for their personal use and not harming anyone? Then such a misdirected search could result in a lengthy prison sentence as the police enforce an unjust prohibition law. Or, what if a police officer involved did not really understand the concept of an open wireless point or was tired of these guys getting away, so they brought a CD full of child porn with them to plant? Or what if the person involved ran a coffee shop that had all sorts of traffic through it, and the police knew the open access point made it unlikely that it was the proprietor, but wanted to harass that person and go on a fishing expedition for anything they might be doing wrong, and now had an excuse?
Let me repeat, I think this was the right call. I just don't think it is open and shut and I can see a real argument in favor of requiring more evidence to constitute probable cause for a search. For example, they could easily have contacted the person posing as someone interested in such materials and arranged a meeting, or used some other technique to at least make sure the person was home when such transactions were taking place. When the police are given power, they abuse it. History has more or less beaten that point into the ground. We need to be very careful about what power we give them, always keeping potential abuses in mind.
There was cause to search his house because a crime appeared to have occurred there. When the house was searched, more evidence in support of establishing that a crime occurred there was found. I don't see how the second set of evidence could be thrown out, if all procedures were properly followed in establishing the cause to search his house.
If it could be determined that the initial search was not legitimate because there was not sufficient reason to search, then the second set of evidence is thrown out as a way of motivating the police not to perform illegal searches in the first place. This is, of course, not just, but it is a practical tradeoff. In a perfect world, the police would be convicted of illegally searching the house and the evidence would still be considered legit and both the police and the searched person would be punished. In reality, the police are in a position to make sure they can't be convicted for the search via placing false evidence, so they would never get convicted and would simply continue to break the law.
If they searched his house and found no evidence supporting the initial reported crime, I believe he could use the Open WAP as defense.
If they searched and found no evidence of anything, then he could, indeed, use the open WAP as a defense.
And while that may be true, this is the Guilty-Because-It's-On-The-News-And-They-Don't-Lie Age.
I don't watch the news on TV much, but when I do I seem to hear a lot of "the accused" or "the defendant" or "the suspect." In this particular case, the person has been convicted, which legally, is considered guilty. This has nothing to do with the media.
Remember the whole Duke Lacrosse Incident?
No. I did not follow the case.
As soon as your name (or IP address) is spread across the news as being attached to a crime, even innocently, your are convicted in the Court of Under-informed Public Opinion.
While that may relate to rules of conduct with regard to police disclosures and with regard to ethical reporting practices, I don't see how it relates here.
Don't kid yourself -- guilt and innocence are relative to your media profile now.
Again, while this may be a serious issue, it does not relate to the matter at hand, which is what constitutes probable cause for the police to search for more evidence. This has nothing to do with arresting a person or publicizing an investigation. The real danger here is overzealous police who, unlike the general populace, are in a position to corrupt an investigation when they fail to understand this distinction. If, for example, a police officer did not understand the concept of an open wireless port and instead understood that this guy was somehow attached to that number, but that was not good enough for conviction, so they brought some kiddie porn CDs with them to plant in his room.
For reasons of the above scenario I support much more transparency in all investigations, harsher penalties for abusing their position, and more education and training and higher standards for police officers. In my opinion any police officer convicted of a violent crime or theft should immediately be fired and banned from future service. Any police officer convicted of a crime while in uniform or on duty or of intentionally planting evidence or the like should be subjected to the most serious of penalties, like serving 10 times the likely sentence of the person they were framing as well as being fired and banned.
As for the media coverage and public opinion, I don't see that there is a lot you can do so long as people are morons and pay attention to sensationalist pseudo news instead of real news sources.
Slashdot Mirror
MS is corporation not a person. They are an artificial, legal entity created by the government. By definition, no matter between them and you is not public and involving the government.
You must believe that the government should regulate all human activites. Is this correct?I'm not the original poster, but consider this: without government interference I could make copies of Windows all I wanted because there would be no patents or copyrights or trademarks to restrict my freedom of expression. There would be no corporate entity to collect my money.
The EU is well within their rights to make stipulations about any interaction that breaks the law. If, for example, MS paid you $100,000 US dollars to murder a man, should the EU government not get involved because that is a private matter between you and MS? What about the rights of the man who you have been hired to kill? Are they less important?
Monopolies are regulated to protect competitors in separate markets from being destroyed, despite the fat that they produce superior products. Capitalism works because the person who makes the best, cheapest product tends to get the most money and people are motivated by greed. When a monopoly can be used to introduce artificial problems in your competitor's product, then the best and cheapest does not get the most money and we end up with markets consolidating into the control of one company whose products tend to be inferior and who has no reason to innovate. It basically takes the bad parts of capitalism and combines them with the bad parts of socialism, while producing the benefits of neither. Did you complain this loudly about when the US convicted MaBell and stopped them from renting crappy telephones to people for upwards for of $10,000 over the course of their lifetime because that was a private transaction between the two of you?
Yeah it might seem that way if you're completely ignorant and have not bothered to note that MS is violating criminal law and this is part of their punishment.
The EU can impose whatever laws they want on Microsoft, but ultimately the WTO is going to decide this issue, not the Europeans.Please. The WTO will do jack and shit against the US, EU, and China. The US is ignoring numerous WTO sanctions right now.
If the EU slaps around Microsoft too much, the WTO will find them in violation of free-trade agreements and European manufacturers will be the ones suffering as tariffs limit their exports.I doubt the WTO is going to do anything about the EU enforcing antitrust laws against MS when the US has already convicted and punished them for the same crime in the US.
The fines max out at about half of what the EU gets from sales there. Right now they are more like 1/500th what they are making.
Even with microsoft, europe would be in serious trouble because it would take time to change over to linux.So? What is MS going to do, stop doing business in the EU? That would be the most blatant anti-trust violation possible and would make them all wanted criminals. How then are they supposed to get the EU courts to enforce any copyright laws in the EU? Why wouldn't EU businesses freely copy, distribute, and even modify the source to Windows? MS only has something to sell in the EU because they obey EU law. Copyright, patents, corporations, etc. are all legal entities created by the government. The EU would have all the time it wanted to switch to Linux or to develop a competing OS from the Windows code base.
Imagine you buy a second home in Europe and vacation there every summer. You like it there and a lot of your family lives there. You take out a loan from an international bank to pay for the second home (mortgage). Now imagine, while you're in Europe you're convicted of a white-collar criminal offense, say fraud. Why don't you just fly to the US and never go back?
Well for one, that would make you a criminal refusing to comply with the law in Europe, and there are extradition treaties so they might ship you back to sit in a prison cell for a long time. Two, you would no longer get to see your friends and family there. Three, you have a lot of money invested there and the EU is not going to let you sell the house you own and ship the money back to the states when you're a wanted criminal. Four, that big loan you took out with the international bank, they still expect to be paid and if you're not making payments and have lost the house to the EU courts, they're going to go through the US courts and take your house in the US too. Five, what makes you think you can make it out of the country without being arrested for fleeing your warrant?
MS pulling out of the EU would be sacrificing billions in annual income for the sake of millions. The shareholders would fire that CEO in hours for losing them that much money. Also, being a convicted criminal with lots of assets in the EU, including all your patents and copyrights and trademarks and buildings and cash means they might confiscate some or all of that. Also, a lot of MS employees work there. If you worked at MS in a given country and MS told you one thing and the police told you to do another or go to prison, what would you do? MS saying "we're not doing business in the EU, does not mean the MS assets there are not considered a separate company that keeps developing and selling Windows. MS has business contracts with thousands of international organizations. If they stop doing business in the EU, they just broke all of those contracts and will be sued in the US courts by each and every one of those companies that has a US branch until MS is completely broke. If MS somehow managed to stop selling Windows in the EU, suddenly they would have created their own largest competitor. Whether that is the new MS-EU, or a Linux provider, or Apple, or Sun or IBM or some combination thereof, they would have just given up 20% market share to another OS, strongly motivating every developer on the planet to look into offering software on that other platform and removing the biggest lock-in MS has over customers elsewhere.
Are those enough reasons for you?
I agree micromanagement is a bad idea and won't work in the long term and is subject to abuse.
Rules and regulations are one thing on how a company should conduct itself, but a company should be able to price its product as it damn well pleases.We're not talking rules and regulations. We're discussing the law. MS is breaking the law. For example, what if MS started charging, "you must kill one black person" and we'll give you a copy of our OS. Should that be legal? I mean should the government interfere with that pricing? When the pricing itself constitutes an illegal act because it is undermining the free market economy using a monopoly, then it is certainly appropriate for the government to do whatever it takes to stop that illegal action (whether it is soliciting a murder, or antitrust abuse).
If people don't think its value for money then they can go elsewhere and look at the competition - thats what a free market is all about.Ahh, but that is exactly the problem. We have a fairly capitalist economy not for moral reasons, but because it works. Capitalism motivates innovation and low prices and everyone benefits. If that were not the case, we'd all be socialist and avoid all the unnecessary duplication of resources. So here's the problem. If you have a monopoly and tie that monopoly to a new market, you undermine capitalism. The market is no longer free. The cheapest and best product is no longer the best deal for people because you can introduce artificial problems with your competitors. No economy on the planet that I know of is unregulated with regard to monopolies because of this. If you don't stop them they expand until they control all the markets not controlled by another monopoly and then you no longer have capitalism, you have feudalism.
I think you're right that micromanaging MS's pricing is a bad idea, but the EU is in a bad place. Any competent economist will tell you the only real solution is to break up MS into multiple, competing companies and then let capitalism sort it out again as each now has direct financial interest in innovating and lowering prices and has no ability to leverage themselves illegally. The problem is that MS bought the US politicians with huge donations and after being convicted we reversed the judge's sentence of doing that, and instead did nothing at all. So if the EU breaks them up, it is a diplomatic problem with those same corrupt U.S. politicians and if they don't they have to micromanage and stop each and every illegal act, which simply does not work with as inefficient of a court system as the EU has.
But Microsoft is not a legitimate company complying with the law. They built their entire business model on breaking antitrust law and then paying off all the lawsuits. This entire case is about MS's punishment for continuing to break the law.
I don't think thats an issue for microsoft - the issue as I'm sure they see it is they want to make a huge profit with minimum competition and minimum effort - technically thats not illegal, fortunately the goverments do tend to try and do something about that - as in this case.MS has a monopoly as ruled by courts around the world including the US and EU. MS is breaking the law by tying that monopoly to other markets, in this case tying their desktop operating system (monopoly) with their server OS (non-monopoly). That is blatantly illegal. If shutting Microsoft down completely is what it takes to get them to obey that law, which they have repeatedly been convicted of breaking now and are breaking today as we speak, then it is not unreasonable for the EU to do that. This isn't some instance of the EU seeing something they don't like and trying to force it to change, this is the EU upholding long established laws they uphold against other companies every day. The only difference is this company has gone to absurd length to try to claim they are obeying the law when it is clear they are not.
I don't know if you're stupid. You are ignorant, as you yourself has professed. Why does the government grant basic human rights to an abstract concept called a corporation that exists only on paper? Why does the abstract entity called "Microsoft" have the ability to restrict my natural freedom of expression by making a copy of Windows? Why is our economy strongly capitalist in most ways?
All of these are practical conventions governments use to promote the common good. Microsoft the entity exists only because of these conventions called "laws." Those "laws" are written to promote a common good. Microsoft broke some of those laws. Ignoring for the moment your understanding of how the law promotes the common good, do you think Microsoft should just be able to ignore the laws it does not feel like obeying while every other company is forced to comply?
Moving on to why this particular law promotes the common good assumes a basic understanding of economics, particularly capitalism, feudalism, and monopolies. Our economy is mostly capitalist because it works. It uses human nature to motivate innovation, low prices, and growth. Monopolies, when leveraged in certain ways break capitalism by motivating innovation being stopped and prices being raised. Monopolies, when leveraged in certain ways constantly expand carrying these trends into other markets. Without monopoly controls, capitalism devolves into feudalism where only a few own most wealth and then there is an uprising of the poor who kill those few and redistribute the wealth. Antitrust law is designed to stop that and keep capitalism working.
Why do people care what they charge? Just like any other company, if you don't like the price....DON'T FUCKING BUY IT.Ahhh, so if the electric company were to stop selling electricity by itself and start selling electricity, plus a year's supply of groceries, would you just not buy electricity from the electric company anymore? Since almost everyone else would have to due to the realities of the market, where would you buy your food once all the grocery stores closed down?
Contrary to what daytime TV may be telling you, ignorance is not a virtue. Why don't you go read up on the economics of monopolies and come back with an educated viewpoint?
You do know this is part of a settlement for criminal activity right? You might as well argue that just because a cat food manufacturer put poison in their cat food, the government should not be allowed to mandate that they enact stricter testing measures as part of their punishment for breaking the law in the first place.
Forget the fact that the entire process is a blatant example of socialism...Do you even know what socialism is?
...it's just purely one-sided...It's strange how the punishment phase of a convicted criminal is often one-sided isn't it? I mean how come car thieves have to go to jail and aren't really given anything positive, like a new motorcycle?
...no matter what Microsoft does at this point the EU will just continue to abuse this implied authority that they've been granted until they can drive Microsoft off their shores or make all of the products free in EU.The EU commission has very limited authority, but it does include stopping MS from breaking the same laws they stop everyone else from breaking. Once MS stops breaking the law, their complaints might have merit.
As for installing applications: even if she had a Mac or even a Linux machine, it is clear that she still can be tricked in installing something bad for her.
Anyone can be tricked into installing something bad if someone puts enough effort into it. No one has time to exhaustively audit all the code they install for backdoors. It could be in your OS security update. The point is, on other OS's she is highly unlikely to ever be tricked into installing something "bad" because there is so little of it out there and if it were to become more common both Linux developers and Apple developers have a direct motivation for introducing ways to stop it, while MS has no such motivation.
So, no, normal users should not be installing applications without being informed and they are not informed mainly because it is not their area expertise.
It shouldn't have to be an area of expertise. Is installing a game in your Playstation an area of expertise that should also be limited to professionals? Of course not. The point is you shouldn't have to be an expert to use a computer safely and that includes installing software.
And, no, running malware, even sandboxed (meaning, it can't damage your system, nor send data over the network, which usually makes the software non-functional), for the simple reason that you should not support or even promote malware applications. That's a principle thing, not a technical limitation.
Umm, if the malware operators aren't gaining any benefit, how does it support them? The point is to greatly increase functionality for the user who wants to run arbitrary software easily and safely, but is not "expert" enough to be able to tell which of the 10 applications he or she wants to install are malicious.
Oh, and finally, I quote you "Because both of those are huge wastes of time made necessary by MS's design choices.". That is a false statement.
MS has clearly failed to adapt their OS to deal with the current malware environment. That is a design choice.
True windows 9x had no security and that was BAD(tm). However the NT line has had security in mind from the beginning.
The NT core includes some great security framework, but most of it is not implemented at all in any version of Windows and it certainly is not brought to the average user in such a way as to make it of any real benefit.
What really happened is that the application writers didn't bother to write software to run on machines that had user separation and probably didn't understand the system in the first place.
Why would they? They wrote for the default user settings in Windows, which are settings MS chose. If MS wanted them to write for limited users they would have created a limited user by default and made that the account users logged into by default.
So, even today, software is being developed that only runs as Administrator. Often completely unneeded!
You're talking about user level privileges, which are a step in the right direction (largely a finished step in Vista) but they are decades out of date as a sufficient security mechanism for today. MS is just now starting to motivate application developers to write for limited user accounts when 5 years ago they should have been motivating them to write for ACL limited application spaces with self-contained application bundles and official services for common network access like software registration. MS is still 10 years behind the security curve and they are the only ones who really need improvements in order for the average user to not be bothered by malware. They should be the leading edge in this area, but since they have no motivation because they are a monopoly, they ignore it as less profitable.
Sure, Microsoft made the bad decision that the first user created was Administrator (but so does Mac OS X) thus implicitly keepi
On feature which did not make it was a usable shell environment, codenamed "monad." MS claimed it would make using a shell on Windows as functional as bash on Linux and had a long list of things bash did, but that was really, really hard on Windows. When they delayed the feature all the publications of what Windows was lacking also disappeared. They now claim it will be included in a service pack.
Other cut features I can think of include ubiquitous use of .NET bringing the core of Windows up to date (dropped for everything but a few parts of Vista), UNIX application layer (dropped), NFS 3 and 4 support (dropped), and full IPv6 support (questionable). I'm sure there were a lot more random features I don't recall that also went away. In fact, about the only area where nothing was dropped was DRM where I suspect the focuses a lot of their resources.
Because both of those are huge wastes of time made necessary by MS's design choices. Compared to doing no work and getting the same result because software runs and installs fine as a regular user, spending a lot of time to manually investigate, edit, and test the permissions for each application seems like a waste to me.
Yes, it's a good thing my wife cannot install anything. That way I protect her from herself. She doesn't know that those smilies advertised are in fact spyware.It is sad that the state of computing has gotten to such a bad state on some platforms that a normal adult can't install and run software without a great likelihood of being compromised. Don't you think it would be better if she could install whatever she wanted in her own account, but that it was sufficiently limited to keep it from being useful to a malware writer? Don't you think it would be better yet if she could run all the malware she wanted but that it would be sandboxed by default?
Actually, while malware writers may not be interested in specifically corrupting data they do have motivation to mess with it. There has been malware that mined use machines for online account info and credit card numbers. There has been malware that deleted chunks of data and used disk space for temporary data storage of illicit materials. There has been a lot of malware that hides among data, making your data unsafe. There has been an enormous number of malware infections that unintentionally destroy data.
Restricting access of applications to data by default makes a lot of sense in my opinion. For example, there is no reason the OS cannot determine if a user is manually opening a file with a piece of software, or if the software is doing it without going through the file selection API. If the latter, why should a random executable have access to my address book, or my credit card receipts, or even my work files?
Is that you Mr. Gates?
At present that probably means binary drivers, that wont load into your hardened kernel or X...Most desktop users are concerned about malware and trojans and the like. They are less concerned about commercially supported applications and binaries which they have a more reasonable expectation of. A reasonable person might be willing to trust a binary driver from HP in order to get their Webcam working, while that same user might not be willing to trust SpaceBlast45.exe with their machine's security just to play a game. The goal of a reasonable security system is to allow the user to do the latter while still being able to run the executable if it behaves properly.
Holy crap! You actually waste time sorting out permissions to get everything running for a normal user under WinXP? Even most corporate places I've worked with centrally managed installations give up on that eventually and give a significant number of users admin rights. What an enormous waste of effort.
Of course, they cannot install applications themselves, but that is actually a good thing.It is a good thing that your wife can't install applications? Do you let her wear shoes? This is why my mother has a Mac. She can run as a regular user and install applications and I've spent about an hour worth of work doing support for her over the last 5 years (much of which involved asking "did you accidentally kick the power cord out... well plug it back in.")
You're right that just adding application level privileges isn't enough either, but no one said we have to only add application level privileges and not the rest of what is needed to make them useful as well. First, the UI needs to be fixed to eliminate all the current, spurious pop-ups. Then you need to build in good default settings. Right now users are clueless about firewall configuration, and yet many machines ship with one running out of the box without being prompted all the time. This is the result of reasonable defaults.
As I see moving to application level privileges is the only way to mitigate trojans. Such a system requires three parts:
The basic problem is users don't know what legitimate software should be able to touch. So, change the format of applications to include an ACL in every one. Next, verify the source of the application with a certificate. Next, check that application against intelligence provided by verification services. These could be pay services that have blacklists (like current anti-virus), but they should also include simple verification services that run software and make sure it never tries to exceed the included ACL, or to provide ACLs for legacy software. This could include input from an open source project. This could include intel provided by the OS vendor. The user will, of course, need to be able to add and remove these as well as determine how much they trust each source.
Once that is done, the system can determine without user intervention what the vast majority of all software can and can't do without having to bug the user. Exceptions would be unsigned or invalidly signed software (most of which would be malware) or when some software tries to exceed its authority (due to a bug or because the process was hijacked by a buffer overflow or the like). User will want to deny almost all of this.
Given a trust level and ACL for each app, the OS can further restrict it using an ACL for the trust level. A well crafted UI is still needed to present those few queries that do happen in a usable way, without conditioning people (unique button names that are actions, not OK/Cancel).
All of this takes a significant change in the way desktop OS's currently operate, but it is pretty much the minimum that is required to really solve the malware problem.
If you're in a hurry to add this functionality, it is freely available from the port of TrustedBSD to OS X which you can get here. It is still pretty difficult for everyday use, however, because applications are not designed to accommodate it very well. In other news Apple had posted mention on an application signing framework and a mandatory access control framework on their public facing developer pages for leopard, but it was pulled with no explanation at the end of 2006. Keep your fingers crossed as this may be coming to OS X a lot sooner than you had anticipated.
I disagree. Actually there was additional evidence to establish probable cause. The service used to perform the operation was owned and paid for by a person in that given house and in general short range open wireless points are not discovered and used by others, although that is possible. To me that sounds like probable cause to search the residence (although they should have specified the residence and not the one individual's possessions).
s not just that "someone in the neighborhood has been misbehaiving" but "someone in the neighborhood, or someone that may have just visited the neighborhood" has been misbehaiving. You're advocating a weak standard that's far too easily abused.Perhaps. It is hard to be too careful when it comes to handing the police authority. I would have preferred to see the police follow up via other means and try to contact the person involved while at least correlating that the person was in the house at the time. I can see both sides of the argument.
Actually, that is more or less the case, if not for the fact that leaving loaded firearms around is almost certainly a crime in and of itself. Think instead if (to be nice) you had, in your yard, a table with baseball equipment on it that you always let the neighborhood kids use, provided they promised to return said equipment. Then someone came up and used the baseball bat to smash up a car on the street and steal the stereo. There may be enough evidence, based upon that, for the police to get a warrant to look in your house to see if the car stereo is there, but certainly not enough to convict you of the vandalism/theft if they don't find any stereo or other evidence.
I'm pretty sure if the coke is in plain sight to the officer from anywhere, while they are not already violating your rights, such as while they are executing a legally obtained warrant.
However if the search didn't turn up the stolen piano, it does open the door to trying to have the whole thing thrown out. I wouldn't rely on it, but I would certainly explore the possibility.In case you're interested, the piano analogy was not mine, but was from the lawyer who taught my law class. He talked about how the cops could open any door they wanted since a piano might be behind any of them, but could not look inside a drawer because a piano could not reasonably be expected to be inside a drawer. So long as officers are acting in "good faith" while executing a warrant, anything they find is admissible. If they open a drawer, they are no longer acting in good faith, because they have exceeded the scope of their warrant. Perhaps what might be confusing you is if the cops have a warrant, but did not have a real reason to believe the piano was in that house and were simply using it as a pretext to search for either the drugs or simply anything they could that might be illegal. In that instance that evidence could be thrown out.
I am guessing in the case of a capital crime, they would try to invoke the "good faith" rule a little harder than in a simple non-felony drug case.Are you joking? You honestly believe the cops and courts would be bending the law in all such instances?
In any case these are merely my interpretations of the law, and IANAL.I think your interpretations are very creative, but do not reflect the reality of how the law is enforced.
Absolutely positively no one should consider either of our opinions legal advice and should ask a lawyer in their own jurisdiction. I mainly commented because I did not want people falsely counting on your assertions which I very strongly believe to be in error.
I know someone who had a crop of marijuana and his growing equipment seized because the cops showed up searching for a felon with an arrest warrant with his address listed. (felon had never been there, probably gave a fake address at some point) Because they were specifically looking for the felon and found the plants by accident, they were unable to charge for the marijuana.More likely he was not convicted because the cops took the pot home and smoked it.
If you have a firsthand experience that contradicts this, I'd love to hear it.I have no firsthand experience but this was specifically covered by my law classes both in high school and undergrad.
From answers.com: "In Mapp v. Ohio (1961) the U.S. Supreme Court mandated states to exclude from trial evidence obtained in illegal searches, such as those without a proper warrant. This "exclusionary rule" has been the subject of great controversy and subsequent litigation. In recent years, the Supreme Court has narrowed the scope of the rule, in many circumstances permitting the introduction of any evidence gathered in "good faith.""
It goes on to include: "Warrants are not required for the gathering of evidence in some circumstances. These exceptions include evidence gathered after a lawful arrest, inspections by customs or border officials, searches made with the suspect's consent, searches of items in plain view, and searches of the belongings of secondary students on school property."
If the cops could use anything they find as evidence with a search warrant, why must they list the items they are specifically searching for beforehand??Exactly for the reason I listed in my previous example. If you're searching for a stolen piano and you find cocaine in a drawer you just violated the 4th amendment. If you're searching for a piano and you find a bag of coke sitting in plain sight on a coffee table it is admissible evidence of drug possession.
You need to read up on the 4th ammendment[sic] especially the concept of "exclusinary[sic] rule" and the Katz vs. United Staes[sic] case dealing with "reasonable expectation of privacy".I understand the 4th amendment just fine, and I'm pretty sure I have a better grasp of the case law surrounding warrants and seizures. So long as officers are attempting to execute a warrant in good faith and are in the process of looking for the objects/persons named, anything they find is not protected by the 4th amendment just because it is not in the warrant. If it was, one could easily get around murder charges by placing the body and murder weapon in the middle of a room, then tipping off the cops that there is marijuana in the room. When they execute their warrant do you really think they could take the body and weapon but not use them as evidence in court since they were "illegally" discovered?
...but ruled him guilty because of the stacks of DVDs found in his room.Your analogous situation falls apart at this point because possession of DVDs is not a crime, while possession of child pornography is a crime.
And this, my friends, is why you should not take legal advice from someone called "Mister Whirley" on Slashdot.
A search warrant isn't a "blank check" that can be used to search for anything.Assuming you live in the US, a search warrant only allows the police to search for specific items... but anything they find during the course of that search is admissible as evidence of other crimes. For example, if the police get a search warrant to look for a stolen piano, and they look in your desk drawer and find cocaine, a judge will throw out the discovery because it is not reasonable to believe that the officer thought a piano might be in your desk drawer. If, however, the police search your person looking for a gun (either because they have a warrant or in the course of a traffic stop for their own safety) and they find cocaine, it is perfectly legal and you go to jail.
For the most part, I agree with you and with this court ruling. With the latter, I would quibble that the warrant should specify a search of the premises and computers that could be connecting, rather than a search of one particular resident's possessions.
The danger here is the potential for abuse. You assert that if the person had not been dealing in child pornography that the police would not have been any prosecution. This is not necessarily so. What if the person had been sitting on the couch with a bag of marijuana for their personal use and not harming anyone? Then such a misdirected search could result in a lengthy prison sentence as the police enforce an unjust prohibition law. Or, what if a police officer involved did not really understand the concept of an open wireless point or was tired of these guys getting away, so they brought a CD full of child porn with them to plant? Or what if the person involved ran a coffee shop that had all sorts of traffic through it, and the police knew the open access point made it unlikely that it was the proprietor, but wanted to harass that person and go on a fishing expedition for anything they might be doing wrong, and now had an excuse?
Let me repeat, I think this was the right call. I just don't think it is open and shut and I can see a real argument in favor of requiring more evidence to constitute probable cause for a search. For example, they could easily have contacted the person posing as someone interested in such materials and arranged a meeting, or used some other technique to at least make sure the person was home when such transactions were taking place. When the police are given power, they abuse it. History has more or less beaten that point into the ground. We need to be very careful about what power we give them, always keeping potential abuses in mind.
If it could be determined that the initial search was not legitimate because there was not sufficient reason to search, then the second set of evidence is thrown out as a way of motivating the police not to perform illegal searches in the first place. This is, of course, not just, but it is a practical tradeoff. In a perfect world, the police would be convicted of illegally searching the house and the evidence would still be considered legit and both the police and the searched person would be punished. In reality, the police are in a position to make sure they can't be convicted for the search via placing false evidence, so they would never get convicted and would simply continue to break the law.
If they searched his house and found no evidence supporting the initial reported crime, I believe he could use the Open WAP as defense.If they searched and found no evidence of anything, then he could, indeed, use the open WAP as a defense.
I don't watch the news on TV much, but when I do I seem to hear a lot of "the accused" or "the defendant" or "the suspect." In this particular case, the person has been convicted, which legally, is considered guilty. This has nothing to do with the media.
Remember the whole Duke Lacrosse Incident?No. I did not follow the case.
As soon as your name (or IP address) is spread across the news as being attached to a crime, even innocently, your are convicted in the Court of Under-informed Public Opinion.While that may relate to rules of conduct with regard to police disclosures and with regard to ethical reporting practices, I don't see how it relates here.
Don't kid yourself -- guilt and innocence are relative to your media profile now.Again, while this may be a serious issue, it does not relate to the matter at hand, which is what constitutes probable cause for the police to search for more evidence. This has nothing to do with arresting a person or publicizing an investigation. The real danger here is overzealous police who, unlike the general populace, are in a position to corrupt an investigation when they fail to understand this distinction. If, for example, a police officer did not understand the concept of an open wireless port and instead understood that this guy was somehow attached to that number, but that was not good enough for conviction, so they brought some kiddie porn CDs with them to plant in his room.
For reasons of the above scenario I support much more transparency in all investigations, harsher penalties for abusing their position, and more education and training and higher standards for police officers. In my opinion any police officer convicted of a violent crime or theft should immediately be fired and banned from future service. Any police officer convicted of a crime while in uniform or on duty or of intentionally planting evidence or the like should be subjected to the most serious of penalties, like serving 10 times the likely sentence of the person they were framing as well as being fired and banned.
As for the media coverage and public opinion, I don't see that there is a lot you can do so long as people are morons and pay attention to sensationalist pseudo news instead of real news sources.