Crazy US law

dvk01

Derek
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To my way of thinking, there is something really wrong with US law if they accept that an unsecured wireless network is private & if Law enforcement happen to come across it, they cannot use any evidence gained to get a search warrant to continue getting evidence.

What is the difference to a police officer driving past a house with the curtains open and seeing an “offender” waving a knife around. The police office is rightly worried and gets a search warrant to enter and finds a dead body in the freezer. Offender is then charged with murder.

Are the police not allowed to investigate & get a warrant to enter the premises, because the property is private & having an open view isn’t enough to allow further action. That just doesn’t happen.
When will these judges learn that an unsecured wireless network is exactly the equivalent of anybody looking into a house through an open window.



http://www.computerworld.com/s/arti...no_excuse_to_search_judge_rules?taxonomyId=17

An individual who inadvertently exposes the contents of his computer over an unsecured wireless network still has a reasonable expectation of privacy against a search of those contents by the police, a federal judge in Oregon ruled last week.

The ruling involves John Henry Ahrndt, a previously convicted sex offender who was sentenced to 120 months in prison for possession of child pornography on his computer.

Ahrndt had argued that some of the evidence that was used against him in court had been gathered illegally. He had filed an appeal asking the U.S. District Court for the District of Oregon in Portland to suppress the evidence on the grounds that his Fourth Amendment rights against unreasonable search had been violated.
see also
http://www.docstoc.com/docs/101576658/pleaded-guilty ---Wiredcom
http://www.privatewifi.com/using-un...pardize-your-constitutional-right-to-privacy/
 
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Well, law and logic don't always appear to be married at first glance. And often not after the 200th.

I guess an unsecured network compares somewhat to an unsealed envelope (remember those times when we still sent letters? :)).

Not gluing it shut is negligent, of course, but we can still expect (reasonably) others not to take a peek inside. Authorities doing that anyway (envelope sealed or not) would require a search warrant.

Search:
the Supreme Court ruled that a search occurs when 1) a person expects privacy in the thing searched and 2) society believes that expectation is reasonable. In Katz, the Supreme Court ruled that a search had occurred when the government wiretapped a telephone booth. The Court's reasoning was that 1) Charles Katz expected that his phonebooth conversation would not be broadcast to the wider world and 2) society believes that expectation is reasonable.
http://en.wikipedia.org/wiki/Fourth...tates_Constitution#Definition_of_.22search.22

The example of seeing a knife wielding bloke thru an open window can be interpreted as being in line with "clear and imminent danger", justifying immediate action. But it applies (not just in the US) to cases where threatening of life may be reasonably assumed.

However, I'd personally be quite open to the interpretation that such threat of life could also be reasonably assumed in the cited case. Justifying a search warrant by which the accused's PC could have been put thru the grinder.

Under the Fourth Amendment, law enforcement must receive written permission from a court of law, or otherwise qualified magistrate, to lawfully search and seize evidence while investigating criminal activity. A court grants permission by issuing a writ known as a warrant. A search or seizure is generally unreasonable and unconstitutional if conducted without a valid warrant and the police must obtain a warrant whenever practicable
Sloppy work IMO.
 

dvk01

Derek
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but in this case the police got a warrant from the court to perform a search, but the appeal court have decided, the the evidence used to gain the warrant was insufficient for the issue of a warrant and consequently all evidence found was inadmissible

This quote is from an email discussion list as a précis of the case, so no link
A federal judge in Oregon has granted a defendant's motion to suppress evidence gathered by police as well as his subsequent testimony because the evidence was obtained illegally. A neighbour who was inadvertently connected to the John Henry Ahrndt's unprotected wireless home network discovered that Ahrndt had inadvertently made available for sharing a user library that appeared to contain incriminating evidence. The neighbor contacted
law enforcement authorities. When a deputy saw the list of files, he asked the neighbor to open one of them, which revealed the offending content.
Ahrndt was initially sentenced to 10 years in prison for possession of child pornography, but the US Court of Appeals for the Ninth Circuit reversed that ruling. The judge said that Ahrndt still had a reasonable expectation of privacy, albeit somewhat diminished by his failure to protect his wireless network. The judge said that simply viewing the list of filenames did not violate Ahrndt's rights, but added that it was unlikely that the list of filenames would have been sufficient to issue a probable cause warrant.

from http://www.computerworld.com/s/arti...no_excuse_to_search_judge_rules?taxonomyId=17
Ahrndt's case goes back to 2007 when one of his neighbors, a woman referred to only as "JH" in court documents, connected to the Internet using her own wireless network. When JH's network temporarily malfunctioned, her computer automatically connected to Ahrndt's unsecured wireless network.

When JH subsequently opened her iTunes software to listen to music, she noticed that another user library called "Dads LimeWire Tunes" from Ahrndt's computer, was also available for sharing, court documents said.

When JH clicked on the folder, she immediately noticed that it contained a lot of files with names suggesting explicit child pornography. She informed the county sheriff's department, which sent a deputy to take a look at her discovery.

JH showed the deputy a playlist of about 25 picture and video files with pornographic titles that she had found on the folder. After consulting with his supervisor, the deputy then asked JH to open one of the files and discovered that it did indeed contain an image depicting child pornography.

Based on that discovery, law enforcement agents obtained a search warrant to search Ahrndt's home. They seized a computer, a wireless router, several hard disks and other storage media from Ahrndt's home. A forensic investigation of the seized equipment turned up about 20 images depicting child pornography.
So theoretically, if I sitting in local coffee shop & using my wireless laptop, I inadvertently connect to the next door network which is insecured & then see a list of files in public view with enticing names. Being a curious old so & so, I open the files ( as 90% of people probably would do ) Those files turn out to contain either child porn or taking it to the extremes, instructions to build a terrorist device and details of where and when the device will be placed. I call Law enforcement & show them what I have unwittingly found. Are you saying that they cannot then get a warrant & investigate further, because the original "findings" were without a warrant. Or does it mean that if the officer asked me to open an additional file, over & above those that I have already opened myself, that then invalidates the possibility of getting a warrant based on this evidence


Yes I agree the authorities should not be able to speculatively search any premises,( including a computer) without prior evidence or reasonable suspicion of an offence being committed.

Open view is open view in my opinion. It would be different if the network had been encrypted and I had used my knowledge to bypass the encryption,

It really is no different to me sitting on a train & the guy next to me is looking at hard copy child porn photos pasted inside a photo album. I have seen it & tell the police. Why can't the police investigate?
 
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but in this case the police got a warrant from the court to perform a search, but the appeal court have decided, the the evidence used to gain the warrant was insufficient for the issue of a warrant and consequently all evidence found was inadmissible ..........................
If you really want to see the explanation(and going thru it as far as I've so far done, has already made ME sick), the pertinent part appears to be in page 21 of http://www.scribd.com/doc/121065997/ahrndt.

It would appear that the deputy needed to acquire a warrant first for opening the files, matters then to be taken from there.
Ahrndt suggests instead, and I agree, the deputy should have obtained a warrant to open one of the images. The partial recollections and characterizations of the file names JH and Deputy McCullough saw were too general to support the issuance of a warrant to enter Ahrndt’s home and seize his computer and related equipment
What I think that does to common sense, let alone to a feeling of justice, is unprintable. But then "jus" and "justice" are often confused as being the same.:rolleyes:

OTH that's a lawyer's job, to engage upon these things and s/he'd be a total flop if s/he didn't.

At the end of the day, even where like here it appears to turn the law into an ****insert male donkey****, I'd rather have that than have public sense of right and wrong rule.

Where I have no citation at hand right now, there are surely numerous cases where one can applaud upholding of the law by just such minutiae.

The case (totally dissimilar in legal context but equally annoying as to public perception) of Abu Qatada in the UK comes to mind. I'd happily fry him but not the law that he's found convenient to exploit.
 
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child porn illegal and disgusting. this should be reported to the police.

if i am in my own home and wildly waving a knife and you are looking at this through my window...get a life wierdo.

if i have bomb making information on my computer ...so what.

do you have knowledge that i plan to harm someone else?

possession of information does not prove this.

the police must have a reasonable suspicion of "criminal intent" before they get a search warrant. anyone's suspicion is not good enough for the police to get a warrant.

perhaps the police should just monitor everyone in the hopes that they can prevent a crime before it happens. it gives them something to do and keeps them off the streets.;)
 
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child porn illegal and disgusting. this should be reported to the police.
pertinent point being that having child porn material on the PC is criminal by law.

if i am in my own home and wildly waving a knife and you are looking at this through my window...get a life wierdo.

if i have bomb making information on my computer ...so what.

do you have knowledge that i plan to harm someone else?

possession of information does not prove this.
agreed in all cases but that's not the point here.
the police must have a reasonable suspicion of "criminal intent" before they get a search warrant. anyone's suspicion is not good enough for the police to get a warrant.
seeing how in the above case it wasn't simply about suspicion. It was about legal technicalities on obtaining warrant(s). That the guy had child porn on his computer isn't doubted.
 
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agreed: "probable cause" is a better choice of words.

i disagree with the appeals court ruling. the deputy was given the information about the child porn from a third party. he did obtain a warrant prior to making the arrest and searching the man's computer.

In my opinion the judged rulling does not make sense. she is saying, the deputy had to have a warrant to see the original information supplied by a third party?

suppose i go into a house and see a dead body. I tell the poilice about the dead body. they get a warrant and search the house. they find the body and arresty the owner.

according to this judge; the arrest would be invalid because the police did not have probable cause that a murder had been committed prior to me seeing the body?
 
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.............he did obtain a warrant prior to making the arrest and searching the man's computer.

In my opinion the judged rulling does not make sense. she is saying, the deputy had to have a warrant to see the original information supplied by a third party?
Not quite.

The deputy had to have a warrant to open that information. It didn't just happen to lie open face on the sidewalk.

If we're going to make analogies, best stick to something that relates more like a letter in an envelope (as mentioned before). Even if it gets deposited on your doorstep by mistake, you're not really supposed to take a peek. And a law enforcing officer is not really supposed to get you to let him have one either , unless he has a warrant.
suppose i go into a house and see a dead body. I tell the poilice about the dead body. they get a warrant and search the house. they find the body and arresty the owner.

according to this judge; the arrest would be invalid because the police did not have probable cause that a murder had been committed prior to me seeing the body
.....and this analogy does not relate.

For one thing a warrant would be no problem, for another it probably wouldn't be necessary in that stage. "clear and imminent danger" would probably apply.
 

Drabdr

Brad
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This judge is a real card. :rolleyes:

Here is a link to the brief:

Note: Given the nature of the subject, there are some explicit words in the brief.

http://www.scribd.com/doc/121065997/ahrndt


I think this part is the rub:

Deputy McCullough called his sergeant. Deputy McCulloughtestified at the first suppression hearing that he called his sergeant for two reasons: to advise him what he had learned and to “determine if it would be appropriate or not for me to look further into those files and try to determine what was enclosed within them.” First Hr’g Tr. 8:8-12.After speaking with his supervisor, Deputy McCullough concluded it would be acceptable to investigate further and he requested that JH attempt to open one of the files.
My bold added. I think that is the point the judge is ruling on the Fourth Amendment.


Its kind of sick how "slick" the legal consultation is that child pornographers receive:

He admitted to downloading child pornography as recently as eight months previously using the peer-to-peer file-sharing software LimeWire, but that he had deleted anyimages he downloaded from that time. Def’s. Ex. A, at AHRNDT R0027 [25]. He also told agents that he had deleted all the images he had previously obtained, but that they would find child pornography images if they were capable of recovering deleted images. Specifically, he told the agents they would find deleted images on his external hard drives, which he had converted from hard drives of his old computers.

But.... then the judge cites this precedence:

A search occurs when the government violates an individual’s reasonable expectation of privacy. See United States v. Jacobsen, 466 U.S. 109, 113 (1984).“An individual has a reasonable expectation of privacy if he can demonstrate a subjective expectation that his activities would be private, and he [can] show that his expectation was one that society is prepared to recognize as reasonable.
OK.... Here's the rub...

Yes, Ahrndt did not have protection on his WIFI. Having an open WIFI is different than having shared files/folders open to the public. Because (I could very well be wrong), I would have to open my computer to be shared on the network; the default is NOT to have the computer shared.

However... I would totally go off on this judge. If you aren't smart enough to locked down your WIFI, assure your computer is secure, assure you don't have anything as sharing, then your "reasonable expectations" is nullified.

So... to summarize as I see it.... this possessor of child pornography had an unsecured WIFI, did not check the appropriate security settings in Itunes, and downloaded Limewire to share his excrement. So he had enough savvy to do that. But... so stupid to not choose the appropriate security security settings. So, instead of his ignorance and laziness dismissing his "reasonable expectation of privacy", the judge rules that it ensures his reasonable expectation of privacy.

I certainly don't want government "cracking" into computers, busting down doors, etc. without warrants and such. I do want protection. But for a judge to go that far out on a limb to protect someone is silly.

If you don't make steps to make your computer and WIFI secure, and download file sharing software, you forfeit your rights to privacy.

So.. I don't think it's a crazy US law. It's a crazy judge interpreting the law.
 
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This judge is a real card. :rolleyes:

Here is a link to the brief:

Note: Given the nature of the subject, there are some explicit words in the brief.

http://www.scribd.com/doc/121065997/ahrndt


I think this part is the rub:

My bold added. I think that is the point the judge is ruling on the Fourth Amendment.
Yup, pointed that out in #4:)
Its kind of sick how "slick" the legal consultation is that child pornographers receive:
I think we have to "un-excite" ourselves from the automatic (and perhaps natural) disgust we perceive for them. They have as much right to a fair trial as anyone and thus as much right to be duly represented with legal consultation.
Yes, Ahrndt did not have protection on his WIFI. Having an open WIFI is different than having shared files/folders open to the public. Because (I could very well be wrong), I would have to open my computer to be shared on the network; the default is NOT to have the computer shared.

However... I would totally go off on this judge. If you aren't smart enough to locked down your WIFI, assure your computer is secure, assure you don't have anything as sharing, then your "reasonable expectations" is nullified.
I'd think, by logic alone, not. Seems equivalent to me of saying "if you don't put an encrypter on your phone, it's your fault if you're overheard". Or, to return to previous example, "if you've sent off a letter, forgot to seal the envelope and then dropped it by accident on the pavement, you can't expect people not to read it". Of course, in real life you can't anyway, but it can't be used as evidence in proceedings against you.

That's the whole point.

So... to summarize as I see it....

................If you don't make steps to make your computer and WIFI secure, and download file sharing software, you forfeit your rights to privacy.
There's no way you can forfeit any of your civil rights thru own negligence.

Note that neither the neighbor's nor the deputy's actions were deemed illegal since they uncovered the matter by the negligence of the accused. But that's not what it is all about. It's about securing evidence by proper process and this wasn't deemed it.
So.. I don't think it's a crazy US law. It's a crazy judge interpreting the law.
Note also that the judge ruled quite differently on previous occasion. But the appeals court returned the ruling for revision. The law may be crazy (although that's how we "feel", not how we logically and dispassionately analyze), but the judge's considerations of correcting previous ruling are quite sane.

The heinousness of a suspected crime (at least as perceived by an outraged public) is no reason to deny an accused due process. There's a reason that Justitia wears a blindfold. :)
 

dvk01

Derek
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Or, to return to previous example, "if you've sent off a letter, forgot to seal the envelope and then dropped it by accident on the pavement, you can't expect people not to read it". Of course, in real life you can't anyway, but it can't be used as evidence in proceedings against you.
I find that hard to accept

if you drop an open /unsealed letter on the ground ( assuming the finder can't read the address clearly) , containing incriminating information and anybody picks it up, thinks that they will open it to see if there is a return address inside to return the letter. If that finder then discovers evidence of an illegal act and reports it to the police, surely the authorities have the right to get a warrant to investigate further.

or even if the address is clearly readable, it might be technically illegal for a finder to read it, but once he has read it, then informed law enforcement, LE must be able to pursuer the case further without regard to where or how the original evidence came from.

I know I am looking at this from a European perspective where we don't have the 4the Amendment, but we do have the "right to privacy" under human rights laws in the majority or EU countries. But that right is always tempered by the responsibilities that the state has to protect the innocent.

It does matter what the crime is and the investigation of certain crimes, should in a civilised society be given slightly more leeway to be investigated

Just about every country has exceptions to all privacy laws when it comes to terrorist offences. In my view Child porn should be dealt with & treated on the same level as Terrorism. It isn't a victimless crime, it is about the most heinous crime that can be committed by an individual, far and above murder or rape of an adult. Sexual assault or rape of a helpless, defenceless child is much worse than the same offence against an adult, who has at least a chance of fighting back.
 
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The error here on the part of the police was asking the civilian to open the contents of the electronic folder. By doing so the officer made the civilian an "officer" of the state (like police officer himself) and thus a search warrant was needed prior to opening the file. This point has already been noted above. There is a long list of cases in which the police have purposefully and inadvertently used civilians to gather evidence and each (or all most all) have been struck down as unreasonable search and seizure. From my standpoint is the assertion that one has an expectation of privacy when using an open wireless network connection. That determination has larger consequences than the police asking the civilian to open a file.
 
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I find that hard to accept

if you drop an open /unsealed letter on the ground ( assuming the finder can't read the address clearly) , containing incriminating information and anybody picks it up, thinks that they will open it to see if there is a return address inside to return the letter. If that finder then discovers evidence of an illegal act and reports it to the police, surely the authorities have the right to get a warrant to investigate further.
They surely do. But in the manner of proper process.
or even if the address is clearly readable, it might be technically illegal for a finder to read it, but once he has read it, then informed law enforcement, LE must be able to pursuer the case further without regard to where or how the original evidence came from.
....and the same here. But LE must provide evidence through own investigation.
I know I am looking at this from a European perspective where we don't have the 4the Amendment, but we do have the "right to privacy" under human rights laws in the majority or EU countries. But that right is always tempered by the responsibilities that the state has to protect the innocent.
I feel that the US and the EU are not so far apart here and also not in the responsibility of protecting the innocent. The problem that arose with the interpretation of that particular action in the US would, however, not arise in the UK for instance. There are instances where police require warrants and where they don't.

But the pertinent point remains, as Bastiat points out. Assigning police duties to a "civilian" requires due process and cannot be effected by an officer on the spot and at the drop of a hat.
It does matter what the crime is and the investigation of certain crimes, should in a civilised society be given slightly more leeway to be investigated

Just about every country has exceptions to all privacy laws when it comes to terrorist offences. In my view Child porn should be dealt with & treated on the same level as Terrorism. It isn't a victimless crime, it is about the most heinous crime that can be committed by an individual, far and above murder or rape of an adult. Sexual assault or rape of a helpless, defenceless child is much worse than the same offence against an adult, who has at least a chance of fighting back.
I personally feel (and that's just a big IMO) that we already have enough trouble with things like Patriot Acts, Anti Terror Statutes, Lois scélérates, Ley Corcuera, Terrorbekämpfung etc. (or whatever they're regionally called) to not want to expand them further onto different crime types, let alone create new categories. Otherwise Lord knows where things will end.

Not to be misunderstood, I'd personally be in favor of nailing a child porner to the nearest barn door, his human rights to be sorted later, if at all. But I don't write the laws and that's probably just as well, considering a lot of other things I'd be in favor of.;)
 

Drabdr

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Certainly not meaning to ignore any points and such made above; just kind of limited by time.However, some general points of agreements and some differences of view.

I do think that the laws need not be bent and such just because this involves a child molestor. I do believe in full legal rights protection, and process under the Law. Being around kids in self defense,V-ball, church, etc. I am paranoid about even getting too close to the buggers. Simply because it seems one is accused, is guilty, and by some miracle, may be acquitted. We still need to maintain: innocent until guilty.

However, this case doesn't seem to fall into that. The man clearly states that he had the pictures, but the issue seems to be having the charges dropped due to technicalities involving the authorities gaining the pictures for prosecution.

I do feel that this man's Reasonable Right To Privacy was not violated. A neighbor through a few clicks of the button were able to view these files. So, there were multiple security issues not taken by the guy: Itunes security, unsecured WIFI, and I would assume network sharing settings on the computer. Had he expected a reasonable Right to Privacy, he would have at least addressed one of those.

If this neighbor had complained that someone was flashing them from the adjacent house, but could only be seen from an upstairs window, would the cop have the ability to ask the neighbor to open the blinds so he can see? I would think so.

Also, the police officer could have been sitting outside with a laptop, and reproduce the entire situation. Thus, it did not require anything special or unique on the part of the neighbor to open the pictures.

If you're doing some freaky (and probably illegal) acts in your house with chickens and iguanas, don't leave the windows open and the front door wide open; if you wish to keep a Reasonable Right To Privacy. :D
 

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