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Crazy US law

Discussion in 'Controversial Topics' started by dvk01, Jan 26, 2013.

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  1. dvk01

    dvk01 Moderator Malware Specialist Thread Starter

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    Derek
    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

    see also
    http://www.docstoc.com/docs/101576658/pleaded-guilty ---Wiredcom
    http://www.privatewifi.com/using-un...pardize-your-constitutional-right-to-privacy/
     
  2. buffoon

    buffoon

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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:
    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.

    Sloppy work IMO.
     
  3. dvk01

    dvk01 Moderator Malware Specialist Thread Starter

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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

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

    buffoon

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    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.
    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.
     
  5. 1956brother

    1956brother

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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.;)
     
  6. buffoon

    buffoon

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    pertinent point being that having child porn material on the PC is criminal by law.

    agreed in all cases but that's not the point here.
    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.
     
  7. Bastiat

    Bastiat

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    I believe you mean "probable cause".
     
  8. 1956brother

    1956brother

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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?
     
  9. buffoon

    buffoon

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    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.
    .....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.
     
  10. Drabdr

    Drabdr Moderator

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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.


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


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

    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.
     
  11. buffoon

    buffoon

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    Yup, pointed that out in #4:)
    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.
    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.

    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.
    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. :)
     
  12. dvk01

    dvk01 Moderator Malware Specialist Thread Starter

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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.

    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.
     
  13. Bastiat

    Bastiat

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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.
     
  14. buffoon

    buffoon

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    They surely do. But in the manner of proper process.
    ....and the same here. But LE must provide evidence through own investigation.
    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.
    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.;)
     
  15. Drabdr

    Drabdr Moderator

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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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