Convicted felon Michael Crooker is suing Compaq (now HP) for false advertising. He bought a computer promised to be secure, but the FBI got his data anyway:
He bought it in September 2002, expressly because it had a feature called DriveLock, which freezes up the hard drive if you don’t have the proper password.
The computer’s manual claims that “if one were to lose his Master Password and his User Password, then the hard drive is useless and the data cannot be resurrected even by Compaq’s headquarters staff,” Crooker wrote in the suit.
Crooker has a copy of an ATF search warrant for files on the computer, which includes a handwritten notation: “Computer lock not able to be broken/disabled. Computer forwarded to FBI lab.” Crooker says he refused to give investigators the password, and was told the computer would be broken into “through a backdoor provided by Compaq,” which is now part of HP.
It’s unclear what was done with the laptop, but Crooker says a subsequent search warrant for his e-mail account, issued in January 2005, showed investigators had somehow gained access to his 40 gigabyte hard drive. The FBI had broken through DriveLock and accessed his e-mails (both deleted and not) as well as lists of websites he’d visited and other information. The only files they couldn’t read were ones he’d encrypted using Wexcrypt, a software program freely available on the Internet.
I think this is great. It’s about time that computer companies were held liable for their advertising claims.
But his lawsuit against HP may be a long shot. Crooker appears to face strong counterarguments to his claim that HP is guilty of breach of contract, especially if the FBI made the company provide a backdoor.
“If they had a warrant, then I don’t see how his case has any merit at all,” said Steven Certilman, a Stamford attorney who heads the Technology Law section of the Connecticut Bar Association. “Whatever means they used, if it’s covered by the warrant, it’s legitimate.”
If HP claimed DriveLock was unbreakable when the company knew it was not, that might be a kind of false advertising.
But while documents on HP’s web site do claim that without the correct passwords, a DriveLock’ed hard drive is “permanently unusable,” such warnings may not constitute actual legal guarantees.
According to Certilman and other computer security experts, hardware and software makers are careful not to make themselves liable for the performance of their products.
“I haven’t heard of manufacturers, at least for the consumer market, making a promise of computer security. Usually you buy naked hardware and you’re on your own,” Certilman said. In general, computer warrantees are “limited only to replacement and repair of the component, and not to incidental consequential damages such as the exposure of the underlying data to snooping third parties,” he said. “So I would be quite surprised if there were a gaping hole in their warranty that would allow that kind of claim.”
That point meets with agreement from the noted computer security skeptic Bruce Schneier, the chief technology officer at Counterpane Internet Security in Mountain View, Calif.
“I mean, the computer industry promises nothing,” he said last week. “Did you ever read a shrink-wrapped license agreement? You should read one. It basically says, if this product deliberately kills your children, and we knew it would, and we decided not to tell you because it might harm sales, we’re not liable. I mean, it says stuff like that. They’re absurd documents. You have no rights.”
My final quote in the article:
“Unfortunately, this probably isn’t a great case,” Schneier said. “Here’s a man who’s not going to get much sympathy. You want a defendant who bought the Compaq computer, and then, you know, his competitor, or a rogue employee, or someone who broke into his office, got the data. That’s a much more sympathetic defendant.”