Entries Tagged "courts"
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Third Party Consent and Computer Searches
U.S. courts are weighing in with opinions:
When Ray Andrus’ 91-year-old father gave federal agents permission to search his son’s password-protected computer files and they found child pornography, the case turned a spotlight on how appellate courts grapple with third-party consents to search computers.
[…]
The case was a first for the 10th U.S. Circuit Court of Appeals, and only two other circuits have touched on the issue, the 4th and 6th circuits. The 10th Circuit held that although password-protected computers command a high level of privacy, the legitimacy of a search turns on an officer’s belief that the third party had authority to consent.
The 10th Circuit’s recent 2-1 decision in U.S. v. Andrus, No. 06-3094 (April 25, 2007), recognized for the first time that a password-protected computer is like a locked suitcase or a padlocked footlocker in a bedroom. The digital locks raise the expectation of privacy by the owner. The majority nonetheless refused to suppress the evidence.
Excellent commentary from Jennifer Granick:
The Fourth Amendment generally prohibits warrantless searches of an individual’s home or possessions. There is an exception to the warrant requirement when someone consents to the search. Consent can be given by the person under investigation, or by a third party with control over or mutual access to the property being searched. Because the Fourth Amendment only prohibits “unreasonable searches and seizures,” permission given by a third party who lacks the authority to consent will nevertheless legitimize a warrantless search if the consenter has “apparent authority,” meaning that the police reasonably believed that the person had actual authority to control or use the property.
Under existing case law, only people with a key to a locked closet have apparent authority to consent to a search of that closet. Similarly, only people with the password to a locked computer have apparent authority to consent to a search of that device. In Andrus, the father did not have the password (or know how to use the computer) but the police say they did not have any reason to suspect this because they did not ask and did not turn the computer on. Then, they used forensic software that automatically bypassed any installed password.
The majority held that the police officers not only weren’t obliged to ask whether the father used the computer, they had no obligation to check for a password before performing their forensic search. In dissent, Judge Monroe G. McKay criticized the agents’ intentional blindness to the existence of password protection, when physical or digital locks are such a fundamental part of ascertaining whether a consenting person has actual or apparent authority to permit a police search. “(T)he unconstrained ability of law enforcement to use forensic software such at the EnCase program to bypass password protection without first determining whether such passwords have been enabled … dangerously sidestep(s) the Fourth Amendment.”
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If courts are going to treat computers as containers, and if owners must lock containers in order to keep them private from warrantless searches, then police should be required to look for those locks. Password protected computers and locked containers are an inexact analogy, but if that is how courts are going to do it, then its inappropriate to diminish protections for computers simply because law enforcement chooses to use software that turns a blind eye to owners’ passwords.
Massive Spam Lawsuit
Project Honey Pot files a $1B+ lawsuit against spammers.
Lawsuit for Not Disclosing a Security Breach
There’s a class-action lawsuit against TJX by various banks and banking groups:
The suit will argue that TJX failed to protect customer data with adequate security measures, and that the Framingham, Mass.-based retail giant was less than honest about how it handled data.
This case could break new legal ground, and is worth watching closely. (I’m rooting for the plaintiff.)
Canadian Anti-Terrorism Law News
The court said the men, who are accused of having ties to al-Qaeda, have the right to see and respond to evidence against them. It pointed to a law in Britain that allows special advocates or lawyers to see sensitive intelligence material, but not share details with their clients.
In its ruling, the court said while it’s important to protect Canada’s national security, the government can do more to protect individual rights.
But the court suspended the judgment from taking legal effect for a year, giving Parliament time to write a new law complying with constitutional principles.
Critics have long denounced the certificates, which can lead to deportation of non-citizens on the basis of secret intelligence presented to a Federal Court judge at closed-door hearings.
Those who fight the allegations can spend years in jail while the case works its way through the legal system. In the end, they can sometimes face removal to countries with a track record of torture, say critics.
And that’s not the only piece of good news from Canada. Two provisions from an anti-terrorism law passed at the end of 2001 were due to expire at the end of February. The House of Commons has voted against extending them:
One of the anti-terrorism measures allows police to arrest suspects without a warrant and detain them for three days without charges, provided police believe a terrorist act may be committed. The other measure allows judges to compel witnesses to testify in secret about past associations or pending acts. The witnesses could go to jail if they don’t comply.
The two measures, introduced by a previous Liberal government in 2001, have never been used.
“These two provisions especially have done nothing to fight against terrorism,” Dion said Tuesday. “[They] have not been helpful and have continued to create some risk for civil liberties.”
Another article here.
Scanning People's Intentions
Here’s an article on a brain scanning technique that reads people’s intentions.
There’s not a lot of detail, but my guess is that it doesn’t work very well. But that’s not really the point. If it doesn’t work today, it will in five, ten, twenty years; it will work eventually.
What we need to do, today, is debate the legality and ethics of these sorts of interrogations:
“These techniques are emerging and we need an ethical debate about the implications, so that one day we’re not surprised and overwhelmed and caught on the wrong foot by what they can do. These things are going to come to us in the next few years and we should really be prepared,” Professor Haynes told the Guardian.
The use of brain scanners to judge whether people are likely to commit crimes is a contentious issue that society should tackle now, according to Prof Haynes. “We see the danger that this might become compulsory one day, but we have to be aware that if we prohibit it, we are also denying people who aren’t going to commit any crime the possibility of proving their innocence.”
More discussion along these lines is in the article. And I wrote about this sort of thing in 2005, in the context of Judge Roberts’ confirmation hearings.
SWIFT Violates Legal Privacy Protections
This is a good summary of the SWIFT privacy case:
This week, the Article 29 group—a panel of European Commissioners for Freedom, Security, and Justice—ruled that the interbank money transfer service SWIFT (Society for Worldwide Interbank Financial Telecommunication) has failed to respect the provisions of the EU Data Protection directive by transferring personal financial data to the US in a manner the press release describes as “hidden, systematic, massive, and long-term.”
Eyewitness Identification Reform
According to this article, “Mistaken eyewitness identification is the leading cause of wrongful convictions.” Given what I’ve been reading recently about memory and the brain, this does not surprise me at all.
New Mexico is currently debating a bill reforming eyewitness identification procedures:
Under the proposed regulations, an eyewitness must provide a written description before a lineup takes place; there must be at least six individuals in a live lineup and 10 photos in a photographic line-up; and the members of the lineup must be shown sequentially rather than simultaneously.
The bill would also restrict the amount of time in which law enforcement could bring a suspect by for a physical identification by a victim or witness to within one hour after the crime was reported. Anything beyond one hour would require a lineup with multiple photos or people.
I don’t have access to any of the psychological or criminology studies that back these reforms up, but the bill is being supported by the right sorts of people.
Islam on Trial
“Prophetic Justice,” by Amy Waldman (The Atlantic Monthly, Oct 2006) is a fascinating article about terrorism trials in the U.S. where the prosecution attempts to prove that the defendant was planning on committing an act of terrorism. Very often, the trials hinge on different interpretations of Islam, Islamic scripture, and Islamic belief—and often we are essentially putting the religion on trial.
Reading it, I was struck with the eliminationist rhetoric coming out of the Christian Right in the U.S. today, and how it would fare under the same level of scrutiny.
It’s a long article, but well worth reading. There are many problems with prosecuting people for thoughtcrimes, and the article discusses some of them.
Sidebar photo of Bruce Schneier by Joe MacInnis.