Only criminals use terminals

[theprez98]

Re: Only criminals use terminals

Bruce Schneier continues his downhill plunge. He buys the EFF argument: hook, line, and sinker.
http://www.schneier.com/blog/archive..._police_c.html

[Thorn]

Re: Only criminals use terminals

Bruce Schneier continues his downhill plunge. He buys the EFF argument: hook, line, and sinker.
http://www.schneier.com/blog/archive..._police_c.html

In the last couple of years, Mr. Schneier has been losing the high regard I once had of him. Lately, he just seems to jump on popular opinion and disregard the facts.

If you dig further and read the defense's memorandum of the Motion to Suppress, it makes some rather good legal arguments as to why sending the email wasn't a crime. The memorandum does touch on the fact that the complainant's interpretations of things like a command line aren't valid, but it's a pretty minor. It comes under paragraph III (C) (2) (b), and it only says that the complainant is unreliable as a witness the technical matters as he has no basis of knowledge. No where does it say anything to the effect that "the investigating officer argued that the computer expertise of the student itself supported a finding of probable cause to seize the student's property" which is what the EFF alleges on their site.

[renderman]

Re: Only criminals use terminals

Followup:

EFF and the kid won, case thrown out:

http://www.eff.org/press/archives/2009/05/22

[Thorn]

Re: Only criminals use terminals

Followup:

EFF and the kid won, case thrown out:

http://www.eff.org/press/archives/2009/05/22

Not exactly. The court suppressed the the warrant, but the case has not been "thrown out".

Read the decision. http://www.eff.org/files/SJCcalixteorder.pdf Nowhere is there a decision of dismissal.

The court held that sending the emails in violation of the college's policies was not a crime, and that the seizure of the laptops and other devices would not be allowed based on the assumption that is was a crime. The court also held that while illegal downloading and changing of grades are crimes, that the warrant application did not substantiate that Calixte had committed those crimes.

However -and this is something that is very interesting legally- the court did NOT suppress any evidence that Commonwealth* found thus far, and in fact denied the motion to supress. While the EFF goes on a great length in their "deeplinks" article about the things the court found in the defendant's favor, this rather important point is one that the EFF seems to have missed entirely, or at least is ignoring.

Essentially, the court let the Commonwealth keep any evidence the have found so far, and left the door open to further investigate and possibly charge Calixte with crimes connected with the illegal downloads, changing the grades, and anything else the evidence might reveal. It will be interesting to see what happens with this case when it goes back to the lower court without the warrant. I suspect that it may be dismissed, but without prejudice; meaning that Calixte may still be charged with crimes that arise from any evidence the Commonwealth has obtained thus far.

If you don't want to read the whole thing, at least pay attention to the last paragraph containing the order:

ORDER
For the foregoing reasons, it is ordered that the motion to quash the search warrant and the motion for return of property are allowed. It is further ordered that the Commonwealth forthwith cease any ongoing search of Calixte's seized property, and return the property to Calixte. The motion to suppress evidence is denied.

Note: The old type is per the original MEMORANDUM OF DECISION AND ORDER.


*Legally, Massachusetts is a "commonwealth" and not a "state".

[xor]

Re: Only criminals use terminals

What you also don't see are the negotiations that go on between the defense and the prosecution. The fact that he is a kid/minor/first offense/non-violent/its not Texas() may have a lot to do with the way the case is going.

xor

[theprez98]

Re: Only criminals use terminals

If you don't want to read the whole thing, at least pay attention to the last paragraph containing the order...

The order is obviously important, but the text of the discussion explains why. I believe the judge is saying that she can't suppress the evidence yet because there are no charges. She's basically saying, "if charges are filed, you can resubmit this request to suppress, but at this point it is not relevant."

So, the case still exists, but the Commonwealth doesn't have much (if any) evidence left to go on...and would be smart to just drop the case.

Fruit of the poisoned tree will eventually suppress the evidence, anyways.

[Thorn]

Re: Only criminals use terminals

I think the judge is saying that she can't suppress the evidence yet because there are no charges. She's basically saying, "if charges are filed, you can resubmit this request to suppress, but at this point it is not relevant."

So, the case still exists, but the Commonwealth doesn't have much (if any) evidence left to go on.

That might be true, although most courts I've seen would have suppressed all evidence under the blanket of the "fruits of the poisoned tree" theory if they thought any undue harm might caused to a defendant who had been wronged due to inappropriate actions by the police obtaining an illegal warrant.

I still find it interesting that she essentially told the police and prosecutors "There are potential crimes here that you haven't sufficiently investigated." Like I said, when this goes back to the lower court, it may be dismissed, but due to this decision it may be "dismissed without prejudice."

[xor]

Re: Only criminals use terminals

That might be true, although most courts I've seen would have suppressed all evidence under the blanket of the "fruits of the poisoned tree" theory if they thought any undue harm might caused to a defendant who had been wronged due to inappropriate actions by the police obtaining an illegal warrant.

I still find it interesting that she essentially told the police and prosecutors "There are potential crimes here that you haven't sufficiently investigated." Like I said, when this goes back to the lower court, it may be dismissed, but due to this decision it may be "dismissed without prejudice."

Technically couldn't they just grab him if & when he picks up the laptop and re-arrest him right on the spot?

xor

[theprez98]

Re: Only criminals use terminals

Fruit of the poisoned tree will eventually suppress the evidence, anyways.

That might be true, although most courts I've seen would have suppressed all evidence under the blanket of the "fruits of the poisoned tree" theory if they thought any undue harm might caused to a defendant who had been wronged due to inappropriate actions by the police obtaining an illegal warrant.

I still find it interesting that she essentially told the police and prosecutors "There are potential crimes here that you haven't sufficiently investigated." Like I said, when this goes back to the lower court, it may be dismissed, but due to this decision it may be "dismissed without prejudice."

Fruit of the poisoned tree will eventually suppress the evidence, anyways.

Yeah, I added this before you replied. I think it will still happen, I just think she is basically saying that it is not a ripe issue for an appellate court to decide.

[Thorn]

Re: Only criminals use terminals

Technically couldn't they just grab him if & when he picks up the laptop and re-arrest him right on the spot?

xor

Nope, that would be dirty pool. The BCPD would have to investigate the other alleged crimes, and develop sufficient Reasonable Suspicion for separate warrant. Said Reasonable Suspicion would have to very carefully tread the line as to not touch upon anything that was previously seen as an issue by the appellate court. They would also have to develop specific information that the crimes were committed using that laptop, which the court already pointed out that they hadn't done the first time.

Yeah, I added this before you replied. I think it will still happen, I just think she is basically saying that it is not a ripe issue for an appellate court to decide.

It could be; the appellate courts here aren't usually shy about suppressing evidence if they feel a the basis for a warrant didn't rise to the needed level, so it may be that it's just my expectations are different from the way it's done in Massachusetts.