Beware the Computer Police State Policies
"Ok son, pull your laptop over to the side of the road and let me see your hard drive. Warrant? I don't need no stinkin' warrant. But the fact you asked for one indicates you've probably got something to hide, so I'm going to confiscate that machine in plain sight and hold it as evidence. Now bend over while we perform a body cavity search."
No, we have not yet reached the police state I've sketched above (unless you're crossing the US border -- see the bits at the end). But a recent ruling by the 9th U.S. Circuit Court of Appeals puts us another step closer.
As Wired's David Kravits reports, by a 9 to 2 ruling the court ratcheted back its own restrictions on how law enforcement agencies cull information from your computer, once they have it in their possession.
[ See also: How to murder a Flash cookie zombie ]
Last year, the court set forth guidelines that restricted the amount of information Johnny Law could slurp off of a suspect's computer to the information requested in a warrant -- and nothing but the information requested in a warrant.
In other words, if you were being investigated for tax evasion, the Feds could look at your financial records, but they couldn't go snooping around your hard drive to see if you were illegally swapping music and movie files or visiting illegal porn sites.
Trouble is, once the computers were in the Fed's possession it was like Christmas in July -- they used whatever evidence they happened to stumble across.
The ruling stems from a 2004 steroids case, where prosecutors requested information from a drug testing lab on 10 major league baseball players who tested positive for illegal drug use. The lab gave them all of its records. Lo and behold, the Feds found another 94 players who also tested positive and decided to prosecute them all.
The Feds argued that this evidence was "in plain sight," just like if they entered your house because of a domestic dispute and found a dime bag of coke on your dining room table. Suddenly it's a drug bust.
Last year, the appeals court ruled the Feds could not use the 'extra' evidence it found to prosecute those players, and set up strict guidelines for using independent third parties to cull relevant information from the computer while leaving everything else alone. The US government argued those rules were so onerous as to bring all of its computer forensics to a screeching halt.
This year the appeals court split the difference. It agreed that yes, the rules were onerous, and threw them out. It disagreed that the other evidence was "in plain sight," though, and it urged "greater vigilance" on the part of law enforcement officials to limit their inquiries and not go off on fishing expeditions.
The U.S. government may well appeal this to the Supreme Court and try to get that barred evidence reinstated. Given the current makeup of the U.S. Supes -- and that the newest jurist, Elena Kagan, was the U.S. Solicitor General arguing for this a year ago -- the prospects do not look good. For now, the U.S. hasn't said whether it will appeal.
So we're kind of left in limbo. If your computer is seized in an investigation, the cops aren't supposed to look beyond whatever it is they're investigating. Good luck enforcing that.
The larger point here: Our founding fathers had good reasons for adding the Fourth Amendment to our Constitution. Without rules governing reasonable search and seizure, we'd all be at the mercy of whoever happens to be in power and, say, doesn't like what you posted on your blog or said on Twitter. Let's send the cops to visit your house, turn over a few couch cushions, and see what they find. And if they come up empty today, we can try it again next week. And the week after that. Until you're finally arrested or decide to shut up.
If they can't do it in real life (and they shouldn't), then they shouldn't be allowed to do it on our computers. Simple, really.
If you're crossing the U.S. border, that police state I described above is much closer to reality. A year ago, the Department of Homeland Security reaffirmed Bush Administration policies whereby it claims to right to confiscate laptops, smartphones, flash drives and other digital devices for anyone entering the U.S., doing a complete data dump on them, and using any evidence they might find -- no probable cause required.
The ACLU filed suit over those policies last week. Good luck and Godspeed to them. They'll need it.