Judge: FBI Can Hack Without Warrant Because Computers Get Hacked All the Time(techdirt.com)
techdirt.com
Judge: FBI Can Hack Without Warrant Because Computers Get Hacked All the Time
https://www.techdirt.com/articles/20160624/05351534808/judge-says-fbi-can-hack-computers-without-warrant-because-computer-users-get-hacked-all-time.shtml
16 comments
Okay, so the FBI can do whatever it wants, just like anyone else. When they get caught, they should go to jail, just like anyone else.
Separation of powers is starting to lose it's luster. Nothing unites people more than a common enemy, and when "we the people" start to turn against "the government", the body of people that compose the government will tend to stick together tighter and tighter, to defend against the threat. One way this happens is favoritism, to give greater and greater leeway with the law to "us" (and less and less leeway to "them").
The problem with the judicial branch is the complexity of law, which makes it very difficult to second-guess it's outcomes. Our society has seemingly accepted this as inevitable, but a) I don't think it is, and b) if this complexity isn't addressed, then we will continue to suffer systematic abuse that comes from giving bad actors so much surface area to abuse and hide within.
The problem with the judicial branch is the complexity of law, which makes it very difficult to second-guess it's outcomes. Our society has seemingly accepted this as inevitable, but a) I don't think it is, and b) if this complexity isn't addressed, then we will continue to suffer systematic abuse that comes from giving bad actors so much surface area to abuse and hide within.
>the complexity of law...makes it very difficult to second-guess its outcomes.
Yes. And, this is coupled with the government's determination to exploit the letter of the law against its own citizenry; searching for loopholes and generous interpretations that clearly circumvent Constitutional intent.
The government is essentially attempting to establish a parallel set of precedents for new, technology-enabled capabilities. This "hacking happens" rationale is incredible. And, asserting that there is no reasonable expectation of privacy on an IP address is equally stunning.
At the end of the day, it is deference to the spirit of the Constitutional limitations placed on government that should guide the outcomes of these complex cases. That single litmus test would have a powerful clarifying effect on the adjudication process and on our ability to discern the validity of outcomes.
Yes. And, this is coupled with the government's determination to exploit the letter of the law against its own citizenry; searching for loopholes and generous interpretations that clearly circumvent Constitutional intent.
The government is essentially attempting to establish a parallel set of precedents for new, technology-enabled capabilities. This "hacking happens" rationale is incredible. And, asserting that there is no reasonable expectation of privacy on an IP address is equally stunning.
At the end of the day, it is deference to the spirit of the Constitutional limitations placed on government that should guide the outcomes of these complex cases. That single litmus test would have a powerful clarifying effect on the adjudication process and on our ability to discern the validity of outcomes.
Agree completely.
Another related problem is that both parts of the judicial system (the agents looking for crimes, and the courts, and now also the prison/parole system) are all in bed with each other, when they should be balancing each other out.
Coupled with the fact that three letter agencies can get away with illegal activity themselves has really pushed over the boundaries of just government.
Another related problem is that both parts of the judicial system (the agents looking for crimes, and the courts, and now also the prison/parole system) are all in bed with each other, when they should be balancing each other out.
Coupled with the fact that three letter agencies can get away with illegal activity themselves has really pushed over the boundaries of just government.
>both parts of the judicial system (the agents looking for crimes, and the courts, and now also the prison/parole system) are all in bed with each other, when they should be balancing each other out.
Ha, this actually means that we should have a self-similar separation of powers. I'm not sure that's what the framer's had in mind - I suspect they wanted the top-level powers to act coherently to balance each other out.
Partly, though, I think it's about a misunderstanding about the nature of the "justice system". The police are, essentially, an extension of the Executive. This is true because police are not just "reactive", they execute. In the same way, any part of the government that "does stuff" is part of the executive. The DMV is Executive. Only the court itself, and the judges and support staff in the court, are Judicial. The blurred line is the "district attorney", who is responsible both for prosecuting on behalf of the state, and defending the state from action.
Remarkably, the Executive has acquired a truly enormous amount of special treatment under the law. First, because the law itself exempts Executive workers from a wide variety of the law, and second because of the way the system works, the way Justice moves cases toward conclusion, which is filled with conflicts of interest that erode the separation between Justice and Executive, specifically within local law enforcement.
Frankly, I really love the idea of self-similar separation of powers, even at the local level, where there is an adversarial tone between the Justice, Executive, and Legislative branches! Justice should be incentivised to dig up dirt on the Executive; the Executive should pride itself on knowing (and following) the law exactly (not "getting the bad guys"). The Legislative, in the end, should work to maintain rules that are simple, easy to understand, and which above all, maintain the adversarial relationship between powers at every level, federal, state, and local.
This is also a good, strong foundation to discuss secrecy in government action - which is Executive action. What has happened with the introduction of the secret courts is the spreading of the secrecy between powers. This should be rejected for weakening the separation of powers, but also undermining the root of strength for each branch: validation by the people's opinion. The people cannot have an informed opinion if they do not know what their government is doing. (As a practical matter, this is non-trivial. The "Government's Understanding" of the world drives operations, which are often handed off to a team specializing in "doing stuff". So you have a large sea of (presumably fairly competent) analysts and operations staff working thousands, if not millions, of projects in every field in which the government interacts, which is essentially every field. It helps to start dividing the behavior into categories, which may or may not match up well with the USG org chart.)
Sigh. Maybe complexity itself limits the size of a legitimate democracy, because how can we be good citizens without understanding fully the doings of our government, and how can we know that even without secrecy in place?
Ha, this actually means that we should have a self-similar separation of powers. I'm not sure that's what the framer's had in mind - I suspect they wanted the top-level powers to act coherently to balance each other out.
Partly, though, I think it's about a misunderstanding about the nature of the "justice system". The police are, essentially, an extension of the Executive. This is true because police are not just "reactive", they execute. In the same way, any part of the government that "does stuff" is part of the executive. The DMV is Executive. Only the court itself, and the judges and support staff in the court, are Judicial. The blurred line is the "district attorney", who is responsible both for prosecuting on behalf of the state, and defending the state from action.
Remarkably, the Executive has acquired a truly enormous amount of special treatment under the law. First, because the law itself exempts Executive workers from a wide variety of the law, and second because of the way the system works, the way Justice moves cases toward conclusion, which is filled with conflicts of interest that erode the separation between Justice and Executive, specifically within local law enforcement.
Frankly, I really love the idea of self-similar separation of powers, even at the local level, where there is an adversarial tone between the Justice, Executive, and Legislative branches! Justice should be incentivised to dig up dirt on the Executive; the Executive should pride itself on knowing (and following) the law exactly (not "getting the bad guys"). The Legislative, in the end, should work to maintain rules that are simple, easy to understand, and which above all, maintain the adversarial relationship between powers at every level, federal, state, and local.
This is also a good, strong foundation to discuss secrecy in government action - which is Executive action. What has happened with the introduction of the secret courts is the spreading of the secrecy between powers. This should be rejected for weakening the separation of powers, but also undermining the root of strength for each branch: validation by the people's opinion. The people cannot have an informed opinion if they do not know what their government is doing. (As a practical matter, this is non-trivial. The "Government's Understanding" of the world drives operations, which are often handed off to a team specializing in "doing stuff". So you have a large sea of (presumably fairly competent) analysts and operations staff working thousands, if not millions, of projects in every field in which the government interacts, which is essentially every field. It helps to start dividing the behavior into categories, which may or may not match up well with the USG org chart.)
Sigh. Maybe complexity itself limits the size of a legitimate democracy, because how can we be good citizens without understanding fully the doings of our government, and how can we know that even without secrecy in place?
I see a point on the horizon now, where the legal system starts targeting a minority of honest, privacy-minded citizens in an attempt to diminish holes in their radar.
If a security researcher finds and reports a flaw in a system, they can get in trouble for unauthorized access. This is dumb, since we want flaws to be disclosed so they can be fixed. In a certain sense, systems that can be accessed, should be accessed.
The real problem isn't unauthorized access; it's what someone does with that access. Someone who gains access to information but does nothing with it hasn't really done anything wrong. The law should apply only when that access is used for harm (vandalism, corporate espionage, fraud, or whatever is relevant). Right now, the law penalizes the access itself, which is backwards.
If we apply this logic to the FBI, then sure, let them hack away. Without the due process of a warrant, however, none of the stolen information should be admissible in court. The problem isn't the hacking; it's making inappropriate use of stolen information.
The real problem isn't unauthorized access; it's what someone does with that access. Someone who gains access to information but does nothing with it hasn't really done anything wrong. The law should apply only when that access is used for harm (vandalism, corporate espionage, fraud, or whatever is relevant). Right now, the law penalizes the access itself, which is backwards.
If we apply this logic to the FBI, then sure, let them hack away. Without the due process of a warrant, however, none of the stolen information should be admissible in court. The problem isn't the hacking; it's making inappropriate use of stolen information.
Unfortunately, the inadmissibility of evidence due to being obtained without warrant seems to be eroding: http://www.nytimes.com/2016/06/21/us/supreme-court-says-poli...
This seems to be a running theme.
"Technically, we are required to get a warrant to peek anywhere you have a reasonable expectation of privacy. But, you should know by now that we are everywhere. Therefore, you should never reasonably expect privacy. Therefore, we don't need a warrant."
"Technically, we are required to get a warrant to peek anywhere you have a reasonable expectation of privacy. But, you should know by now that we are everywhere. Therefore, you should never reasonably expect privacy. Therefore, we don't need a warrant."
But the computer hacking is illegal even if it's done all the time. That's like saying that the FBI can pirate any movie it wants because piracy happens all the time.
So they can break into your house because it happens all the time.
Does the FBI have special powers that allow it to violate habeas corpus? No? So this ruling then means to me, "Anyone Can Hack Without Warrant Because Computers Get Hacked All the Time". Let's begin everyone.
nmap fbi.gov
nmap fbi.gov
Okay, come on now.
https://www.xkcd.com/932/
https://www.xkcd.com/932/
Unfortunately this decision is yet another reminder of how horribly our system of laws has broken down. The Constitutional rights of every American are trampled on by the government every day, aided and abetted by the courts, while the rich and powerful routinely ignore the law with impunity. Very apropos that the very embodiment of corruption, Hillary Clinton, is poised to take over leadership of this country.
Went through a fun exercise yesterday: walked through all the amendments to the Constitution (especially the Bill of Rights) and discussed how many of them are essentially moot now because of all the exceptions that have already been made over the years. Surprisingly few are still absolute rights.
You mean the second amendment? Because that one has been expanded in its interpretation. They skipped the whole part about "well regulated"
The well-regulated militia is in a separate clause. I interpret that to being the explanation for the actual statement, "the right to keep and bear arms shall not be infringed."
Love the second amendment down votes.
Unfortunately you're absolutely right, which is why I said that this ruling is "another" reminder. Our steady descent into despotism didn't start with 9/11, but it has certainly accelerated since then, with our rights steadily being eroded away.
> Very apropos that the very embodiment of corruption, Hillary Clinton
Oh come on now. Yes, her entire life is politics and it's hard to trust her. But the embodiment of corruption? Try Somalia. Or North Korea. Or Afghanistan. Or Eritrea. Or Russia. If Hillary were truly corrupt she wouldn't have made it to the presidential race as one of the most scrutinized human beings living today—being untrustworthy is not the same as being corrupt. Being "woke" is only useful if you actually use it to make good decisions, and the only decision you made today was to complain.
In any case, the country is perpetually trampling constitutional rights in order to work out jurisprudence—find me a president who hasn't blatantly violated violated human rights. (Yes, Obama, killing children remotely with drones is an extreme human rights violation.) The court has not stopped functioning as it was intended. If you disagree, become a judge and/or vote for someone with your viewpoints and get them to propagate worthy judges through the system.
Now, I happen to think the judge was incorrect, but maybe wait until it fully works its way through the court system before declaring that "the system of laws has broken down". The very fact you threw that in casually leads me to conclude you've never seen anything near anarchy. However, causing irrational civil unrest with panic about government corruption is a good way to accelerate problems—just look at the recent brexit vote.
Oh come on now. Yes, her entire life is politics and it's hard to trust her. But the embodiment of corruption? Try Somalia. Or North Korea. Or Afghanistan. Or Eritrea. Or Russia. If Hillary were truly corrupt she wouldn't have made it to the presidential race as one of the most scrutinized human beings living today—being untrustworthy is not the same as being corrupt. Being "woke" is only useful if you actually use it to make good decisions, and the only decision you made today was to complain.
In any case, the country is perpetually trampling constitutional rights in order to work out jurisprudence—find me a president who hasn't blatantly violated violated human rights. (Yes, Obama, killing children remotely with drones is an extreme human rights violation.) The court has not stopped functioning as it was intended. If you disagree, become a judge and/or vote for someone with your viewpoints and get them to propagate worthy judges through the system.
Now, I happen to think the judge was incorrect, but maybe wait until it fully works its way through the court system before declaring that "the system of laws has broken down". The very fact you threw that in casually leads me to conclude you've never seen anything near anarchy. However, causing irrational civil unrest with panic about government corruption is a good way to accelerate problems—just look at the recent brexit vote.
>Yes, her entire life is politics and it's hard to trust her. But the embodiment of corruption?
Yes, corruption personified. The Clintons sit at the center of a criminal nexus of bribes, payoffs, embezzlement and perjury that stretches back decades. From cattle-trading futures, to Whitewater, to hundreds of 6 figure speeches, to countless millions raked in at their foundation, which acts as a giant money laundering machine. If you don't think Hillary is utterly corrupt you haven't learned enough about her. It isn't up for dispute. This is coming from someone who has been a registered Democrat for more then 25 years.
>Now, I happen to think the judge was incorrect, but maybe wait until it fully works its way through the court system before declaring that "the system of laws has broken down". The very fact you threw that in casually leads me to conclude you've never seen anything near anarchy.
Your are drawing a flawed conclusion. Our government and courts exist to uphold the law and the Constitution. Our President and our government officials swear to uphold the Constitution, nothing about "national security". It isn't a choice between anarchy and the rule of law. There are plenty of dictatorships around the world that don't have anarchy or a functioning legal system where petitioners can find redress from government abuses - and that's the direction we are heading.
Yes, corruption personified. The Clintons sit at the center of a criminal nexus of bribes, payoffs, embezzlement and perjury that stretches back decades. From cattle-trading futures, to Whitewater, to hundreds of 6 figure speeches, to countless millions raked in at their foundation, which acts as a giant money laundering machine. If you don't think Hillary is utterly corrupt you haven't learned enough about her. It isn't up for dispute. This is coming from someone who has been a registered Democrat for more then 25 years.
>Now, I happen to think the judge was incorrect, but maybe wait until it fully works its way through the court system before declaring that "the system of laws has broken down". The very fact you threw that in casually leads me to conclude you've never seen anything near anarchy.
Your are drawing a flawed conclusion. Our government and courts exist to uphold the law and the Constitution. Our President and our government officials swear to uphold the Constitution, nothing about "national security". It isn't a choice between anarchy and the rule of law. There are plenty of dictatorships around the world that don't have anarchy or a functioning legal system where petitioners can find redress from government abuses - and that's the direction we are heading.
6 figure speeches are corruption personified?
Muster any critical thinking ability you have for one second, and ask yourself why banks, corporations and foreign governments would pay Hillary and Bill $225,000 for a one hour speech. Here's a clue: it isn't for the boundless wisdom they are imparting for that hour. $153,000,000 personally to Bill and Hillary Clinton alone, directly into their pockets. That is completely aside from the hundreds of millions of dollars funneled to their slush fund (the Clinton Foundation).
Based on your analysis, people who are famous as former holders of prestigious political positions, but who are not likely to hold such positions in the foreseeable future, cannot possibly receive similar speaking fees, right? Because the amount of influence being bought would be at most a fraction of what can be gotten from someone with actual authority, there would be little interest in bribing such people. Such as, say, Al Gore, Ben Bernanke, and Timothy Geithner, each of whom received hundreds of thousands of dollars for individual speeches after their respective terms (and in Gore's case, long after his presidential run)...
http://qz.com/441327/yes-hillary-clintons-speaking-fees-are-...
You know, every time I hear that claim about Clinton's speaking fees - originally from Bernie Sanders, of course - it comes in the form of a sarcastic comment about the content of the speech being incredible to justify the price. I think the sarcasm, the leaving of accusations to implication, makes it easier to make things sound bad without properly addressing the question. Why do those organizations pay people such high amounts for speeches? You listed banks, corporations, and foreign governments, but as the article above notes, one big source of public speaking payments is universities, for things like commencement addresses: why would they in particular, despite being relatively cash-strapped (only relatively! but still-), desire so strongly to make bribes?
President Obama recently gave a commencement address at Rutgers. Being in office, he presumably did not charge for it, but the address came after Rutgers "delug[ed] him with petitions" for "three years" [1], so they certainly would have paid. Is this because of the boundless wisdom imparted by that speech? Was the speech, as Sanders said, "written in Shakespearean prose"? If Obama had handed the same speech to a famous orator to deliver in his place, would that have been equally good?
Of course not. Well, actually, people probably did value, in terms of pure informational content, hearing the president's opinion about Donald Trump, political correctness, equality, etc. But not enough to care much about learning that information on that particular day, in person, as opposed to watching any other speech of his on YouTube, some other day. To state the blindingly obvious, they valued the speech mostly because of the fact that Obama was standing there and speaking to them. Star power, being honored, whatever you want to call it.
Someone who's 'just' a former first lady, a former and (then-)future presidential candidate, and one of the most famous politicians in her party doesn't, of course, have quite as much star power as a sitting president. But she has a lot, and then $225,000 is not a large sum for most of the organizations you mentioned - or even for Hillary Clinton, for that matter. The law of supply and demand is in effect as always. (Members of this site should be well reminded of that by the exorbitant figures involved in famous startup acquisitions.)
I am not claiming that influence is not being sought and perhaps obtained, though honestly I suspect it would be more related to psychology than the actual cash payments. But I do claim that it is only one of many reasons she has been sought as a public speaker. It is those who see no alternative between boundless wisdom on one hand and corruption on the other who betray a lack of critical thinking.
[1] http://www.nbcnews.com/feature/college-game-plan/meet-grandm...
http://qz.com/441327/yes-hillary-clintons-speaking-fees-are-...
You know, every time I hear that claim about Clinton's speaking fees - originally from Bernie Sanders, of course - it comes in the form of a sarcastic comment about the content of the speech being incredible to justify the price. I think the sarcasm, the leaving of accusations to implication, makes it easier to make things sound bad without properly addressing the question. Why do those organizations pay people such high amounts for speeches? You listed banks, corporations, and foreign governments, but as the article above notes, one big source of public speaking payments is universities, for things like commencement addresses: why would they in particular, despite being relatively cash-strapped (only relatively! but still-), desire so strongly to make bribes?
President Obama recently gave a commencement address at Rutgers. Being in office, he presumably did not charge for it, but the address came after Rutgers "delug[ed] him with petitions" for "three years" [1], so they certainly would have paid. Is this because of the boundless wisdom imparted by that speech? Was the speech, as Sanders said, "written in Shakespearean prose"? If Obama had handed the same speech to a famous orator to deliver in his place, would that have been equally good?
Of course not. Well, actually, people probably did value, in terms of pure informational content, hearing the president's opinion about Donald Trump, political correctness, equality, etc. But not enough to care much about learning that information on that particular day, in person, as opposed to watching any other speech of his on YouTube, some other day. To state the blindingly obvious, they valued the speech mostly because of the fact that Obama was standing there and speaking to them. Star power, being honored, whatever you want to call it.
Someone who's 'just' a former first lady, a former and (then-)future presidential candidate, and one of the most famous politicians in her party doesn't, of course, have quite as much star power as a sitting president. But she has a lot, and then $225,000 is not a large sum for most of the organizations you mentioned - or even for Hillary Clinton, for that matter. The law of supply and demand is in effect as always. (Members of this site should be well reminded of that by the exorbitant figures involved in famous startup acquisitions.)
I am not claiming that influence is not being sought and perhaps obtained, though honestly I suspect it would be more related to psychology than the actual cash payments. But I do claim that it is only one of many reasons she has been sought as a public speaker. It is those who see no alternative between boundless wisdom on one hand and corruption on the other who betray a lack of critical thinking.
[1] http://www.nbcnews.com/feature/college-game-plan/meet-grandm...
Wow, this is the technical equivalent of "The FBI can pick the lock on your door and search your house without a warrant, because houses get broken into all the time"
The FBI seems like the least careful of all the agencies penetrating computers. NSA > Secret Service > CIA > FBI
They're either messing up an investigation or destroying their public image.
1) Accidentally resetting the Bernadino terrorist's iCloud password
2) Withdrawing its demands from Apple after significant backlash
3) Asking for the ability to inspect browser history without a warrant
4) Modifying the computers they're "lawfully" allowed to breach - can we trust this evidence in court?
Wouldn't trust them with more authority that's for sure.
They're either messing up an investigation or destroying their public image.
1) Accidentally resetting the Bernadino terrorist's iCloud password
2) Withdrawing its demands from Apple after significant backlash
3) Asking for the ability to inspect browser history without a warrant
4) Modifying the computers they're "lawfully" allowed to breach - can we trust this evidence in court?
Wouldn't trust them with more authority that's for sure.
0) Carnivore.
I imagine the NSA would have preferred that to have not happened. To anthropomorphize the FBI: it is like an officer of Planned Parenthood who frequently goes off message, talking about head measurements and quoting Margaret Sanger.
https://en.wikipedia.org/wiki/Carnivore_(software)
I imagine the NSA would have preferred that to have not happened. To anthropomorphize the FBI: it is like an officer of Planned Parenthood who frequently goes off message, talking about head measurements and quoting Margaret Sanger.
https://en.wikipedia.org/wiki/Carnivore_(software)
With this train of thought, then they shouldn't need a warrant to search your house because homes get broken into all the time.
One day those people will be old and vulnerable and frankly I don't understand what they're counting on by pissing us like this.
Probably because they'll be dead before young people age into a group large enough to do anything about it.
I don't think they're so much older. I think we'll have a shot.
I for one bitter enough already to that day as to allocate considerable resources into making it even.
I for one bitter enough already to that day as to allocate considerable resources into making it even.
Millenials officially became the largest living generation this year, all are over 18
Right, but they still need to vote as a somewhat cohesive group.
This like saying law enforcement can break into your home and do whatever they'd like without a warrant, because burglaries happen all the time
I am not a lawyer, and my understanding of what I have read is constrained by the relative inexperience I bring to it. However, I would encourage anyone who felt strongly about this matter to read through the reasoning of the actual decision [1], rather than relying upon the characterization presented by the tech dirt article. The techdirt article somehow manages to fail to see an entire forest due to the presence of a singular tree. The judge in this instance presents a laundry list of overlapping of reasons for denying the defendant's motion.
The truth is that the FBI investigators did not "hack without a warrant" in this instance, let alone without probable cause in the specific case of this defendant, and by the presented evidence appears to have given ample diligence to observing that the triggering conditions of the warrant were applicable.
The defence is advancing a theory that has the transmission of the defendant's IP over HTTP rather than HTTPS as a central complaint, plus the possibility that the FBI malware could have been insecure so as allow a malicious third party to falsely implicate to defendant.
It is on this basis that they feel the source code of the malware should be entered into evidence. It is the opinion of the judge that the defence has failed to establish any basis under which he might be convinced that the facts "sufficiently advanced the quantum of evidence" (whatever that is, really) so that a examination of a theory advanced by the defence warrants treatment as a possibility rather than a speculative hypothesis. He reiterates many times that the defence has made no attempt to perform a forensic investigation of the defendant's computer or establish any reason external to speculation that might give credence to their theory. This appears to be a basic standard of admissibility.
This is the context in which the judge brings up the theory that there is not a reasonable expectation to privacy adherent to the use of an IP address, which I find to be completely amazing. I do not understand how he comes by that belief. But to say that the judge has "ruled" this to be the case, as the tech dirt article does, might put you at risk of asserting a fallacious belief that appeared to be factually ignorant.
I do not know if this assertion on the judge's part grants a greater legal factuality to the argument, absent as it may be, were it to be later cited by others. I hope not. However, I can say that the ruling that the judge has made by no means comes anywhere close to relying upon the truth of this in arriving at his decision to reject the motion of the defendant. He is not simply reporting sufficient reason to rule against the defendant's request; instead, it seems he has felt inspired to list every single way in which every aspect of the reasoning they present to justify such a motion is (in his view) thoroughly and utterly without merit.
[1] https://assets.documentcloud.org/documents/2897490/Matish-Or...
The truth is that the FBI investigators did not "hack without a warrant" in this instance, let alone without probable cause in the specific case of this defendant, and by the presented evidence appears to have given ample diligence to observing that the triggering conditions of the warrant were applicable.
The defence is advancing a theory that has the transmission of the defendant's IP over HTTP rather than HTTPS as a central complaint, plus the possibility that the FBI malware could have been insecure so as allow a malicious third party to falsely implicate to defendant.
It is on this basis that they feel the source code of the malware should be entered into evidence. It is the opinion of the judge that the defence has failed to establish any basis under which he might be convinced that the facts "sufficiently advanced the quantum of evidence" (whatever that is, really) so that a examination of a theory advanced by the defence warrants treatment as a possibility rather than a speculative hypothesis. He reiterates many times that the defence has made no attempt to perform a forensic investigation of the defendant's computer or establish any reason external to speculation that might give credence to their theory. This appears to be a basic standard of admissibility.
This is the context in which the judge brings up the theory that there is not a reasonable expectation to privacy adherent to the use of an IP address, which I find to be completely amazing. I do not understand how he comes by that belief. But to say that the judge has "ruled" this to be the case, as the tech dirt article does, might put you at risk of asserting a fallacious belief that appeared to be factually ignorant.
I do not know if this assertion on the judge's part grants a greater legal factuality to the argument, absent as it may be, were it to be later cited by others. I hope not. However, I can say that the ruling that the judge has made by no means comes anywhere close to relying upon the truth of this in arriving at his decision to reject the motion of the defendant. He is not simply reporting sufficient reason to rule against the defendant's request; instead, it seems he has felt inspired to list every single way in which every aspect of the reasoning they present to justify such a motion is (in his view) thoroughly and utterly without merit.
[1] https://assets.documentcloud.org/documents/2897490/Matish-Or...
I'll wait until SCOTUS upholds this before I get too worried.
FBI can rob you at gunpoint because people get robbed at gunpoint all the time.
They aren't robbing you. They are seizing property that they found and which you are making wild claims of ownership based on the idea that it was in a backpack on your back.
It's not a criminal matter.. it's "civil" asset forfeiture... although if you resist, it is a criminal matter. :-/
Sounds like civil asset forfeiture to me...
Usually computer forensics researchers, to have their evidence be admissible, use special devices that block write access to hard drives and such. Else it gets thrown out in court. Why is this different?