
Judge Rejects Defense That FBI Illegally Hacked Silk Road, on a Technicality - ssclafani
http://www.wired.com/2014/10/silk-road-judge-technicality/
======
Someone1234
> Ulbricht hadn’t sufficiently demonstrated that the server belonged to him,
> and thus can’t claim that his privacy rights were violated by its search.

Wait, wait, wait. Hold the phone.

So any property which, at the time of a search, hasn't been "sufficiently
demonstrated [that it belongs to you]" isn't protected, according to this
judge, by the fourth amendment?

So for one example, if you sign up to gmail or Facebook using anything other
than your real name, they can break it, conduct a search and then whatever
they find is totally admissible in court just because they didn't know who it
belonged to?

Isn't it now in the best interests of the police to avoid finding out who
something belongs to since without knowing the fourth amendment doesn't exist
and warrants aren't a requirement?

Here's what I don't get about this case: The FBI is obviously lying about how
they got the information they have. They clearly broke into the Silk Road
servers. However they could have certain got a warrant to do so had they just
presented what they knew at that time about the enterprise. So why didn't
they? Laziness? Incompetence? Or just because they knew they'd get away
without it (per this)?

Honestly I hope they fight this case on that matter of law and it gets thrown
out. We cannot have the fourth getting chucked out any time someone invokes
anonymity, that's not how it was meant to work.

~~~
dietrichepp
> So any property which, at the time of a search, hasn't been "sufficiently
> demonstrated [that it belongs to you]" isn't protected, according to this
> judge, by the fourth amendment?

That's not what this means. You can't claim fourth amendment protection on
someone else's property: I can't claim my rights were violated because the
police searched your car. The court is saying that you have to claim it's your
car first before you can claim that your rights were violated by the search.
(Well, not exactly. The situation is more nuanced.)

To put it another way, the court's not saying that this was legal, or that
nobody's rights were violated. The court is only denying Ulbricht's specific
claim that his rights were violated, and the denial seems to be based on a
procedural technicality.

Yes, this is bad.

~~~
X-Istence
However if the government then claims that this server is owned by you,
doesn't that then imply that your privacy rights were violated since they
illegally hacked into your computer?

The government can't have it both ways. Either the server is owned by Ulbrecht
and they violated his rights, or the server is now owned by Ulbrecht, and thus
they can't prove he is the DPR.

~~~
dietrichepp
> The government can't have it both ways. Either the server is owned by
> Ulbrecht and they violated his rights, or the server is now owned by
> Ulbrecht, and thus they can't prove he is the DPR.

It's not that simple. The courts follow procedures for these things: the
courts respond to claims made by various parties, and if there is no claim
that the evidence is dirty, or if the claim that the evidence is dirty is not
proved for whatever reason (even silly technical reasons), then the evidence
is admitted.

Don't forget that this is only one court. Higher courts could find the judge's
ruling incorrect.

~~~
Estragon
I started to read Alderman v. US after Forrest said that 4th Amendment rights
cannot be vicariously asserted. I'm a little unclear on how this works. Could
an investigator warrentlessly burgle the residences of two conspirators A & B,
and use evidence found in B's place against A and evidence found in A's place
against B, all without violating the fourth amendment? How about email
accounts? If so, why don't investigations against known conspirators proceed
this way all the time?

------
csandreasen
I can't fathom why the FBI would have been required to obtain a search warrant
in this case because they weren't the ones who searched the servers - the
Reykjavik police seized the data under Icelandic law and handed it over to the
FBI[1]. According to the FBI's testimony[2], the CAPTCHA on the login page was
leaking the site's IP address. The "hacking" that the defense is accusing the
FBI of conducting was apparently entering a few invalid logins which caused
the CAPTCHA to appear.

As an analogy, if I keep a murder weapon hidden on my property, the police are
required to get a search warrant. If I instead keep it at my friend's house, I
have no 4th Amendment rights when my friend gives it to the police, especially
if the crux my defense is "it wasn't my gun."

[1] [http://www.scribd.com/doc/238796613/Silk-Road-
Prosecution-4t...](http://www.scribd.com/doc/238796613/Silk-Road-
Prosecution-4th-Amendment-Rebuttall) (page 12)

[2] [http://www.scribd.com/doc/238844570/FBI-Explanation-of-
Silk-...](http://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-Road-
vulnerability) (page 3)

~~~
dlss
The hacking is what let them know which server to have the Icelandic
authorities seize.

~~~
csandreasen
The "hacking" was speculation on the defense's part when they filed their
motion in August. If you read the motion[1], because the defense didn't yet
know how the FBI located the server, Ulbricht's lawyer wrote a long statement
speculating that the NSA/DEA was providing the information to the FBI through
parallel construction. The defense did not show any proof of their accusation.

A month later, the FBI gave sworn testimony[2] indicating that they found the
server because Ulbricht had failed to configure it properly and it was leaking
out its actual IP outside of Tor channels. There hasn't been any proof shown
that the FBI hacked his server. A number of people have claimed in the past
that they came across the actual IP for Silk Road's server as a result of
misconfiguration[3][4], so frankly it doesn't surprise me at all that the FBI
also found a leak.

[1] [https://www.scribd.com/doc/235692879/Silk-Road-4th-
Amendment...](https://www.scribd.com/doc/235692879/Silk-Road-4th-Amendment-
Memo) (starting on page 40 of the PDF - the page number in the document itself
is 28, entitled "The Searches and Seizures In This Case Failed to Satisfy the
Fourth Amendment")

[2] same link as my grandparent comment
([https://www.scribd.com/doc/238844570/FBI-Explanation-of-
Silk...](https://www.scribd.com/doc/238844570/FBI-Explanation-of-Silk-Road-
vulnerability))

[3]
[http://www.reddit.com/r/SilkRoad/comments/1b1lvy/warning_the...](http://www.reddit.com/r/SilkRoad/comments/1b1lvy/warning_the_silk_road_revealed_its_public_ip_last/)

[4]
[http://www.reddit.com/r/SilkRoad/comments/1dmznd/should_we_b...](http://www.reddit.com/r/SilkRoad/comments/1dmznd/should_we_be_worried_showing_on_login_page/)

~~~
Greed
Have you actually read [3] and [4]? Based on the comments, the two posts (Made
by the same person) were from a notoriously anti-Bitcoin troll on the day that
market prices were at an all time high.

I was with you up until I actually read the posts, which I suspect you did
not.

~~~
mikeyouse
I agree [3] looks that way, but [4] certainly doesn't. The thread is filled
with people who saw the debugging screens. I think this user's post history is
the most informative:

[http://www.reddit.com/user/sjadhdaskjd/comments/](http://www.reddit.com/user/sjadhdaskjd/comments/)

------
hawkice
Not sure this counts as a technicality. Do all foreign objects get 4th
amendment protections (the servers were in Iceland)? Can I invoke defense of
someone else's 4th amendment rights -- even without specifying who that is?
Both of these appear to have the answer "no", so I'm not sure this is a
"letter but not spirit of the law" thing. Sounds like the judge was just doing
his job.

If the servers aren't his, how can he say his privacy was violated? Therefore,
the violation is contingent on establishing it was his, which he hadn't done.

~~~
xnull
Wait no. The 4th amendment is an unalienable right. It doesn't (shouldn't)
matter where in geologically a person or his property are.

We can think about it this way. The United States (well, certain bureaus) do
not believe that the Bill of Rights contains unalienable rights because:

1.) Foreigners ("aliens") are not 'given' what is presumably 'unalienable' to
them (e.g. GitMo)

2.) Snowden Docs (in particular the US) shows how intelligence agencies will
spy on one anothers' citizens on their behalf to skirt domestic law. A serious
commitment to unreasonable searches and seizures would entail protecting
citizens rights from foreign actors, not encouraging it. And it would also
refrain from doing it to others.

3.) Fair trials are suspended where convenient, even before executions (e.g.
Americans overseas, Bin Laden).

By tautological definition there are no 'extreme' circumstances under which
natupal rights are no longer granted; for natural rights are not given, cannot
be taken away, suspended or invalidated by geolocation.

~~~
hawkice
The Fourth Amendment is part of a document legally defining and describing the
rights in American legal tradition, in this case a right that you and I both
find to be a core part of our humanity and social contract (which is why it is
so important it is legally respected, although I personally find the principle
worthy of extending much farther).

While we recognize in a moral and philosophical sense today that we should
treat all people of the globe identically, that isn't the group of people the
Fourth Amendment protects. In a general sense, people in other countries are
not subject to American law (despite being part of the same humanity and, we
can agree, deserving of being treated with respect). If people and objects in
other countries were subject to American law, there is a deep sense in which
there would only be one country (The United States) with charming colonies
labelled things like "Iceland" on maps.

~~~
xnull
> The Fourth Amendment is part of a document legally defining and
> describing...

No disagreement there. But that doesn't mean that the document grants the
right. It merely recognizes the rights.

We hold these truths to be self-evident, that __all __men are created equal,
that they are endowed by their Creator with certain unalienable Rights...

These rights __are not __granted by the United States. The United States
cannot grant or take away natural rights. That 's what they are and how they
were intended to work.

~~~
anigbrowl
The Declaration of Independence is not part of the Constitution, you know.

Also, there are limits on those rights. There's one example in the opinion; if
the police somewhere else discover some incriminating information about you
and voluntarily pass it along to American police, it is admissible regardless
of whether the foreign investigation would have been valid under the 4th
amendment if initiated by American law enforcement.

As a simple example, imagine a drug bust in Thailand which would not be 4th
amendment compliant turns up evidence that 50% of the money from the drug
operation is always send to John Doe, who lives on 123 Main Street in Anytown,
USA. The FBI duly arrests John Doe and he's charges with international drug
trafficking. The Thai evidence is admissible notwithstanding the non-
compliance of Thai investigative procedures with US law.

This isn't meant to be an analogy for this case, BTW, just an illustration of
one limiting case.

------
jnem
This begs the following questions: Did the Icelandic government give FBI
permission to hack a server that resides on their sovereign soil? If the
identity of the owner of a piece of property cannot be confirmed, it's okay to
sieze/hack/etc? If I hid evidence in YOUR car, wouldn't the police/FBI still
need a warrant or at least permission from YOU to access it?

Bottom line here is there was no warrant, and as far as I can tell, no attempt
to gain any sort of permission to access property-- and in a foreign country
no less. I thought the FBI's purview was limited to domestic soil.

Anyone here a security expert with experience with TOR? The FBI's claim that
they just typed random values into a login to accidentally reveal the server's
IP address seems far fetched.

~~~
phaer
> Anyone here a security expert with experience with TOR? The FBI's claim that
> they just typed random values into a login to accidentally reveal the
> server's IP address seems far fetched.

That's hardly related to TOR, but most probably a misconfiguration of the web-
server or application which leaked the IP.

~~~
lbenes
> That's hardly related to TOR, but most probably a misconfiguration of the
> web-server or application which leaked the IP.

According to [http://motherboard.vice.com/read/how-did-the-fbi-find-the-
si...](http://motherboard.vice.com/read/how-did-the-fbi-find-the-silk-road-
servers-anyway) "He also says that the logs provided in the new evidence don't
match up with the pages described in Tarbell's declaration." So it's most
likely a case of parallel construction

------
goodcanadian
I believe Ulbricht has just been given grounds for appeal if the trial goes
against him. I find it highly dubious that the FBI has legal authority to
access that server without the permission of its "owner" or a warrant.
Regardless of whether Ulbricht was in possession of the server (as renter) or
it belonged to someone else, the FBI would still need permission of that
person or a warrant to search the server. In this case, I suspect that a U.S.
warrant would not do as the server was located in Iceland. Probably, they
would need cooperation from the Icelandic police and a local warrant. On top
of all of this, don't forget that the FBI does not have authority to operate
outside of the U.S. without cooperation from the locals.

~~~
nemo
'I find it highly dubious that the FBI has legal authority to access that
server without the permission of its "owner" or a warrant.'

The server was public, the Feds don't need a warrant to investigate public
facing web content any more than they'd need a warrant to look at a
storefront. They fuzzed some content to get the thing to leak an IP (according
to their account). Given the incompetence of the Silk Road admin, that's
honestly not a real stretch. There were SQL injection bugs in the search on
the site, and he left PHPMyAdmin running on the server. It was amateur hour.
With that IP they contacted the ISP in Iceland who gave up the data since the
server was violating it's TOS, and the Iceland authorities got legally
involved (with no legal issues in that search).

The fuzzing of input to get the IP is iffy, but it's certainly not a cut and
dry case where a warrant would be required.

The investigators did get warrants for some of the evidence they collected
(esp. the evidence that tied , and I'd imagine if there was a a clear legal
requirement for a warrant to investigate the web server, since they had overt
probable cause it would have been trivial to get one.

Besides that the only way Ulricht can claim that the search was illegal is to
admit that he owned the server, at which point that admission will certainly
put him in prison, so an appeal isn't going to do him any good.

~~~
pyrophane
The defense wasn't arguing that the FBI didn't have the right to fuzz the
captcha. They were arguing that the FBI was not being honest about how they
had located the server IP, and that they found it by some other means that
they may not have had the legal authority to use at the time. That's why the
defense was asking for permission to cross-examine the FBI. They wanted to try
to pick holes in the FBI's story. If they could show that IP had been obtained
illegally, then they could challenge the subsequent search as well and try to
get all of the evidence thrown out.

Also, the article specifically states that the defense could have "claimed"
the server as part of their motion to suppress evidence in such a way that the
claim could not have been used as evidence against Ulbricht.

~~~
nemo
Yeah, I've seen them claiming that the captcha wasn't leaky, which well could
be the case. Having looked at the config files and logs now, the Feds account
seems somewhat shaky. They were hitting the PHPMyAdmin page and
authenticating, but didn't mention this, which is very iffy. It sounds more
like the "typing in miscellaneous entries into the username, password, and
CAPTCHA fields" wasn't exactly 'miscellaneous' so much as using some kind of a
targeted exploit that they used to get the machine to leak enough to pwn it
pretty well. Ulbricht was not nearly as skilled as he gets credit for, his
machine had leaked the IP on the login screen in March and May, and his notes
show he was scrambling to patch bugs, but if the Feds. had gotten PHP dumping
$_SERVER or something just by fuzzing they would have mentioned it which makes
their account suspicious. So that's in the air.

On a separate note, there are two separate cases against Ulbricht, one in New
York happening now, and the other Maryland (which is where the contract murder
charges are). So he probably does need to be very cagey about any claim of
ownership of the server given that this isn't the only trial he faces. As I
understand it, while the claim wouldn't be admissible as evidence in the NY
case, it could still be germane to the future case.

It also means the "Fruit of the poisonous tree" issue could be mitigated even
if the NY case is dismissed, given there's different evidence and claims
presented in the MD case, and some of that evidence is not tied to the IP leak
at all.

------
koenigdavidmj
So...the government gets to have it both ways? The reason it didn't require a
warrant for a search is that it can't be shown that it was his server, but the
case itself hinges on proving that it was indeed his?

~~~
anigbrowl
That's not contradictory; you're conflating past and future. Suppose you're a
cop and you find a box with a label on the outside saying 'drug ca$h LOL.' You
open it and to your surprise find $1 million dollars, some cocaine, and a
passport in the name of K Ingpin. Later you establish K. Ingpin's whereabouts
and arrest him. It turns out his fingerprints are all over the box and
contents.

You had probable cause to investigate what appeared to be a cache of proceeds
from the sale of contraband, despite not knowing who it belonged to. On
discovering the identity documents in such close proximity to actual
contraband, you had probable cause to locate and arrest that person on
suspicion of drug dealing.

It's actually Ulbricht who wants to have it both ways. Asserting 4th amendment
rights effectively amounts to saying 'hey, that's mine and you snoops had no
right to access it.' Ulbricht refuses to admit or assert that the servers were
his in any meaningful way, _even though the prosecution could not put such an
admission before the court as evidence_. The only way the prosecutors could
bring it up is if he took the stand and said 'no way, that's not my server,'
in which case they'd say 'but you told the court that it is.' So as a
defendant you can say that evidence is the result of an illegal search, or you
can disclaim ownership of it, but not both at the same time.

I don't know whether the original warrant was deficient or not, and haven't
looked it up. but bear in mind that the job of the trial court is not to
establish whether it was valid (unless there is glaring evidence to the
contrary), but whether it is _admissible_ as evidence to be considered by the
finder-of-fact (typically a jury). It's up to the defense counsel to raise
those arguments, not for the court to preempt. In this case, the court is
pointing out that it told the defense exactly what it needed to do to to make
a procedurally valid 4th amendment challenge, and the defense failed to do so.

It's _not_ the court's job to step in and assist the defendant if the the
defendant's lawyer is no good, although bad lawyering is sometimes the basis
for an appeal (on the grounds of ineffective assistance of counsel, in which
case the appeal court could order a new trial if it agreed with the claim). In
the American legal tradition (and the English one from which it derives),
courts are not investigative bodies, they are determinative ones, which can
only rule on matters brought up by one of the parties. This is completely
different from how courts operate in jurisdictions based on Napoleonic law, in
which the functions of prosecutor and judge and virtually combined. Obviously
this is a highly simplistic summary, please take it with a grain of salt as I
can't compress centuries of different legal traditions into a few sentences.

~~~
scintill76
> even though the prosecution could not put such an admission before the court

Can anyone explain "though it could be used to impeach him should he take the
witness stand" from the article? Sounds like this pre-trial statement could
effectively constrain his options during the trial, so it's not like it's
perfectly safe or inconsequential for him to have said this pre-trial.

~~~
AnimalMuppet
Yes, your pre-trial statements definitely constrain your options during the
trial. Your pre-trial statements guide how your opponent prepares and presents
the case against you. You don't get to suddenly shift your ground halfway
through the trial because you don't like the way that your first approach
panned out.

------
rtpg
As a refresher to what exactly happened in the investigation that the judge
ruled "not an illegal search":

1\. FBI agents noticed the captcha mechanism on Silk Road was not configured
to go through Tor (revealing the server IP address)

2\. They asked Icelandic police to get an image of the server.

Another part of the argument is that the TOS of the data center said that
servers could be "monitored" for lawful use (probably removing expectation of
privacy questions, independent of localisation, in the prosecution's mind).

I wouldn't call this "hacking", but the constitutional question remains. I
think the crux of this is that information obtained from foreign agents seems
to be admissible independent of how they obtained it. Not a fun state of
affairs.

~~~
Rapzid
They went through the proper channels though, didn't they?

------
downandout
The judge states in the ruling that she relied in part on this Supreme Court
decision:

 _" A person who has been aggrieved by an illegal search and seizure only
through the introduction of damaging evidence secured by a search of a third
person's premises or property has not had any of his Fourth Amendment rights
infringed."_

Prosecutors have long found our constitutional protections to be inconvenient
in their pursuit of "justice". Over the years, however, they have managed to
obtain Supreme Court decisions, like this one, that pierce through these
protections in every meaningful way. This particular ruling opened up the
floodgates, and it seems that the FBI is actively utilizing it.

------
clamprecht
Key quote:

> If successful, the move would have likely made Ulbricht nearly impossible to
> convict on the central charges of narcotics and money-laundering conspiracy
> that he faces.

The judge's instructions to his clerk was probably something like: We're going
to deny the defendant's motion; find me the legal precedent to do so.

~~~
aeturnum
I'm sure it has nothing to do with his lawyer screwing up:

>Forrest writes that Ulbricht could have nonetheless claimed the server in a
pre-trial statement that couldn’t be used against him as evidence.

------
trhway
strangely how the ruling goes against the logic. I mean the server either
belongs to the guy and then the 4th applies ie. the evidence from the search
of the server should be thrown out, or the server doesn't belong to the guy
and thus the same evidence don't have a place here. Logically these are the
only 2 options. Yet the ruling follows the 3rd way - the 4th doesn't apply and
the evidence still can be admitted.

~~~
anigbrowl
No, logically those are not the only two options. What about the possibility
that the guy says it doesn't belong to him, but he's lying? That's essentially
the prosecution's position right now, since the defendant has refused to admit
the server is his even though that admission would not itself be admissible
(as it would have been made to the court, not the prosecution).

Legal rulings are like scientific papers - you should not rely on how the
press reports them to get a full understanding of what they mean. Read the
original document on which the report is based, which addresses the dichotomy
you are imagining.

~~~
Dylan16807
Huh? How is that a different option. What he says shouldn't matter at all to
what evidence is admissable.

~~~
anigbrowl
But it does, for reasons laid out on page 12 of the opinion. In short, a 4th
amendment attack requires _your_ privacy to have been violated, not just
anyone's. You can't say 'that box is not mine, and looking inside it was a
violation of my privacy rights'; you must pick one argument or the other.

If it really is not your box then you don't have any privacy expectation. The
4th amendment protects '[t]he right of the people to be secure in _their_
persons, houses, papers, and effects [...' (emphasis added). You don't have a
right to security in other people's property, eg if we are both drug dealers
and I keep notes about you in my notebook, you can't make a 4th amendment
claim about the privacy of _my_ papers even though they incriminate you.

Even if those papers are the fruits of an illegal search of my apartment, only
I have the right to demand that evidence is suppressed. If I don't (perhaps
because I cut a deal for immunity, or perhaps because I was smart and blew
town before the police suspected me) then that's just too bad for you.

~~~
Dylan16807
I have to say that's one of the worst rules I've ever heard. Anyone should be
able to object to illegally-obtained evidence. And consent should not be
retroactive, in the case of cutting a deal.

Is the a reason the rules are this way? It's certainly not because of what the
4th amendment actually says.

This seriously hurts my faith in the entire common law system.

~~~
anigbrowl
If I understand you right, you'd like a third party at the table that argues
to the collective rights of he people to be free from overbearing police and
so, notwithstanding their lack of individual interest in any given case - or
rather, you'd like the court to take up that function. This turns on how you
interpret 'the people' \- individually, or collectively. I lean towards the
former because the collective right you're worried about also has to be
balanced against the collective right to delegate security to law enforcement
agencies, and because the threshold of legality in each case is highly
individualized depending on the circumstances. I also think that leaning too
heavily on dictionary definitions runs the risk of being exclusionary, eg the
4th amendment doesn't mention telephones or other sorts of information
storage, so if we are going to take the most narrowly textual approach we
might end up honoring the letter but not the spirit of the law.

IF I understand the court in _Payner_ correctly, the problem is the lack of an
objective standard for determining when the cost of government overreach
outweighs the benefit of truth-seeking in criminal cases, or as the court puts
it 'After all, it is the defendant, and not the constable, who stands trial.'
The court ad established a standard a year or two before in another case
called _Rakas_ (involving the objections of passengers in a car to the
admission of incriminating evidence found in the car that the owner of the car
did not attempt to suppress). The court in that case took the simplistic but
nevertheless straightforward view that only the owner of a property that is
illegally searched has standing to complain about a 4th amendment violation.
While acknowledging that this is a flawed standard that will sometimes result
in injustices, it is nevertheless an unambiguous standard and was a core
holding that case. The _Payner_ court, while admiring the principle that the
lower court was trying to uphold, agreed with the government that the standard
laid down by the Supreme Court in _Rakas_ should control despite its
shortcomings, _because_ it came from the Supreme Court.

In other words, it's sort of pointless having a hierarchical court system (as
established by the Constitution) if lower courts can interpret constitutional
issues without reference to the standards established by the Supreme Court. If
those standards have to be abandoned,it must be the Supreme court that
abandons them, or the whole system collapses. To quote Justice Jackson: 'We
are not final because we are infallible, but we are infallible only because we
are final.'

[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vo...](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=447&invol=727)

[http://caselaw.lp.findlaw.com/cgi-
bin/getcase.pl?navby=case&...](http://caselaw.lp.findlaw.com/cgi-
bin/getcase.pl?navby=case&court=us&vol=439&invol=128#138)

I think you've raised some very interesting questions here. While I said your
earlier statement was wrong legally, I _don 't_ disagree with your comment
that 'it's one of the worst rules [you've] ever heard.' Morally it's very
problematic, because as Justice Marshall observed in his _Payner_ dissent, it
provides the government with a sword that allows them to deliberately infringe
upon one person's 4th amendment rights in order to obtain evidence against
someone else. It might well be that the decision was influenced by the
perception of out-of-control crime levels in the late 1970s, and might have
something to do with the exponential rise in incarceration rates that took off
in 1980, which bears thinking about.

Balancing of conflicting imperatives under the 4th amendment is a real ethical
minefield, as in this unrelated but interesting case from a few years which
has been bothering me ever since I read it. There should be a better rule for
handling cases like this, but so far I have been unable to articulate one that
doesn't have any holes in it.

[http://scholar.google.com/scholar_case?q=mcgacken&hl=en&as_s...](http://scholar.google.com/scholar_case?q=mcgacken&hl=en&as_sdt=2006&case=10492252643531776814&scilh=0)

------
maceo
The judge in the case, Katherine Forrest, issued a courageous ruling last year
in the case of Hedges vs. Obama, where she ruled that the indefinite detention
powers of the NDAA were unconstitutional. Unfortunately, the Obama
administration appealed the ruling and won.

[http://en.wikipedia.org/wiki/Hedges_v._Obama](http://en.wikipedia.org/wiki/Hedges_v._Obama)

~~~
retrogradeorbit
That's the case that Hedges said if they lost it meant the US was clearly a
tyranny. And then they lost. Seems Judge Forrest got the memo.

------
patcon
Whoa. Anyone stopped to consider what this might mean for a future where all
content becomes hash-addressable on an anonymizing network... for instance,
telehash over tor. So if every site is anonymous, and isn't certain to be
owned by citizen of nation X (based on geography), then it's ok to break into.
Anything found on any anonymous server is admissable. Disputing the break-in
would require claiming the rights of citizenship, ie. claiming ownership of
the server.

So basically, any hacked system with incriminating data is almost an automatic
hit against a defendant.

This seems like bad news for due process.

~~~
pyrophane
No, they address that in the article. There was a way under the law that the
defense could have "claimed" the server for the purpose of their motion to
suppress that couldn't then be used against them during trial.

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gear54rus
Never understood the whole 'illegal privacy invasion' thing. Sure, it should
be prosecuted if nothing was found, BUT if something is found, who cares how
it was found? Unless it was planted of course, but AFAIK these two points are
not connected. Can someone explain?

EDIT: Not that it should not be prosecuted if something is found also, but WHY
does the obtained evidence have to be dismissed?

~~~
ipsin
[http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree](http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree)

In short, if illegal techniques can be used to find evidence, and that
evidence can be admitted, that's a pretty powerful reason to use illegal
techniques.

Barring that evidence is a way to prevent that abuse. Aggressively prosecuting
the use of illegal techniques is another way, but given that we're not willing
to prosecute prosecutors who railroad the innocent or government employees who
torture other people, well, I'd say that's a non-starter.

~~~
gear54rus
Thank you and others, I think I see now. Though I think retaliation (fines or
maybe some jail time) would be more effective measure to prevent abuse than
passive dismissal.

~~~
cheald
Fines against the police department are just fines against the taxpayers.
Fines and jail time for individual officers are not possible because of
qualified immunity.

[http://en.wikipedia.org/wiki/Qualified_immunity](http://en.wikipedia.org/wiki/Qualified_immunity)

~~~
pbhjpbhj
That Wikipedia article doesn't say you can't prosecute, it just says that
government workers are immune unless they reasonably should have known they
were violating the constitution. The FBI know they need warrants, it's got to
be FBI 101.

When you take the stand in court you are an individual giving testimony
though. The rule of law means that if you perjure yourself you should be
tried.

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pyrophane
As someone who is not a lawyer I wonder why the defense isn't allowed to
simply amend their motion to insert language "claiming" the server in the
manner the judge described.

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superbaconman
I guess as a cop, if my friend breaks into a known criminal's house. I can use
anything my friend finds against the criminal. This makes things easier.

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john_g
Why isn't in the case that if something is clearly being used for illegal
purposes the police can't probe it to find out who owns it.

~~~
red525
Does anyone know of a case in which a judge made the FBI comply with their
agreements

