If, during the entire history of the USA, some FBI agents had never been proven to be corrupt, if judges had never been proven to be corrupt, if evidence had never been proved to be planted by authorities, then maybe, just maybe this would be justified.
In the real world, however, this is very, very scary and I consider myself lucky I am not subject to this travesty.
Since there does not appear to be any proof that he downloaded the images, or was involved in any way, other than pictures being found on various hard drives, it is quite plausible to me that the FBI/NSA/CIA planted evidence in order to blackmail him.
"During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time."
“When law enforcement lawfully obtains evidence of a serious crime, in this case a crime against children, we will pursue further investigation of that crime,” he said.
We will pursue! Unless you tell us what we want to hear.
And yet a jury convicted him. This kind of thing is far beyond the comprehension of the common juror. Knowing what I know about computer security and how EASY it is to plant digital evidence without leaving a trace, even from thousands of miles away, I'd have to see video evidence of the defendant downloading the material as it happens before rendering such a verdict, especially if it's going to mean decades in prison.
"Knowing what I know about computer security and how EASY it is to plant digital evidence without leaving a trace."
This right here is the conversation which needs to happen around this particular topic. In the security community the topic of forensic discovery of child porn tends to get a hand-wave because child porn. It's there so someone must be guilty. The fact is, it is trivial to plant such evidence on anyone's computer and honestly, if a computer is connected to the Internet, define ownership. Is your computer connected to the Internet? Then it's not your computer. Ever used public WiFi? It's absolutely trivial for someone to inject image requests which never get rendered, but which remain in the cache. This can be done en-mass without anyone ever noticing until someone's computer gets searched.
Based on digital evidence alone no one should ever be arrested, let alone convicted on these charges, but the fact is, to catch someone who is guilty is very difficult. Difficult to the degree that it should require video and/or photographic evidence of the perp at the computer looking at the images. Therefore it seems law enforcement and the justice system has decided that the easy way out is to just go with what's on the hard-drive. If a few innocent people get caught, no big deal, it's for the greater good.
This is utterly terrifying. What are some common steps to prevent this kind of "invisible" injection of images. If you're on private WiFi are you good to go? Any common tips to stay secure?
This would disable all images, but that's what you want, because you can never tell if a site you're going to has been compromised and what content they're going to serve up until you've already downloaded it.
This doesn't completely solve the problem though, you'd also need to make sure you don't have Flash or Java, and disable SVG and CSS now that I think about it... plus an encoded text of an illegal image is still probably illegal, even if it's text-encoded, so, uhh... I don't know, it depends how paranoid you want to be.
If someone wanted to force you to have illegal data on your machine, there's almost certainly a way to make it happen if you're connected to the internet in any way. Hell, even gmail shows embedded images by default... and even if you didn't open the email containing the illegal content, you still have it in your inbox, so there's that...
This advice tends to be akin to the advise to disable JavaScript. Basically at this point why are you even on the Internet? Also, as you mentioned Flash, Java, and especially SVG. The only real mitigation here is full drive encryption with a long passphrase which you'll never give up. Of course in the eyes of the courts and public that's a serious double-edged sword because you are assumed guilty at that point.
This is a good argument for Full disk encryption with a vpn and dns leak protection. You're right about people using encryption too. They have a whole playbook dedicated to targeting encryption(physical access is page one).
Don't use insecure WiFi networks, or if you do, use a VPN. That prevents you from getting these images injected by people sitting near you on the same network.
And don't visit web sites controlled by people who would do this, or linking to ad networks controlled by people who would do this. That's a little more out of your hands...
One, I don't know anyone who doesn't use non-secure WiFi networks & even if they don't, they typically still do without knowing, ergo., the 'attwifi' situation. Two, I've reviewed a number of VPN solutions over the years and they are far from perfect. Amongst some of my more notable findings:
1) Banner / update text delivered via HTTP to the client in a fully renderable state within the VPN client. Yeah, that was a fairly common issue many years ago and could be used to hijack the application UX to ask the user for things like their password.
2) Split tunneling. Some VPN providers will send HTTP traffic through the VPN while sending HTTPS traffic out the hostile leg of the VPN. This is cool and all until you use an application which doesn't properly validate the server public and then boom, a bad guy can get in the middle. Over the last half decade I've reported said flaw (failure to properly validate the server public) to over three dozen financial institutions, a couple anti-virus companies, and a major automotive manufacturer. It's real, it happens. Not to mention the Superfish and related situations.
Three, femtocells. Even if a bad actor can't get to someone's mobile computer (phone) via WiFi, they sure can by forcing it to negotiate a vulnerable cellular protocol and simply inject from there.
Mitigation? Effectively none for end-users. You can always monitor your connection and if you go down to 2G, run. But no one does that. You can also test each and every app on your phone to ensure:
a) It's using HTTPS for every request / response which is rendered in the app &
b) It's validating the server public. This one's easier said than done and well beyond the capabilities of most pen-testers. They might think they have it covered but rarely test for all man in the middle conditions.
I've not looked at it in detail, but someone I know tried out Network Signal Info on Android claiming it could help detect a femtocell attack:
However, they didn't really know what the app was telling them and kept accusing me of running a femtocell so I wasn't impressed. As far as I'm concerned it's an interesting app to use in attempting to get a confession out of someone you are pretty sure is running a femtocell but likely if that person is running a femtocell they wouldn't "fall for it."
Boot from read only media, or mark your partitions read only. If you boot from CD you can copy-on-read to RAM to keep things snappy. Or PXE booting a Unix / Plan9 workstation.
I set my networks up so that I never rely on a terminal machine for storage. If I lose my laptop all I lose is my laptop.
If I want a file to be stored permanently, I have to action it - Nautilis will mount remote file systems over ssh, I use that feature when creating & editing documents. I don't create them on the laptop.
Other stuff gets mounted/linked in /dev/shm if needed
I can flip ro/rw on partitions for doing updates or anything I really need to write to HD.
I don't do it for privacy reasons, just data loss protection.
How hard would it be to do a demo for jurors in a courtroom? Simple proof-of-concept getting all of them to connect to a "wifi" network which is a tethered device owned by the lawyer, have them navigate to a regular website, and then inject images for the 2nd go-around to introduce reasonable doubt?
Trivial. The way to do this in a courtroom is to demonstrate it to the judge and jury by having a reputable forensics expert certify a computer is free from kitty pictures. Then have the judge connect that computer to a "Free WiFi" network to be used for the demo and have them go anywhere. Just start randomly browsing the Internet. Meanwhile, use an intercepting proxy like The Burp Suite, Fiddler 2, or Charles operating transparently (ergo., port 80 is routed through the proxy) and in every HTTP response replace the close HTML tag with a bunch of 1x1 sized images of kittens playing with yarn or something. After about five minutes of browsing, have the forensics expert look at the computer again and nail the judge for looking at kittens. Using an intercepting proxy which allows scripting, the whole thing could even be done in a way which would very much look like the judge was seeking pictures of kitties playing with yarn, right down to search engine queries. The last time I looked, not a lot of search engines implement cross site request forgery (CSRF) tokens for the entry of simple search terms. It's not like setting up a demo like this is even tough. At most it's a couple hours of work for a basic functional demo.
UPDATE: For anyone claiming the forensics expert would find the tampered markup, the no-store cache directive pretty much takes care of that. For all tampered requests, just set the cache directive in the header to no-store and per the requirements of the RFC, the HTML will not be cached to disk. Also, I've encountered very few forensics experts who understand the web enough to grasp what can and cannot be done via the browser.
>to catch someone who is guilty is very difficult. Difficult to the degree that it should require video and/or photographic evidence of the perp at the computer looking at the images.
RELATED TEXT: "A jury can similarly unjustly and illegally convict a defendant on the ground of disagreement with an existing law, even if no law is broken (although in jurisdictions with double jeopardy rules, a conviction can be overturned on appeal, but an acquittal cannot)."
Your comment appears to me to assume that if a jury knew someone was not guilt by law, that they would vote not guilt. My point is that a jury in the US can intentionally convict someone as guilty that they're aware is "legally" not guilty.
They can also intentionally acquit someone they know is guilty of the law simply because they don't think the law should exist, this is called jury nullification. My point was that the typical jury is just not sophisticated enough to understand how easy it is to plant digital evidence. I doubt they'd convict in a case like this believing the defendant to be innocent.
Obviously attitudes towards child pornographers hasn't changed, so check out how much the distrust of government has become constant and near absolute.
Legally? I wonder. Morally you're right, but if mere possession is illegal, then I don't see how it being planted matters.
If it were proven that law-enforcement agents did the planting, that would be a different matter. You could also argue about the definition of "possession", maybe... but IANAL.
The court can't read the mind of the accused. So either there is an implied level of guilt associated with mere possession or it would be impossible to ever get a conviction under that part of the law.
I now agree that the "they planted it" defence would work but in practice that would be impossible to prove, which was probably what happened here.
Yep. Ever since the days of John Adams willing to defend the British soldiers, it's obvious those with mob mentality of those in power can roughshod over anyone they deem guilty.
A right to defend yourself against any charges is a critical right and I fear it's being eroded with all these "national security" excuses.
>it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.
-John Adams' Argument for the Defense: 3–4 December 1770
You don't even need to assume governmental malice!
What happens if I hack into your machine and plant something? I might have reason not to like you. I might just be a troll. It might give me a competitive advantage in some market to take you out. Perhaps we're both candidates for local government and I want to win.
Strict liability crimes are poisonous, illegal numbers are simply absurd.
My view of having a mens rea requirement with child porn statues are derided with comments like:
"Congratulations, you're now on an FBI watch list." ( (s)he did agree with me)
Yet if there is no guilty mind, there should be no crime. Frankly possession of CP shouldn't be a crime at all, because it is proof of a crime. Snuff videos aren't illegal. Rape videos (of 18+) aren't illegal. Just horrible videos are that: horrible. They aren't illegal.
And that's not to go after the idea of "I plant CP on your machines..." Strict liability means you lose.
While you do have a point, I don't think there is a single first-world country where it is legal. That means that everyone in power, everywhere, agrees on this at least to some degree, meaning that it probably won't change any time soon.
> In Gartenlaub’s case, the government made sealed filings, so neither the defense nor the public was able to see them. Based on the secret filings, the judge held that the government had shown probable cause that the house to be searched belonged to “an agent of a foreign power."
That's typically what you read about foreign police states.
More like, it has become like that. Because of complete disregard/disrespect for the US constitution. The constitution had numerous safeguards to restrict abuse of power, but the Federal Government is completely sitting on it.
"But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist." -Lysander Spooner
Democracy is a form of government that can destroy itself. The French voted to put in an emperor their first time around. So we may have a good constitution but if the people vote to make bad laws that break it, and permit those laws to function, then it is the people's fault, not the founder's fault.
I mean, the binary choice clusterfuck that is modern politics is certainly the fault of the founders, and is certainly partially responsible for the current problems. And because of the reverence of the founders and the constitution as it exists, the self destruction and rebirth is looking likelier then meaningfully repairing the system.
>>> More like, it has become like that. Because of complete disregard/disrespect for the US constitution.
Which has infected every level of government.
From the president's "executive orders" every time he wants something done and congress refuses to do it, so he simply writes a new law and enacts it.
From supreme court nominees who believe more in "social justice" then interpreting the constitution which is their job, not to dole out fairness when they feel their has been an injustice done to some party.
From the do-nothing congress that simply doesn't work at all in the completely divided partisan environment they've created. No laws get passed, there is no working together for their constituents - which is their job. You can also toss in there the Republicans stone walling the supreme court nominee which has become high theater now - on both sides.
Our government is being run like a fucking game now and its infuriating and depressing all at the same time. Remember those days when the two parties would work together and pass acts and laws that were good for the country? Remember when the economy was shit and both parties worked together and solve the problems?
Is there really a need for more/new laws? Seriously. I mean most of what congress does is budgetary and campaign fund raising... very litle effectively gets done regardless... much of what passes, does so with very little backpressure, exception to some hot-potato political issues.
>but the Federal Government is completely sitting on it.
Arguably in a democracy we Americans should all be blaming ourselves for that. Because of the whole voting/paying attention/holding elected officials accountable thing. The Federal Government is representative of our collective ability to do that well, plus our historic ability to do that well I suppose.
> Arguably in a democracy we Americans should all be blaming ourselves for that.
I'll accept the blame for spending so many years falling for the two-party system. For that I'll take my blame.
But for voting for candidates who turned out to be nothing like they presented themselves? Who outright and repeatedly lied during election season? (and here I'm talking about more than just the presidential level) I'm a reasonably intelligent, well-informed, and fairly skeptical citizen. If, in my idealism, I have fallen for political tricksters, then how can I blame my fellow citizens for doing the same?
In fact, with respect to the "well-informed" part, it was only when I completely stopped consuming mainstream media news that I was finally able to see through all the bullshit with some clarity.
I think most of the blame should fall squarely on the shoulders of our leaders. After all, we don't typically blame the secretary for a corporation's failure, right? In principle, that blame goes to the CEO, and s/he gets booted out.
Which is why, for the next decade, I will not vote for any incumbent, or successive seating of a political figure in any office that I vote for... No repeat... no return... I encourage everyone to do the same.. ignore party, and policy... simply don't vote for anyone who's running for re-election for anything, or for that matter looking to seat switch, where term limits are imposed.
After a decade, the shakeout from the real source of many of the problems (follow the money) would be in such disarray, that maybe then we can talk about fixing the system.
> That's a laugh. They get paid handsomely to leave.
Fair enough. I was trying to make an analogy about the leaders being held responsible. If you can think of a better one, I'll change it.
That said, I can tell you from personal experience (as seen in a friend) that nearly any corporate executive who gets booted by the board or CEO will be tremendously bruised and hurt by the ordeal. Yeah, it's a punishment most of us would bear for a x million dollar retirement/severance package, but it's still no walk in the park.
Wow, have you ever been fired? In this day and age when we see successful people in the tech industry dealing with suicide and depression on a regular basis due to work-related issues, that's a pretty insensitive attitude to have.
For the record, my friend was a C-level executive but not CEO, did not get a multi-million dollar severance (less than a million), and for someone who based his entire identity on his job and company, it was a very serious blow that sent him into major depression and alcoholism.
Also, since you seem to be a judgmental kind of person and may have formed an incorrect impression of my background in your mind, I should add that I don't share my friend's financial success. I'm not a successful executive. In fact, I'm struggling financially at the moment.
But despite my personal struggles, I'm able to look past the numbers in someone's bank account and realize that we're all humans in the end, and just because someone has more money than me doesn't mean they're not worthy of compassion.
That said, if you were just trolling, you got me good. hahaha, that's a laugh.
> For the record, my friend was a C-level executive but not CEO, did not get a multi-million dollar severance (less than a million), and for someone who based his entire identity on his job and company, it was a very serious blow that sent him into major depression and alcoholism.
If that happened to me, I would be starting at least one new business (or help a friend start one financially), buying my first house, buying the tacos with steak instead of beef, starting at least one long awaited personal project. The idea that somebody could have so much more than me and do so little with it is depressing.
I have, they didn't give me a red cent after firing me. Also the majority of people in this world have trouble eating day to day. I could probably live the rest of my life on less than a million and never have to work again, so I don't really feel a whole lot of pity for a guy that I don't know, getting paid more than the vast majority will make in a life time simply because he was fired.
After a ~5 year period of strictly avoiding mainstream media, I do now occasionally read non-political stories from Times, Wapo, Wall St Journal, etc, but I'm very cautious and aware of potential biases when I'm doing so. And I limit my total consumption of those sources to a few stories a week.
> Arguably in a democracy we Americans should all be blaming ourselves for that
Maybe as a nation if you consider that the term makes any sense, but for the most part this has started to happen before most Americans alive today were born. Like always there is not a single date in History where you can pinpoint a decisive moment where the Constitution was destroyed, it's been a progressive and "death by thousands cuts" kind of thing.
I would argue that date was in 1917, when President Wildon founded the Committee on Public Information to sell WWI to Americans. The committee then hired Edward Bernays, who was struck by the ability for war to motivate people, and used his uncle Sigmund Freud's theories on psychoanalysis to contrive ways to get people to do or buy things they normally wouldn't.
The stunning success of psychologically tuned propaganda taught generations of political masterminds how to not only rile up the public to make big changes, but to structure society as a disconnected atomized collection of individuals too caught up with their own lives and consumerism to seriously challenge the powers that be. From then on, it becomes easier and easier to circumvent the constitution and even basic ethics because people are less likely to care for longer than a news cycle.
What about 1861, when the mutual agreement of the Constitution was reinterpreted as an inescapable suicide pact? I don't think there's necessarily a specific turning point - it seems a long line of gradual erosion.
It's all about how you read your history. You could just as easily point to the amendments expanding voting rights to men without property, then freed slaves, then women, and so on, as an aberration of the founders' original design.
I prefer to look at it through the lens of propaganda because it marked the beginning of an era when big changes in culture and society can be reliably made through subtle manipulation instead of conquest or impassioned public debate.
What's your constructive result (as opposed to reactive/condemning) of that characterization?
To me, propaganda is just a result of mass media, which itself is a result of the longer trend of advancing of communication technology. It's impossible to oppress someone who is not in your "light cone", or to control actions which are below your limit of resolving.
In the past things weren't as developed, so it was easier to circumvent a model that was less reflective of reality. But going forward, I feel the quest for individual freedom entirely comes down to information architectures.
In Bernays' Propaganda, he describes a new process to sell pianos based on psychoanalysis rather than traditional big-print advertisements.
Essentially, get leading architects to incorporate "music rooms" into their residential designs. Most architects will follow the greats and add music rooms as well. The average homeowner will then walk into the hardware store someday and notice a piano for sale - another Bernays innovation - and think to themselves that the idea to buy a piano was theirs all along. In fact, this all could have been done before the invention of the radio, maybe even the telegraph.
Propaganda itself is neither good nor evil. We must accept that biases and manipulable aspects are a part of all of us. We have to work with them, or ignore them at our peril.
One of Bernays' biggest early arguments pro-propaganda was that if the business and political elite don't figure it out now, someone else down the line will, and they'll use it to take you down. We as a species will have to consider this with every generation until Homo sapiens goes extinct.
How does the average homeowner know what's going on with the leading architects, without mass media?
I think you have mistakenly limited "mass media" to radio, telegraphy, TV, etc., and omitted print.
As a reminder, "big-print advertisements" have been around for a long time. The penny press predates useful electric telegraphy, though just barely. https://en.wikipedia.org/wiki/Newspaper#Industrial_Revolutio... says "In France, Émile de Girardin started "La Presse" in 1836, introducing cheap, advertising-supported dailies to France." 60 years previous, Thomas Paine's "Common Sense" pamphlet was distributed by the 100,000s during the US revolution, and I would put that as part of mass media and political propaganda.
Aspect of mass media in Europe of course go all the way back to Gutenberg. I'm not trying to establish a certain date, but rather demonstrate that mass media and its effects on propaganda have been part of the US for its entire history.
Even your 1917 is a semi-arbitrary date. Why not the yellow journalism of the 1890s, or more specifically the propaganda of the Spanish–American War ?
Going back further, the 1840 campaign song "Tippecanoe and Tyler Too", coupled with printed sheet music, helped bring Harrison to power. I'm a bit iffy of if that counts as mass media, but if not, it's close. Quoting https://en.wikipedia.org/wiki/Tippecanoe_and_Tyler_Too , that song "firmly established the power of singing as a campaign device", and surely was not ignored by future candidates.
Let's not let different characterizations get in the way of our common understandings...
The local architects would follow the leading architects from their industry, but lumping it into "mass media" was probably a bad characterization. I'd describe it as as a kind of communication-based centralization, regardless of whether specifically enabled by periodicals, telegraph, train, etc.
You could accomplish the same thing with a more-local architect at the town or city level, but would the smaller gains pay off?
When it is slow enough, that's called a culture shift. Your piano seller wants change fast enough to call it personal profit. Mass-produced pianos require mass media as local changes won't pay off the cost of the production machinery. Might as well stay with local craftsmen.
"Communication-based centralization" includes Louis XIV of France's centralization at Versailles, yes?
It will get worse when electorate instead of choosing the right candidates, chooses the more electable ones. The constitution cannot provide safeguard against ill-informed electorate. Not just the US, applies to any democracy. Most democracies have similar awesome constitution texts.
One of the key issues in elections is that candidates promise stuff to specific interest groups - which is basically the same thing as buying votes (with future government funds, on top of that). That kind of behaviour should be explicitly forbidden and should be prosecuted because it actively damages Democracy.
It would be interesting if candidates were not allowed to promise what they would do, but merely campaign on their morals and good standing in the community so we can pick people who would make intelligent decisions but not necessarily ones that would choose a specific way on a specific issue. That's what you're asking for here.
I don't have any experience or knowledge on which to judge any presidents before Clinton. I just listed the usual suspects that come up in such discussions. Sure, consider JFK on that list too.
This is the great fallacy of the theoretical ideal of "rule of law" which is the basis for the idea of a "republic". In physical reality, a law is a piece of paper with words on it. If you sit on it, it's not going to sprout arms and do something about it.
It is, but isn't it also the case that secret court filings are as old as the US courts? How else would espionage prosecutions work? Similarly, how would complicated organized crime investigations work without secrecy? Isn't the alternative that prosecutors get exactly one bite at the apple, and if they're wrong, the target of the investigation is tipped off?
The case that ultimately appears before the court, of course, needs to be transparent. And the evidence collected by the prosecution must be made available to the defendant. But this isn't that.
"Secret court filings" that are hidden from the defense during a trial are ridiculously uncommon. Sealed filings for, eg, warrants are common. They are typically made available to the defense & the public for the trial. Otherwise the evidence amounts to "trust us, we're the government".
In counter-espionage cases, it is very common for the government to balance concern about disclosing its methods with likelihood of a conviction. If they fuck up the investigation and tip off the target before the trial, or tip off other targets during the trial, it's not the court's job to give them a do-over.
Yes. Am I misreading this case? It seems like evidence was furnished, and that the complaint here is that the original sealed warrant wasn't. The defense objects because the original FISA warrant could have been flawed, and if it was, the evidence deployed in the trial could have been excluded.
"Evidence" isn't just "the parts of the evidence the prosecution wanted to use".
How is the defense supposed to cross-examine the person who gathered the evidence when they can't investigate the circumstances under which it was gathered? How are they supposed to make a cogent argument that it was not a properly issued warrant unless they can see it? How are they supposed to argue that even if the the warrant was proper, the evidence gathered was not under the scope of the warrant? How are they supposed to get access to other exculpatory evidence that would have been collected under the warrant, that the prosecution declined to use?
I understand the argument, but is that what actually happened here? My understanding is that the one thing the defense doesn't have is the whole justification for entering the defendant's personal space in the first place.
It sure looks like you are. "Gartenlaub wants to see the warrant in his case so he can challenge it as based on false information and therefore invalid." According to the article the warrant itself and the filings in support of it are unavailable to the defense. That is essential to making arguments on the legality of the warrant in the first place, the scope of the evidence gathered to the warrant, and factual arguments derived from the process of executing the warrant.
(Example! The warrant included Device X, because Secret FBI Source Y said it had classified information. The device was searched, but contained no such information; in fact it had been completely wiped. This lets the defense argue that the FBI knew the source was unreliable, or that the evidence found was exculpatory (eg, evidence the target had been hacked to plant the child porn). None of this is available to the defense.)
The government says that the evidence gathered in the warrant has been made available. They could very well be lying, or simply mistaken, and it's impossible to investigate. Regardless, it is only part of the issue.
The process here is that the judge looked at it the government's arguments, without involving the defense, and said "yeah, it looks good, trust me / them".
(Which, incidentally, is completely contrary to the notion of the judge as a neutral arbiter rather than an inquisitor working for the government. Not surprising when the FISA court itself essentially operates in that capacity.)
I understand the nature of his argument: he'd like to challenge the warrant to get the CP evidence excluded. He can't, because the warrant is secret; his CP criminal trial judge validated it, but in a normal case, he'd have the chance to evaluate himself.
What I perceived you to have been claiming was that the defendant additionally doesn't know the actual provenance of the evidence. Which computer did it come from? How does he know the FBI didn't simply make it up?
I feel like we're about to argue about the meaning of the word "provenance". I meant it as "where the evidence came from". You mean it as "the legal authority required to collect it". Both uses are valid, but I meant the former.
The law is not being kept secret. The facts supporting the issuance of the warrant and the circumstances of its execution are. That is the causal definition of "where the evidence came from". That in and of itself is evidence.
"I first heard about the defendant's shenanigans when I was attending my support group for compulsive liars, from Joe, the defendant's bitter ex-husband. As I recall he was covered in blood at the time." That is a factual circumstance related to the issuance of the warrant that would be relevant to the case, not just the issuance of the warrant itself.
This is not a difficult distinction, it's one you're trying for whatever reason to ignore.
There is a difference between a sealed proceeding and a secret proceeding.
With a sealed event, the judge is the barrier. With a secret event, you need to be in the priesthood of people cleared to know secrets to even ask about the matter.
Secrecy in effect makes information contraband. That's a problem in a criminal trial where the accused is presumed innocent.
> The case that ultimately appears before the court, of course, needs to be transparent. And the evidence collected by the prosecution must be made available to the defendant. But this isn't that.
This is that. The defense is being told that there was probable cause to issue a search warrant, but they are not being told what the cause was and are not allowed to see the warrant.
They have to take the government's word that the defendant's rights aren't being violated. Not how our court system is supposed to work!
For espionage, your argument makes a little bit of sense.
When they cross over into non-espionage routine prosecutions, this stuff should get thrown the fuck out.
A warrant that can't be challenged for legality by the accused is a clear denial of due process.
Also, scroll down the thread. The CP prosecution was used as a stick to further their espionage prosecution for which it turns out the guy was innocent.
> Similarly, how would complicated organized crime investigations work without secrecy?
Secrecy is one thing, however the key issue here is the lack of civilian oversight. The whole FISA system is behind closed doors without any third party representative to confirm the lawfulness of investigations.
That's what makes a difference between police state methods and due process: the fact that there is somehow some decentralization of responsibilities.
> His attorney said his defense was hampered by an inability to obtain basic information about how the evidence was obtained and on what specific grounds the warrant was issued.
Authorities can obtain secret warrants and conduct ordinary criminal investigations with it, conveniently withholding the evidence from the defense attorney on the grounds that it was obtained under FISA. So now a man who is innocent of the crime they got a warrant to investigate is unable to defend himself for another, more ordinary, crime.
Not saying that crime is excusable and that jail time isn't justified for child porn, but the inability to defend himself seems unfair.
Jail time for storing a pattern of bits? I will stand up and say that's unjustified. The ridiculous basis of the concept is exactly what causes this screwed up regime with no possible discernment between the crime and being framed for the crime.
We see the same patterns arising for the only-slightly-less preposterous idea of criminalizing possession of psychoactive substances - uniformed thugs planting a bit of an utterly innocuous substance into a victim's possession, and then riding the legal fiction (/moral panic) to carry out their personal vendettas.
By all means, find the criminals performing the real physical crime of child abuse and throw away the key, keep such images off of Google etc so we don't stumble upon them, etc. But criminalizing bit patterns just puts us all in the position where we can be arbitrarily imprisoned and unsympathetically prejudged as repugnant.
> Jail time for storing a pattern of bits? I will stand up and say that's unjustified. The ridiculous basis of the concept is exactly what causes this screwed up regime with no possible discernment between the crime and being framed for the crime.
I'm not going to come down on either side of child porn, but there are plenty of bit patterns where possessing them should result in jail time. For example: Defense secrets. Or weapon designs. Or novel ways to enrich fissile materials.[1] Now, in some circumstances there may be reasonable doubt that you actually possess the data. If the data is only on an unencrypted USB key behind your couch, maybe that's doubtful enough to avoid conviction. But if it's on your encrypted laptop, or your Gmail account's sent items folder… that's another story. Technically, yes you could be framed. But that's about as likely as someone planting drugs inside a safe in your house.
> …keep such images off of Google etc so we don't stumble upon them…
How exactly would this work if there's no way to punish people for possessing data? Without sanctions, it would depend on the goodwill of all websites to censor such content. Otherwise you'll just get trolls pasting links to child porn.
I'm sure that in a country of 350 million people, people get framed from time to time. But it's used as an excuse far more often than it actually occurs. And if you can't trust cops to not frame you, no feasible change in laws will fix that problem. You'd have to legalize every frame-able crime or impose such onerous levels of proof that almost no criminal would be convicted.
> there are plenty of bit patterns where possessing them should result in jail time. For example: ... novel ways to enrich fissile materials.[1]
And yet you just pasted a link to a high level overview. I don't see an explicit governmental condonement of the contents of that link - perhaps the edit history contains something "over the line", and you should go turn yourself in?
You still haven't made a case for why possessing such information should be a bona fide crime (as opposed to being evidence of a real crime). You've merely asserted it should be illegal, with only fearmongering innuendo to back it up.
> How exactly would this work if there's no way to punish people for possessing data?
Something tells me most people would stop using Google if it randomly popped up child porn.
> Otherwise you'll just get trolls pasting links to child porn
So where are these trolls now, given they can act with impunity through TOR? In fact, any such trolling is even more lulzful under the current regime, since the website operator is automatically guilty of possession! They're reliant on an informal "I'm a good person who was trying to remove it, please don't rough me up too bad" - which works most of the time if you supplicate to the police, ultimately undermining the rule of law.
> people get framed from time to time
I used the word "frame", but there is actually no such thing under a regime of strict liability.
The problem isn't being framed, it's the ridiculousness of strict-liability non-mens-rea possession, especially of something that can be so easily obtained. The threat isn't just cops, it's anyone who decides to make you a criminal!
> I don't see an explicit governmental condonement of the contents of that link.
> You still haven't made a case for why possessing such information should be a bona fide crime (as opposed to being evidence of a real crime). You've merely asserted it should be illegal, with only scary innuendo to back it up.
SILEX makes it possible to enrich uranium in secret for mere millions of dollars. It was privately discovered, but the process was classified by the government. If the exact details spread, it could be a global catastrophe. I'm totally fine with this information being restricted, as the harm of censorship is outweighed by the risk of nuclear proliferation. The US government seems to agree.
> So where are these trolls now, given they can act with impunity through TOR?
They don't post links to child porn because such things aren't hosted on the open web. Right now, the worst things trolls can link to are disgusting or gory images. If the law was different, they could link to worse things.
> The problem isn't being framed, it's the ridiculousness of strict-liability non-mens-rea possession, especially of something that can be so easily obtained.
There are plenty of physical goods that meet the same criteria and are just as illegal. I think only a borderline anarchist would disagree with many of those laws. For example: Thanks to 3D printing, it is very easy to obtain a full-auto sear for an AR-15. Such a piece of metal is –by itself– completely harmless. It can't do anything dangerous unless it's installed into a compatible rifle. Yet mere possession of an unlicensed full-auto sear will get you up to 10 years in prison and a $250,000 fine.
That's right: Possession of a tiny piece of metal is the difference between a completely legal existence and a decade in prison. And that has been the case in the US since 1934. When put that way, it may seem unfair. But that tiny piece of metal could easily be used to cause immense harm, and it has no other use. Just like some data.
Now, if you're willing to bite the bullet and say that possession of full-auto sears should be legal, I'm fine with that. I'll disagree, but I'll admire your consistency. On the other hand: If you don't think such devices should be legal to possess, then I think your support for possession of arbitrary digital goods is rather hypocritical.
> If the exact details spread, it could be a global catastrophe. I'm totally fine with this information being restricted
And yet such criminalization won't stop someone actually determined to use it. If your security relies on preventing the spread of readily-available information, you've already lost. Your argument only seems practical for this situation because the only entities in possession of said information are already doing the work to keep it secret.
> Right now, the worst things trolls can link to are disgusting or gory images
Or uh, illegal images they upload themselves (obfuscated enough to get around whatever secret programmatic filters the hosting sites have been forced to implement via "consent" decree), or non-linked data: urls.
> Yet mere possession of an unlicensed full-auto sear will get you up to 10 years in prison
Which obviously conflicts with the 2nd amendment, itself created with foresight of hysterical attempts to ban weapons. There's no constitutional amendment spelling out the right to own hammers, not because it isn't a natural right, but because the founders didn't envision a scenario of widespread hammer ownership being criminalized by a corrupt government (and hammers subsequently being needed to violently overthrow said government).
I'm sure you can find many similar examples of possession being criminalized - it's the dumbest, most simplistic way to go after "bad people" (base tribalism) instead of the harder route of policing and prosecuting actual bad behavior (rule of law). That its application is a foregone conclusion merely shows how totalitarian our society has become.
Well, that was interesting. I certainly can't call you inconsistent.
Now I'm just curious: Is there any scenario in which you think possession of a physical or digital asset should result in imprisonment? That is: Is possession of a fuel-air bomb OK? My mere possessing it doesn't harm anyone, only my use of it would. What about possession of a nuclear weapon, or some device that could exterminate all life on earth? If information hazards[1] exist, would possessing them still be legal? If mind uploading becomes possible, should it be legal to run a million uploads in agony? After all, it's just data on your own hardware. I realize some of these scenarios seem far-fetched, but I'm trying to find the limits of your beliefs.
It seems to me that laws regarding possession must be contingent on the possible harms allowed by physics and biology. If certain machines or pieces of information can be readily used to cause mass suffering, then the cost-benefit analysis suggests punishing those who possess them.
To use an analogy: Possessing certain things is like brandishing a weapon. If you point a gun at someone, technically you haven't caused any physical harm. It's just that you're very likely to harm someone. There's even a decent chance you could cause harm by accident. So to with the possession of certain dangerous items. The danger might be more remote, but the potential harm might be far greater. That's the rationale for restriction.
(Not OP, but I agree) Possession isn't a crime and calling it as such is imparting intent in a way which isn't rigorously general: what about a High School counselor who confiscates hard drugs (b/c why do we care about weed) from a troubled student? What you're asking is that an inherently flawed system classify and judge intent based what is perceived about a situation involving something that could be dangerous, and then assign punishment based on that. What if the counselor was a twenty five year old male or an elderly lady? What if they were black? If the smartest among us can only barely decide without bias, how can we expect the average man or woman to do so? Nonetheless, let us define possession of a possibly dangerous Thing as a crime.
The only time intent can be proven is once the act, presumably a harmful one for the sake of my argument, is committed; but then there is no justice to be had anyway because entropy is lost, thus only revenge and/or correction is left. But back to my counter argument, the possibility for harm is a flimsy definition of a crime and runs against the principle of reasonable doubt; cars are pretty harmful, I myself drive past children I could deliberately run over and probably kill on my way to class (college) everyday (I'm not going to do this; but then again you only have my word...) and thousands of people die in them and by them every year; my point is that guns/cars have other legitimate uses and the same could be said of things everyone already has possession of.
Also, your previous arguments that owned hardware which is at least somewhat controlled by the owner (otherwise, who controls it "owns" it), thereby implants guilt onto the owner is also, well, incorrect. While true that the individual or organisation are generally responsible for the operation or neglect of their hardware, in the case of hardware whose explicit purpose is to service requests to uncontrollable and external parties and is thus to a certain extent designed to be deliberately neglected, can't be held responsible for crimes for which they had no participation in: I am not responsible for the crimes of someone who stole my car beforehand (the involvement of theft makes this example a bit shaky, I'll admit, but my point is to convey the separation of responsibility between owner and controller, in that as the owner I didn't encourage the controller, the thief etc, to steal my car). That said, imparting a bit of responsibility onto owners is still a Good Thing (see workers comp.), because it incentivizes safer workplaces/hardware: the difference is that in the aforementioned case, barring proof of intent or neglect, it's not a proper crime, it's just monetary damages (ie civil).
Just to be clear, we agree that something like smallpox should stay locked up. But then every sane and rational person should agree with that: they would have to live (note sane and rational) in the same world with smallpox on the loose. But then if it did get out, due to it's infectious and self-replicating nature, the result would be disastrous. In any case, such eventuality would either be the work of an insane or troubled person (whose actions aren't rational anyway, thus can't be called 'our' fault, presuming attempts to prevent the release were made) or an accident. In all cases, punishment isn't the answer (except in the accidental case, the answer is instead institutionalization). Nonetheless, the solution to prevention of eventuality in this case is access limiting. Thus it is an acceptable solution. (I consider this to be a satisfactory rationale). But even quarantined diseases are still studied!
One last thing: brandishing a weapon is a crime by way of implied speech: it is threat. Thus brandishing a weapon is an action, and is thus not just possession. Which means it doesn't count.
TL/DR: The condition (possession -> guilt) is false. Punishment for such possession is unwarranted. Control is implicitly limited by sane and rational owners in the case of dangerous Things (perhaps with the help of others).
Was any evidence withheld here? Or is it instead the case that the original FISA warrant was withheld (being part of a complicated counterespionage case), and the defense feels that given the full warrant, they might be able to defeat the search and have the CP evidence excluded?
I guess I meant "information about how the evidence was obtained." I just think blurring the lines between two totally separate investigations like that is bad practice and brings into serious doubt the integrity of the government's authority, especially if the perp is innocent of the secret one.
> Justice Department officials added that Congress has always intended that information obtained through intelligence authorities could be used in criminal prosecutions. 'It would be irresponsible for the government to ignore evidence of criminal wrongdoing when such evidence is lawfully collected,' said Justice Department spokesman Marc Raimondi.
Fair enough. Then on handover, from the intelligence community to domestic prosecutors, lift any specialness the warrant was given for having been granted through a FISA court.
>Jeff Fischbach, a forensic technologist for the defense, said there is no evidence that the child pornography was ever seen by anyone who used the computer, much less Gartenlaub.
>The government’s own forensic expert, Bruce W. Pixley, said he could not find any evidence of the material being downloaded onto any of the computers, the defense noted. That means it had to have been copied onto the computer — but by whom is unknown.
This guy was still convicted regardless, not to mention the fishy nature of the case.
I've always thought that so-called "Advanced Persistent Threats" or state-level actors—considering the ease and degree to which they can own most targets—are very likely capable of planting incriminating evidence with such precision so as to appear forensically sound in virtually every regard.
In reality though, it seems all that's required is removable media, rudimentary technical skills, and a dumb jury.
And the child porn charge doesn't really matter to the prosecutors. They offered to drop it in return for espionage data.
The insidious part of all of this is that everybody is guilty of something. And for a sufficiently connected person, you can find a sufficiently broad law that you can charge them with a serious crime.
Combine that with selective enforcement (witness the absence of charges in the wake of the subprime crisis), and you have an utterly arbitrary criminal justice system that only functions to protect and advance the interests of the 1%.
// I can handout a million vaccinations -
// Or let 'em all die in exasperation.
// Have 'em all healed from their lacerations,
// Or have 'em all killed by assassination.
// I can make anybody go to prison,
// Just because I don't like them.
// And I can do anything with no permission;
// I have it all under my command, because -
// I can guide a missile by satellite
// By satellite
// And I can hit a target through a telescope
// Through a telescope
// And I can end the planet in a holocaust
// In a holocaust
So kiddie porn is just the new "drugs" is the new "he's a secret communist" is the new "he's a secret loyalist" is the new "she's a witch in league with satan". Par for the course.
I think American exceptionalism gets in our way here. Instead of asking "how could this happen in the land of the free?", the real question is "You gave some people limitless power and no oversight!? What the hell did you expect? This is what always happens when you do that!"
This is how democracies die. We must eliminate the secret court systems and reintroduce the use of warrants from the publicly accessible courts. There is no other alternative.
> ... the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, ...
Doesn't the justice system have some sort of obligation to prosecute people who they feel have committed serious crimes? How can a prosecutor just ignore their clear duty in an attempt to extort cooperation from someone?
How is this sort of thing any more acceptable than just straight up torturing the guy?
Tell me again why well-off American programmers continue living in that country without the most basic of human rights?
It's time to go. You can still access us-east-1 from the civilized bits of Europe, you know.
It has now been between 2 and 10 years since the time where it became totally unreasonable to continue living there while other options are available to you.
Don't wait until the trumped-up federal charges. Move now.
To where? What government on the planet doesn't have this kind of power over its country's citizens? Of the governments you can list, how many of those countries actually have civilization where a non-native wouldn't have to fear for their lives?
They also had their currency value cut to half in 2008, and that had a very real impact on the purchasing power of people. The currency has recovered a bit but the change is still there and its's big.
There are also currency controls for taking money out, etc. Iceland is still in severe shock.
I honestly don't see any other "free" countries. Most lack a fundamental freedom of speech or a right to bear arms. Where is this utopia of freedom you think exists? As someone who's ancestors helped fight for and found this nation, it's hard for me to just give up on it.
I'd like both, actually, but I guess your strawman allows you do just dismiss other perspectives.
I want a government accountable to the people, and the right to bear arms was meant to ensure that. The removal of arms turns a citizenry into subjects.
This is because we no longer live in the time of the founding fathers. Most Americans don't see themselves living in a state of tyranny, and reject the thesis of protracted, mass violence being necessary for a modern free state. Whether this is due to the cowardice or sanity of the American people is a matter of debate.
tremon - When a government has all of the weapons and the means to use them against the population, you no longer have an accountable government. This is how it is today in America and it appears to be getting worse. I don't condone violence, but the current system encourages it.
Our current US government wields powerful weapons called: Justice, Democracy and Law. The government is controlled by a few, who are making decisions behind closed doors that only benefit themselves. They have the mechanisms in place to enforce the will of the state against any human being for any reason.
You can be accused of anything by the government. You can be locked up without due process. Just because you don't see it everyday, doesn't mean that it's not happening. It's here in the USA.
Remove the weapons from the state. Forbid the use of force and violence against any citizen that resides in the USA. We should be focused on Peace, Truth, and Justice. Do no harm to yourself or to others.
Peace can never be delivered at the end of a a weapon or a writ of law. it must come from within.
Our current US government wields powerful weapons called: Justice, Democracy and Law
Actually, this is part of the point I was trying to make -- democracy and law are weapons of the people, not of the government. The whole "murrica is the only free country because we have guns" mantra is getting more than a bit tiresome. Not just because it's old and untrue, but also because it's a race to the bottom: because of gun laws, your government now uses grenades and body armour to maintain order. That's not peace nor freedom.
What I was trying to point out was the innate fear and distrust between American citizens and the state. It's become so ingrained that "I won't move to another country because they won't allow me my guns" is apparently valid reasoning among the thinking 1% of the population.
I could have phrased it a lot less bitter than I did though, and your response made me put in the effort. So thank you for that.
Your wife and children would probably be pretty upset if you did something otherwise-legal that happened to somehow piss off the government and they threw you in jail forever.
> Tell me again why well-off American programmers continue living in that country without the most basic of human rights?
One thing to keep in mind if you move out of the US is that you will be subject to double-taxation as a US citizen. So technically if you want to reject the system you need to leave the country and lose the passport.
How does that work? If your local taxes are more than what the US would take, they take nothing? And if the US taxes are higher, the US only receives the surplus amount?
Link below explains it better. I'm sure it's as complicated as the IRS can make it, and I'm sure there are situations where some of your income is double-taxed, but for most people, you choose either a tax credit in the amount of foreign taxes paid, or you get to exclude 100k of your income right off the bat.
> Tell me again why well-off American programmers continue living in that country without the most basic of human rights?
1) If we all abandon ship, who will be left to argue that this is wrong?
2) A number of countries in Europe lack substantial protections for the freedom of expression. This stuff is only known in the US because its extremely difficult to shut people up.
3) A number of countries are as heavily, if not more heavily, invested in using the tools of the state [surveillance, etc] against the domestic population.
4) The simple fact is if the Government [in whatever country] puts you on their list of people to destroy, you will be destroyed 9 times out of 10. There is substantial xenophobia in both the US and Europe that is fueled by a combination of terrorism, wages, immigration, and a "Fuck you, I have mine" mentality. The US may be swinging heavily in one direction at the moment, but many European countries have been as bad in the past.
5) Please list countries which you consider "enlightened" and I'll tear them down to size if that is your desire.
> Mr. Valls, who announced the bill on the day after the deadly attack at the National Bardo Museum in Tunis and as France still reels from the terrorist attacks in Paris in January, has assured the nation that the bill “is not a French Patriot Act,” a comparison to America’s post-9/11 law. But, in a statement on the bill, the Digital Council, which advises the French government about technology’s effects on society, referred specifically to Edward Snowden’s revelations of the extent of United States government surveillance, warning that the bill proposed by Mr. Valls would open the door to similar excesses in France.
> The constitutional council made only minor tweaks to the legislation, which human rights and privacy campaigners, as well as the United Nations, have described as paving the way for “very intrusive” surveillance and state-approved eavesdropping and computer-hacking.
> French parliamentary deputies, defying government wishes, have voted in favour of penalising smartphone makers which fail to cooperate in terrorism inquiries, entering a controversy that has pitted the FBI against Apple in the United States.
The irony is that the Clinton Administration was accused of deferring to politics over intelligence warnings that Boeing was inadvertently or carelessly leaking technology to China.
> In Gartenlaub’s case, the government made sealed filings, so neither the defense nor the public was able to see them. Based on the secret filings, the judge held that the government had shown probable cause that the house to be searched belonged to “an agent of a foreign power” or a spy.
> “The government is increasingly using national security tools to investigate domestic criminal cases, bypassing key constitutional protections,” said Patrick Toomey, a staff lawyer with the American Civil Liberties Union. “This problem is only compounded in the digital age, where the FBI is collecting vast amounts of our data for intelligence purposes but then goes sifting through all that information in unrelated criminal investigations.”
This is bullshit. You shouldn't be able to withhold evidence from the defense when you are talking about throwing someone in jail.
They just want to get around the normal domestic constitutional protections because it makes their job easier. Yeah, well, you make the prosecution's job easier and you end up with prisons full of people because their key performance indicators are convictions and their conviction rate.
> RIVERSIDE, Calif. — FBI agents entered Keith Gartenlaub’s home in Southern California while he and his wife were visiting her relatives in Shanghai. Agents wearing gloves went through boxes, snapped pictures of documents and made copies of three computer hard drives before leaving as quietly as they had entered.
> In Gartenlaub’s case, the defense unsuccessfully argued that he could not be linked to identical copies of child pornography videos found on four hard drives in his house. Two of the hard drives had been in a computer that was kept at a beach house where numerous people had access to it, Gartenlaub said.
> Jeff Fischbach, a forensic technologist for the defense, said there is no evidence that the child pornography was ever seen by anyone who used the computer, much less Gartenlaub.
> The government’s own forensic expert, Bruce W. Pixley, said he could not find any evidence of the material being downloaded onto any of the computers, the defense noted. That means it had to have been copied onto the computer — but by whom is unknown.
> Gartenlaub, 47, was fired in August 2014 and has been unemployed since. His attorney said his defense was hampered by an inability to obtain basic information about how the evidence was obtained and on what specific grounds the warrant was issued.
> During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time.
This reads like, after failing to find proof he was a spy, the FBI "found proof" he was a pedophile which given the sheer quantity of child porn the FBI has control over seems oddly suspicious. It is extremely easy to plant the information on the hard drives but it is much harder to create a chain of events that links the specific user to the chain of events from acquiring it to viewing it. [e.g. If you provide dates/times, what happens if he the guy can prove he wasn't home at the time?]
So they went fishing with child porn charges in order to "encourage his cooperation".
Admittedly, this could be a story the guy just tells to convince people he isn't a pedo but honestly...it reads like they went with the one charge no one would defend him on that was easy to fabricate. "We think he is a spy, we think he is guilty, so let us create a situation that allows us to pressure him to confessing what we really care about."
It isn't like the FBI hasn't done this before.
> According to two Boeing colleagues, who spoke on the condition of anonymity because they were not authorized to talk to the media, there is no such job at the company. And Gartenlaub was, in any case, an IT manager. Moreover, they said, the breached files were accessible through servers in the field, such as at Air Force bases. These were not servers that Gartenlaub or his team of engineers who supported the plane’s designers had access to, they said.
Wow. The guy didn't even have access to the stuff he was accused of leaking?!
> During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time.
That is the key bit of the whole story. I can only imagine how many more cases have been handled like this, with drug crimes or tax evasion charges used instead of pornography.
They can just substitute a whole fake disk. It's not like actual evidence bothers them. There is absolutely no down-side to the government lying; at the end of the day, they get to go home no matter what.
Quotes in the linked article seem like lawyerly smokescreen to me. Assuming that the government planted child porn on this guy is no more correct than assuming he's guilty before a trial.
To be honest, nothing about this seems particularly bad. It seems like circumstantially there was some evidence that he may have been a spy, the government executed a FISA warrant on the basis of that belief, and then found evidence of child porn.
I'm not generally a fan of secret warrants or broad search and seizure powers, but this really doesn't strike me as a particularly bad case. This seems, by and large, like an eminently reasonable and successful use of those powers.
"During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time."
No evidence of downloading the porn. No evidence of viewing the porn. The only way, according to their own experts, is if someone directly copied them on.
In other words, "Hey, look what nasty stuff we just happened to find on your computer. Be a nice fella and tell us what we want to know, and we'll make this go away."
It's a pity the reporter doesn't have enough savvy to give us the details we all want.
I mean, it's one thing to find the stuff in Downloads, along with browser history indicating it came from, oh /b/ on such and such a date, and with atimes` that make some sense.
It's another thing entirely for it to be in Downloads, with no browser history. Did he go into incognito mode?
But 4 drives? With no encryption? And no browser history? WTF?
Yeah, he;s convicted. By 12 people who probably have a blinking 12:00 on their microwaves.
> "During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time."
While that does sound damning in a certain light, it's also consistent with their primary mission, which is to counter espionage. I would hope that the FBI would make exactly this kind of tradeoff in its pursuit of spies.
Now, of course, if your implication is that they fraudulently manufactured the CP evidence in order to create leverage to extract this confession, that is indeed reprehensible. But if they just happened to find CP and then used it as leverage to pursue what is, IMO, a more important line of inquiry, then that is just fine with me.
> No evidence of downloading the porn. No evidence of viewing the porn.
While the article does say that, let's be honest. What evidence can there be of downloading porn? We all know how computers work, and this guy was a sysadmin, so he does too. The fact that he didn't forget to clear his browser history does not invalidate the presence of child porn on his computer.
That being said, of course it also doesn't eliminate the possibility that he was framed or that he wasn't at fault for its presence there. But if the FBI finds CP on someone's computer, I expect them to investigate and prosecute the case in the absence of positive exculpatory evidence indicating that it wasn't put there by that computer's owner.
The thing is, they also had no evidence of his even having viewed the files, which means that the last access time was unset. Building a system to reset the access time would be pretty involved; more involved, imo, than simply hiding/encrypting a partition.
The article has one sentence about the videos being on a beach house computer that someone else could have used. So just from this article it is unclear exactly how damming that evidence is, but it is possible it was not his fault that the illegal videos were on his computers. So first suspicion and second being charged for something he didn't do but could not get out of because he didn't have access to all the legal information necessary.
At least that is a possibility. If he really is guilty then I don't feel bad for him.
> but it is possible it was not his fault that the illegal videos were on his computers.
So? His home may have been searched for other reasons to discover this. Just like anyone else found with these materials on his computer, he'll have to get arrested and go to court over them.
That's true, but contested evidence has nothing to do with FISA. The defendant could just as easily have been searched because a houseguest saw the CP on a computer and tipped the police, and the same debate would have occurred.
I'm not super alarmed by this case, but the precedent is disquieting.
Here it seems like FISA was used to get a secret warrant to build a counterespionage case; the warrant was targeted and specific. There's some unpleasant strong-arm tactics at play, but nothing out of the ordinary (in particular: you can definitely be the subject of a warrant for which the search more or less exonerates you, but be implicated in a different crime during the lawful conduct of the search; that's not weird.)
The scary thing here is that FISA is also used to animate dragnet searches, which are not targeted. It's scary to think that (for instance) phone records seized under the aegis of FISA could be used to start metadata-based criminal prosecutions for things unrelated to terrorism or espionage.
I think the conclusion to draw here is that there is no line between LE investigating terrorism and law enforcement investigating everything else. It is not possible to give LE/IC powers that they may use against terrorism and espionage and only that. The patriot act was billed as a set of effective counter-terrorism tools and yet now years later is almost never used for terrorism, primarily used to fight the unpopular and more controversial drug war. FISA and NSA wiretaps are supposedly about espionage and terrorism and yet LE is managing to find a way to use it for everything -- whether it's lying to judges in the form of parallel construction or (even earnestly) stumbling upon major crimes in the course of their investigations. I agree with you that while this particular investigation does not so much worry me (so long as the pornography charges are real and not planted/fabricated), the expansion of the scope of these 'terrorism/espionage' investigations so that investigators conveniently happen to stumble upon crimes is a very worrying prospect.
Powers are powers, and if you put them in the hands of the people with the job 'get as many convictions as possible with the powers you have', well, they'll end up being used, even if they have a label that says 'for terrorism only! Promise!'
In the real world, however, this is very, very scary and I consider myself lucky I am not subject to this travesty.
Since there does not appear to be any proof that he downloaded the images, or was involved in any way, other than pictures being found on various hard drives, it is quite plausible to me that the FBI/NSA/CIA planted evidence in order to blackmail him.