Supreme Court Won't Hear Case Over Computer Tech's Right To Search Your Computer
from the older-ruling-stands dept
A few years back, we wrote about the case where a guy was arrested for possessing child pornography after techs at Circuit City found child porn on his computer, while they were installing a DVD player. The guy insisted that the evidence shouldn't be admissible since the techs shouldn't have been snooping through his computer -- and a lower court agreed. The appeals court, however, reversed, noting that the guy had given Circuit City the right to do things on his computer -- including testing out the newly installed software (which is how the tech claims he found the video). The guy appealed to the Supreme Court, who has declined to hear the case, meaning that the ruling stands for the time being. So, basically, if you hand your computer over to someone else for repairs, at least in some jurisdictions, they may have pretty free rein in terms of what they're allowed to access on your computer.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Filed Under: computers, porn, searches, supreme court
Companies: circuit city
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Understandable
It'd be like a technician coming to your house and finding it lying on the ground. Unless they had to bust through his passwords or do something tricky there's really no argument here.
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Re: Understandable
It's more like a meter reader coming in your house while your away to read your meter (yes, there are some of us who still have their electric/gas meters inside their home). While doing his job he goes through your cabinets, closets, garage, etc. and finding it somewhere.
Giving someone the keys to your house to provide a service doesn't give them free reign while you're not there. The techs had access to login to install a DVD player, like the meter reader has access to come in and read the meter.
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Re: Re: Understandable
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Re: Re: Re: Understandable
You don't hang naked pictures of your wife behind your shower curtain in the guest bathroom 'trusting' the honesty of people who shut bathroom door when nature calls.
There is a reason there are camera's in department stores, there are dishonest people. Businesses know it, people should too. Not only was it his responsibility (ignorance is not an excuse) to cleanse his hard drive, I hope he gets the book thrown at him for being a damn perv.
Lets not worry about the dishonest kids, the damn with his privacy.
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Re: Re: Re: Re: Understandable
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Re: Understandable
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Re: Re: Understandable
If I went to an audio mechanic and asked for new speakers and they installed new speakers, but never checked to see if they had been correctly installed that would be comparable to someone installing a DVD player in your computer and not checking to see if it worked.
if I went to a mechanic and asked for new speakers, and while installing them he installed a spoiler, some spinning rims, deck lights, and shaded windows that would be comparable to having someone install a dvd player and then them taking to privilege of installing Adobe CS3 on your computer.
what these guys most likely did was turn the computer on (not password protected) start installing the DVD playing software that comes on most video DVD's, it begins scanning the harddrive for files that it can play and they appear in the software's Files tab or section. Comparable to a mechanic installing a speaker set and while he's checking wires finds ten kilos of cocaine in the door of the car.
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Re: Re: Re: Understandable
Or at least that's the way I see it.
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Re: Re: Re: Understandable
Here's a novel idea; They could have tested the DVD player by playing a DVD. Also, if they're going to test the included software's ability to play various video formats, it would make much more sense that they have a disc of test videos that they could use to verify that it's working properly, rather than go looking for files on the customer's system. What happens if the customer had no video files?
what these guys most likely did was turn the computer on (not password protected) start installing the DVD playing software that comes on most video DVD's, it begins scanning the harddrive for files that it can play and they appear in the software's Files tab or section.
If that's what happened, it just goes to show how pathetic software has gotten in the quest to cater to clueless users who don't have the slightest idea how to actually use their own systems.
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Re: Re: Re: Re: Understandable
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Re: what a great work around
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Perfectly Reasonable
We had a similar issue when I worked at an IT shop. We were, however, doing a data backup and system reload for the customer, so there was no question of whether we had a right to access the data. It put us in a pretty tough spot, as any attention to the matter would have been disastrous. Sure, we did the right thing by turning it over to the police, but customers don't want to work with an IT shop that they feel will snoop through their personal stuff. People get paranoid that they'll get busted for MP3s or Divx files, or whatever. Thankfully, no reporters ever came knocking about it.
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The people were installing and testing a DVD player and its software. How does testing a testing a "movie playing client" / "movie palying hardware" with videos relate to having the DVD player work? Shouldn't it have been tested with a DVD instead? Furthermore, shouldn't the tech have a "standard" movie to test out the installed software instead of expecting the customer to have movies on his computer? You're clearly snooping around the machine to find a movie file no matter how easy the access is.
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As for your car example, the guy digs in your glove box and finds a bloody knife. Why was he in your glove box? Thinking you might have maintenance records or wanting to double check something in your manual. Unless the guy (or gal) is digging through your undie drawer, you have to give the technician the benefit of the doubt that encountering the offending files was accidental.
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Testing file
Just my guess anyway...
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Techs are lying their @sses off...
Rip open the computer, install the drive, boot up the computer, load up the DVD Player softare (if any comes with the DVD drive) and put a DVD in the drive and play it. Tell me how any of those steps involve looking at personal files.
I have several friends who are computer techs and I know MANY techs who would scavenge through a users files and make copies of anything they thought was noteworthy.... music, pictures, etc.
If you give your computer to ANYONE who is computer savvy enough to be fixing it, just assume that every single one of your files will be looked at... private pictures, emails, movies... ANYTHING.
Either encrypt it with PGP or just confess to everything you've done before you drop off your computer.
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Re: Techs are lying their @sses off...
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Re: Re: Techs are lying their @sses off...
Although, circuit city should have an acceptable use policy for users that explains what they will do in the case where they find illegal software or file types or illegal content.
What if this person had a online gambling program (illegal in the US). Should they call the FBI?
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Re: Re: Re: Techs are lying their @sses off...
No, probably not. There is a difference here, however. In the case of that software, it can be used for illegal action, but the software itself is not illegal. In the case of MP3s, Divx files, etc, the files are only illegal in some instances, but may be perfectly legal if the owner owns the originals, etc. Even if they are illegal, it is a civil issue for the courts, not the tech, to decide.
With child pornography, it is a very different issue. The mere possession of it is a felony. In addition, I know that, at least in the states of Kansas and Missouri, that you can be charged with possession if you know about it and don't turn it in. That is, once we knew it was there, if we kept the computer on our premises, our techs, owners, etc, could be charged with possession. So, there is no middle ground. With this issue, the law pretty much forces your hand, and you MUST turn the computer over to the authorities.
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Re: Re: Re: Techs are lying their @sses off...
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Re: Techs are lying their @sses off...
As far as techs who scavenge through users files, if the software uses some sort of active detection of media files (as most of them do now) then they would not have to be "...(scavenging) though a users files and (making) copies of anything noteworthy..."
that being said, yes there are Techs who do not respect the privacy of their customers. Just as there are accountants who don't respect their clients money and mechanics who don't respect their clients cars (etc.)
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Re: Techs are lying their @sses off...
I'm sure that's exactly what the guy did, except when he turned to grab a DVD it wasn't there and he was too lazy to grab another and it's the same difference anyway, so he just played a video file from the guys Movies folder to test the player software. It's not that unlikely, and there's certainly nothing inappropriate about it.
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They do this without even asking you?
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WHAT SOFTWARE?
And as far as the password goes, I dropped my computer off at a shop and didn't tell them the password.
They were supposed to flash the bios (I didn't have a floppy drive) and I came back to my desktop up on a giant monitor via KVM.
They had no need to:
Boot to an OS.
Disable my administrator password.
Play around on my computer.
It's like someone who is given access to your car to change the tires and they dig though your glove box.
On the bright side some pedo got thrown in jail.
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Re: WHAT SOFTWARE?
as far as them playing around on your computer, if you don't trust the people you are dropping it off with then you have given them PHYSICAL access to the device, and as most security people will tell you, physical access trumps almost all security measures. the only thing that they wouldn't be able to break with physical access (that I can think of) is full disk encryption (via TrueCrypt). that's about it though.
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Re: Re: WHAT SOFTWARE?
Running media player directly sometimes starts with last played file.
If last played file was child porn, game over, no snooping required.
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Re: Re: Re: WHAT SOFTWARE?
Some software that comes with DVD automatically catalogs all media files on the PC for you.
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Re: WHAT SOFTWARE?
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Re: WHAT SOFTWARE?
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Re: WHAT SOFTWARE?
They probably found more stuff on his computer later, but if it was the only file, it could have been accidentally downloaded.
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Re: Re: WHAT SOFTWARE?
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Inadmissibility
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Re: Inadmissibility
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The Law is the Law
If you give your Computer to a third-party freely, no matter for what, you have just removed any "privacy" issues you thought you had. This would be different if an Authorized Authority of the State came in and snooped around on the Computer and found this, simply because they would still need a Warrant to make this search; even if the third-party gave their permission to search the Computer, the Court would still require the Authorities to get a Warrant.
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Re: The Law is the Law
However, if the user logs in with the admin user account (moron) then the tech was using the same account and the user granted the tech rights to the admin folders. Although the tech did not need to access those file to do his job he was granted access by the user to those accounts, and the user has no privacy expectance.
In either case shoot the user in a public square for all to see what happens to stupid computer users or child pornographers.
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Re: Re: The Law is the Law
Yes. It is. As I've already wrote, the constitution protects us from unreasonable searches and seizures from the government, not from individuals.
That does not mean that an individual can legally search your stuff. Of course such a search could be illegal. However, because the search does not involve the government, the exclusionary rule never comes into play.
Here's a good example from the court where I work. Three burglars broke into a guy's house and stole his safe. They finally got it open and discovered it was not filled with money. But with child porn the safe owner produced himself using children he knew from friends and family.
These three hardcore criminals were so incredibly shocked by what they found they turned the safe, the tapes, and the pictures over to the police. And because the police did not perform the search which led to the discovery of the child porn, which was evidence that the safe owner committed sexual assaults against children, the evidence was not excluded.
Thus, it does not matter how reasonable the Best Buy employees were. The constitution does not protect us from them. Clearly breaking into a person's house and stealing a safe is unreasonable. But it does not invoke the exclusionary rule, because the government was not involved.
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Re: Re: Re: The Law is the Law
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i totally agree with the verdict.
you send your car to the shop or a car wash, while working on your car they find a human finger. Aren't they required by law to report it?
how is that any different.
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Re: i totally agree with the verdict.
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Re: Re: Re: i totally agree with the verdict.
This is setting a very dangerous precedent. A computer savvy person, who allegedly finds incriminating or illegal data by doing a suspect search on someone's computer, might have an ulterior motive or could be working for the government. Setting someone up with planted data seems like it would be child's play for a computer savvy person.
I've been the target of a blackmail scheme to get me to resign my position. Secret company data was placed on my company computer without my knowledge and I was told to resign or face jail time. Lucky for me, the person had tried a similar tactic in the past, but was ratted out this time by a cohort. He was fired, but things at work are not same.
Bottom line: Just don't piss anyone off that can frame or blackmail you, because chances are they will.
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Re: i totally agree with the verdict.
Since when is it illegal to hold on to the stuff that you find in your burger (http://www.foxnews.com/story/0,2933,193824,00.html) ?
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Or Self Righteous atheists looking for dirt.
Or maybe it was run by your grandma. She'd be so ashamed of your porn.
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Being a Snoop isn't a Crime
The ONLY way this would happen, is if the Offending Party were acting in accordance with the Authorities, or were the Authorities themselves pretending to be someone else.
Snooping around your private property isn't against the law, it is probably grounds for a Civil Action, but certainly not Criminal.
The Courts have ruled time and again, that if you freely allow someone into your Home, then you give up your "Right to Privacy" if you aren't there to make sure they don't ggo "snooping around".
Of course, while you might be found guilty of whatever crime they found evidence concerning, you could still SUE their employer because their Employee acted outside of the "normal" scope of their job and duties. Yet again, this is a CIVIL matter and not a CRIMINAL matter; unless of course, these people were to have damaged any of your property to get to the evidence.
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Re: Being a Snoop isn't a Crime
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Yeah, I probably would've respond the same way.
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Which is why I will NEVER leave my computer with a third party. I will figure out how to fix the problems myself, or find someone I know who can fix them. I would only consider taking my system in to a shop if they'd fix it while I wait and allow me to watch them. If not, they'll never get my business.
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I've done plenty of tech work and I was one of the few moral people who wouldn't go snooping, but a lot of scumbags do.
This is really an issue of what kind of permission is implied in any repair whether it be computer, home, etc. As mentioned, when you invite an electrician into your home there is an implied expectation of privacy. He shouldn't be going through your underwear drawer, which btw would be an illegal activity. So why is it any different for a computer hard drive?
The question comes down to, is there any valid excuse for the tech to be accessing those files? In a DVD hardware repair, there isn't and I don't understand how any tech could take the stand and say so. Even for entire file backups, there is ZERO reason that files should be opened. Sure, if the file says, "here's all my illegal porn," then you report it to the authorities. You don't go opening individual files under ANY circumstance.
Honestly, the guy is pure scum for having these types of files on his computer, but I would have fired the tech for doing what amounts to an illegal activity.
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Re:
Easy way of telling if this is right or wrong: tell your customers of this before they hand you their computer.
For bonus points, do this in front of your boss...
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top secret documents on crashed drive
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What is the main format type the client uses? (.3g2,.3gp,.asf, .asx, .avi, .flv, .mkv, .mov, .mp4, .mpg, .qt, .rm, .swf, .vob, .wmv)
Are the proper codecs loaded?
Easiest way to answer this? Play recent files.
These issues may not come into play with a straight hardware install, but definitely do if software is added to the mix.
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What is the main format type the client uses? (.3g2,.3gp,.asf, .asx, .avi, .flv, .mkv, .mov, .mp4, .mpg, .qt, .rm, .swf, .vob, .wmv)
Are the proper codecs loaded?
Easiest way to answer this? Play recent files.
I'm not a tech, but I have to question your abilities based on what you've written.
Using video files off an unknown person's system is in no way a reliable method of testing video players.
Are the ASF/WMV files WMV7, 8, 9? Are the MPG files mpeg1, mpeg2, mpeg4? What codecs do the AVI files use, Divx? Xvid? VP2? Cinepak? Indeo 2/3? What resolution are the MKV files? How do you know that the files aren't broken? Or that they're not mislabeled (MPG/AVI)?
Just because you can play RECENT1.WMV doesn't mean that every WMV file will play. Hell, you can't even be sure (without checking) that it's actually a WMV file and not a misnamed MPG file, as is common with porn files on the file sharing networks. I downloaded some WMV files that absolutely would not play in any of the normal Windows players (WMP, MPC, VLC, PowerDVD, GOM Player, etc). The only program I could find that would play them was MPlayer. What if you were to encounter such files on a customer's system? You'd spend all your time trying to figure out why they won't play.
A proper tech would have a disc full of test videos in various formats that are known to be good so that you can be sure of what you're playing.
Furthermore, if the user has those files on their system, chances are that they already have the codec for them installed. Outside of a clearly labeled "non-working" directory where I keep a few small videos that I can't yet figure out how to play, you won't find a single video file on my system that can't be played using at least one of the installed video players.
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Overzealous Software... OMG
Are we sure the tech didn't just install the software that came with the actual DVD drive, and watched as it scanned the hard drive returning video files like: kiddy pron1, junior does daddy, or similar sick crap. At the time this case was happening, the delivered OS tools weren't that great on their own and almost every DVD drive came with it's own 'software' package consisting of drivers, management software, and viewing software (which always tried to make itself the default for all file types they could support, along with cataloging them for easier viewing in the future).
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Re: Overzealous Software... OMG
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Re: Overzealous Software... OMG
I haven't. The only commercial player I've ever installed was PowerDVD4. I didn't like the newer versions. I've also never installed any of the bloated later versions of Windows Media Player. I still have 6.4 installed. All of my players have been freeware (Media Player Classic, GOM Player, MPlayer, etc).
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Re: Re: Overzealous Software... OMG
Good for you, and good choices. But you know damn well that is not what Circuit City was installing. They were installing whatever came with the drive. Every one of those I have tried does automatically set itself up as the default player for the filetypes it supports, and they do often try to scan into a "helpful" media library.
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Snooping should be a Crime
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Re: Snooping should be a Crime
In THIS case, it's really more like the cable guy went to connect the cable to your old-school VCR and when he turned it on to test the connection, the machine sucked in the tape that was poking out and began to auto-play.
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Re: Snooping should be a Crime
No one is saying that techs *should* snoop, or that they are *allowed* to snoop, we're saying they probably will, and you should *expect* it.
That means, if there is anything on your computer you wouldn't want them to find, encrypt it or remove it. Truecrypt is so easy a PC user can do it. (I keed, I keed!)
For all we know, this perv's idea of "hiding" it was renaming it to funnyYouTubeVideo.avi, so the techs, making sure the codecs were all installed, thought to play a seemingly harmless video, only to find kiddie porn.
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For the time being?
His right to seek redress is finished. He's fully baked, headed for the big house.
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This court ruling, though good that it locked up a pedophile freak, overall is bs. Is it okay if a tech, clicks on a quicken file and reads the contents to make sure a new hard drive works correctly? Is it okay for a technician to install a hard drive indexing utility and search your PC to test it? Should a tech be able to rummage through my outlook to test a .pst bakup restore? No f'ing way. I work on computers myself, but If I did take my computer to get it repaired I would only do so under the assumption that the contents of the harddisk are private. Unless this file was sitting on the desktop, labeled as child porn, it should not be admissible.
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Wow, I had not heard about that one. I would have to disagree very strongly with the law in that particular case, as it opens the door wide open to abuse. For instance, if the police did not want to get a warrant, a dirty cop could simply pay off a crook to break into your house, steal evidence, and then conveniently see to it the criminal is not caught after anonymously turning over the evidence. I think the only metric for the exclusion doctrine should be whether or not criminal acts were committed in obtaining the evidence. If someone breaks into a home and steals a locked safe, which also needs to be cracked, the evidence should not be admissible in court, period. I am certainly not arguing that you are wrong about that being the law, but I do feel strongly that that is an unjust law that ought to be changed. At least that is my $0.02.
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Re:
Please re-read what Ima said. If the police hired someone to break into a person's house (or if the police or government was involved in any way), then the evidence, no matter how damning or heinous, would be excluded.
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Re: Re:
Only if they were caught paying someone to break in and steal evidence. If not, they have successfully committed an illegal search and the evidence gets admitted.
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R U Kidding Me
Personally or legally I do not care how the files were found on his PC only that they are found, that this guy goes to prison for a LONG LONG time and that a fellow by the name of Bubba has a long talk with him. No excuses, no loopholes - Prison or castration.
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Re: R U Kidding Me
The government demanding that private organizations inform on other private organizations to get around illegal searches is bogus. it's just that anyone with power wants it that way.
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My point is, same some unlucky joe is surfing, clicks on a link that takes him to a kiddie porn site, and he navigates away, unaware he has a small video clip in his internet cache.
It's a crime to even have it on your computer, but was HE aware it was on there when he gave Circuit City his computer?
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Next, give the machine to be maintained by multiple stores and keep track of which ones make a copy of the songs. Also, make sure I target high level officials and the kids of copyright/patent lawyers and RIAA.
Following all this take legal action against each and every occurance of this.
Maybe I could also be more creative and do it with more sensitive information.
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The Stupidity of people amazes me!
Just my humble opinion, I could be wrong...
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Re: The Stupidity of people amazes me!
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Re: Re: The Stupidity of people amazes me!
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A couple of points I have not seen here discussed...
Second: what kind of kid porn was that? May I remind you that in some states (OK e.g.) the "Tin Drum" movie is still a kid porn BY LAW! You can buy a cassette tape or a DVD with that movie almost anywhere else. Same goes for several other "controversial" movies. (I can list a few here that will be deemed a porn by some courts). Extremely shaky ground...
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agreed...
But if I know guys and porn, he had it probably inside 5 folders labeled Tax forms, or System files, or something else like that.
Again I don't agree that he should have child porn, BUT I do think the techs were wrong to snoop AND then go to the cops about it.
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Let's get something straight
It doesn't matter what "protocol" or steps are required to install a DVD player.
If you give me permission to install a deck on your house, and I walked inside for a drink of water and find a dead body in your living room. It doesn't make it any less illegal just because I found it without permission to go "snooping around".
I'm tired of these stupid laws that are like "well, you were invading my privacy and rights by looking in there, so it's not credible evidence"
Tough sh*t.
I'll gladly go to court for invading your privacy. You, on the other hand, still get to go to court for a dead body in your living room. Deal with it.
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Re: Let's get something straight
Binary data can easily be manipulated or planted unlike dead bodies. How do you know the tech wasn't the child porn supplier? He could have been installing the encrypted data on the computer so it could be used as a drone by other child porn sickos, but got caught by a coworker and blamed the naive customer. Yea, you're right, that could NEVER happen.
Assuming all computer techs are upstanding citizens, let alone the public at large, is something this ruling has determined as accurate.
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Re: Re: Let's get something straight
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Actually, I'd just pull a gun on you for entering a private premise without permission as you're supposed to be working on the deck - I'm not paying you to drink/steal water in my place.
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You know, it makes me sad that in this day and age, the average computer user is too cluelss to follow simple directions and install a DVD drive into their own computer. Open the case, slide the drive into an empty slot, put in four screws, plug in two cables which are hard to mistake for anything else and then close the case. How hard is that?
When I bought my first CD-RW drive, I'd never opened the case of a modern computer system in my life. I simply followed the included directions. I had a small problem with Windows 98 not assigning the drive a letter, but a quick call to the tech support number resolved that in less than 5 minutes.
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the real lesson here
seriously though, if you don't want someone to see it, don't take it to them. and anyone dumb enough to their child porn (or any other illegal activity) machine in for servicing deserves anything that follows.
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There's little that can be deemed illegal on a personal computer except for child porn. Anything else is up to interpretation by a jury in a court of law. So how would a technician know to find illegal stuff including music. Much of it is purchased legally anyway.
This thread should be dead - its a no-brainer. Keep a clean house or fix your own machine.
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And the moral of the story is:
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Re: And the moral of the story is:
Replacing a DVD player does not involve digging around a persons folders. Just slap that new one in and off you go. A monkey can change a DVD player and get it work! People need to stop being so afraid of computers.
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Not just a Dvd Player
And the quickest place to burn some test data for a dvd burner? Why its "My Videos" of course.
I dare say this bloke was not the brightest tool in the shed when it came to computers and most likely had his porn files labeled openly in his video directory.
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I think we are missing the point
They have have several processes they run through before and after working on a PC to "Protect" themselves from those magical gremlins that seam to attack computer illiterate customers once they leave the store.
The fact of the matter is, in the United States it is illegal to be in possession of any illicit material involving children. The techs had a moral obligation to report this sick man and now he is trying to find a way to "weasel" his way out of it.
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Lame
Once you replace a DVD drive all you have to do is turn your computer on and your computer will find the new drive and install the driver all on its own. Also, once your putting a DVD into the drive (the test), the drive starts up and the default movie player starts up. This is a total breach of privacy.
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police overstepping their authority taking what they want and there is nothing you can do
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