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- >C O M P U T E R U N D E R G R O U N D<
- >D I G E S T<
- *** Volume 1, Issue #1.14 (June 14, 1990) **
- ****************************************************************************
-
- MODERATORS: Jim Thomas / Gordon Meyer
- REPLY TO: TK0JUT2@NIU.bitnet
-
- COMPUTER UNDERGROUND DIGEST is an open forum dedicated to sharing
- information among computerists and to the presentation and debate of
- diverse views.
- --------------------------------------------------------------------
- DISCLAIMER: The views represented herein do not necessarily represent the
- views of the moderators. Contributors assume all responsibility
- for assuring that articles submitted do not violate copyright
- protections.
- --------------------------------------------------------------------
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- ***************************************************************
- *** Computer Underground Digest Issue #1.14 / File 5 of 5 ***
- ***************************************************************
-
-
-
- -------------
- The following was sent simultaneously to CuD and to Telecom Digest
- Mike Godwin. Pat was not able to print it, so we reprint it here.
- It is a response to a TCD contributor criticizing those who are
- uncomfortable with the current witch hunts.
- --------------
-
-
- -----------------------------------------------------------------
-
- Newsgroups: comp.dcom.telecom
- Subject: Re: Update: LOD Woes - Part II of II
- References: <8763@accuvax.nwu.edu>
- Reply-To: mnemonic@dopey.cc.utexas.edu.UUCP (Mike Godwin)
- Distribution:
- Organization: The University of Texas at Austin, Austin, Texas
-
- In article <8763@accuvax.nwu.edu>, in a posting titled "Law 101," Frank E.
- Carey writes:
-
- >The signal to noise ratio is becoming intolerable. Let's go back to
- >FACTS and LOGIC.
-
- Unfortunately, much of what Frank subsequently says about law-enforcement
- procedures in this country is either nonfactual or illogical or both.
-
- >Searches and seizures are authorized by warrants. If anybody believes
- >that the government raids were done without warrants I'm sure we'd all
- >like to hear about it. Whether warrants were obtained should be a
- >verifiable fact.
-
- So far as I know, there has been no dispute as to whether any of the
- Operation Sun Devil searches and seizures were warrantless. Critics of this
- operation are not claiming that the searches and seizures lacked warrants,
- but that the warrant-approval process has proved to be an insufficient
- protection of Fourth Amendment rights.
-
- This comes as no surprise, of course, to those who have more than a high
- school civics textbook familiarity with criminal procedure.
-
- >Warrants are issued by judges and are based on evidence.
-
- Not exactly. Typically, warrants are issued by judges (or some other
- "neutral magistrate") on the basis of affidavits written by law-enforcement
- agents. The agents describe and characterize the illegal activity they seek
- to investigate. So long as the FORM of warrant-seeking procedure is adhered
- to, the content of the warrant is rarely (one is tempted to say "never,"
- but that's not quite true) inquired into by the judge. The procedure is
- NONadversarial--that is, there's no one there to challenge the
- law-enforcement agent's characterization of the facts. So long as the judge
- has no reason to believe that the agent is INVENTING facts, she'll normally
- approve the warrant.
-
- But the agent's good faith is NOT a measure of the accuracy of the
- information contained in a warrant, especially in computer-crime cases, in
- which the very nature of the property crime is being defined in the process
- of prosecuting alleged wrongdoers. (These are the cases that will set the
- precedents for how the federal computer-crime law will be interpreted in
- the future.)
-
- There is little doubt that the agents have a good-faith belief that they
- are going after genuine wrongdoers. But to assume that law-enforcement
- officials have any kind of *objective* sense of the magnitude and damage of
- the "crimes" being prosecuted here is to misunderstand the character of
- federal law-enforcement--generally, these are a bunch of zealous (and
- sometimes over-zealous) policemen who tend to define the reach of federal
- crime statutes VERY broadly.
-
- >Any
- >information suggesting that warrants were improperly issued or that
- >evidence was fictitious, falsified, illegally obtained, etc. would
- >probably be welcomed in this forum. I think warrants are public
- >information.
-
- This is more or less a non sequitur. It ignores the fact that warrants,
- like indictments, are *rhetorical* documents, designed to convince the
- reader that the goals of the writer are correct. The question is not
- whether the facts are wrong, but how they are characterized for rhetorical
- purposes.
-
- >If we can determine that searches were done with properly issued
- >warrants we would have a situation that would be closer to due process
- >than "abridging of First Amendment rights".
-
- This assumes that if the Fifth Amendment requirement of Due Process (as
- well as, I assume, the Fourth Amendment requirement of "reasonable"
- searches and seizures), there can be no First Amendment interests at stake.
- This is a misreading of Constitutional Law; the requirements of the
- respective Amendments must be met independently of each other.
-
- >Indictments are handed down by grand juries - your peers. Indictments
- >are based on evidence and are customarily (depending on jurisdiction)
- >judgments that the evidence, if not refuted, is sufficient for a
- >reasonable presumption of guilt.
-
- This is incorrect. The presumption of innocence is never overcome by
- grand-jury indictments, even if the allegations contained therein are
- unrefuted.
-
- Properly, one should say that a grand-jury indictment reflects a prima
- facie case against the defendant(s), who are nevertheless presumed innocent
- until judged guilty beyond a reasonable doubt.
-
- >INDICTMENTS ALSO SERVE TO PROTECT
- >THE ACCUSED AGAINST FRIVOLOUS PROSECUTIONS.
-
- No, they do not. The grand-jury process is NOT a screen against any kind of
- prosecution, regardless of what you may have been told. Patrick allowed in
- his comment to your letter that "sometimes" grand juries are merely
- rubber-stamps for prosecutors. "Sometimes" actually is "the great majority
- of the time"--it was not for nothing that Rudy Giuliani said he could get
- the jury to indict a ham sandwich. Grand-jury proceedings are orchestrated
- by prosecutors, and no one has a right to have her attorney present when
- questioned by the grand jury.
-
- >Once you have been indicted you
- >go to trial. The indictment is not a guilty verdict!
-
- No, but it vastly increases the likelihood of one, especially if it comes
- from a federal grand jury. Assuming that you can afford the cost of
- defending yourself in federal court (most people find the cost crippling),
- you're up against an organization that has fact-gathering organizations in
- every state in the U.S., and whose agents have automatic credibility with
- most jurors.
-
- >It's hard for
- >me to conclude that indictment by grand jury constitutes harassment by
- >government.
-
- How soon we forget the 1960s!
-
- >If you don't like the grand jury process or you don't
- >trust your peers to evaluate evidence you've got a more fundamental
- >problem that probably belongs in net.politics.
-
- Or, perhaps, on misc.legal, where this topic has been discussed in the
- past.
-
- >Some postings imply that motive or resulting damage should be a factor
- >in these cases. I think we need to read the law and look at the way
- >the courts apply the law. It's not helpful to argue a case on the
- >basis of what you think the law should be.
-
- Sure it is, when the law is being interpreted in new and more expansive ways.
- Moreover, given the fact that even unindicted third parties can be crippled by
- overzealous (but warranted) seizures, Fourth Amendment interests require that
- we tell judges and legislators how we think the law should be interpreted.
-
- >Perhaps the biggest problem some of you have with the raids, seizures,
- >is that you don't like the law. If that's the case go see your
- >congressman and stop flaming the law enforcement people.
-
- This statement assumes that law-enforcement folks have no discretion in how
- they conduct their searches or prosecutions. This is untrue. Some
- law-enforcement agents have a great deal of respect for the Constitution,
- while others have an us/them mentality that motivates them to pay only
- cursory attention to the Constitutional interests at stake.
-
- >The common carrier issue is one of the few lucid topics to surface
- >recently. Indeed, we don't arrest the UPS guy for delivering a
- >package of stolen property and we don't sieze the mail truck when it
- >contains stolen documents being mailed. Is the law weak on this
- >aspect of computer crime?
-
- Yes, indeed. Which is one of the main problems.
-
- >Should sysops be treated as common
- >carriers? Would this solve some problems but create others? I'd be
- >interested in opinions on this.
-
- Sysops who received common-carrier status would be a bit dismayed at their
- inability to deny access to some users. What is needed is a new status,
- somewhere between common-carrier and private-operator status. Such a
- middle ground would allow sysops to control their user bases while not
- being required to read every bit of verbal information that is transferred
- into or through their systems.
-
- >Disclaimer: I'm not an attorney and I have no personal connection
- >with any of the discussed cases. My views may be colored by the
- >report in UNIX Today 5/28/90 that Leonard Rose was accused of
- >stealing source code from my employer.
-
- It may be that Len Rose was indicted for "stealing source code" (I haven't
- seen that particular indictment), but the other Legion of Doom indictments
- concern the alleged "theft" of an E911 text document. Many newspapers and
- journals have misreported this.
-
- Disclaimer: I have a law degree, but until I take and pass the bar exam, I
- won't be a lawyer, either.
-
-
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- + END C-u-D, #1.14 +
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