**************************************************************************** >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. -------------------------------------------------------------------- *************************************************************** *** 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. =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+ + END C-u-D, #1.14 + +=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+===+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=  Downloaded From P-80 International Information Systems 304-744-2253 12yrs+