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The main problem I see is this: > His attorney said his defense was hampered by an inability to obtain basic information about how the evidence was obtained an

by mholt 11y ago

The main problem I see is this: > 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.

tptacek 11y ago
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?
- tremon 11y ago
  That doesn't matter. If the government can't prove how it obtained the evidence, it also can't prove that it didn't manufacture said "evidence".
  - tptacek 11y ago
    The government has explained how it obtained the evidence. That's not the basis of the defense's complaint.
- mholt 11y ago
  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.
mindslight 11y ago
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.
- chroma 11y ago
  > 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. 1. https://en.wikipedia.org/wiki/Separation_of_isotopes_by_laser_excitation https://en.wikipedia.org/wiki/Separation_of_isotopes_by_lase...

by mholt 11y ago

tptacek 11y ago

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?

tremon 11y ago
That doesn't matter. If the government can't prove how it obtained the evidence, it also can't prove that it didn't manufacture said "evidence".
- tptacek 11y ago
  The government has explained how it obtained the evidence. That's not the basis of the defense's complaint.
mholt 11y ago
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.

mindslight 11y ago

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.

chroma 11y ago
> 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. 1. https://en.wikipedia.org/wiki/Separation_of_isotopes_by_laser_excitation https://en.wikipedia.org/wiki/Separation_of_isotopes_by_lase...