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Essentially this means they're willing to let all 135 defendants walk rather than reveal the source code. (IANAL, but I'm pretty sure that when one of them goes

by jobu 10y ago

Essentially this means they're willing to let all 135 defendants walk rather than reveal the source code. (IANAL, but I'm pretty sure that when one of them goes free because of this, it sets a precedent that all defendants can use.) This seems really fishy. The only way it makes sense is if the FBI is doing something massively illegal in that source code, and I can't even fathom what that would be. Perhaps there is no source code, and they're using NSA tools or other illegal wiretapping methods instead.

rosser 10y ago
The way the prosecution is dismissing these cases at the appellate level means no binding precedent will attach. There's another legal notion, though, called "persuasive precedent", which, while not binding, does often tend to guide the judgement of peer courts. I'm not sure if the demands from trial and appellate judges to release the code, and the dismissals the State resorts to in order to avoid that outcome can properly be taken as precedential, however, persuasive or otherwise.
WildUtah 10y ago
They can still prosecute anyone they caught by independent means. It's just a matter of having some other way to search their computers, which is just a formality in most prosecutions. It's exceedingly easy to get a warrant against anyone these days; that's why they have parallel construction.
- rincebrain 10y ago
  The problem appears to be that they didn't doso, and they took over the site for ~2w before shutting it down, so they no longer _could_ doso if they wanted to. I'm entertained that they're going to such lengths essentially to conceal their 0days. Did they assume the judges were just going to let them skirt by without verifying how they identified people? You'd think they'd have learned from the days of IDing piracy by IP address that it's generally not going to fly any more.
  - WildUtah 10y ago
    Giving up cases only if a competent public defender wants proof of guilt, including technology used, is a longstanding practice. [0] Then you underfund the PDs and live content that criminals rich enough to have a lawyer will often go free. It's a beautiful justice system. [0]https://en.wikipedia.org/wiki/Stingray_phone_tracker https://en.wikipedia.org/wiki/Stingray_phone_tracker
- deleted 10y ago
  [deleted]
cronjobber 10y ago
> This seems really fishy. The only way it makes sense is if the FBI is doing something massively illegal in that source code Nope, it also makes sense if the Tor browser exploit still works, and is expected to be useful in way more interesting cases than putting away people for possession of pixels.
TheGrumpyBrit 10y ago
I don't believe that's the case here. However, the order given by the Judge in Michaud's case predates the classification of the source code. That gives the prosecutors three choices: 1) Produce the source code. They clearly don't want to do that. 2) Ask the judge to reconsider. While that seems sensible on the face of it, it's not without risk. It's pretty obvious that they've classified the code to prevent it being requested, and judges don't like it when you undermine their authority in such a blatant way. 3) Quietly drop the charges and back away. They can do this with Michaud without impacting other cases, because no other judge can order them to produce the source code.

by jobu 10y ago

rosser 10y ago

The way the prosecution is dismissing these cases at the appellate level means no binding precedent will attach. There's another legal notion, though, called "persuasive precedent", which, while not binding, does often tend to guide the judgement of peer courts. I'm not sure if the demands from trial and appellate judges to release the code, and the dismissals the State resorts to in order to avoid that outcome can properly be taken as precedential, however, persuasive or otherwise.

WildUtah 10y ago

They can still prosecute anyone they caught by independent means. It's just a matter of having some other way to search their computers, which is just a formality in most prosecutions. It's exceedingly easy to get a warrant against anyone these days; that's why they have parallel construction.

rincebrain 10y ago
The problem appears to be that they didn't doso, and they took over the site for ~2w before shutting it down, so they no longer _could_ doso if they wanted to. I'm entertained that they're going to such lengths essentially to conceal their 0days. Did they assume the judges were just going to let them skirt by without verifying how they identified people? You'd think they'd have learned from the days of IDing piracy by IP address that it's generally not going to fly any more.
- WildUtah 10y ago
  Giving up cases only if a competent public defender wants proof of guilt, including technology used, is a longstanding practice. [0] Then you underfund the PDs and live content that criminals rich enough to have a lawyer will often go free. It's a beautiful justice system. [0]https://en.wikipedia.org/wiki/Stingray_phone_tracker https://en.wikipedia.org/wiki/Stingray_phone_tracker
deleted 10y ago
[deleted]

cronjobber 10y ago

> This seems really fishy. The only way it makes sense is if the FBI is doing something massively illegal in that source code Nope, it also makes sense if the Tor browser exploit still works, and is expected to be useful in way more interesting cases than putting away people for possession of pixels.

TheGrumpyBrit 10y ago

I don't believe that's the case here. However, the order given by the Judge in Michaud's case predates the classification of the source code. That gives the prosecutors three choices: 1) Produce the source code. They clearly don't want to do that. 2) Ask the judge to reconsider. While that seems sensible on the face of it, it's not without risk. It's pretty obvious that they've classified the code to prevent it being requested, and judges don't like it when you undermine their authority in such a blatant way. 3) Quietly drop the charges and back away. They can do this with Michaud without impacting other cases, because no other judge can order them to produce the source code.