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One I'm running into right now is the science of IP addresses. Unfortunately, 99% of criminal cases are where IP address "science" (if you can call it that) ty

One I'm running into right now is the science of IP addresses. Unfortunately, 99% of criminal cases are where IP address "science" (if you can call it that) typically follows the formulaic story where somebody starts downloading certain graphical images, agents working the pipe or the other end log the IP, the ISP identifies the IP account's subscriber (after the law enforcement agency compensates them for their time), and then a search of the corresponding premises is authorized. Luckily I'm not dealing with that. But in that case, the IP address forms the Court's idea of probable cause. If the IP address is a single family home with a single computer and no wi-fi, seems pretty open-and-shut. If it's a Starbucks or a workplace, and that actually results in a team of agents descending on it and searching and seizing the occupants' computers, then I think most would agree it's an abuse of power. The challenge the Courts have is that middle category. What if I told you with a straight face that I believe you did something illegal, I have an IP address that used to be yours connected with that act, though no proof it was yours at the time, no proof you were using that location's internet at that time or even there to use it, and no idea how many other people were using the wifi there? That's good enough to convict until US courts rule otherwise.

tyfon 8y ago
Even with a single home, a single computer and no wifi the computer could easily be hacked and used as a VPN for such matters. I don't think it's that open and shut. Unless you require every person who has an electronic device to be personally responsible for security bugs on such systems. You can get owned even if you are careful given the right security holes.
- mchannon 8y ago
  I did kinda muddle the difference between guilt at trial and probable cause for a search and seizure in my post, but I believe most Americans at least would be of the opinion that even considering that possibility, it's still good enough for them to go in and seize/search that computer. It's not a charge or a conviction at that point. If no contraband shows up on the computer, charges are dropped and computer is returned intact•. And maybe hopefully there's forensic traces of malware that the defendant can use to argue his innocence. That last point has never been argued ("look here's some malware"), at least in my reading of the caselaw. Most guys (it's always men) just usually confess or plead and then try to argue their way out of it unsuccessfully afterward. Hitting and killing a kindergartener with your car carries lesser criminal penalties in this country than downloading and storing a GIF that millions of others have already downloaded and stored. Fixing the science discrepancy is only one of many things due for a reckoning in this country.
  - mikeash 8y ago
    Probable cause based on an IP address you had seems reasonable to me. It’s the digital equivalent of footprints leading from your door to the crime scene. It could have been a guest or a burglar, but it’s enough to justify a search. No way should it be anything close to sufficient for a conviction, though.
jimmy1 8y ago
> If the IP address is a single family home with a single computer and no wi-fi, seems pretty open-and-shut So say you do have WiFi but you leave it wide open to the public, does that mean you have plausible deniability in IP-address related cases? "could have been my neighbor, could have been a guy walking down the street using my wifi, could have been anyone"
- devoply 8y ago
  Question is whether they find something during the search or not, cause they are going to search regardless. You are inviting the search by making your wifi public more or less.
- mchannon 8y ago
  As things stand now, obviously not. Law enforcement doesn't have to prove you did it before the search and seizure, merely establish "probable cause". Was it probable it was your computer doing the downloading? At trial (in the unlikely event it goes to trial instead of a plea deal), then it's supposed to be "beyond a reasonable doubt", but by then everybody (except in the number of cases involving Brady violations) sees everybody's cards. Except the Court believes the law enforcement officials as to what those cards say, even when it's not what they say. And that's the trouble: not in evidence gathering but in convictions. Network routers and modems are really bad at logging who accessed what from what MAC address. Mandating that routers start logging would in practice probably aid civil liberties more than harm them, simply because of the presumptions out there.
- ceejayoz 8y ago
  It's not going to save you from a search. It might save you in a criminal trial, if your devices show no evidence of what they were searching for, no signs of being tampered with, etc.

tyfon 8y ago

Even with a single home, a single computer and no wifi the computer could easily be hacked and used as a VPN for such matters. I don't think it's that open and shut. Unless you require every person who has an electronic device to be personally responsible for security bugs on such systems. You can get owned even if you are careful given the right security holes.

mchannon 8y ago
I did kinda muddle the difference between guilt at trial and probable cause for a search and seizure in my post, but I believe most Americans at least would be of the opinion that even considering that possibility, it's still good enough for them to go in and seize/search that computer. It's not a charge or a conviction at that point. If no contraband shows up on the computer, charges are dropped and computer is returned intact•. And maybe hopefully there's forensic traces of malware that the defendant can use to argue his innocence. That last point has never been argued ("look here's some malware"), at least in my reading of the caselaw. Most guys (it's always men) just usually confess or plead and then try to argue their way out of it unsuccessfully afterward. Hitting and killing a kindergartener with your car carries lesser criminal penalties in this country than downloading and storing a GIF that millions of others have already downloaded and stored. Fixing the science discrepancy is only one of many things due for a reckoning in this country.
- mikeash 8y ago
  Probable cause based on an IP address you had seems reasonable to me. It’s the digital equivalent of footprints leading from your door to the crime scene. It could have been a guest or a burglar, but it’s enough to justify a search. No way should it be anything close to sufficient for a conviction, though.

jimmy1 8y ago

> If the IP address is a single family home with a single computer and no wi-fi, seems pretty open-and-shut So say you do have WiFi but you leave it wide open to the public, does that mean you have plausible deniability in IP-address related cases? "could have been my neighbor, could have been a guy walking down the street using my wifi, could have been anyone"

devoply 8y ago
Question is whether they find something during the search or not, cause they are going to search regardless. You are inviting the search by making your wifi public more or less.
mchannon 8y ago
As things stand now, obviously not. Law enforcement doesn't have to prove you did it before the search and seizure, merely establish "probable cause". Was it probable it was your computer doing the downloading? At trial (in the unlikely event it goes to trial instead of a plea deal), then it's supposed to be "beyond a reasonable doubt", but by then everybody (except in the number of cases involving Brady violations) sees everybody's cards. Except the Court believes the law enforcement officials as to what those cards say, even when it's not what they say. And that's the trouble: not in evidence gathering but in convictions. Network routers and modems are really bad at logging who accessed what from what MAC address. Mandating that routers start logging would in practice probably aid civil liberties more than harm them, simply because of the presumptions out there.
ceejayoz 8y ago
It's not going to save you from a search. It might save you in a criminal trial, if your devices show no evidence of what they were searching for, no signs of being tampered with, etc.