The Metropolitan Police Department of Washington DC has access to the FBI and NSA for the prosecution of a local crime? Says who?
First, IANAL.
If in the course of executing a valid warrant police find evidence of a different crime either in plain sight or in a concealed location they may seize that evidence and use it in prosecution of that other crime, subject to a minor limitation - the sugar bowl test.
The Sugar Bowl principle limits a search to such locations that could hold the described object(s) to be searched for. If the police state in a warrant that they are looking for a stolen television set they cannot search inside a sugar bowl since the television set is too large to possibly fit inside the sugar bowl.
To get around this limitation a warrant might specify a search for the television set or any component thereof. And since a tiny screw that could be a part of the stolen television set could conceivably fit inside a sugar bowl then search of such bowl would fall within the terms of a warrant specifying a search including parts.
So the police searching a house looking for a stolen television instead find a famous stolen painting hanging on the wall in plain sight then they may seize that painting as evidence. And they could use that evidence in court against the homeowner in an art theft case.
If instead the warrant was only for an intact stolen car (and the warrant did not specify parts thereof) and the police found that same stolen painting in a locked trunk in the attic of the house being searched then the evidence of the painting could not be used against the homeowner. Since an intact stolen car is too large to be maneuvered into an attic and sealed in a locked trunk then search of such location would be outside the scope of the warrant. The police still would seize the painting and begin the process to return it to its rightful owner even if they could not use such evidence in an art theft case in court against the homeowner.
As to this case, if the police search computer files that could conceivably contain the fruits, evidence, or instrumentalities of a crime related to users of the website in question and instead discover evidence of another crime then they can seize that evidence and use it in court. They might go get a revised warrant, but they don’t have to do so.
So, yes, law enforcement could seize copies of pee pee tapes if that is evidence of a crime and found in the ordinary course of executing a search warrant on this server.
The DOJ does.
Tech firm is fighting a federal demand for data on visitors to an anti-Trump website
[QUOTE=The Washington Post]
A spokesman for the U.S. attorney’s office in the District of Columbia, which sought the warrant, declined to comment.
[/QUOTE]
Emphasis mine.
And they have other avenues to develop such evidence than compromising the privacy of a multitude of other users.
I’d have to look at their respective privacy policies and, since I don’t have any particular urge to have my info swept up in the DOJ’s overbroad dragnet, that’s not going to happen. But given DreamHost’s resistance to the warrant, I’d expect that it’s covered.
You yourself argue against this further down the thread:
The US Attorney we are talking about is functioning as the prosecutor for DC. I don’t have any reason to believe that the FBI or NSA provide routine support to the US Attorney when he is prosecuting local, non-Federal crimes. Do you have evidence of that?
Why is it relevant to the validity of a search warrant to assert that there are also other places the government could search? And here I mean legally relevant.
“Reasonable expectation of privacy,” means something specific in Fourth Amendment analysis.
Why do think the site’s policy is relevant?
I laid out the existing framework and made no real argument.
So, they have no evidence that any crime has been committed - but want to go searching to see what they might find?
The words you quoted clearly say that the government has probable cause to believe the fruits of a crime can be found. This means that there was a crime.
It is incomprehensible to me that you can read what I wrote and reach the conclusion “they have no evidence that any crime has been committed.” Where but from a crime would come the fruits evidence, or instrumentalities of a crime?
Does that mean that if one of the SDMB members here commits some sort of criminal act, that the govt could then demand from the SDMB for all the IPs of all its users?
No.
But if the government laid out facts establishing probable cause that the fruits, evidence, or instrumentalities of a crime could be found on the file space controlled by the SDMB, then they could demand all those files, and those files would likely include Apache or IIS logs, which would include the IP addresses of each browser that accessed the site.
In case the distinction between what you asked and what I said continues to be unclear, let me offer this illustration:
If SDMB user Poltroon1632 is arrested for aggravated assault after striking a cashier who shortchanged her, it is unlikely that the SDMB would contain fruits, evidence or instrumentalities of a crime. The government would not likely be able to show any facts that tie the site to the crime in any way. When you asked, “Does that mean that if one of the SDMB members here commits some sort of criminal act…” this would qualify as some sort of criminal act. But it wouldn’t be likely to create a situation in which the SDMB could be searched.
In contrast, let’s now imagine SDMB user Craven415, who is arrested for her part in a scheme to send fake money order “overpayments,” to people who will then refund her overpayments with real money. After she’s arrested, she tells investigators that she got the names and addresses of victims through SDMB Private Messages from users Cantrell1231 and Solipist66, and she thought there were others involved as well.
In that event, the government would likely have probable cause to search the SDMB file space.
So you see that it’s not “any crime.” It’s simply probable cause to believe that the fruits, evidence, or instrumentalities of a crime can be found.
‘probable cause to believe’ is not evidence that the fruits or the crime exists. I’m still wanting to hear exactly what crime(s) allegedly took place on this website or that visitors to the website committed simply by visiting.
Articulate for me exactly what crime the visitors of said website are being investigated for - and what crimes the website allegedly contains.
What ‘fruits’ will the ip addresses reveal?
I know you are well versed in internet terms - so tell me - what do you think they’ll learn by getting IPs of all visitors? Have you ever looked at a HTTP log?
IMHO, if I were the sole arbitrator of how this played out, then the individual user accounts would be opened up for the investigators, and they would need to get a warrant to open up any others.
So they get a warrant for craven, cantrell, and solip, and see that they were talking to billy and johnny as well about their crimes, so they get warrants for them as well, and so on for anyone that they were talking to with criminal intent. This evidence can be used against them. You can follow that tree as far as it goes, but uprooting the whole thing to see what else is under there seems a bit far.
The way it is, they would also have any PMs between you and any other members, even if you were not involved in or even aware of the criminal activity at all. That seems to me to invade the privacy of people not in any way subject to the spirit of the warrant.
If they turned up a different crime in those PMs, suppose someone is using the board pm system to successfully sell some illegal good or service. Would they be able to use the evidence obtained to go after that?
If it were simply seditious talk of some kind, or idle threats made in anger that are never meant to be made public, like if I pm’d a different poster, and said, “so and so politician is pissing me off, I’d like to…”, would they then be able to go after me for threatening a public official?
Not legally, sure, but what physically would stop them from “leaking” certain private conversations that people may have had, that are in no way illegal, but possibly embarrassing?
I guess I understand that it is legal in what they are asking for.
It still seems like an overreach, and IMHO it really sounds like a fishing expedition to reveal enemies of the administration.
Last question, I take it you do think that the DOJ will win out on this, or do you feel it is up in the air at all?
I could get behind investigators getting the accounts of anyone arrested, and seeing if they actually used the site to plan and organize violent activities through messaging or posts.
Anything more than that goes too far, IMHO.
If it is a matter of matching IPs to user names to real names, then they could give the site a list of IPs, and ask what users logged in from those, I would have little objection to that, as long as it isn’t a fishing expedition. More like “This warrant specifics that we arrested john smith, who might access the site through these IP addresses, if these addresses match any of your users, we need the user name.” (obviously, terrible legalese there)
Then follow through with a separate warrant to get access to the account of that user name.
Yes, it is.
“Probable cause,” exists when the facts and circumstances within the officer’s knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that a crime has been or is being committed. That’s the legal definition of “probable cause.”
So it IS evidence, you see, or more accurately it is a term that describes the sufficiency of the existing evidence.
I don’t know why you’d be waiting for that. As I have explained several times above, the government has not alleged that “crimes took place on the website,” or that anyone committed a crime by visiting. Instead, they have laid out the facts and circumstances that lead them to believe that a crime was committed somewhere, and the fruits, evidence, or instrumentalities of that crime will be found within the website’s files.
It’s not clear to me why this confuses you.
Please read my previous paragraph.
I can give some hypotheticals.
Many times.
Apache, to take one example, produces logs that look much like this:
192.168.1.17 - bricker [16/Aug/2017:11:07:25 -0500] "GET /tester/main.html HTTP/1.0" 200 1459
That shows that a user named bricker was successfully served up a file called main.html from the webroot/tester directory at 11:07 AM on August 16, and the request came from IP 192.168.1.17.
So let’s imagine that the investigators have determined that they have probable cause to believe that users reziztTrump and buurnTheDrumpf conspired to violate DC Code § 22-1322. They don’t know who reziztTrump is.
But the httpd log will show a line like the one above, one that shows which IP address was used by that user account to access the site. Let’s say it was 10.21.32.43 (I am picking non-routable addresses for this discussion; in real life, both of those addresses are not public and would indicate internal access). This then allows the investigators to do two things. First, they can subpoena the ISP that owns 10.21.32.43 and determine which of their subscribers was using that address at the time in question. They can also search the log for other instances of that IP address to see if it was the source of any other user names, and track the activity those names undertook on the site.
And, most obviously, they can use the names of the files that were served up to possibly identify the content or activity that the user undertook.
“Physically?”
Nothing that I know of could physically stop such a leak.
In my opinion, somewhere out there is a great test case that will trigger a substantive re-evaluation of the way search warrants are crafted for the modern electronic age. Because, again in my opinion, this is sorely needed.
But I would doubt that this is that case. Love to be wrong, though.
Well, what would stop them would be lacking access to the information in the first place, which I guess was my point.
Giving LEO this much data to comb through is pretty much asking for personal stuff like that to be leaked.
What would the differences be that would make this case be that case? Better defendants, or a somewhat different situation altogether?
I think this one’s fatal flaw is Dreamhost trying to assert someone else’s privacy rights. A better case would be.a challenge by Joe of a search of Joe’s phone.
Can we talk about the other possible(if not probable) reason to serve such a warrant-to intimidate the public into not frequenting websites that are critical of the President?
I’m curious: Do you discern any important differences between a website called DisruptJ20 and other websites that are routinely critical of the President, like our very own SDMB for example?
Can you understand the near impossibility of hitting all critical websites at the same time?
It’s just not cost effective. If they can use one or two as an example, then they possibly intimidate the others.