Monthly Archives: August 2009

The Cyber Revolution Reaches the Ninth Circuit

The Ninth Circuit just decided United States v. Comprehensive Drug Testing which includes some very important new rules for seizing data on people’s computers. Or so I’m told by folks like Scott Greenfield and Orin Kerr, who understand these things far better than me.

As I understand the problem Kozinski is trying to solve, the government used to treat a search for anything on a computer as a license to rummage through all of it. This makes a certain amount of technical sense because the name of the file is merely a convention for humans: The file WeddingGuests.xls can actually contain the block-by-block sales data for your drug-dealing empire, so the police are going to want to look at it if they have a warrant for the records of a criminal enterprise.

Even the file extension that identifies the content—.mp3, .jpg, .xls, .doc—is a standard that can be bent or broken. Rename ChildPorn.jpg to 2009Q3-PandL-Newark.xls and it will look like a spreadsheet in Windows Explorer, and if you double click it, Windows will try unsuccessfully to open it with Excel. Law enforcement agencies are aware of this, so they will want to examine every file.

Once they’ve looked at a file, even if it’s not the one they’re searching for, they can’t un-look at it. Under the plain view exception to the warrant requirement, they can go ahead and use it in a criminal investigation.

In the physical world, the cops generally can’t do this so extensively. If they have a warrant to search your home for a baseball bat used as a murder weapon, they can’t search your medicine cabinet and read your checkbook. (On the other hand, if they they open your closet and see 20 kilos of cocaine, it comes in under the plain view exception, since it was reasonable for them to look in the closet.)

In the world of your computer, it’s all just data on the disk, and there’s no way to distinguish it until after they’ve oopened it up. It’s as if they had a warrant to search your house for a murder weapon, but then took the time to rummage through everything you own, and it all came in as evidence.

It’s understandable, but it’s also a problem. Lots of people these days keep their entire lives on their computer, and the Constitutional requirement that warrants must be “particularly describing the place to be searched, and the persons or things to be seized” seems to be violated if every computer search allows police to rummage through the digital reflections of our entire lives.

The Ninth Circuit’s ruling fixes that problem in a rather extraordinary manner, as summarized by Orin Kerr:

They created a set of prophylactic rules that has the effect of banning plain view through ex ante restrictions. The Ninth Circuit took a truly remarkable step: It ordered the government to behave exactly as it would behave if the plain view exception did not exist. The court wrote out a list of ways that the government would act if there were no plain view exception, and then ordered the government to follow those rules as a condition of getting the warrant in the first place. The plain view exception is gutted by ensuring the government will never be in a position to try to offer the evidence to a court in the first place.

(Chief Judge Alex Kozinski, who wrote the opinion, has had a few problems of his own with people looking over his computer files, so maybe he’s one of those empathetic judges everyone is talking about.)

As others have pointed out, no computer search in history has ever met this standard, so things are going to get complicated for a while. Or at least until the Supreme Court reverses it, as is their way with Ninth Circuit decisions that make life too hard for law enforcement agencies.

On the other hand, I don’t think the Ninth Circuit went far enough. When law enforcement agencies search your house, they eventually leave. They may take some evidence with them, but you do get to use your house again.

But when law enforcement agencies want to search your computer, they often take it with them and keep it during the investigation. This is a problem for those of us who live our lives on the computer and make our livings from it. (Backups don’t help, since the government can and will take those too.) The government can investigate you for a white collar crime and wipe out your business by taking all your computers without ever coming close to getting a conviction.

There’s no excuse for this. A copy of the digital data on your computer is exactly as good as the original, so they only need a copy for purposes of an investigation. Taking your whole computer is either lazy or downright punitive. It’s punishment without trial.

Going even further, I’d like to see our computers recieve some of the same protections that our bodies and minds do. My computer may not be wired to my brain like some sort of cyberpunk implant, but it’s a pretty intimate part of my life. And it can only contain information and ideas, so it’s not like there are safety concerns.

I find it perverse that any communication with our lawyers is protected from government snooping, but our own personal records, notes, and diary contents are considered fair game for a government fishing trip. (Important tip to diarists: Label your diary as a “Privileged Legal Communication.” Claim it’s a timeline of events for your lawyer.)

Finally (and if you know me you’ve seen this coming) we wouldn’t have most of these problems if we didn’t criminalize so much consensual conduct. Time and again, these screwy Fourth Amendment exceptions turn up in cases without victims, where the government has to go snooping because nobody else cares that the so-called crime has occurred.

in Legal

It’s Been A Bad Year

My mother died in April, I moved in with my father for a few months to take care of him until I could find a nursing home, I moved him to the nursing home, I cleaned out his apartment, and I straightened out his finances. Now my father’s died too, and I just got back from visiting his brother and sister and taking his ashes back to where he grew up in Kentucky.

I guess I just don’t have a lot of mental energy left over for blogging these days. Sorry.

On top of that, it’s the start of the busy season for my largest client, and one of my on-again-off-again clients is on again.

I’ll try to get things going again around here as soon as I recover.

The Smoking Gun, Part II: When the Going Gets Weird, the Weird Get Put on Patrol, Version 1.1

Nah. Updating doesn’t go quite far enough; I really should eat a little more crow. But just a little.

Let’s try that again — and I’m going to leave the original up, for historical purposes. Bloggers — well, ones who care to do it right — don’t throw errors down the memory hole. Hence, Version 1.1.

Let’s start off by reviewing the key paragraph in our last episode:

On April 16 of 2008, Sheriff Bob Fletcher and Ramsey County Attorney Susan Gaertner filed a hundred-page petition (here’s Part 1; here’s Part 2) with District Judge Joanne Smith, requesting that the judge revoke what they called Wilson’s “conceal and carry permit”, and documenting, in great detail, each and every one of the incidents above. In detail. The petition had been written and researched by David Rossman — then a deputy assigned to Sheriff Fletcher’s gun permit unit.

Which, combined with all the other strangenesses, was more than strange enough.

This morning it got stranger. The following was posted in the comments — go look for yourself.

I represent Ms. Wilson. You are wrong on many of your facts.

In addition, the incidents of 2004 and 2007, did not involve Michelle Rae Wilson. Those incidents involved another “Michelle Wilson”. Ms. Wilson has no son named Terrance. She was not the perpetrator in those situations. I guess you should print at retraction.

All of this is wrong:

“In 2004, two neighbors accused Wilson and another son of pouring sugar in their car’s gas tank; according to police records, one said that, “Michelle Wilson threatened to blow up her house and kill her. She taunted her to go outside.” She owed Wilson $60, and couldn’t pay. Vandalism is a crime; terroristic threats are a felony.

“But Wilson was never prosecuted — SPPD Officer Kong just left a card at the house — and it all went away.

“In 2007, Nakeshia Britton, a high school classmate of Wilson’s son Terrence, got another restraining order, claiming that Wilson, her son and others had followed Britton’s school bus home, after which Wilson and her son Terrence, “came up on the porch with broken beer bottles and a bat trying to hit me… and told Edna, my foster mom, to let me come out so they can kick my retarded ass.” She said that they tried to force their way in.”

Michelle has a clean record. Her friends and neighbors love her. You wrote a very unfair and factually false piece as it pertains to her.

Thanks,

Gary Wolf
Attorney for Michelle Rae Wilson

I’m always up for correcting any facts, of course, and I have good reason to credit Mr. Wolf’s claims of this morning that the 2004 and 2007 incidents were another Michelle Wilson.

But, let’s be clear: they’re not my facts. The source for the story wasn’t my imagination — I’m just a fiction writer, by trade, and I couldn’t have made this stuff up; it’s far too weird for fiction.

The 1996 incidents, which Mr. Wolf doesn’t dispute was his client, is from sections #6 and #7 in Sheriff Fletcher’s and County Attorney Susan Gaertner’s revocation petition, and their Exhibit K and and Exhibit L, both of which were submitted to the court in support of that petition.

Somebody accused of hounding an ex for four years (and that’s what the accusation is in Exhibit K and L; I don’t know if the accusers were lying) being issued a carry permit in Ramsey County? Let’s not be silly. That wouldn’t happen unless the applicant was connected — say, by being the aunt of a Saint Paul cop.

But let’s turn to the two incidents that Mr. Wolf does — and with good reason — dispute.

The 2004 incident, which Mr. Wolf does say was some other Michelle Wilson (and he appears to be right) is also from Sheriff Fletcher’s revocation petition, in which he claims that Respondent — that’s Mr. Wolf’s client — was named as a criminal suspect, and which Sheriff Fletcher supports with his Exhibit J.

The 2007 incident, which Mr. Wolf also says was some other Michelle Wilson, is, yet again, from Sheriff Fletcher’s revocation petition, in which Sheriff Fletcher claims that Respondent — that’s still Mr. Wolf’s client — was hit by a restraining order, and which he supports by his Exhibit I.

Let’s assume — he does seem credible to me; you decide for yourself — that Mr. Wolf is right. Why — when trying to revoke (instead of to suspend, with a one-page petition citing the pending charges) a carry permit of a woman who was sitting in jail, accused of murder — did Sheriff Fletcher throw accusations about another Michelle (or Michele; and without the “Rae”) Wilson into the mix?

The reason I credit what Mr. Wolf says is that it appears that “Michelle Rae Wilson” has lived at the Iglehart address since 1996, whereas the “Michelle (or Michele) Wilson” in the 2004 and 2007 incidents lived at a Dale Street or Magnolia Avenue address. It is highly improbable Michelle Rae Wilson maintained two or three separate residences simultaneously.

Also, Mr. Wolf’s client apparently always uses her middle name in official matters. I suspect that the other Michelle (or Michele) Wilson doesn’t have a middle name. This is expressly identified as a fact on the West side of the river with a “NMN,” for “No Middle Name.” It aids in correct identification.

I can easily imagine the conversation between client and attorney concerning the background: “That’s not me; it’s someone else with most of my name,” Michelle Rae Wilson probably said.

I, and others with whom I researched this article, are humbled by the revelation from Mr. Wolf. We should have caught it in our fact-checking and it appears so obvious with 20-20 hindsight. No; we are chastened. Thank you, Mr. Wolf; no excuses; we will make sure that it doesn’t happen again.

No excuses, but here’s the explanation: we all were overwhelmed with the outrageousness of the overkill of Sheriff Fletcher’s petition to revoke, when a petition to suspend would have sufficed.

“Methinks she [don’t visualize Sheriff Fletcher in a dress; you’ll burn your retinas. JR] doth protest too much.” We, too, took the lengthy petition at face value and neglected to double-check the citations, simply because the Sheriff and the County claimed the asserted facts as true and adopted them. That’s our explanation, such as it is. Why didn’t County Attorney Susan Gaertner, Assistant County Attorney Karen A. Kugler, or the judge who signed off on Sheriff Fletcher’s petition didn’t check his homework?

I guess you’ll have to ask them; I’ll not draw any conclusions.  Yet.

And I’ll refrain from drawing any conclusion as to the Ramsey County Sheriff’s Office malice, at least at this point, when simple, bumbling incompetence provides an entirely sufficient answer, and yet another argument that somebody should always be checking out Sheriff Fletcher’s allegations, and not believing them until they’ve been reliably confirmed.

There are other good questions which still remain. Why wasn’t the 1996 restraining order enough reason for Sheriff Fletcher to deny Michelle Rae Wilson’s permit application in the first place? He’s certainly denied other applicants for less.

Why, when she was sitting in jail, did he apparently throw every accusation he could find up against the wall and see what would stick? Wasn’t the murder charge enough?

And why, after years in the Ramsey County Sheriffs Office gun unit, was David Rossman transferred to patrol after researching and writing that petition — apparently to the best of his demonstrably limited abilities?

Apparently, one of the possibilities I raised in the last episode has not panned out: the transfer was apparently not a reward for the accuracy and thoroughness of the research he did in the revocation petition. What did happen with the bumbling Deputy Rossman — and why? Is it possible that, after deciding that Rossman was too incompetent to properly shuffle paper around, Fletcher put him in a squad car with a handgun and a shotgun to do things requiring far better and sharper immediate judgment than he’d already demonstrated was lacking in his leisurely, carefully-considered one during his time in the gun permit unit?

I’d love to know the answers to these questions.

And there’s more. Me, I think it would also have been news to many of us, back in 2008, after the murder, that the accused murderer was a Saint Paul PD dog cop’s aunt, using supposedly, the gun that that same cop had given her.

Doesn’t that sound like news to you?

Ah, if only there were some enterprise locally, that hired people to look into interesting questions about public figures and public officials, then reviewed and edited their reports, and printed them daily upon some inexpensive medium for public distribution.

Instead, what we’ve got is the Pioneer Press and the Star Tribune.

The Smoking Gun, Part II: When the Going Gets Weird, the Bumbling Get Put on Patrol

Let’s start off by reviewing the key paragraph in our last episode:

On April 16 of 2008, Sheriff Bob Fletcher and Ramsey County Attorney Susan Gaertner filed a hundred-page petition (here’s Part 1; here’s Part 2) with District Judge Joanne Smith, requesting that the judge revoke what they called Wilson’s “conceal and carry permit”, and documenting, in great detail, each and every one of the incidents above. In detail. The petition had been written and researched by David Rossman — then a deputy assigned to Sheriff Fletcher’s gun permit unit.

Which, combined with all the other strangenesses, was more than strange enough.

This morning it got stranger.  The following was posted in the comments — go look for yourself.

I represent Ms. Wilson. You are wrong on many of your facts.

In addition, the incidents of 2004 and 2007, did not involve Michelle Rae Wilson. Those incidents involved another “Michelle Wilson”. Ms. Wilson has no son named Terrance. She was not the perpetrator in those situations. I guess you should print at retraction.

All of this is wrong:

“In 2004, two neighbors accused Wilson and another son of pouring sugar in their car’s gas tank; according to police records, one said that, “Michelle Wilson threatened to blow up her house and kill her. She taunted her to go outside.” She owed Wilson $60, and couldn’t pay. Vandalism is a crime; terroristic threats are a felony.

“But Wilson was never prosecuted — SPPD Officer Kong just left a card at the house — and it all went away.

“In 2007, Nakeshia Britton, a high school classmate of Wilson’s son Terrence, got another restraining order, claiming that Wilson, her son and others had followed Britton’s school bus home, after which Wilson and her son Terrence, “came up on the porch with broken beer bottles and a bat trying to hit me… and told Edna, my foster mom, to let me come out so they can kick my retarded ass.” She said that they tried to force their way in.”

Michelle has a clean record. Her friends and neighbors love her. You wrote a very unfair and factually false piece as it pertains to her.

Thanks,

Gary Wolf
Attorney for Michelle Rae Wilson

I’m always up for correcting any facts, of course, and I have no particular reason to doubt Mr. Wolf’s claims of this morning that the 2004 and 2007 incidents were another Michelle Wilson.

In fact, I think he’s right. Hence:

Addendum and digression:

Let me put that more strongly:  Oops.  I missed something.  After getting Mr. Wolf’s email this morning, and reading his comment, as reprinted above, I went back and looked again at the voluminous documentation that Sheriff Fletcher filed with the court, and went over it with my friend, David Gross, who had reviewed both the piece and the revocation petition before.

While it’s clear that the 1996 incident is Mr. Wolf’s client, Michelle Rae Wilson, it’s also clear, upon review, that the 2004 and 2007 incidents are, as he says, another Michelle Wilson, who lived at another address.  We missed that, when reviewing Sheriff Fletcher’s petition.

End of Addendum.

But, let’s be clear:  they’re not my facts.  The source for the story wasn’t my imagination — I’m just a fiction writer, by trade, and I couldn’t have made this stuff up; it’s far too weird for fiction. 

The 1996 incidents, which Mr. Wolf doesn’t dispute was his client (and, to be fair, he doesn’t admit it, either) is from sections #6 and #7 in Sheriff Fletcher’s and County Attorney Susan Gaertner’s revocation petition, and their Exhibit K and and Exhibit L, both of which were submitted to the court in support of that petition.

Somebody accused of hounding an ex for four years (and that’s what the accusation is in Exhibit K and L; I don’t know if the accusers were lying) being issued a carry permit in Ramsey County?  Let’s not be silly.  That wouldn’t happen unless the applicant was connected — say, by being the aunt of a Saint Paul cop.

But let’s turn to the two incidents that Mr. Wolf does [addendum:  accurately] dispute. 

The 2004 incident, which Mr. Wolf does say was some other Michelle Wilson (and why would he lie?  I can’t imagine a reason, and don’t think he is) is also from Sheriff Fletcher’s revocation petition, in which he claims that Respondent — that’s Mr. Wolf’s client — was named as a criminal suspect, and which Sheriff Fletcher supports with his Exhibit J.

The 2007 incident, which Mr. Wolf also says was some other Michele Wilson, is, yet again, from Sheriff Fletcher’s revocation petition, in which Sheriff Fletcher claims that Respondent — that’s still Mr. Wolf’s client — was hit by a restraining order, and which he supports by his Exhibit I.

Let’s assume — he does seem credible to me; you decide for yourself — that Mr. Wolf is right.  Why — when trying to revoke a carry permit of a woman who was sitting in jail, accused of murder — did Sheriff Fletcher throw accusations about another Michelle Wilson into the mix?

I wish I knew.  I think it’s a fascinating question.

There are others.  Why wasn’t the 1996 restraining order enough reason for Sheriff Fletcher to deny Michelle Rae Wilson’s permit application in the first place?  He’s certainly denied other applicants for less.  Why, when she was sitting in jail, did he apparently throw every accusation he could find up against the wall and see what would stick?  Wasn’t the murder charge enough?  And why, after years in the Ramsey County Sheriffs Office gun unit, was David Rossman transferred to patrol after researching and writing that petition?

Apparently, one of the possibilities I raised in the last episode has not panned out:  it was apparently not a reward for the accuracy and thoroughness of the research he did in the revocation petition.  What did happen with the bumbling Deputy Rossman, and why?  Is it possible that, after deciding that Rossman is too incompetent to properly shuffle paper around, Fletcher put him in a squad car with a handgun and a shotgun to do things requiring far better and sharper judgment than he’d already demonstrated was lacking during his time in the gun permit unit?

I’d love to know the answers to all of these questions.

And there’s more. Me, I think it would also have been news to many of us, back in 2008, after the murder, that the accused murderer was a Saint Paul PD dog cop’s aunt, using supposedly, the gun that that same cop had given her.  Doesn’t that sound like news to you?

Ah, if only there were some enterprise locally, that hired people to look into interesting questions about public figures and public officials, then reviewed and edited their reports, and printed them daily upon some inexpensive medium for public distribution.

Instead, what we’ve got is the Pioneer Press and the Star Tribune.

Please Support the Rights of This Feminazi Scumbag

Really.

ir111_stromelisha_200x315.jpgFor those of you who think I’m going all Rush Limbaugh with this “feminazi” stuff: chill.  I’m talking about Elisha Strom, the now ex-wife of convicted kiddie porn felon, the loathesome Neonazi Kevin Alfred Strom. (The two of them had a falling out of some sort.  Nazis, like other people, find breaking up hard to do at times.)

That’s her, at right, in a photo from around 2003.  She is apparently as uncharming as she looks, and calling her a Feminazi is only fair, because she’s the closest thing the neonazis have to a feminist, okay? 

Okay.  Fine.  If she happens to be out walking someday and a cow falls out of a clear blue sky to squash her flat, that would be a sad thing only because it would be a waste of a good cow.  Got it.

But, alas, what she’s apparently been charged with an is, basically, blogging and photograpy. The scumbag neonazi bitch has a blog; she makes comments hostile to, and posts snapshots of some local cops. 

Well, blogging and photography aren’t a crime, and it would really be a shame — really — if all of our civil rights were further degraded because people wouldn’t support the rights of this feminazi scumbag to write and to take pictures.

So:  please support the rights of this feminazi scumbag.  It’s important that her case get coverage, and that she be acquitted of the absurd chages. 

Damn.  Well, you don’t always get the good poster boys and girls on this civil rights stuff.  Yeah, sometimes you luck out and get a real hero like Rosa Parks, or Savana Redding.

But most of the time it’s scumbags like Ernesto Miranda or Elisha Strom.

Live with it.

(h/t Scott over at SJ) <

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