"In today's digital world, it appears to be a virtual certainty that computers accessing the Internet can—and eventually will—be hacked."
To apply to houses:
"In today's mechanized world, it appears to be a virtual certainty that houses connected to the earth can—and eventually will—be broken into."
Thus, warrants need not apply for search and seizure in houses. QED.
Or rather "... houses with doors can —and eventually will—be broken into."
And of course, do not speak at home (or do not expect any privacy).
I guess the answer is "sometimes, it's complicated"...
This may be all BS. But it's advice I've heard more than once.
If police are knocking, lock your door and say through a window: "I don't talk to police; have your dispatcher call me. If you have a warrant, here are my hands, go ahead and kick the door down". Then cover your ears, close your eyes, and wait.
If you feel you can't handle your affairs, make sure to lawyer up as soon as the police leave your house. You'll need to. let the lawyer know what you did, so he can take appropriate action.
Just remember that a lawyer, should (s)he put your needs above the needs of The People or The Court, (s)he would be disbarred. So don't expect magic to happen.
Home windows? If it is visible from a place where a normal person going about their normal activities can see, then no warrant.
For example, if someone walks up your walk to your stoop and there are windows that can been seen through from there, then no warrant. If they have to step off your walkway, walk around the side of your house, scramble through your bushes and pull themselves up to peer through, then a warrant would be required.
The point of mentioning "accessing the internet" is it's a lot easier for the hacker to scale up their wrongdoing with ease. It's much simpler to put a virus of some sort (say, a fake download button on a media sharing site) and reach a large audience, than it is to break into the homes of a similarly large group of people.
Where I primarily disagree with the judgment is that this notion makes it a "virtual certainty" that hacking occurs for any given person. Smart browsing habits, and general computer literacy, can make the odds decrease to near zero.
I suppose the analogy would be that just because Microsoft has the power to remotely upgrade your windows 10 install (and potentially install any back-door), that should not violate your expectation of privacy.
His argument is essentially that if your house is connected to a road, then there is no expectation of privacy.
I expect the ruling, or at least that absurd part of it, will be overturned or superseded. But the counter argument (for future cases) would be that running through a physical firewall is not a direct connection to the internet (silly as it is to make the argument).
Edit: I've gone through most of the relevant sections. Most of the ruling is reasonable, the section this article and the EFF are complaining about is less supported by precedent.
The actual legal argument says that hacking is common enough that people don't have a reasonable expectation of privacy, then there's this paragraph:
>Although this Court recently noted in dicta that the possibility of hacking "is not enough to defeat an individual's reasonable expectation of privacy" because it is illegal, see United States v. Darby, No. 2:16-cr-36, ECF No. 31 at 10-11 (E.D. Va. June 3, 2016), this Court stresses that child pornography often resembles an international crime. Similarly, much hacking occurs by foreign nations where the governments condone or participate in hacking. Child pornography is not just a national issue; it is an international issue, and at least a portion of the pornography in this case arrived from foreign sources through the World Wide Web
This seems to be the weakest part. It's saying that hacking can't be the basis for a lack of expectation of privacy, but that since some countries allow hacking, it's legal there, and if you're accessing stuff from other countries you no longer have the expectation of privacy.
The heinousness of the crime does not justify giving up or overriding Constitutional freedoms. Never. Not ever.
And if anyone is in place to protect us from that level of overreach, it's a judge. I cannot believe he's pulling a "won't someone think of the children!" in justifying (and creating some janky circular logic) this ruling.
The scariest precedent here is the level of crime dictating the flexibility of constitutionality.
Whoever, without authority, opens, or destroys any mail
or package of newspapers not directed to him, shall be
fined under this title or imprisoned not more than one
year, or both. -- Title 18 § 1703(b)
As I said in another comment here, the issue is when it goes beyond such information like IP addresses and goes to actually hacking, which involves running code on the victim's computer.
And all of this doesn’t matter anyway, because of how packet routing works. No one accessing the Internet can be reasonably expected to have any control over how their packets are routed on the network. You only control the next hop[2].
See for example: http://allthingsd.com/20131120/how-somebody-forced-the-world...
So I would agree to the extent that there can be no expectation of privacy for any unencrypted traffic. However, that’s just one type of hacking – snooping.
As for actual hacking – that is someone breaking into your system – this system has to be running on something, some sort of device. This device has to be physically located somewhere.
If an Elbonian comes to US and breaks into your house is it okay because in their country there are no lock on the doors, just a lot of mud, so breaking is not a crime? This is the logic here, as I see it.
What it ultimately comes down to is the US government wants to have it both ways. They want to be able to extradite people that hack into devices located in the US, but they want you to have no expectation of privacy when they are the ones doing the hacking.
[1] https://en.wikipedia.org/wiki/Provider-independent_address_s...
If they came to the US they would be subject to US jurisdiction. Hackers from other countries aren't, at least not always.
Edit: I mean prosecution. Jurisdiction applies whenever there are effects in the US, see link below.
Personally it never made sense to me how one can be subject to some random foreign country’s law by just using the Internet. But if that’s the doctrine it should at least be applied consistently.
See http://www.kktg.net/Notes/hacking-jurisdiction/ which explains this.
("No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.")
Now every last amendment from the Bill of Rights has been discarded.
... Or is it? http://www.leagle.com/decision/In%20FDCO%2020150203D28/MITCH...
I'd say lack of access to law (as well as its unbearable complexity) is an issue of due process and the fundamental rule of law.
But you can't look to the Constitution to dictate everything - its drafters could not anticipate all future developments, and if the government is that citizen-hostile a piece of paper won't stop it. That which the Constitution does specify should be considered more as "behavioral tests", and currently the majority of our test report is failure.
Thanks for that. A good reminder that we need to think that every time we read anything like this. Just asking a simple question, "Did they get this right?" and even taking a minute to read through to the actual primary source.
"Thus, hacking resembles the broken blinds in Carter. 525 U.S. at 85. Just as Justice Breyer wrote in concurrence that a police officer who peers through broken blinds does not violate anyone's Fourth Amendment rights, jd. at 103 (Breyer, J., concurring), FBI agents who exploit a vulnerability in an online network do not violate the Fourth Amendment. Just as the area into which the officer in Carter peered - an apartment - usually is afforded Fourth Amendment protection, a computer afforded Fourth Amendment protection in other circumstances is not protected from Government actors who take advantage of an easily broken system to peer into a user's computer. People who traverse the Internet ordinarily understand the risk associated with doing so. Thus, the deployment of the NIT to capture identifying information found on Defendant's computer does not represent a search under the Fourth Amendment, and no warrant was needed."
The section of interest starts on page 47 of the linked Opinion and Order. http://mobile.eweek.com/security/home-computers-connected-to...
"But whether the Constitution really be one thing, or another, this much
is certain - that it has either authorized such a government as we have
had, or has been powerless to prevent it. In either case it is unfit to exist.”
-- Lysander Spooner, No TreasonIt is axiomatic that the present we now know inevitably followed from the history that preceded it. When you look at the U.S. federal government that now exists, it must have assumed its current form either by design of the Constitution, or contrary to that design. In case of the latter, the Constitution was entirely unable to prevent the government that it established from evolving into a form contrary to its design. Maybe the process was slowed somewhat. We cannot know for certain.
Therefore, if you dislike the current form of US federal government, it is nonsensical to idolize the Constitution, or any other causally-related fact of history. History gave us the present. If you do not like the present, and wish the future to be different, do not repeat the mistakes of the past. Whether history could have given us another present is irrelevant, because it did not.
In the end, whenever a living human fights with a document, the human will emerge victorious, and the document will become confetti. The Constitution is nothing without a living human to be its champion.
Spooner was criticizing the actual form of our current Constitution. GP was making an appeal to the Constitution and the judicial system's ignoring of it. I agree with Spooner that a Constitution such as ours is completely powerless to prevent individual judges from rewriting every time it fits their fancy.
We've basically had an ongoing Constitutional Convention in the federal courts since the founding -- without the consent of the people.
Because burglars regularly break into people's homes or cars doesn't make them subject to warrant-free search. If the FBI wants to run code on my CPU in my private home without my permission, they should have a warrant, just as they'd need one to manipulate other objects in my home without my consent.