Posts by Ian Michael Gumby

Re: @Sampler ... Chain of custody

You misunderstood.

Before the tech reported the guy there is no 'chain of custody'.

The police do not have custody of evidence before it is brought to their attention.

The tech brings the evidence to the police. At that point custody begins.

The tech is then questioned and makes an official police statement.

The tech will at a minimum be deposed about the image and how it came in to his possession. The burden of the defense is to create doubt as to the origins of the evidence.

You misunderstand the burden.

The prosecution has the burden to show and prove guilt. The defense has the burden to bring reasonable doubt to the evidence so that the prosecution doesn't meet his burden.

@Sampler ... Re: Chain of custody

Chain of custody isn't an issue.

The tech reports the incident.

He would have had to file a complaint.

If the image was planted... you would know and the tech would be found guilty of one or more of the following:

1) Lying to the FBI

2) Filing a false police report

3) Perjury

(It depends if he signs a document like an affidavit.)

Post that... then you have a chain of custody issue.

Custody isn't on the reported image, but of what the FBI finds while they execute a search warrant.

@Indomitable Gall Re: I'm not sure you can make the its not porn argument

Caveat... IANAL and I don't know European laws...

While the defense lawyer can make the argument that this was a warrant-less search, it will fail and also that this was a violation of his 4th amendment rights also would fail. (It did).

First, the doctor called the tech company to send a tech out to fix his computer. Meaning that he, the doctor, initiated the request and gave approval for the tech to access his system. In doing his job, the tech came across an image which he thought to be child pornography. He then reported this to the authorities.

The defense lawyer is arguing that because the FBI pays a reward for the tip, the tech is acting as an agent of the FBI therefore he's doing a search on the behalf of the FBI and without a warrant. This fails the sniff test. Imagine you invite a police officer in to your house and there's a kilo of coke sitting on the coffee table. The officer doesn't need a warrant to arrest you because the cocaine is in plain sight.

Now you have a hypothetical. Suppose the good doctor actually encrypted the kiddie porn images and the tech asked him for the password to decrypt the files. Since this would not be part of his job, it could call in to question that the tech was doing an unreasonable search. Then the lawyers argument may hold water. Back to our police entering your home... if the kilo of coke was in a cupboard and not in plain sight... then he would need a warrant to search your home. His opening a cupboard on his own would be a warrantless search.

But back to reality. The judge didn't buy the 4th amendment argument and the case moved on.

Now the latest argument is that the photo turned in may not be considered child pornography. Therefore there was no evidence for the search. And this is where the arguments get interesting.

The tech sees the image, thinking it to be kiddie porn, alerts the authorities. They see the image, they believe it to be kiddie porn and get the warrant on good faith. Even if the image wasn't kiddie porn on a technicality... they got and served the warrant in good faith. The fact that one of the officers recognized that it was a still from a kiddie porn movie and could identify the victim... would be enough.

So this too shall fail.

But to your point... this wasn't a fishing expedition by any stretch of the term.

The employee was doing his job and saw a potential criminal act and alerted the authorities.

This guy did the right thing.

Where geek squad guys get in to trouble is when they go out, work on a computer and see a stash of porn pics and vids of the owner, and then make a copy and post them online. That is illegal and that's why you fire them.

A word to the wise... encrypt the folders where you stash your porn or other private stuff.

At Marketing Hack... Re: I'm not sure you can make the its not porn argument

No.

Here's the thing.

The defense attorney is arguing that the image used to obtain the search warrant did not qualify as pornography therefore the search warrant wasn't valid. If the judge agrees, then the evidence from the search is inadmissible. (Fruits from the poisonous tree. ) Its a legitimate argument to make, however if the Feds can convince the judge that the still is of a known victim and they recognized that it was, then they got the warrant in good faith and the defense's motion fails.

How the image came to the Feds is not relevant.

And yes, the police can rifle thru your garbage if its outside of your domicile and they don't need a warrant.

Your whole point about the 'good Samaritan' is that they find something, alert the authorities, they may either have to sign an affidavit stating how and where they found the item, or testify as to the facts of the find, OR BOTH. The lawyer lost his argument that the use of the techie as a 'snitch' was a violation of his constitutional rights. That too was a clever argument, but it didn't hold water.

The point is that the defense motion is interesting and could get a pedophile off. (No pun intended)

But that's the thing...

Ok, for those who don't know US law, the point of the picture not 'technically' being child pornography is that if it isn't then the Feds didn't have probable cause to search his home and computer for child pornography.

If the sicko wins, then the search warrant is null and void and and evidence found would be inadmissible. This means the guy walks.

Yes, he is a pedophile. Yes the FBI knows it. But if he wins the motion, then the jury will never hear about the evidence, or the Feds drop the case against him.

If he loses... then the evidence stays in and he goes to jail and becomes his cell block's be-itch.

@Swarthy ... Re: When I first went online...

Did you ever hear of a thing called USENET?

And yes, it did have a porn news group. (pics and some low res movies.)

As to spam... you can thank Cantor-Siegel for the first spam of a newsgroup.

Of course this was all before the whole websites thing.

Re: Bad Idea and hard to implement.

From what I read... the law says you have to allow them the right.

But it doesn't say who pays for the cost of installation. And that's a big thing.

I mean if you talk to the cable company and installers, they want to run the cable along the wall or ceiling exposed. Some people say no ... in the wall or in conduit. That's $$$$$.

So landlord could say... sure... go ahead, here's the rules, and you pay for it. They will be compliant, but you will decide against it because its not worth footing the bill.

That's the thing. If you were told it would cost you $3500 for the install alone, would you do it?

What about 6K, 12K... would you still do it?

BTW if the landlord includes internet and cable in the rent... you still pay for it whether you use it or not.

@Harmony Re: A pardon?

Kinda sorta.

First a Pardon is more than a 'promise not to prosecute'.

A pardon means your record is wiped clean and you would be immune from any future prosecution for said crimes.

A pardon for crimes committed but not charged isn't new, but its pretty rare.

Now what exactly did Assange do that would warrant a pardon?

Re: A pardon?

Well, what did Assange do that requires a pardon? ;-)

The release / dump of documents is a protected act. See NYT v. US '73 decision.

Ellsberg is the one who committed the crime yet due to circumstances he didn't go to prison.

NYT didn't and their actions gave protection for any news publication of pilfered papers because they are a benefit to the US Citizens. (Although there is a point to it.)

Or are you saying that Assange assisted with the stealing of the docs?

Then he would need a pardon which because he hadn't been charged, would have to admit to the theft so that Obama could write the pardon.

@Stevie ... Re: Bah!

Hey! Just some corrections.

1) Wikileaks dumped the docs from the DNC hack along from Podesta's hack.

So he's not the only one mentioning Wikileaks.

2) Pardon?

For what? Free clue. Assange hasn't been charged with anything. Wikileaks' publishing of the emails is actually protected by US Law. See Ellsberg SCOTUS decision back around '73. (See NYT v US)

Officially there is no reason for the US to want him in the first place and the Swedes may get him on their own.

3) News Flash, this just in... Assange is still a prat.

Assange is being Ass-n-age. Could he break in to the GOP or Trump's systems he would.

Assange had always maintained that he got his leaked dump from an insider. Podesta's problem came from a script kiddie's phish. And Podesta's password was 'password'.

@Oh Homer ... Re: Do you own it, or not?

If you do, then you should have full and unrestricted access to and control of your own legally purchased property.

Spoken like a babe in the woods.

Lets talk about product liability. That's just the surface.

Just because you can tinker with software doesn't make you a software engineer. And when I say software engineer, I mean someone who completed 4 years in an accredited engineering program. Its not just a job title.

I remember way back when I got pulled from one project and put on another project because I had an engineering degree and this was for an embedded controller used in water filtration and treatment. There were others who were available that probably could have done the work, but they lacked that degree.

Now the work I did over 25 years ago is still in place today in I don't know how many sites and I don't know how many millions drink water that run thru a system where I wrote the OS and process logic.

An IH or JD Harvester won't impact as many people, but you muck up the control logic, you could kill someone.

You muck with something and someone gets killed. You can bet your bottom dollar you will lose the family farm in a civil lawsuit, not to mention possible criminal charges.

I can tell you've never worked on a farm around these machines, or have a software engineering degree or have worked on projects where you can seriously impact someone's life if you fsck up. Not many people have.

You may own the product, but it doesn't give you license to tinker with it.

Re: Do you own it, or not?

Hardly and its a bad example.

Here's a better one.

Suppose you created the OS and control system logic for a self driving and fully automated garbage truck that goes down the street and picks up the trash. You sell it to a city and one of their IT guys decide to get in to the code and make some unauthorized changes because the city didn't want to pay you for the customized software enhancements.

Now suppose someone hacked the garbage truck and decided to drive it down the freeway rear ending a fuel tanker causing a massive explosion. Boom!. People get killed and seriously injured because some script kiddies thought it would be fun until something went wrong.

Now... how long do you think you have before some lawyer decides. That you and your company are liable? The truth is that within 5 minutes of this hitting the airwaves, there will be a rabid pack of lawyers hitting the ER trying to sign as many people up to make sure that they are the lead litigant's attorney on this case.

That is JD's fear.

Someone does an unauthorized code mod and JD is still going to be sued.

Now if you were JD, how do you protect your product from being misused?

If you're going to argue this, you need to also put yourself in JD's shoes.

Re: In terms of farmers

Wrong.

Do you know how many tractors are in service that were built before you were probably born?

Lots.

Including old John Deer tractors. (I drove a Ford Tractor that was built in 1970 used to pull a hay baler on my father in-law's farm. There are a lot of things you can do yourself. The most common thing to go wrong is the PTO and Hydraulics.

If you're buying a new tractor that has GPS and automated controls, you are not going to be able to 'repair' the electronics. There is a really good reason for this... Its a deadly machine and if you mess up and someone gets hurt or dies... you will lose the family farm.

@Steve Davies Re: How is Nokia a patent troll?

FRAND?

7.3mil USD based on how many phones Apple has shipped that the courts have found to violate the patents?

7.3 mil is peanuts when you consider the legal fees. It could be FRAND for all you know.

Considering that in July of this year, Apple celebrated 1 billion iPhones and assuming all of the phones violate the patent... That's roughly 7 tenths of a cent. ($0.0073)

Tell me that's not in the FRAND range.