22 October 2013

OMG, Call Yourself A Hacker, Lose Your 4th Amendment Rights!

Update (10/24/13): The Register has now picked up the story and uncritically repeats the same erroneous Fourth Amendment claims.

Update 2 (10/24/13): And just as quickly, the Register contacted me to indicate that the article has been updated to remove the Fourth Amendment references.

Two quick, but equally horrible points about this article:

First: this case has zero, zilch, squat, nothing, to do with the Fourth Amendment (or the Fifth Amendment, given the property issues). This case is about a temporary restraining order between two private parties. The Fourth Amendment's prohibition on unreasonable searches and seizures only applies to “state action." There is simply no state action here. Perhaps the author chose the title as link bait. Nonetheless, the headline is not only misleading, but erroneous, and detracts from the issue at hand.

Second, the decision to grant the TRO is based on the defendant's self-label of hacker (emphasis added):
In addition, the defendants have identified themselves as hackers, as discussed above. A well-known characteristic of hackers is that they cover their tracks...This makes it likely that defendant Thuen will delete material on the hard drive of his computer that could be relevant to this case...The tipping point for the Court comes from evidence that the defendants – in their own words – are hackers. By labeling themselves this way, they have essentially announced that they have the necessary computer skills and intent to simultaneously release the code publicly and conceal their role in that act. And concealment likely involves the destruction of evidence on the hard drive of Thuen’s computer. For these reasons, the Court finds this is one of the very rare cases that justifies seizure and copying of the hard drive.
This is highly disturbing, and has potentially broader implications beyond this immediate case. If simply calling oneself a hacker can be used as evidence that someone may have criminal intent is alarming, troublesome, discouraging and discomforting (thank you, Thesaurus.com). We cannot take this sitting down; we must stand up and fight.
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