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From: InfoSec News (isn_at_c4i.org)
Date: Tue Nov 19 2002 - 08:27:31 CST
Forwarded from: Marjorie Simmons <lawyercarpereslegalis.com>
By Lisa M. Bowman
Staff Writer, CNET News.com
November 14, 2002
A federal judge has ruled that law enforcement officials went too far
when they tried to use evidence gathered by a known hacker to convict
someone of possessing child pornography.
The decision, handed down earlier this month, is believed to be the
first to say that hacking into an Internet-connected home PC without a
warrant violates the Fourth Amendment, which prohibits unreasonable
searches and seizures.
"This makes it clear that law enforcement needs a search warrant to do
this," said Orin Kerr, an associate professor at George Washington
University Law School. Kerr said the ruling was the first of its kind.
The Virginia judge suppressed evidence of child porn possession after
the defendant's lawyers argued the evidence had been illegally
obtained by a hacker whose methods had received approval from law
The decision came out of a case in which a hacker uploaded a file to a
child porn newsgroup that made it possible to track who downloaded
files from the service. The uploaded file contained the SubSeven
virus, which the hacker used to remotely search people's computers for
The hacker then played the role of a cybervigilante, sending anonymous
tips to law enforcement officials alerting them to child porn files
the hacker had found on people's PCs.
In one case, the hacker tipped off officials in Alabama about a doctor
in that state who had downloaded files from the newsgroup. The doctor
was eventually sentenced to 17 years in prison. The hacker later
contacted the same officials about a Virginia man who the hacker
suspected was involved with child porn.
The Alabama officials told the FBI of the hacker's suspicions. The
bureau, through the Alabama officials, encouraged the hacker to send
more information. Based on that further data, U.S. attorneys and state
prosecutors filed numerous charges against the Virginia man, William
Adderson Jarrett, related to creating and receiving child porn.
Jarrett pleaded guilty. However, his attorneys also argued that the
FBI had violated Jarrett's Fourth Amendment rights when they retrieved
the information, via the hacker, without a warrant.
The judge agreed with that assertion, ruling that the evidence could
not be used in court because the FBI had approved of hacking as a
means of obtaining it, a move that violates protections against
unreasonable search and seizure.
"By requesting that (the hacker) send the information," the judge's
ruling said, "the FBI indicated its approval of whatever methods (the
hacker) had used to obtain the information."
The decision put Jarrett's guilty plea on hold.
Although U.S. prosecutors are likely to appeal the ruling, the case
could be a cautionary tale for agencies that try to use hackers as an
arm of law enforcement without first obtaining a warrant.
The ruling also could open the door for other defendants to use
similar arguments in their cases.
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