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Florida Appeals Court Asks State's Top Court To Decide Whether Compelled Password Production Violates The Fifth Amendment

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The Florida state Supreme Court is being asked to settle the open question as to whether compelled password production violates the Fifth Amendment. (via FourthAmendment.com)Last October, a state Appeals Court decided that it did. In a case involving an accident caused by a drunk driver, law enforcement sought to compel the suspect to unlock his phone so they could search it for evidence. It's unclear what evidence of drunk driving the police hoped to find on the phone, but that's the case that first made its way to one of the state's appellate courts.It all worked out, though. The court ruled that compelling a password is a Fifth Amendment issue because it could force the suspect to hand over evidence to be used against him by prosecutors. Another state appellate court came to the same conclusion earlier this year, ruling that compelling password production to unlock a robbery suspect's encrypted device violated the Constitution.In both cases, prosecutors didn't really care about the password. That's not what they were after. They wanted what was on the phones, which could be evidence.It's a big "could," though. The state didn't bring much with it but conclusory arguments which are very much not the same thing as establishing the needed "foregone conclusion." Without it, the state is seeking to violate the Fifth Amendment, and for the lousiest of reasons.

Below and on appeal, the state’s argument has incorrectly focused on the passcode as the target of the foregone conclusion exception rather than the data shielded by the passcode, arguing that “because the State has established the existence of the passcode and iTunes password, evidence on the Petitioner’s cell phone, and that he can access the content of his phone,” the compelled search was acceptable. Similarly, the trial court specifically held that the “existence, custody, and authenticity of the passcodes are a foregone conclusion” in the order appealed. This holding, which focuses on the passcodes rather than the data behind the wall, misses the mark.[...]Without reasonable particularity as to the documents sought behind the passcode wall, the facts of this case “plainly fall outside” of the foregone conclusion exception and amount to a mere fishing expedition.
The Appeals Court that reached this same conclusion in the second case has now certified the question for the state Supreme Court to examine. The short cert petition says it's up to Supreme Court to set the precedent for the state and resolve the supposed conflicts with prior case law the state argues have been raised by the Appeals Court's decision.There's a dissent attached to the cert petition [PDF] that, weirdly, argues the state's top court shouldn't take a look at this because the Appeals Court screwed it up the first time. The majority of judges, however, disagrees with the dissent's rationale. [Emphasis in the original.]
Despite the narrow focus of the State’s motion, our dissenting colleague presents many pages of arguments—old and new—that amount to a second opinion on the merits. Tellingly, our colleague’s almost exclusive focus is on the Fourth Amendment and probable cause despite no party mentioning either of them in their merits briefs and the State advancing no argument on such matters in its motion for rehearing and certification. And whether the probable cause affidavit (which sought to seize broad categories of information from the cellphone—without identifying any specific item—on the basis that criminals use cellphones) was proper or a fishing expedition matters not; we fail to see how the issuance of a subpoena or warrant—whether careful drawn or a fishing expedition—negates the Fifth Amendment’s protections, which are the focus of this case.
The majority says the dissent's argument is important, but not quite for the reason the dissent thinks it is.
If anything, the relationship that exists between the Fifth Amendment right against compelled personal disclosures and its neighboring and complementary Fourth Amendment right against unreasonable searches and seizures counsels in favor of protection against governmental overreach into individual autonomy in criminal cases.
The dissent's argument is basically this: it's not a "fishing expedition" if cops have a warrant. That's not how fishing expeditions work and the court should know better. The dissent presents an appeal to its own authority (the judicial system at large), which is about the most worthless argument it could make.
The State did not merely issue a subpoena for Pollard’s phone with a hunch that it might provide incriminating information. Rather, the State introduced evidence showing, to a magistrate’s satisfaction, that probable cause existed that Pollard’s phone contained evidence of a crime. This evidence was what they sought, not the passcode that is the subject of this petition.
Ah, the old "magistrates always read warrant applications thoroughly" argument. In this case, there's a bit more to it: an admission by a co-defendant that the crime was planned via text message. At least that's something. The case this Appeals Court cited to come to its conclusion dealt with drunk driving -- a crime that doesn't seem to have anything to do with a phone's contents.The state's Supreme Court will have the final say. For now, Florida is (mostly) covered by decisions that say compelling passwords is a Fifth Amendment violation. Whatever the state's top court decides will be appealed by the losing party, moving it to the federal level. And everything sitting unresolved at the federal level eventually moves to the top court in the land. So, at some point, we'll probably have a nationwide ruling on compelled password production, for better or worse. For now, the Fifth Amendment protections have an asterisk attached. Successful invocation may only apply locally.

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posted at: 12:00am on 08-Jan-2020
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Nintendo Responds To RomUniverse's Lame Argument That First Sale Doctrine Makes The Site Non-Infringing

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You will recall that Nintendo, as part of its sweeping new war on ROM sites initiated a year or so ago, went particularly hard at RomUniverse and its site operator, Matthew Storman. Differentiating RomUniverse from other ROM sites is some combination of the fact that it's run out of California as opposed to overseas, that the site is also a place to go get lots of other media that sure looks to be infringing on copyright, and Storman's verbose attitude in making public comments that don't paint him or his site in the best light. At the onset, as part of an attempt to crowdfund its legal battle with Nintendo, RomUniverse trotted out the claim that it was offering ROMs in an attempt to preserve video gaming history. It wasn't a particularly believable argument given the rest of the site's behavior and RomUniverse quickly opted for other legal arguments in court.Storman appears to be defending himself in the matter and attempted to have the case dismissed on two grounds. The first is that Safe Harbor protections extend to RomUniverse, which Storman claims is simply a service provider and not participating or reaping commercial benefit from infringing material. Storman claims that Nintendo has acknowledged RomUniverse as a service provider by sending DMCA takedown requests to the admin for the site, at least some of which have been complied with. That, unfortunately, is not really how any of this works, as Nintendo details in its own response to Storman's motion.

In 2009, Mr. Storman emailed members of his website that he would be adding new content including ROMs for various Nintendo game systems. In 2018, when Nintendo was successfully enforcing its intellectual property rights against other pirates, Mr. Storman bragged that he would continue to offer copies of Nintendo’s games.Mr. Storman directly profits from this infringing activity by allowing users to sign up for “Premium Memberships.” While non-members are limited to one free download through the website, premium members pay $30 per year to Mr. Storman to download an unlimited number of pirated games, and at higher speeds than non-members.
That seems to be evidence of Storman and the site participating in the infringing activity and somewhat directly profiting from it. Whatever the DMCA safe harbors protect, that ain't it. Nintendo goes on to argue that this sort of affirmative defense is not one to be made in preliminary motions, either, making one wonder if it isn't time for Storman to get himself some actual professional legal counsel.Storman's latter claim doesn't assuage that concern. In his petition for a dismissal, Storman claims that Nintendo actually has no standing to make the infringement claim, arguing that the uploads of the game content to the site were done by those that had legally purchased copies of these games. As such, Storman claims that First Sale Doctrine makes that game code the property of the purchaser of the game, who can resell it at will without it being infringing. As Nintendo again claims in its response, nah, dawg.
The first sale doctrine does not permit mass distribution of copyrighted works, copying of the copyrighted works or distribution of those copies, or the creation and sale of derivative works based on Nintendo’s copyrighted video games. See 17 U.S.C. § 109(a) (“the owner of a particular copy [of a copyrighted work]. . . lawfully made . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.”) (emphasis added). Indeed, Mr. Storman’s actions fall well outside of the first sale doctrine. The first sale doctrine only allows an owner of a lawful copy of the copyrighted work to dispose of that individual copy.
We have argued in the past that Nintendo, and other gaming companies, should really find better routes for mitigating or even making good use of the effects of piracy...but none of that makes the company's rebuttal to Storman's claims any less valid and correct. These are claims made at the improper time, that don't seem to comport with the site's behavior, and that represent a misreading of the law. That isn't going to be good for Storman's legal outcome prospects.Again, to reiterate from our last post on this matter, it's time for Storman to go into damage control mode. And for the love of god, get some professional legal assistance.

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posted at: 12:00am on 08-Jan-2020
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