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Comment by themartorana | Hacker News Reader

The absurdity of this is everyone - and I mean everyone, judging by private browsing habits - has an "expectation of privacy" when it comes to their home computer. So the judgement here is absurd on its face. This isn't standing naked in front of a bay window, there's no real room for interpretation.

So when a judge says there isn't a reasonable expectation of privacy, he/she isn't even being honest with themselves, let alone the entirety of the computer-owning public. This is a bald-faced hand-out to law "enforcement" and has no bearing in reality.

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> he/she isn't even being honest with themselves

He may not be a member of the computer-owning public. The article refers to him as "Senior U.S. District Judge Henry Coke Morgan Jr.". Senior status is not a title like Senior Engineer[1]. Rather, it means that he is actually semi-retired: He is paid his pension and travel expenses and has discretion over which cases to take. For example, there is one judge that is basically retired and lives on Cape Cod. However, he occasionally holds court down there in order to handle traffic cases for those caught speeding on federal land so that they don't have to go up to Boston. Judges on Senior status often decide to not do sentencing and they pretty much universally decline to hear Child Porn cases.

There is some fraction of Senior Status judges who don't use Outlook or Gmail but rather have their secretaries print their emails, they handwrite the responses, and their secretaries type up their emails and send them.

Considering all of this and the fact that he was born in 1935[2], he may genuinely believe that if he has a home computer that infection with viruses and weird pop-ups is inevitable.

Sources:

[1] a talk given at the Haystack Observatory by the Clerk of Court for the District of Massachusetts

[2] https://en.wikipedia.org/wiki/Henry_Coke_Morgan,_Jr.

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Edit: Of course, this isn't the majority of judges by any means. Many of them are comfortable writing opinions from their iPad while at an airport. Also, consider Scalia's opinion in Riley v. California, which this opinion would seem to directly contradict (once I can actually find the pdf...)

Riley v. California: http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

I mean for the case that this article talks about, but thank you for that link.

I believe the article links directly to a PDF copy of the USA v. Matish decision housed by the EFF: https://www.eff.org/files/2016/06/23/matish_suppression_edva...

I was involved in a drawn out litigation over discovery once as a technical SME. Our attorney and the rest of us were very nearly held in contempt for not producing material.

Turns out the judge, in whose chambers there was a picture of him on an all-American football team in the 1960s, was dumbfounded that a DVD could contain 80,000 emails and about 30,000 other documents. The opposing counsel, equally aged, agreed.

We were literally saved by lunch -- we were able to track down the judges clerk and get her to translate.

Hi, I found your comment by ctrl+f for 1935 (and 80, 81: his current age).

Yep, I agree. While I hesitate to participate in age-based discrimination, my gut feeling on this is that he simply isn't qualified to make a ruling about the nature of digital privacy.

Anybody got his secretary's email address? Here are some mailing addresses and phone numbers. It's 7pm in VA right now. http://www.vaed.uscourts.gov/locations/nor.htm

>Edit: Of course, this isn't the majority of judges by any means. Many of them are comfortable writing opinions from their iPad while at an airport. Also, consider Scalia's opinion in Riley v. California, which this opinion would seem to directly contradict (once I can actually find the pdf...)

Doesn't this open up for an appeal

Yep. Assuming there is money for to pay the lawyers for it.

This is akin to ruling that there's no reasonable expectation of privacy in a home because windows aren't fully secure against burglars.

While somewhat true, analogies make for poor logical arguments. grellas' argument is much more succinct.

Pith is often a useful tool to expose absurdity.

That's actually true though. Not burglars exactly, but the police absolutely can peer through gaps that you accidentally leave in your windows, even if you expect to be private inside. The court ruling even refers to this example.

Sometimes people on HN complain when security researchers are threatened with prosecution under the CFAA. Well, which is it - is exploiting vulnerabilities more akin to peering through someone's window blinds with unintended gaps, or burglary?

People have been found guilty of changing a URL by incrementing the client number. Then when the police infects a computer with a targetted worm, we're told it's "peering through open windows"...

Who was convicted in the former case?

Weev https://en.wikipedia.org/wiki/Weev

Seriously? I have taught people to do that. Not to access information they aren't authorized to have, simply because it's faster than filling out the web form...

It was eventually overturned on appeal, but not after a year or two in prison and great financial ruin.

The issue was mainly that he didn't responsibly disclose the exploit.

Weev's conviction was overturned based on venue, if I recall.

Wasn't something that basic what Weev was convicted for doing to AT&T?

In this case, they installed malware which is akin to breaking in. It isn't simply like the Silk Road case where a misconfigured server leaked an ip. Which is akin to peering in through the cracks.

This depends highly on context. The Jones intrusion/trespassing test and the Katz reasonable expectation of privacy test are generally used to determine whether police observations from the curtilage (the area surrounding the house) constitute a search.

For example, a Florida appeals court recently ruled that peaking through "a gap accidentally left in a window" was violative of the Fourth Amendment.

There's a whole series of window peaking, gate crossing, fielding entering, etc. cases. They tend to turn on the very specific facts of the case, such as whether the police intruded on a private space to look through the window, or whether the occupant sufficiently indicated that the space was private.

It is also very easy to make hypocrites of people in cases like this. Break into the home computes of the people who brought this forward and see if they stand behind their argument.

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