To keep Tor hack source code secret, DOJ dismisses child porn case

Fruit of the forbidden tree. It's inadmissible in court.

The structure is to keep police officers honest which is more important than a particular person going to jail. The operating principle is that a dishonest police force is more dangerous than a criminal who was caught using illegal evidence. Typically the criminal will commit another crime and if you get evidence against them legally, then you can prosecute them for the new crime.

I think the logic is: "If you're willing to gather evidence against somebody illegally, then you'd also be willing to fabricate evidence that doesn't exist".

This argument would legitimize torture if society would agree on that it is legitimate. So it's a really bad idea to accept this argument.

You're getting a lot of huffy responses to this question, but it is an entirely legitimate one. In fact, many (maybe most?) western countries don't have the same exclusionary rules the US has. There are other remedies to police misconduct. If you were starting a nation from first principles, it's not an iron law of justice that your courts have that rule.

The reason we believe the exclusionary rule works so well is that it strikes directly at the incentive structure for the police. We don't have to convince evidence-gathering officers of their liability or assess liability up and down the chain of responsibilities on the prosecution's side; we just have to assess whether evidence was handled properly, and, if it wasn't, the prosecutors lose the evidence. The one simple rule neatly ensures that nobody --- in any role --- on the prosecution's side has any incentive to mishandle evidence (or coerce underlings or partner organizations to mishandle it).

But clearly the rule isn't a requirement. We don't generally believe, for instance, that Canada's criminal justice system is systemically corrupt, and they don't have a hard-and-fast exclusion rule.

What guarantees do we have that the evidence has not been fabricated or planted? Evidence collection processes exists to minimize misconduct. If someone can't explain how the evidence has been obtained, they should be viewed as suspect.

I'm with you ! They are both criminals and as such should be detained.

Quoting Bill Binney “Things won't change until we put these people in jail”

There's multiple problems with that idea. Firstly, it incentivizes 'working around the system' for enforcement to go after people. Enforcement is not inherenetly out there for the 'good', many times they're there for their own agenda, while looking like they're enforcing the law. This can create a mixture of criminal/enforcement culture, and lead to a further increase of 'bad cops'.

Secondly, when gathering evidence illigally, it may be that the evidence is purely out of context, shaped to make the person look guilty, or that the methods of doing so are not reliable. Courts still have a problem with reliability of evidence, even 'lie-detectors' are still seen as legitimate, but there is no evidence of their ability.

How can tainted evidence be used to establish guilt beyond reasonable doubt, when the entire basis of trust in the collection of the evidence is ostensibly gone.

One reason that I didn't consider until relatively recently is the issue of standing.

It's not possible for random people to successfully sue, say, the police for illegally gathering evidence if they have no proof that they were harmed and no proof that it happened.

The issue is that only people charged with a crime have the standing needed to bring this matter up in court. The (possible) crooks keep the police and justice department honest.

How would one stop the police from getting "anonymous tips" with illegally acquired evidence again and again? It sounds like it would lead to a plain disregard for procedure.

I'm pretty sure there's a common saying about two lefts not making a right. Or two rights not making a wrong? Can't quite remember.

That would encourage police to gather evidence illegally all the time, because it works. Which is consider a worse state of affairs than guilty people going free.

Just imagine undercover police walking into every home that left their door unlocked and having a snoop around. They could do that and get some convictions out of it.

> In general if a criminal goes free despite having evidence against him just because the evidence was not obtained legally ... it sounds rather wrong to me.

Then you are terribly shortsighted. It is "innocent until proven" guilty" for many very good reasons. We have only the word of the government that this man is guilty.

The government has ALL the cards and power, the innocent need protection from it more than we need to punish the guilty.

The accused aren't geniuses; the fact that the government didn't build a solid case against him with physical evidence, wiretaps, keyloggers, etc. means he really wasn't that important. The fact that they have such a high profile suspect and can't make the case against him without a fishing expedition makes me VERY suspicious.

The fact that they are willing to drop the case makes me wonder how much of what they have is induced, entrapped, or outright fabricated.

> In general if a criminal goes free despite having evidence against him just because the evidence was not obtained legally

So does the investigation agency who broke the law.

I think most people would agree with that statement. But how do we decide if they are a criminal in the first place? Therein lies the rub.

It's called the Rule of Law, as in it's the Law that Rules this land. Nobody is supposed to be above it, despite evidence to the contrary in US politics.

I think it's part of a general principle of making evidence be "clean". A huge paper trail, specific needs to define how the evidence was gotten, etc. All of these make it much harder to do things like forge evidence.

Evidence gotten through illegal means also get a lot of doubt just by default. Imagine a police officer paying somebody to steal evidence for them. The person now how has an incentive to forge evidence.

An important detail of this system is that evidence brought to the table cannot be trusted without a transparent system. Defendants will almost always contest evidence, but this system makes that argument hold a lot less water.

(There's still the issue that police might not be interested in collecting evidence that goes against a prosecutor's case. Don't know how that's solved)

if the law enforcement is not clean, then who would be?

Then I would encourage to get yourself over to your local community college and learn why things are the way they are in the legal system. You'll spend a fair amount of time talking about the different schools of thought on law in what law is and is supposed to do. First of all, you need a conviction or a confession to call him a criminal. This, or any other case, has nothing to do with any _one_ person or party. It has everything to do with _everyone_ else. You're not seeing the lasting consequences beyond The People v. Random Pedo. To be honest, society doesn't really need your input on how law should work if your only criteria to strip someone of their freedom or to execute them is whether or not one has been accused. You'd function more appropriately in 17th century colonial Massachusetts. The exclusionary rule in this country has only existed in its (mostly) current form since 1920, but has been a legal concept for many centuries. The main question to be answered in Silverthorne Lumber Co. v. United States involved the applications of 4th amendment. In general, if our system of law allows for derivatives which are illegal obtained then you have no need for the 4th amendment protection. I shouldn't need to tell you what happens when militarized drug agencies execute a no-knock warrant on the wrong house. I shouldn't need to tell you what happens when a sheriff beats the shit out of a guy they picked up off the street to force a confession. I shouldn't need to tell you how this could be used to destroy the life or credibility of a political opponent, or to shutup a media organization. I shouldn't have to tell you that this would be a grand method for imprisoning more minorities on the basis of race, or that this would all but ensure a fair trial is impossible. But...your argument is about _legitimate_ evidence obtained illegally. I may have to tell you that if your solution were to be implemented then you'll need to tell the rest of us how we go about prosecuting the prosecution. Who's going to bring that lawsuit against them? And you may have to tell the rest of us what the legal test is to ensure that illegally obtained evidence is also not _manufactured_ evidence, because insofar as I am aware, no such legal test exists.

Being digital data, I'm assuming you have to be able to explain where the data was sitting, posit a reason for the data to exist there at all (edit: or some context around the data) and describe your method of obtaining the data.

Otherwise you could just create the data. With the above, you still can - it does however allow for inconsistencies to arise, and when they do a closer inspection can be conducted. (IANAL)

"Private" means "unavailable to the defendant" in this case which runs counter to some of the deepest roots of our justice system.

You do not get to convict someone based on evidence that can't be entered at trial. Some third party saying "oh yeah we totally verified it" is not enough.

Lots of people visit links on the clear web showing illegal and horrific acts. If the full extent of a crime is filling out an http form with a fake email to see some pictures and video, it's still not clear that this is so far beyond the pale that years of prison for hundreds of thousands of people is the best solution.

< Anyone relying on TOR for security is a fool. It's more heavily monitored than the regular net.

this is why we should encourage more tor traffic for regular, normal use. making the cost of deanonymization more costly.

While a compromised exit node is bad, isn't the situation improved if your TOR session is encrypted? With an encrypted session over tor, and a trusted endpoint, what is your risk profile beyond your exposure to the endpoint?

Many countries solve that:

You can't present the exact same case again after you filed to dismiss...

...unless a major change has happened, such as a massive amount of new incriminating evidence.

> You actually think the trial should not be allowed to go forward?

Actually, yes. If you filed a case on something so flimsy and it collapses, the case should get dismissed.

It would sure make prosecutors go the extra mile to make sure that there is concrete evidence before filing charges.

Simply filing charges can destroy someone's life. The prosecution should have to put something at risk when they do so.

Should've waited for the DNA evidence. The idea we convict with just eyewitness testimony alone is enough of a nightmare.

Also, this is how it happens already if they go through the entire trial.

* "We have an eyewitness. File the charges!"

* "Jury finds the defendant not guilty because they didn't think the eyewitness' testimony was proof beyond a reasonable doubt."

* "We found DNA evidence and even a video that someone recorded but didn't admit to just now."

Double jeopardy means they can't go ahead, no matter what evidence they find. This is just extending that a little further, which I see as a good thing.

They're probably using it for higher-priority investigations, like keeping track of terrorist communications.

It reads straight out of Kafka you can't be present at your own trial, because the evidence against you is secret.

I might be willing to grant that legitimate cases of national security warrant this, but routine criminal proceedings? Fuck no. That kind of exclusion of the accused is terrifying and delegitimizes the proceedings in my eyes. The state can't try you in secret just because they don't want to talk about the evidence, and we know the state routinely abuses secrecy laws to cover malfeasance.

Right. How is the accused supposed to provide an honest account to their lawyer if they can't even know what evidence exists against them? They'll have nothing to refute, and their lawyer can't ask them pertinent questions about their own defense.

From the Wikipedia article, "Community, Space and Online Censorship (2009) argued that classifying children in an infantile manner, as innocents in need of protection, is a form of obsession over the concept of purity."

I believe I see what you mean, however in a case of child pornography do you not think that it's in a human's best interest to keep something from abuse of naivety?

The general rule of thumb is if a politician is pushing a law to "protect the children," it's a tell that it's a bad law. That's the only way they can sell it. By bad law, I mean permanently lose your rights kind of law. There have been many, but the war on drugs is a big one. It led to the militarization of the police, no knock raids, out of proportion sentencing, stop and frisk, asset forfeiture with no evidence, aggressive prosecution, etc. These laws that were sold to protect children against drug dealers creep into other offenses as well, like RICO and of course the patriot act. Terrorism is another big seller.

>And now we find that when it comes time to actually use these tools to protect the children, the secrecy of the tools is more important.

I don't want to get into too shaky ground, but if you can de-emotionalize the issue, prosecuting the consumer of the material isn't directly protecting anybody. That picture was taken no matter how many people look at it. You wouldn't expect the government to prosecute everyone who looked at the stolen pictures of celebrities that came out a few years ago. The government is now using this to legitimize surveillance, actively attempt to circumvent security (which is illegal), and to hide the circumvention methods. That's bad for everybody. Child porn is horrible, and horrible things happen to children, but an authoritarian government with massive, legal surveillance power is worse. The road to hell was paved with good intentions.