Call Yourself A Hacker, Lose Your 4th Amendment Rights

What's happening here is that Cory Thuen, a former developer of a network security product called Sophia at a company called Batelle, was fired (he did not "leave") apparently after it was determined that he was making a personal copy of Sophia called Visdom that he planned on open sourcing. When Thuen went on to start his own company to release Visdom (Southfork), Batelle sued for copyright infringement.

Two things are happening at this point in the story, if I'm following it right. First, Batelle has prevailed in a preliminary injunction ordering Thuen to take down Visdom. It did so by making a showing that convinced the court it was likely to prevail in its suit, and that argument included admissions from Thuen that he had copied at least some of Sophia.

Next, Thuen is being ordered to comply with discovery in the suit. Hard drive images are standard ESI evidence in cases like these; it is not at all weird that a court would order an image of a hard drive. The idea that an adversary in a civil proceeding might get access to content like this isn't at all weird; it's a basic result of the Federal Rules of Civil Procedure.

There are two wrinkles to this case:

First, the court ordered that Thuen be served with the demand for his computer without prior notice. According to the order, this is something that the court can do in extreme situations to prevent evidence from being spoiled. The reasoning the court used here is janky: Thuen claimed to be a "hacker", and the court hung its assessment that he might be likely to blitz his hard drive on that.

Second, the court order escrows the hard drive image with the court, allowing Batelle's forensic expert to image the drive but not examine that image; the court hasn't yet determined what access Batelle will have to the image, but is instead taking steps to ensure that the image is available should it be needed.

Once again: hard drive images are not an unusual product of civil discovery. You do not have a "4th amendment right" to avoid civil discovery.

The "hacker" thing is facially ridiculous. But contra Digital Bond's claim, "hacker" didn't enable the hard drive imaging to occur; that was going to occur during discovery no matter what. Instead, "hacker" changed the prior notification procedure used to obtain the image.

Challenged does not mean 'prevent'ed it can be argued later as a matter of law that the warrant should not have been issued, and that the evidence acquired as a result is inadmissible. Courts do not have to give defendants the benefit of the doubt in matters of evidence collection because a) procedures exist to challenge the admission of that evidence at trial and b) it's a sad but true fact that a lot of people do in fact attempt to destroy evidence; where they have both motive and capacity to do so, seizure is justifiable. Spoliation (the legal term for destruction of evidence) is a big problem in litigation.