Yet again, serious Constitutional issues are raised in a case in which all sides are scum. On the one hand, we have the defendant, who is involved with organized crime, gambling and loan sharking -- seriously, a truly lovely man. On the other hand, we have the beleaguered and increasingly incompetent FBI, which, after all these years, had to know that a search warrant does not authorize you to leave anything behind; it allows you to search and take and that's it. (Well, that's enough, surely.) Any nimrod could have told them that they needed to get a wiretap authorization. For that matter, I don't understand why, when they asked for the search warrant and explained to their lawyers what they needed to do, they didn't ask their lawyers for a wiretap authorization as a matter of course, or why their lawyers didn't say, "Look, yahoos, cover your asses and get this, just in case." Why wouldn't you cover the waterfront, as it were, for all possibilities?
The FBI's position is that things don't become subject to the requirement "merely because they happen to have been typed on a computer"; that is idiocy, pure and simple. Surely it doesn't matter if the communication was sent if you can get its content?
Actually, the other thing that puzzles me is why you would EVER have touched that computer again, once it had been in FBI custody. Why wouldn't you just have assumed that your lines were tapped, your computer was somehow tapped, and gotten a new one? You type the password once, copy off the files, and then use an electronic file shredder to wipe the computer clean, five or six times. Then you install a clean copy of the operating system and let the FBI gnash their teeth in frustration.
At the very least, maybe you get someone who understands computers to tell you what sorts of programs are running.
I can hardly wait to see the sorts of comments this case will get from the Justices when it makes it to the Court. Given the ruling on the heat-transfer technology -- which is considerably less invasive -- I'd imagine that this case will get punted, in which case the government will have no evidence.
UPDATE, 1:37pm: Turns out that Scarfo never knew the FBI had touched his computer, which makes more sense. It also seems that the warrant was broader than the Times story indicates ... but I still don't understand why you wouldn't get the wiretap authorization as a CYA measure. The breadth of the warrant may make a difference in the Supreme Court reaction ... although somehow, I don't think so. As the lawyers say, this falls pretty much squarely under the decision they made in the heat-transfer technology case.
Copyright © 2001, Iain Jackson, after-words.org
[Archives: 2001 and after]
Archives before February 5, 2001
Search entries:
12/19/2001: vive la france
12/19/2001: princess, redux
12/19/2001: yemen and rumsfeld
12/18/2001: you're NOT in the army now
12/18/2001: interesting donation
12/18/2001: shame on winn dixie, indeed
12/18/2001: saudi princess
12/17/2001: new resolve
12/17/2001: a victim of the attack ... yeah, right
12/17/2001: polluters ho!