Monday, December 3, 2012

Weindl - FBI agent spyware v. principal attracts attention and misinformation

Since I wrote about United States v. Weindl on November 28th, Principal caught with CP when FBI agent returns son's school laptop with spyware still on it; court denies suppression, the story was picked up by Kashmir Hill at Forbes (by way of Eric Goldman), An FBI Dad's Misadventures With Spyware Exposed School Principal's Child Porn Searches, and from there spread like wildfire to various other sites.

Today, Robert X. Cringely, on his Infoworld blog "Notes from the field" highlighted the story as well - School for scandal: FBI spyware nabs pervy principal. In the story, he states:

When spooks spy on their kids -- and happen to ensnare adults doing things they shouldn't -- isn't that illegal spying? I asked cyber lawyer Jonathan Ezor, Director of the Touro Law Center Institute for Business, Law and Technology in Islip, New York. 
Though Ezor cautioned that he is not a criminal attorney, he says Auther's discovery of Weindl's dark deeds probably falls under the "in plain sight" exception for evidence. If you open the door for the cops and they see a big pile of cocaine sitting on your coffee table, they have every right to break down the door, then seize you and the drugs, no warrant required. 
The more important issue, says Ezor, was what the feds told Weindl when they sat down with him in his office and whether they read him his rights. That might have a greater bearing on whether his Fourth Amendment rights were violated. 
On the other hand, Justin P. Webb of the CyberCrime Review blog says the court was wrong across the board (though he's saving his reasons why for a future blog post).
Two things:

(1) With all due respect to Jonathan Ezor, he clearly did not read the case. As I stated in my write-up, the court expressly dismissed the plain view exception to the warrant requirement. You cannot argue for plain view when you are somewhere you weren't authorized to be. Further, and as the case states specifically, Weindl was not read his rights" when [the the two FBI agents] sat down with him in his office." Most importantly: the significant implications of the case, which Weindl's attorney assured me will reach the the 9th Circuit, do not revolve around the interrogation, but the search.

(2) Cringely is correct to note that I believe the Weindl opinion was wrong across the board. While my post on that issue is not up yet, it will be within 48 hours.


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