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Legal Issues

by Mike Masnick

Fri, Feb 25th 2011 4:06am




Filed Under:
due process, warrants


Just Because A Judge Signs A Warrant, Doesn't Make It Legal...

from the just-saying dept

One of the regular "defenses" we've seen in the comments for why Homeland Security's seizures of various domains -- including ones that have substantial protected speech -- are "legal" is because a magistrate judge signed off on the affidavit filed by Homeland Security and the Justice Department. Of course, that's not necessarily true, as it appears that the magistrate judges in these cases failed to abide by the prevailing case law that requires a higher standard of proof than was provided by Homeland Security, but we'll leave that discussion for another day. A separate point is that just because a judge signs off on it, doesn't make such things legal.

As an example of this in a somewhat different context, Julian Sanchez points us to the story of a San Francisco pot bust gone wrong. In this case, the San Francisco police filed for a warrant to search 243 Diamond St. for drugs and associated proceeds for drugs. The warrant described the address as a "two-story, one-unit" building, and the officer claimed he had staked it out for two days and two nights.

It turns out that 243 Diamond is neither two stories, nor is it a one-unit building. It's three stories and two units, and the upper unit (the one raided by the SFPD) happens to be rented to a guy named Clark Freshman... who also just so happens to be a law professor. He told the SFPD and DEA agents who raided his place that they were breaking the law, and they "laughed at" him. Except Freshman may get the last laugh, as he's planning to sue the government. The article quotes another lawyer saying that in similar cases "people have sued and collected substantial settlements" and noting that "whomever is representing the government better get out his checkbook."

While not quite the same, there do seem to be a fair number of similarities with some of the domain seizures. In both cases, the affidavit filed had some very serious errors -- the types of errors that shouldn't have been made. In both cases -- especially with the mooo.com seizure -- perfectly innocent people were severely impacted by these mistakes in the process. Just because a judge rubber stamps a warrant, it doesn't automatically make that warrant legal.

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    The eejit (profile), Feb 25th, 2011 @ 3:30am

    That's an obvious oversight that must never be punished.[/sarc]

     

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    Capitalist Lion Tamer (profile), Feb 25th, 2011 @ 4:56am

    They should have known he was a lawyer...

    ...when he said "whomever."

    Also, a signed warrant is no more legal than a cop firing up the lights momentarily so he won't be inconvenienced by a stop sign. It's still illegal. It's just that the average citizen doesn't have the jurisdiction to call them on it.

     

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      Anonymous Coward, Feb 25th, 2011 @ 6:31am

      Re: They should have known he was a lawyer...

      "legal than a cop firing up the lights momentarily so he won't be inconvenienced by a stop sign."

      Having just aced criminal justice this semester, that's legal.

       

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        Some Other Guy, Feb 25th, 2011 @ 7:15am

        Re: Re: They should have known he was a lawyer...

        Activating the flashy lights on false pretences is entirely legal and aboveboard?

         

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          Christopher (profile), Feb 25th, 2011 @ 11:23am

          Re: Re: Re: They should have known he was a lawyer...

          No, it isn't legal. Numerous states have laws saying that unless a police officer is going to the scene of a crime or has seen a crime and is trying to stop it, they cannot use those flashers.

           

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        The Groove Tiger (profile), Feb 25th, 2011 @ 7:40am

        Re: Re: They should have known he was a lawyer...

        It would only be "legal" (meaning, authorized) if they were responding to code wossnumber call or whatever. Not if they're late and the donut shop is about to close.

         

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          The Groove Tiger (profile), Feb 25th, 2011 @ 7:42am

          Re: Re: Re: They should have known he was a lawyer...

          Clarification: if they're pursuing a suspect or approaching a crime scene "stealthily" they may decide not to turn their sirens and lights on (I think they have a special kind of lights for that on the rear?), but that doesn't mean they get a free pass at every intersection or red light for the lulz.

           

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        Not an electronic Rodent, Feb 25th, 2011 @ 8:02am

        Re: Re: They should have known he was a lawyer...

        Having just aced criminal justice this semester, that's legal.
        To my knowledge (IANAL) in the UK it's not - the police must have "reasonable cause" to fire up the "blues and twos" and "I'm late for dinner" isn't it. Not that I'd expect they'd get in trouble unless they actually hit someone while doing it.

         

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          Chronno S. Trigger (profile), Feb 25th, 2011 @ 8:10am

          Re: Re: Re: They should have known he was a lawyer...

          I read a story a while ago about a cop in the US that did that. A citizen managed to get the cop to pull over and demanded he call another cop. The second cop ended up ticketing the first for running a red light.

          I have no idea if the ticket was payed or if it was just to make the citizen go away, but the fact that the first cop was ticketed suggests that it's illegal in the US as well.

           

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            Rose M. Welch (profile), Feb 25th, 2011 @ 10:24am

            Re: Re: Re: Re: They should have known he was a lawyer...

            I once saw an OKC officer speeding without lights or sound. A Highway Patrolman pulled him over. It was the most beautiful thing I ever saw on a highway.

             

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        Ccomp5950 (profile), Feb 25th, 2011 @ 8:45am

        Re: Re: They should have known he was a lawyer...

        The police here will turn on their lights just to make it to Sonic before happy hour is over and drinks go back to half price.

        I've thought about parking with a camara at 4pm and video taping it. Quite literally I've seen them burn through 3 redlights and just turn off their lights and turn on their left blinker and pull into sonic.

         

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          Anonymous Coward, Feb 25th, 2011 @ 8:51am

          Re: Re: Re: They should have known he was a lawyer...

          You should know it is illegal to video law enforcement.
          Especially when they are doing illegal, unethical and nasty things.

           

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        harbingerofdoom (profile), Feb 25th, 2011 @ 11:28am

        Re: Re: They should have known he was a lawyer...

        imma call B.S. on this post.

        first, it varies by state and local law as to when they should and should not use lights.

        second, i do not for one moment believe that you aced anything beyond cheetos eating 101.

         

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        Anonymous Coward, Feb 28th, 2011 @ 5:02am

        Re: Re: They should have known he was a lawyer...

        "Having just aced criminal justice this semester, that's legal."

        LMFAO. By "aced" did you mean you only scored 1 point?

         

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      vivaelamor (profile), Feb 25th, 2011 @ 7:21am

      Re: They should have known he was a lawyer...

      '...when he said "whomever."'

      Does he get bonus points for using it where 'whoever' would have been more appropriate? More formal, more better!

       

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    Anonymous Coward, Feb 25th, 2011 @ 5:03am

    On a similar tangent...

    This kind of reminds me of the way the Bush administration found a lawyer to tell them that water-boarding (and other torture) was legal. Now they just thumb their noses and say "We were acting under legal advice so that made it perfectly legal. You can't touch us! Nah-nanny-nay-nay!"

     

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    Michael, Feb 25th, 2011 @ 5:16am

    I hate these cases

    These cases make me sick. The guy is totally in the right suing the government for an illegal search. My problem is that the result is one of two things:

    1) He loses after tax payers pay for a successful defense that actually could be used to take away some of our rights
    2) He wins - and tax payers pay for this to go away

    Nothing ever happens to the people that actually did something wrong and our taxes are misdirected at something totally useless.

     

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      Anonymous Coward, Feb 25th, 2011 @ 5:20am

      Re: I hate these cases

      Nothing ever happens to the people that actually did something wrong and our taxes are misdirected at something totally useless.

      You don't expect the government to punish _itself_, do you?

       

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      Richard (profile), Feb 25th, 2011 @ 5:25am

      Re: I hate these cases

      Well he seems to be targeting the individuals -

      "Freshman ...pledged to sue until "I see [the agents'] houses sold at auction and their kids' college tuitions taken away from them. There will not be a better litigated case this century."

       

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        Chris in Utah (profile), Feb 25th, 2011 @ 5:29am

        Re: Re: I hate these cases

        Remind me to add this guy to my feeds :)

         

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        Chargone (profile), Feb 25th, 2011 @ 1:01pm

        Re: Re: I hate these cases

        normally this type of behavior would be reprehensible (it's basically what Sony(?) does, just the parties involved are different)... but there are situations where it is the correct course of action. this would seem to be one of them.

         

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        ltlw0lf (profile), Feb 28th, 2011 @ 5:14pm

        Re: Re: I hate these cases

        Well he seems to be targeting the individuals

        If this was a case of illegal search and seizure, which it appears to be, and the officers should have known it was an illegal search and seizure, the officers involved should be sued. California law (and the 4th Amendment) only protects officers who are acting in accordance with the law. If they in fact broke the law, I hope they (the officers involved) are taken to the cleaners (since they make every police officer out there look bad.)

        This is taught in Search and Seizure classes in every POST certified law enforcement academy across California. It is the responsibility of the officers to assure that the Search Warrant is valid, accurate, and correct before acting on it. If you have a search warrant which has anything that is incorrect, the search warrant is invalid and must be fixed. If the warrant says the building is a two story building, it better be a two story building! Come on...it only takes a couple minutes for the duty judge to sign a new warrant. The laziness...it burns.

         

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      doughless (profile), Feb 25th, 2011 @ 9:23am

      Re: I hate these cases

      If he wins, the tax payers paid for stronger precedence in protecting our rights; not completely a bad thing.

       

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        Davideo, Mar 1st, 2011 @ 10:20pm

        Re: Re: I hate these cases

        Unfortunately, there's no "stronger" precedent being set: he'll no doubt win rather easily on the basis of existing principles already found in prior case law. In other words, not ALL court cases set new precedents.

         

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    Chris in Utah (profile), Feb 25th, 2011 @ 5:34am

    Got curious on they guy

    It seems a pretty good bet that this is the guy they based the character on Lie to Me on. This story's evolution is going to entertainingly epic.

     

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    Richard (profile), Feb 25th, 2011 @ 5:54am

    Common Sense and Professionalism

    Whatever the legal situation might be, what strikes me is the obvious stupidity and unprofessionalism of the police officers involved. Was it not obvious to them the moment they entered the flat that they were not in the right place.

    Any sensible professional would have apologised and left immediately. Instead they wasted a large chunk of their own time putting an entirely innocent member of the public through a pointless ideal - whilst real criminals carried on unimpeded.

    Police officers and others with similar authority are meant to acquire some skill in judging innocence and guilt so they don't waste their own time like this. Seems this lot should be sent straight back to the training academy.

     

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      Richard (profile), Feb 25th, 2011 @ 5:55am

      Re: Common Sense and Professionalism

      "pointless ideal -"
      whoops - a pointless ordeal

       

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        Chosen Reject (profile), Feb 25th, 2011 @ 8:54am

        Re: Re: Common Sense and Professionalism

        Whew, I thought you might have been one of those defenders of ICE who claim that due process isn't necessary anymore, or one of those people who think that people are innocent until accused. "Those are pointless ideals" they might say.

         

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    Anonymous Coward, Feb 25th, 2011 @ 6:09am

    At the time of a warrant, "legal" is only in the sense that the judge signed off on the warrant. Basically, asking the officer who requests the warrant to swear that "to the best of their knowledge" that the statements made are true. The judge make sure that the "facts" presented add up to enough to merit the warrant, and off you go.

    When the officers saw that the building did not match the warrant, they likely should have stopped at that point. Going forward was a very bad choice. I wish the professor luck in his legal actions, but I think that punishing the officers children seems more than slightly vindictive (and likely to get him in legal trouble as well).

    However, in all of this, it is very hard to draw a parallel to the domain issues. I am sure the moooo.com warrant will be revealed at some point in the future, and will be shown to valid on it's face (which is pretty much the standard).

     

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      RD, Feb 25th, 2011 @ 6:40am

      Re:

      "I am sure the moooo.com warrant will be revealed at some point in the future, and will be shown to valid on it's face (which is pretty much the standard)."

      You think its going to turn out to be legal to seize 84,000 website domains that had NOTHING to do with whatever laws were broken by a FEW of the domains? Really?

       

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        Anonymous Coward, Feb 25th, 2011 @ 7:26am

        Re: Re:

        How often do we have to repeat this. They seized 1 domain. If that domain owner decides to create 84,000 subdomains (which are not registered, but are only local DNS records), that isn't law enforcement's problem.

        It wasn't 84,000 domains. It was one.

        Until you can understand that basic concept, the rest of this is probably beyond your grasp.

         

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          Gwiz (profile), Feb 25th, 2011 @ 7:32am

          Re: Re: Re:

          AJ, how times do we need to tell you that laws written for the physical world DO NOT translate well onto the internet.

           

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          Gwiz (profile), Feb 25th, 2011 @ 7:37am

          Re: Re: Re:

          AJ (I assume), How many times must we explain that laws written for the physical world DO NOT translate well onto the internet.

           

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          Anonymous Coward, Feb 25th, 2011 @ 7:42am

          Re: Re: Re:

          How often do we have to repeat this. They seized 1 domain. If that domain owner decides to create 84,000 subdomains (which are not registered, but are only local DNS records), that isn't law enforcement's problem.

          Hey AJ, I see you're back to tell some more lies. I knew you would be.

          The domains were all registered under their parent domain, as domains are.

          Until you can understand that basic concept, the rest of this is probably beyond your grasp.

          We can understand that you seem to have a real problem telling the truth nowadays. But, that's typical for your type.

           

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            Anonymous Coward, Feb 25th, 2011 @ 7:47am

            Re: Re: Re: Re:

            LOL! I know for a fact that wasn't AJ. :)

             

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            Anonymous Coward, Feb 25th, 2011 @ 9:47am

            Re: Re: Re: Re:

            Yeesh, you guys need to learn the difference between a registered domain and a third level DNS entry.

            When you register a domain (moooo.com) you do so with a registrar, who has an agreement with the owner of the TLD (top level domain, in this case .com, held by Verisign).

            third level (and fourth level and so on) are not actually registered. They are only created by making a DNS entry. horse.moooo.com is only a DNS record, which points to an IP. It isn't registered anywhere, there are no direct fees to pay, it is a private contact between mooo.com and their users. There is no public registry, there is no oversight by a TLD or ICANN. You can create an unlimited number of third level domains (limited only by technical limitations of DNS software and browsers, which I think limits to 255 characters).

            So before you claim anyone is not telling the truth, perhaps you might want to learn a thing or two.

             

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              Gwiz (profile), Feb 25th, 2011 @ 9:58am

              Re: Re: Re: Re: Re:

              But still, the whole mooo.com thing illustrates how laws written for the physical world do not always translate well onto the internet.

              To most laymen, the domain/subdomain is akin to a zip code and DHS/ICE took down the whole zip code instead of the single business accused of illegal activity. The actual legality or ownership means nothing to the average person.

               

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              Anonymous Coward, Feb 25th, 2011 @ 10:03am

              Re: Re: Re: Re: Re:

              Right. It's wrong to pretend like mooo.com allowing users to create subdomains is the exact same thing as someone registering a domain name with a bona fide, ICANN-accredited registrar. The former is merely a licensee, while the latter has true ownership.

               

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              Anonymous Coward, Feb 25th, 2011 @ 11:36am

              Re: Re: Re: Re: Re:

              third level (and fourth level and so on) are not actually registered.

              Sure they are. If mooo wants to let other people sell names under their domain and set up an accreditation process for third party registrars, they're perfectly free to do so, just as with Verisign and com. Or they can just register them directly themselves, which is what they've chosen.

              What you're basically saying is that there is no such as a registrar for names under .co.uk, for example. I say you're full of it.

              So before you claim anyone is not telling the truth, perhaps you might want to learn a thing or two.

              I've been involved with this stuff as a network engineer for many years and know pretty well how it works. I think maybe you should take your own advice. You seem to be just making stuff up to suit your position, and that is indeed what people call "not telling the truth".

               

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          Anonymous Coward, Feb 25th, 2011 @ 11:27am

          Re: Re: Re:

          So, again, you would perfectly fine if the government seized every Blogspot or Wordpress blog because one was illegal.

          Good to know.

           

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          Adrian Lopez, Feb 26th, 2011 @ 10:42am

          Re: Re: Re:

          It wasn't 84,000 domains, but the one domain that was taken down had maybe one infringing subdomain out of approximately 84,000, which is slightly over 0.001 percent of the total number of subdomains registered under that one domain.

          There's nothing like shutting down a domain for 0.001% of its content to illustrate why shutting down websites with nothing more than a judge's rubberstamp is a really bad idea. Shutting down domains containing protected or potentially protected speech should require a trial and establishment of guilt. The first amendment is important enough that nothing less than that should ever suffice.

           

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            Anonymous Coward, Feb 27th, 2011 @ 6:05am

            Re: Re: Re: Re:

            It wasn't 84,000 domains, but the one domain that was taken down had maybe one infringing subdomain out of approximately 84,000, which is slightly over 0.001 percent of the total number of subdomains registered under that one domain.

            By that reasoning, mooo.com isn't a domain either, but a just subdomain under com and taking down all of com would be just "one domain".

            There's nothing like shutting down a domain for 0.001% of its content to illustrate why shutting down websites with nothing more than a judge's rubberstamp is a really bad idea.

            Yet, they did so and the very same excuse would justify shutting down com as well. The difference is that there are some very wealthy and politically well-connected subdomains under com and ICE wouldn't dare step on their toes. So by not shuttind down com, ICE is admitting that it doesn't enforce the law equally or fairly.

             

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      Vincent Clement (profile), Feb 25th, 2011 @ 6:41am

      Re:

      "When the officers saw that the building did not match the warrant, they likely should have stopped at that point."

      You assume that upon arriving at the location, the officers bothered to make sure that the building matched the description in the warrant. The only thing they matched was the address.

       

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      MrWilson, Feb 25th, 2011 @ 6:43am

      Re:

      Not that it justifies it, but the RIAA doesn't seem to have a problem with punishing the children of the people they sued.

       

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      Anonymous Coward, Feb 25th, 2011 @ 6:53am

      Re:

      However, in all of this, it is very hard to draw a parallel to the domain issues. I am sure the moooo.com warrant will be revealed at some point in the future, and will be shown to valid on it's face (which is pretty much the standard).

      I agree completely. The parallel here is a huge stretch.

       

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      Gwiz (profile), Feb 25th, 2011 @ 7:01am

      Re:

      When the officers saw that the building did not match the warrant, they likely should have stopped at that point. Going forward was a very bad choice.

      Unfortunately, with asset forfeiture laws the way they are in many states, where the police departments keep 100% of the property seized regardless of the outcome of the criminal trials (if any at all), the motivation to continue is huge, because all this increases the departments funds and therefore increases individual salaries of the officers.

       

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    NullOp, Feb 25th, 2011 @ 6:35am

    Legal?

    I hope no one here thinks something is legal just because a judge signed it or a cop said it, etc, etc. All of the aforementioned people can be dead wrong in a very authoritative way!

     

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    Anonymous Coward, Feb 25th, 2011 @ 6:47am

    For insiders, just because Mike posts it, it is true. For me, all these posts are rubber stamped.

     

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    P3T3R5ON (profile), Feb 25th, 2011 @ 7:48am

    Not above the law

    "He told the SFPD and DEA agents who raided his place that they were breaking the law, and they 'laughed at' him."

    This is what is wrong with the system. They believe that by being part of the law that they are above it or separated from it. That the laws they are enforcing are completely infallible and just. That because I'm a cop or a judge anything and everything I say must be adhered to "or else".

     

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    RunsWithScissors, Feb 25th, 2011 @ 9:42am

    The secret is to sue the INDIVIDUALS (not the department) and the Judge. Put the liability on them for following unlawful or erroneous orders.

    As the Nazis found out, just because it's an "order" doesn't mean they have to do it. They still have a responsibility to their fellow man to ensure that they are not harming the wrong guy, or for that matter harming the right guy. They have a job to do, it DOES have responsibility that goes along with it. If they are instructed to do something illegal or unlawful, they should refuse. If they are fired, they then have grounds for their OWN lawsuit.

     

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    Anonymous Coward, Feb 25th, 2011 @ 10:08am

    A search warrant DOES make it legal to conduct a search that is consistent with the terms of the search warrant.
    So the author's comment that "just because a judge signs off on it, doesn't make such things legal" is not accurate.
    The fact that the search is legal pursuant to the warrant does not mean that the property owner is prevented from making legal challenges to the warrant or the scope of the search, or to later ask a judge to exclude from evidence what was found during the search.
    Those issues can be litigated later, and they often are litigated later.
    Most of the responders in this thread seem to have no legal knowledge, but seem to have experience having been arrested or having been subject to a search warrant.

     

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      Gwiz (profile), Feb 25th, 2011 @ 10:29am

      Re:

      Most of the responders in this thread seem to have no legal knowledge, but seem to have experience having been arrested or having been subject to a search warrant.

      The first part of your sentence may be true.

      The second part, however, is pure speculative bullshit and completely unwarranted. Get a life.

       

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    Anonymous Coward, Feb 25th, 2011 @ 10:11am

    "Of course, that's not necessarily true, as it appears that the magistrate judges in these cases failed to abide by the prevailing case law that requires a higher standard of proof than was provided by Homeland Security, but we'll leave that discussion for another day."

    I am eager to hear this discussion. My guess is that you might be disappointed to find, not that DHS failed to meet the legal standard required, but that the standard is so low that they did meet it.

     

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    Anonymous Coward, Feb 25th, 2011 @ 10:37am

    Where are the warrants?

    So far we have seen warrants for 15 out of 125+ domains seized by ICE. The 7 domains seized last June, the 10 domains seized for child porn, and all of the domains seized for counterfeit goods haven't been released. Maybe they're seizing a majority of the domains without warrants?

     

    [ reply to this | link to this | view in chronology ]

    •  
      icon
      Jay (profile), Feb 25th, 2011 @ 11:26am

      Re: Where are the warrants?

      Wait... The 7 domains in June? There were 9 and no affidavits showed up for those specifically.

      You might be referring to the Turkey Day Takedowns. The government did file a complaint about TVShack though...

       

      [ reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Feb 25th, 2011 @ 12:09pm

        Re: Re: Where are the warrants?

        Yea just all of the ones that happened in June there's been little information put out. Maybe a forfeiture hearing notice, but not the affidavits. ICE didn't even list the sites seized for child porn in their last press release.

        They're also starting to seize them differently that's harder to track. Instead of pointing them all to NS1.SEIZEDSERVERS.COM (seizedservers.com is operated by ICE), some departments are setting up virtual nameservers on the seized domains. For example something like NS1.FAKELV.COM.

        There's a website that shows when domains are added to a specific nameserver, dailychanges.com, and that new method foils journalists attempts to see when and what they are seizing. There's no benefit over the old method they were using besides hiding what they are doing.

        Why so much secrecy?

         

        [ reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Feb 25th, 2011 @ 4:33pm

    government is the biggest crook - any surprise cops are too?

    Nice knowing you America.

     

    [ reply to this | link to this | view in chronology ]


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