Civil Liberties: from DC to the Newton Library

Re:Librarians should fully cooperate
The warrant was not necessary to seize the computers (I am being quite specific about the term seize.) Exigent circumstances make the seizure of the computers allowable. The preservation of evidence that may degrade is of prime importance. As we all know files on a computer can easily be over-written, especially data in the cache.

To allow examination of the computers, and to prevent exclusion of the evidence based on procedural reasons, a warrant would be obtained after they have been secured.

Think of it as a murder case. If the victim is beaten with a hammer a warrant can be obtained in due course and the scene guarded until the warrant arrives as the hammer will still be a hammer 12 hours from now. However if the victim was stabbed with an icicle then the murder weapon must be taken by the police and placed in a freezer before it melts. A warrant would be obtained to examine the frozen icicle.

In this case if the threat had been written on a stack of paper, the paper below could be examined as they do in all Columbo episodes to read the note written on the top sheet. This could wait for a warrant as the impression on the second sheet will not degrade significantly, however data in the cache of a computer is not so stable and thus the exigency is created.

Re:Librarians should uphold the Constitution
I apologize in advance for the long post but I simply cannot let these points go unanswered. The plain text is mine, the italics belong to lis. I did it that way to make it easier to understand.

Where in the story does it say they had any intention of getting a warrant to search the computers, after they were seized?
It did not, the journalist who wrote the article(s) about the story originally and the writer of the article referenced in this LISNews.org item must economize on their words. Newsprint is finite, as opposed to the electronic page, which we can assume to be infinite.
However the FBI does have written policies as they relate to cases such as this. You may find their manual “Searching and Seizing Computers
and Obtaining Electronic Evidence in Criminal Investigations”. to be illuminating. Thus it is clear that while the computers may have been seized their examination would have been delayed until a warrant was obtained.

And did you notice that the police themselves admit that, by the time the warrant became an issue, they had ALREADY determined that there was no imminent danger?
The police investigate crimes; it is a rare occurrence for the police to deter a criminal from committing a crime. While I do not concede that the police determined that there was no imminent danger, the police notwithstanding the alleged lack of any danger have a duty to fully investigate criminal acts. I must assume that you would stipulate that sending a threatening communication is indeed a criminal act. Hence their investigation must be as thorough as is possible and the timely examination of the computers was an integral part of that investigation.

Or that they’re not claiming “exigent circumstances” requiring the seizure of the computers before evidence was destroyed, but instead asserting that the computers were “evidence of a crime in plain view”? I.e., the same as a bloody knife? In what way do three computers sitting in a public library public-access computer lab constitute “evidence of a crime in plain view”? Insofar as the reporters were not there, neither you nor I were there it is impossible for us to know the specific conversation that went on. Since you insist that there were no exigent circumstances then the seizure may be approached in a different direction. The fact that the computers were in public certainly brings into play United States v. David, 756 F. Supp. 1385 in which the Court held that an individual will not retain a reasonable expectation of privacy in information from a computer that the person has made openly available. By using a computer in the library that is by its very definition openly available the criminal loses the protection he or she would have had on their personal computer at home. Similarly you may wish to see Katz v. United States, 389 U.S. 347, 351. In Katz the Court held “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection”. It is indeed the Fourth Amendment with which we are concerned as no one has a First Amendment right to threaten others.

Additionally the right to security in one’s email communication often ends when the email is sent. “[A]n e-mail message . . . cannot be afforded a reasonable expectation of privacy once that message is received. ( Charbonneau, 979 F. Supp. at 1184) obviously the sender of the message in question did not want the communication to remain private, in fact his aim was exactly the opposite – he wanted to induce a public panic. Thus the sender certainly cannot claim that he wished his mail to remain private.

In this state (Massachusetts), as in most others, librarians are legally required to protect library users’ privacy unless a warrant is presented.
Chapter 78: Section 7 of Mass Public Laws make library records non-public records as defined by law,(“ …That part of the records of a public library which reveals the identity and intellectual pursuits of a person using such library shall not be a public record as defined by clause Twenty-sixth of section seven of chapter four.”) but I see no affirmative duty for librarians to keep confidential these records. Thus there is no requirement that these records be kept confidential. Even though you assume the contrary, librarians are not required to keep patron records private.

And no, really, it’s not that easy to over-write files on a computer, unless you actually know what you’re doing and use the right tools–and have the time to do a proper and thorough job. It is remarkably easy to overwrite data on a hard drive, it is even easier to rewrite files in the browser cache. It is obvious that you do not understand the process nor function of web browser caching.

(It is the easiest thing in the world to _think_ you’ve done it, however.) I shall not get into DOD strength data wiping as it is not germane to the discussion but only not that it is not necessary to be that thorough to destroy cached data.

And the FBI and the cops would have had that computer much faster if they had DONE THEIR JOBS and gotten the warrant first. Again you suppose that a warrant was required.

There were no “exigent circumstances” here; Again it is obvious that there were exigent circumstances yet you fail to see them, or perhaps you refuse to see them. [T]here were only law enforcement personnel, who are sworn to uphold the Constitution, assuming that no one in this post-9/11 world would actually treat the 4th Amendment as something other than a quaint irrelevance. Now you are only rambling.

You do realize, don’t you, that it’s not just “the terrorist’s” rights that are involved here? I can assure you that I do understand that the rights of others are involved, The rights of each and every Brandies student, staff member, and faculty member that had to stand in the bitter cold are involved. The rights of school children that were forced from their classrooms into the freezing winter air are involved. I must however note that you claim rights for terrorists that do not exist. I explicity disclaim any rights for terrorists. The Constitution does not protect those who seek to distroy it. You cannot cloak yourself in that which you seek to burn. Your inference that terrorists have rights disgusts me.

That the other library users who used that computer, and who are NOT suspected of any threats or acts of terrorism, also have their personal information and surfing habits remaining on that computer, and have a right–which they have done nothing to forfeit–to expect the library to make reasonable efforts to protect that information, The FBI examination of the computer would not have exposed their legal communications to public view. The FBI does not have a website that say “Here is stuff from average Joe’s we uncovered during terrorist investigations.” You insist that the library was taking reasonable steps to protect the private data of public computer users. There is no private data on public computers. Furthermore obstructing a police investigation does not constitute reasonable steps.

… and not allow investigators to go digging through it merely because they _assert_ (but have not bothered to demonstrate to a judge) that they need to? Also that the _library_ _itself_ has a right not to have its records searched without a warrant? If you will please re-read my post I noted I was being very specific in my use of the word seize. Seize does not include forensic examination of the computer. If you will again please reference the FBI manual referenced above you will not that a warrant would have been obtained to examine the computers. Secondarily your supposition that the library does not want its records examined without a warrant is absurd. The library is a public entity paid for with public funds. Its records are the public’s, the taxpayers’ records and they are most assuredly open to public inspection without a warrant. To think otherwise is simply wrong.

We have the 4th Amendment, and the requirement that the police get warrants before searching or seizing your property, because relying on law enforcement personnel, who have a tough job to do under a lot of pressure, to be objective and dispassionate judges of when searches and seizures are “reasonable” or “unreasonable” in the investigation of crimes and potential crimes, has historically been a non-starter, in terms of producing the intended results. I truly fail to grasp what you mean in that run on sentence. Do you not trust the police? Do you not trust the FBI? Stare Decisis might be a term with which you might wish to acquaint yourself. It has been decided again and again that police may seize evidence that may be destroyed if the time needed to obtain a warrant were to pass. Evidence of a crime may be seized in exigent circumstances, and I have provided both here and in my previous posts case law clarifying this.

Not because the police are bad people, but because in the desire to do their jobs and keep the public safe, it’s too easy to develop a too-expansive view of what they “need” to have immediate and unrestricted access to. It could also be said that some librarians in their desire to do what they feel is their job obstruct law enforcement and delay instigation into terrorist threats with a distorted view of what they “need” to do.

The librarian and the Mayor were incorrect and they were not jailed only because the law enforcement officers used remarkable restraint. Your arguments however well meaning have no reasonable foundation.