From: Black Unicorn <unicorn@schloss.li>
Date: Sat, 30 Nov 1996 10:12:04 -0800 (PST)
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: denial of service and government rights
In-Reply-To: <3.0.32.19961129195752.00730f7c@mail.io.com>
Message-ID: <Pine.SUN.3.94.961130124851.5120K-100000@polaris>
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On Fri, 29 Nov 1996, Greg Broiles wrote:

> 1.	Seizure & retention as evidence or instrumentality of a crime - e.g., if
> someone breaks into my house, steals my gun, and uses it to shoot someone,
> it'll be a long damn time before I get my gun back.

[...]

> of luck. Bummer. I don't see any reason why this wouldn't be true for a
> computer. Fed.Rul.Crim.Pro. 41(b)(1) allows the seizure (but seizure is not
> forfeiture) of "property that constitutes evidence of the commission of a
> criminal offense". 

It is true of computers.
Take the case of Ripco (the Chicago BBS raided in the SunDevil raids back
when).

I don't think "Dr. Ripco" has yet gotten his equipment back.  I don't know
for sure, but what I do know is that 5 years after the raid, he still had
certainly not gotten anything back.  Keep in mind that the feds took
everything which even looked computer-like in his rather substantial
workshop, including telephones, VCR equipment, burners, the works.

Recall also that Ripco was never specifically charged (or the minor
charges that they did try to pin didn't stick).

Also recall that Ripco (now ripco.com) was raided with a -sealed- warrant.
I dont think that the contents of that warrant have, even today, been
released (though I could be mistaken).  Certainly 5 years after they had
not.

> 2. 	Forfeiture of the instrumentality of a crime, or of a nuisance - cf.
> _Bennis v. Michigan_ <http://www.law.cornell.edu/supct/cases/94-8729.html>,
> the recent Supreme Court case where the "Justices" (cough cough) upheld the
> forfeiture of a wife's half interest in a car which was used (without her
> knowledge/consent) by her husband to facilitate the crime of prostitution.

See my past article on this case.

> The Supreme Court rejected the idea that the Fifth Amendment's takings
> clause or the Fourteenth Amendment's due process clause prevents the
> forfeiture of the instrumentality of a crime without a showing of
> culpability on the part of the owners. Some forfeiture statues (e.g., 21
> USC 881, 1989 Oregon Laws Chapter 791, both re drug-related forfeitures)
> provide for an "innocent owner" defense to forfeiture, but the Supreme
> Court doesn't seem to think that's required as a matter of constitutional
> law.  Fed.Rul.Crim.Pro 41(b)(3) allows the seizure of "property designed or
> intended for use or which is or has been used as the means of committing a
> criminal offense".

Nice summary.

>  There's an excellent resource available re computer search & seizure at
> <http://www.epic.org/security/computer_search_guidelines.txt> - it's the US
> DOJ's "Guidelines for Searching & Seizing Computers", pried loose by an
> EPIC FOIA request and scanned.
> 
> But there's a big difference between "seizure" and "forfeiture".

I'd argue with computer hardware it is a distinction without a difference.
Seizing computer hardware (like Ripco's stuff) for in excess of 5 years is
tantamount to forfeiture given depreciation and so forth.

Add to this the very liberal rules about how long the feds can take to
even CHARGE you with a crime after seizure....

> It's
> possible that recent legislation has done for computer crime what the drug
> forfeiture laws have done with respect to title in property - 21 USC 881(h)
> indicates that "All right, title, and interest in property described in
> subsection (a) of this section [e.g., property used in connection with a
> drug crime] shall vest in the United States upon commission of the act
> giving rise to forfeiture under this section." Given the innocent owner
> defenses available in an 881 forfeiture, (h) sounds scarier than it works
> out to be.

RICO has the same problems, and also in the context of innocent 3rd
parties.  Innocent owner protection is mostly in the form of definition.
Specifically what is an "instrumentality of the crime" and what is a
"passive object" which just happened to be involved.  The real weakness is
that this is generally a question of law and tends to end up in the hands
of judges, not juries, to decide.  It has factual elements, to be sure,
but not enough in the current construct to make me feel secure that a jury
is really the only gateway to finding something an "instrumentality."

> So yes, there may be a statute which gives title to the government in
> computers used to commit crimes, and no, the Supreme Court won't
> necessarily care about an "innocent owner".

Again, I would argue that such a statute needn't even exist given the
rules already well estlablished and demonstrated in action with regard to
indefinate seizure of computer hardware even in the absence of criminal
claims against the owner.

Also, take note that many states are adopting unique civil forfeiture
approaches.  Research into the federal system, while generally giving one
the flavor, cannot give you the full picture.  (Michigan and Indiana are
mavericks here).

> >on the site, he or she unwittingly downloads the virus.  A computer 
> >crime consultant with SAIC warns that these attacks can be launched 
> >on an innocent party's Web server, but once that happens, the server 
> >can become the subject of a wiretap and a search warrant.  "The title 
> >of your computer vests with the government as soon as a hacker uses 
> >it to commit a crime," he says.  

Strictly speaking, he may be correct, however, I doubt very much that a
judge would ignore a motion for a temporary restraining order pleading
that the server in question is the primary income stream for the (ISP,
marketing company, bank, etc.).

Also note carefully the distinction between "instrumentality of the crime"
and "passive participating element" in the crime.  Now if the hacker was
co-owner of the server....

Again, I think the question of forfeiture somewhat meaningless in that
the server could be taken as evidence and not be returned until it's value
is <1/50th of the purchase price regardless of the complicity of the
owner.

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