Cyberspace Invaders

County law enforcement's seeking more and more Web site information to mount investigations against private citizens

The seizure of the computers and law enforcement's copying of the data on their hard drives intimidated those associated with the Democratic candidate running for office. The candidate, the campaign manager of the candidate, the graphic designer of the campaign brochure, and even their lawyer, Kyrsten Sinema — herself a state representative — refused to comment out of fear of the consequences.

Even people within Arpaio's own department are not immune. In 2002, Deputy Kelley Waldrip spoke with a New Times reporter looking into possible misuse of funds at the Sheriff's Office. When Arpaio discovered that Waldrip had talked to a reporter, he became angry; Waldrip announced his retirement soon thereafter. Arpaio still saw the deputy as a threat, and his office contacted Waldrip's subsequent employer demanding it hand over Waldrip's IP address. (Knowing Waldrip's work IP address would have given Arpaio a building block to track his activities online).

What makes law enforcement's interest in computers so dangerous is its utter lack of competence in dealing with them.

Danny Hellman

In 2004, Maricopa County officials arrested a 16-year-old boy for having 10 images of child porn on his computer. In claiming he had never seen the photographs before, he passed two lie detector tests. It was discovered that the computer had been infected with hundreds of spyware and backdoor Trojans, which can hijack your computer via legitimate Web sites and open up your hard drive for someone to store illegal images without your knowledge. Those interested in child porn often use this method to store their illegal images on unsuspecting computers. A British man was cleared of all charges of possessing child porn on his computer in 2003 after authorities discovered a backdoor Trojan on his computer.

Yet the county's computer "expert" did not check the computer for viruses. Thomas was dead set on sending the kid to prison for 90 years.

Thomas went on an ABC news program to explain the case in a January interview with reporter Jim Avila.

Avila: Your expert was not an expert who . . . who did any analysis whatsoever . . .

Thomas: Well . . .

Avila: As to where it came from. All your expert did was say it's here.

Thomas: Well, right.

Ironically, the only thing Thomas was able to get out of the case was decidedly un-digital. The kid ended up taking a plea to a charge of bringing a Playboy magazine to school and showing it to other 16-year-olds.

"Whatever happened in his case, uh . . . Presumably we'll never know because, uh, we . . . we haven't been able to . . . to fully get to the bottom of that," Thomas explained on ABC. "But, uh, an important lesson was taught here."

On a federal level, a case recently came to light that echoes the abuse of power occurring in Arizona. The FBI demanded that online retailer hand over the identities of customers who purchased books from a specific, prolific, online used-book seller via Amazon. Amazon refused, and the FBI took it to court, where U.S. Magistrate Judge Stephen Crocker said, in a sealed ruling, that the FBI was out of bounds. Amazon fought to have the ruling unsealed, which it finally was in November, amid strong objections from the prosecutors.

"It is an unsettling and un-American scenario to envision federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else," Crocker wrote.

It is also unsettling that prosecutors would seek to hide the words of Judge Crocker.

"Litigants are used to a world of casting broad nets," says Matt Zimmerman in describing prosecutors. Zimmerman is a lawyer for the Electronic Frontier Foundation, a nonprofit civil liberties advocacy group.

But as we continue to communicate online, so much of our information is being stored, especially by intermediaries such as search engines. We will continue to see the government and private entities trying to get information that should remain private unless legislation is passed to stop it. And there are no serious pending proposals in Congress to stop this.

"Sometimes you need public embarrassments to change laws," says Zimmerman.

One of the best examples of this is the Robert Bork video-store case.

In the middle of Bork's Supreme Court nomination process in 1987, a newspaper published Bork's video-rental history obtained from his local video store. The list contained mainstream movies like Ruthless People and The Man Who Knew Too Much, but its publication put the fear of God into Congress. What if reporters started looking into their video-viewing habits? The results might not be so benign. So, in 1988, Congress passed the Video Privacy Protection act, which prevents "wrongful disclosure of video tape rental or sale records."

"It is one of the most robust pieces of privacy legislation," says Zimmerman.

There is no such robust privacy protection for the Web.

When the executive editor and CEO of New Times and Village Voice Media were arrested, the law was not on their side. Andrew Thomas fired special prosecutor Dennis Wilenchik because the public rose up and raised hell about this attack upon the constitutional rights of newspaper readers.

Supreme Court Justice Thurgood Marshall wrote in 1969, regarding the Stanley vs. Georgia case, which protected an individual's right to view pornography, "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."

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