 We're going to be having some fun, hopefully, today. I'm trying to make the fourth and fifth amendment entertaining, which is not an easy job, but we're going to try. We're going to try. Does anyone know SkyDog? OK, we got some people. SkyDog has a goon here. He also goons at a Shmucon. We will be making fun of him the entire time. The sub-sub title of this is Poon the Goon. So, but don't try this out in the hall. He's a big man, and he will hurt you. But he's a good sports. A round of applause, please. So let's get started, finally. Click the disclaimer here. All attorneys are required to do this. You guys can probably read this. I'm pretty sure you all can read. But it's vitally important for you to understand that while I'm an attorney, I'm not your attorney. And no way should reformist this incentive to preside legal advice before relying or acting upon any information learned from this presentation. You should consult the licensed attorney in your state. Just, yeah. So introduction. Wait, who? Drank. Oh, I don't have one. Someone wants to give me one, I will. I am an attorney. Come on. No. Neighbor. That's Sean from Dualcore, by the way. Actually, I'm going to keep that. But yeah, thank you. So in overview, what we're going to cover. We've got the Constitution. We're going to talk about the fourth and fifth amendments. Suspicion standards, which are very, very important to understanding these things. The exceptions, then we're going to go into some hypotheticals. If anybody else went to law school here, you'll understand these. They're trying to make the law fun. And modern case overview is just a quick overview of some different stuff that's going on in the fourth and fifth amendment realm. And then a question and answer period. I think I'm going to room 106 afterwards. I will take questions during the talk, but you'll have to scream really loud and stand up and probably dance. But if not, we'll get to them afterwards after that. And I guess I skipped an introduction. I am an attorney. I'm also a software engineer and a CTO for a software company. I've hacked since I was really, really little. A product you might know that I wrote was Azureus, the BitTorrent client. So I do know what I'm talking about. I didn't write VOOS, though. VOOS is the terrible one that's out now, not mine. But the Constitution, little quiz. How many articles does the Constitution contain? 23. That is not right. It's actually seven of preeminent signatures. Those are the articles. There's amendments, though. How many amendments are there? 27. They're 27. Who said it? You're cool. The first amendment, everybody better get this right or I will throw you out. This side? Yay. OK. Which article applies to the Bill of Rights of the States? No. 14th. 14th, this knows the incorporation clause. Before that, does everybody understand this? The federal Constitution did not apply to the states. You did not have a Bill of Rights until the 14th Amendment, which was added when? After the Civil War. That's correct. 1940, same as the moon landing. But which article or amendment contains the section on privacy? None. What is it? It's a judicial fiction. It is case law. The Supreme Court decided we had a right to privacy. But there is none. If we want to add one, what do we have to do? Sounds about right. Drag it out of our committees, no. Amendment of the Constitution is obviously going to be in the quickest way. OK, this is the fun part. When was the Constitution's last, when was the amendment last ratified? No. The 90s, 1992. And does anybody know when that amendment was proposed and by who? That's the bonus question, is by who. But does anyone know when it was actually proposed? 1789. The government works really, really fast. OK, and it was, does anybody know who proposed it? James Madison. So we work really, really quickly here. And here's a good one. President Barack Obama was a professor of what? Yes, we have a president who has read the Constitution. That'll hopefully be the last political joke, but maybe not. So let's get back to the point in making fun of him. Introduction to the Fourth Amendment. So this is the Fourth Amendment. Can everybody read that? All right, we'll read it. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. And no warrants shall issue but upon probable cause. So what about oath or affirmation, particularly describing the place to be searched and the person or things to be seized? Does anybody like that? I do. It's a nice thing to have, I think. But that's our Fourth Amendment. Now the part is, it's separated into two clauses, OK? When you read it, if you ever read a case on this, have you ever read a Fourth Amendment case? OK, if you read this, a lot of times it'll break it down into the reasonableness clause and the warrant clause. Now the reasonableness part is the right to be persons. It has to be a reasonable search and the warrant clause, no warrants shall issue. If that brings it, it's a very fine point. Cases will always hinge on this. Like if it was unreasonable, you're going to get one result. If it's a warrant, it's another result, OK? Just keep that in mind for when we're moving on here. So examples of a person being seized and a person being searched. So a person to be seized and searched, a car is pulled over and a driver is frisked. OK, has anybody been pulled over and frisked? You guys are awesome. Was it fun? No, I didn't think so. It's never fun. A person seized but not searched, OK? That's like a traffic citation. You've all got one of those, right? Everybody? Yeah, not funny either. But a person searched and not seized, this is a little less common, happens at the border. But a thermal scan or an x-ray, brain scans in the future, maybe. Interesting point there is the Kylo case. Is anybody familiar with it? The heat sensors? They basically said that it wasn't allowed because the technology wasn't in common application. So we've got some neural networks, there are neural scanning stuff coming out soon. If that becomes commonplace, will that be an allowed search? I don't know. Under the court case, now it might be. Kind of weird. So search and seizure define a search. You have to have an expectation of privacy. It requires something that you reasonably have some belief that it's private to you, OK? If you have something just left out in your yard, no expectation of privacy. It's not a search if they look at it, OK? And there has to be a seizure. So a seizure is different for an individual or a property. When a person believes he's not free to ignore the government's presence, and no one ever been stopped by the police, and they said you're not leaving here, you were seized. If they just stopped you and asked you a question, you were not seized. You were free to leave. You consented to asking or answering it if you did. Now, if they say, no, you can't go anywhere. Does anyone ever see the video where the guy says, am I under arrest? And the police officer says no. And he says, am I being detained? And he says, no, but you need to answer my questions. Probably a seizure, OK? It's on YouTube, so it's pretty entertaining. For a property, it requires a different thing. There has to be a meaningful interference with an individual's possessory interest, OK? That means they have to have taken something from you. Anybody had their laptop seized at the border? Yeah, if they took it from you, it's a seizure, obviously, they took it away from you, couldn't use it, OK? So that's different levels for individuals and properties. So mere suspicion standards, OK? Or suspicion standards. Now these, if you read a Fourth Amendment case, this will be discussed. These are very, very important. They set the pace on what's required, and they set the pace on what can be done. So mere suspicion, a hunch or a feeling. Now, there's been cases where basically the officer is like, well, he looks skeezy. It doesn't work. You can't just say a guy looks sketchy. That's not enough. Reasonable suspicion, that means there's articulable facts and circumstances. Someone can't stop you without reasonable suspicion. Modern cases of this, a lot of states of, it was another lot of cases, actually, they stopped a man, and they asked him for his ID. And the state had a law that said, you have to provide ID when asked on a reasonable suspicion. So he had to have some reason to stop the person. And he was convicted under it. They said, the Supreme Court said, that's OK. He had reasonable suspicion. The law required it. He stopped him. He didn't produce an ID. He was guilty, OK? So reasonable suspicion, but he had to have some reason. He thought the guy was committing a crime, OK? Probable cause. Now this is what was required to not violate your Fourth Amendment rights. They have to have probable cause. So a search is a reasonable, it's separate for a search and an arrest. So for a search, a reasonable belief that evidence or contraband will be found. If they're searching your property, that's what they have to believe. And there has to be probable cause. There has to be probable. They have to think they're going to find something. An arrest. Its facts and circumstances indicate that a person had committed or was committing a crime. If they see you pull a gun and you're about to shoot someone, what's that going to be? It's going to be probable cause, OK? They can stop you and arrest you. So exceptions. Obviously, any of your constitutional rights, the exceptions usually eat the rule. We've got the border exception, which we'll definitely be talking about. Plain view, if that's left out in your yard, for example. And there's a lot to deal with cartilage. We're not going to talk about that. Open field, same thing with cartilage. Exigent circumstances, there's a great case on this where a police officer was in hot pursuit with chasing a suspect. He tracked down the suspect. The guy runs through someone's house through an apartment building, I believe. They run through the tenants of the apartment building and we're sitting sifting marijuana on their desk, separating it out. The police officer says, screw this guy with the TV, stops. Arrest the two people at the table. And it's completely fine. It wasn't a violation of their rights, because he was in hot pursuit. He was in a legitimate duty. So don't sort drugs on a table unless you lock the door. OK? Sky dog, are you paying attention? OK, good. So search incident to arrest. Who's been arrested? You don't have to raise your hands. Oh, well. You guys want to party later? Something, no. But search incident to arrest is basically when you're arrested, they search you. They can. There's a couple of different variations. That's mine. Now, there's Terry stops. There's a different stuff. And we aren't going to really talk about that too much. There's also what's known as inventory searches. And that's what a civil search is. So when you're arrested, they check your car to make sure you didn't have a Picasso in it. Or if you did that, you can't say they stole it. So they'll patch you down. They'll strip, search you, et cetera. So make sure you can't say that, well, they took my watch or something. So you get an inventory search. That's got a different set of rules, which we'll talk about briefly. A motor vehicle, basically the rules of motor vehicles, we're not really going to talk about it. But if you get pulled over, they can pretty much search you. I mean, that's just the general rule to keep in mind. Public schools, it's a reduced standard. It's basically save the kids, since they're protecting children, they don't have to have the same level. It has to be reasonable suspicion. If they think there's something there, and then consent. If you say, yes, come search my apartment, what are they going to do? They're going to search your apartment. So if you say, yes, come on in, it counts. But we'll talk a little bit. There's just coped consent. And that's actually an important case. We're an important thing in a lot of cases. So let's move on to the Fifth Amendment. The Fifth Amendment, I'll read this to you guys, since somebody in the back can't read, I heard. But is it decode? No, no, where's decode? Nor shall be compelled, OK, the Fifth Amendment, the part that's important for us. Nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law. Anybody else like that? I like the fourth. I like this one, too. This is a good one for us, computer people, at least. So when does it apply? So the Fifth Amendment to apply, there has to be a statement or an act that has to be compelled. You can't just say, oh, I shot that guy. It's not a violation of your rights, OK? It has to be compelled from you. It has to be testimonial. It has to say something or not say something. It has to give them something they can work within a case. It has to, for example, authentication of evidence is a very, very important one. And that's what we're going to focus on here. Everybody's familiar with the Boucher case, or I'm sure you've heard about it. And that's what we'll be talking about. And that's being criminated. It has to subject you to some kind of criminal responsibility. Some liability has to be available from it. So contents of a search. Now, this part gets really kind of tricky. And I'll have to ask you to bear with me. The examples will bring it out. But although the contents of a document may not be privileged, the acts of producing the document may be. These are the DO cases. There's DO 1 and DO 2. But the interesting part of that is it's a separate thing, OK? So the contents of a document may not be protected. They may not be incriminating. But the fact that you had the document and you produced it to the government may be incriminating, if that makes sense. Bear with me on that one. I know it gets tricky. So again, as I said, there's always exceptions to the rule. And there's lots of exceptions to the Fifth Amendment. So physical evidence is not testimony. A piece of physical evidence is a piece of physical evidence. It is not a statement from you, OK? So fingerprints, blood sample, hair, DNA, voice samples. That's why they can force people into a lineup without a violation of the Fifth Amendment rights. It's a physical piece of evidence. And foregone conclusions basically says if they know where it is and they know what it is, you need to produce it. You don't get a Fifth Amendment right, OK? Now, there's one slight. It requires a grant of immunity. And we're going to talk about that. And it gets a little weird. But we're going to try here. Now this, has anybody heard of this, the Locke vs. Safe Debate? It was actually talked about earlier this week or on Friday. There was a small talk about this in track four. But so this is a Supreme Court decision that basically established there's the Locke vs. Debate. So on the Fifth Amendment, a Locke, if you have a Keto Locke that is a piece of physical evidence, that is producible. If you have a safe with a combination, that combination is in your mind as long as you haven't written it down, that is protected. It is a statement at that point. What do you want to have in your house? A safe, at least they say if you might have a safe with a key too, why not? But so you guys read the slide, that's good. Move on. So this is where it gets really, really weird. Use and derivative use immunity. If the government knows what you produce and what you have, they can require you to produce it, but they can't use that against you in a court, okay? So if they say, I know that you've got this safe and I want to know what's in it, but I won't use that you gave me the combination to get into it, you're okay. I mean, they're okay to force you through it through your Fifth Amendment rights. Because it's not a violation anymore. Your testimony that you gave them can't be used against you. And anything that's a product of that can't be also. Does that make sense? It's a little tricky, but we'll get to it and we'll cover it in the Boucher case coming up. So that's how they get around that. This is actually a statute defined by the Congress, obviously, the USC 602. This is the codification of that. It basically says they can force you to produce something, but they have to give you derivative use immunity. Okay, here we go. They took my laptop and we're gonna try to make this fun. Thank you, Scott-Og. So here's the rules. All scenarios are warrantless. There are no warrants issued in these cases. If they have a warrant, you are what? I will accept all answers above. And it's the current date. The current date and dime and the current case law. Okay? Everybody cool with the rules? If not, get the fuck out. Hypotheticals. Is this Skydog? He is really old. He's also the head of the hacker consortium in Nashville. He's prisoner number 42. And it's not real Skydog actions. At least I hope so. We're just gonna use his name. And he's a really good support about it. And I love that photo. Is that Shmucon? Anybody go to Shmucon? Woo! Bruce and Heidi are awesome, by the way. If you see them, go to Shmucon if you can't. Not that Defcon's not great, but they're all good. Communications. Okay, let's start with this. Skydog has just attended Outer Zone 09 and decides to tell his friends, all two of them, how amazing it was. He calls, writes a letter to, and emails his friend, Rinch in Nashville and Bush in Iraq. So we've got one person in this country, one person out. A very important distinction. And we've got three communications. An email, a letter, and a phone call. Okay? To each one. Six communications total. Two people, three communications each. This is what they would look like. We've got the Rinch stand-in and Bush. Bush isn't here, but we have Pres Mike, which I couldn't get his photo in because my laptop broke. But Seablines up here, who's the one? He's fun. No. So communications, this is what happens. The mail, the Seljan case, a very, very interesting case. It's okay to read foreign letters without suspicion. If it's going across the border, they can read it. Okay? If it's internal, they need a what? A warrant. If it's going across the border, they need what? Nothing, isn't that weird? But this is, here's where it gets really, really weird. So in 77, reasonable sufficient was required. This is the Ramsey case. It basically said, this is dealt with FedEx, but basically it said that if it's going across the border, it has to be something that they think they can find inside of it. They have to have some reasonable sufficient. They have to think, oh, there's a bomb in here. Oh, there's drugs in here. Basically that case, a tube broke open, about a bunch of cocaine spilled out. And they were like, oh, we should look inside here. But this 2008 case, the Seljan case, they basically said that since you can send notes across, commercial notes, checks, basically, or stock certificates across the border, and that can be used to supply terrorism, which is a surprise, seems to always be the key anymore, you can search any letter going across the border because you have automatic reasonable sufficient. So that falls under the border exception. So war is wiretapping. If you're in the country, they need a? Maybe. Oh, it's a little tricky. So the FISA court, you guys probably heard about this, the FISA warrant approvals, everybody hear about that? They basically said it's okay to search, to tap your stuff without warrants. Well, it has to be, one party has to be believed to be outside the US. They don't have to be actually physically shown or known to be outside the US. They have to be believed to be outside the US. So if you make a call and they're like, well, that guy sounds foreign. Is that okay? Hasn't been litigated yet, but it might. And when the FISA court approved this, they said this was fine. They didn't actually say that the pre Protect America Act, the PAA, which is the law that Congress passed to say that it's okay to do warrantless wiretapping. They said, since that was passed, it's okay now. But they didn't actually say that the ones before weren't. But we all know that no one's gonna get sued on that sadly. And emails. Now this is where things get tricky. A lot of this is actually changing right now. There's some attempts to change them to this. If it's on your personal machine, this is in the country. If it's on your personal machine, they require a warrant or exception. If it's on a remote server, think Gmail, Yahoo, stored somewhere else, not controlled by you, it's available by subpoena only. They can subpoena it and they can't stop the production. And if it's account information, if they just wanna know who's behind this email account, they can just ask for it. It's a court order. Court just basically says we want this and they give it to them, okay? So be very careful with your emails outside of your personal machines. If it's outside your control, they can get it much easier. They don't have to get a fourth amendment, a warrant on it. And if it's four and they can just go raid the servers, obviously. So private search. This is a little strange, but after Outer Zone 09, SkyDog resurgents in Nashville, only to find he's been evicted and his laptop was stolen by some asshats. One of the asshats turned on the laptop and found all of SkyDog's hacker consortium files freaked out and called the police. The police have Scott Moulton. Is Scott here? Oh wait, he's in the green room right now. Anybody know Scott? Yeah, he's giving a talk after this at two o'clock. You should check it out if you can. He's a brilliant hardware guy. But the police have Scott Moulton run in case, anybody know what in case is? It's basically a program that goes through when they do searches like this. It goes through, you take an image of the hard drive and it'll scan the hard drive looking against a known table of spiles you're looking for. So they have several databases. They've got one for child pornography. They've got one for protected information, all that kind of stuff, don't they? No. No, yes they did. No, I thought they did. But they run it on SkyDog's machine to check, okay? And so what's gonna happen? What do you guys think's gonna happen? Does it loud? Is this okay? They don't have a warrant, so it's not gonna be okay. Exam it, so you have to go through two cases to understand all this. The Runyan case, basically it was a divorce case. The wife, all of these revolve around child pornography in the real world. That's most of what the Fourth Amendment litigates against. A wife went through, had a divorce with her husband and was like, well I'm gonna get this guy. Started searching through all his disks, located child pornography on floppies. This is back in 2001, he had some floppies or CDs. Think it was floppies. And found child pornography on him and was like, oh wow, I'm gonna turn this over to the police. Turns it over to the police and the police go through and scan all the floppies. They look on every one of them. And the court said you only could look at the ones that the wife had looked at, the other ones you needed a warrant, okay? Now we've got the Cris case that came out of that. And the Cris case, did anybody read about this? It was on slash dot, it was on a lot of the news sites. Basically the story behind it's ridiculous and I'll talk about it in the room if you want. But the court said that using in case the hash files is not a search, or is a search, I mean, I'm sorry. They said that the hard drive has taken out, they didn't image and the government obviously said, oh it's not a search, we didn't need that thing. We weren't actually looking at the contents of the file. But to generate that hash, they obviously had to open it up. You guys know CRCs and MD5s work. Had to open up the file, scan through it and create a hash. But since it's testimony, information was gathered from that. They could say with a certainty that the files that had been scanned contained child pornography. In that case it was a search and they required a warrant. So basically a technician got over his house, plugged it in and was like, I'm gonna scan this, I'm busy and no, it wasn't okay. So the files were removed. It was not okay. So Skydog, next slide. Skydog gets back his laptop from the police and boots up Windows Millennium. Awesome OS, by the way. Anybody use it? I mean, it was pretty amazing. I remember a base install of Windows ME that I used that it actually couldn't play an MP3 off a flat install. It would stutter every five seconds. Awesome, awesome OS. Did really well. I know there's Microsoft people here, good job. But the machine is hacked into, well I can't really say anything. My Mac just died, damn. But the machine is hacked into by a Turkish citizen on the hunt for terrorist hackers. After fighting in Skydog's hacker consortium documents, the man quickly reports Skydog to the FBI. You were just getting screwed over, man. But don't use that me, that's all I'm saying. No, so this is actually a series of cases. These are all based on real cases, by the way. But these are none of the private, the unknown user cases. This is a true guy. He actually was a guy. He was a Turkish citizen and he was out looking for child pornography people. He was posting on Usenet groups and they would download a Trojan. When you install the Trojan, they would go through and he would find people who used it and they would report him to the FBI. Now, this is really interesting in the sense that there was two cases. There was one in 2002, one in 2002, 2003. The Segal case actually went first and the second one in Virginia was second. But what happened was, is the courts basically said that the first time it happened was okay. The guy wasn't a government actor. He wasn't a government agent. He wasn't encouraged by the government. So he was a private person and a private search is okay. If I go look through your stuff and I find something illegal, I can report it to the police and it's not a violation of your rights. Does anybody know why? Well, the government applies to who? I mean, the Constitution applies to? Government actors, not to you guys. You guys are working on your own means, okay? So the private search factors are what count here. If a government encouraged or initiated the search, it was a where acquiesce to the search and it's a conjunctive and the private actor intended to help law enforcement. So in the first case, when he went through, he intended to help law enforcement. His entire goal was to report this guy to the police. But the government didn't know anything about it. So it was okay. The second case, he did it again. But the government in that case was like, yeah, could you get his IP address? Could you get his name for us? Could you bring us this information? Could you do some more of this for us? At that point, he was what? He was an agent of the government and at that point, the Fourth Amendment applied. So it was no good. I really like these two cases specifically because they split it up into two things. Oh, I thought it was more booze, but speaking of that. You're a mask. Lady Merlin, can I have some more booze? Thank you. No, so the border crossings. You guys have all been across the border. You guys travel internationally. Do you have any foreign citizens here flying in? Anybody mess with you at the border? I hope not. They shouldn't. But, so Skydog has stressed out and takes a vacation to Mexico and engages in some serious drinking. You might have noticed that last night too, actually. But while returning, he has a feeling he is going to be searched and not being quite in his right mind. Skydog swallows his cell phone. Could you show us what that looks like? Yeah. He also attempts to hide his laptop, but is unable to fit it. Skydog is obviously gonna be selected for a search at this point. This is what it might look like, as you saw. But, so what happened in these cases? The Arnold case. This is when the court basically said that laptops are no different from closed containers which are subject to a search at a border. When you cross the border, you have very, very, very few rights. Cause the country, the sovereign obviously has the right to protect their borders. So if you're coming back in, you don't really have a lot going for you. But they basically said that a laptop was just a container, like a FedEx box. Which is interesting, cause on a laptop you can hold a whole lot of information. Whereas in a box, you might be fit a couple of documents. Or maybe, you know, a bowling ball or something. Who knows? But at the border there's two different types of searches. There's a routine search and there's a non-routine search. Now a routine search is allowed by the fact that you're crossing the border. The suspicion required is provided specifically because you're coming across. The sovereign wants to protect its interest. A non-routine search, that's something above and beyond. It's like a strip search. It's a body search, a cavity search, an x-ray. Requires a reasonable suspicion. They have to have some reason to search you. Okay? Keep those in mind for a second. So while searching his laptop, the officers find a drive named My Illegal Files. Good name, buddy. And proceeds to open a document containing what appears to be a listing of credit card numbers. They confiscate the laptop, but upon turning it back on, they find the drive has been encrypted. You guys heard about this case? The Boucher case? Okay, we're gonna talk about this right now. This is fifth amendment stuff, not four. So keep in mind all the stuff from before on the fifth. Henry Boucher, in 2008, the original case. Encryption keys are products of the mine and they're not subject to disclosure of the fifth amendment. Okay. Now we're gonna get into this. This is where it gets really weird. In the 2009 case, it was appealed obviously, the government didn't like that decision. Wait, never mind, it was a foregone conclusion. Okay, and this goes back to that lock versus, the key versus the code debate. Basically, what they said was, and the facts of the case are really, really important to this. So the guy crosses the border. He has a Z-drive, and the Z-drive is open. When he crosses the border, he says, okay, what should I do? And they look, can we search your laptop? He says, sure, they can't really resist it. So he goes, yeah, shows him the Z-drive. On the Z-drive, the officer starts looking at files and notices child pornography. He says, oh, shuts down the laptop and when they turn it back on, it's encrypted. It's got PGP on it and it's encrypted. Now, what the court said, the first court, the 2008 case, basically they said that no, he doesn't have to give up his password because it's a product of his mind. You can't take it from him. It's a safe code, okay? The second court says, yes, he has to give it up, but they can't use the production of that password to say that he owned the laptop. They can't say that since you knew the key that this is your laptop. That's the derivative use immunity. So they provide him the derivative use immunity and what got him on this case specifically was, is he showed the officer files on the laptop first so they could alternatively authenticate it. So in an evidentiary case, you have to authenticate evidence. You can't just go, well, this is a laptop, it's his. Doesn't work, you have to prove through some facts or means that it was his. And since he showed them the laptop and there was never an argument that that wasn't his laptop, they could say, you need to give us this password. We won't use that password against you and that's what the case pinched on. So there's been a lot of fighting about this case, but I really think it was actually correctly decided. So what shouldn't you do at the border? Oh yeah, always a good move. No, basically always, we'll go through some suggestions on what to do when you're crossing the border, but don't show people things if you don't have to. Just smart. You guys are security professionals, right? Someone? Good. But border crossing. Okay, because the skydog's heavy drinking, his eyes are red and his skin is pale, more so than usual, and he has the shakes. What's gonna happen at the border? Search, what's he look like he's been doing? Drugs. Non-routine, so it requires something more. Reasonable suspicion, they obviously have it here. He's got all the symptoms of it, right? Usually part of an inventory search, so it's not criminal. We talked about that real briefly. So if they've pulled him over and they're gonna search him, a strip search is usually an inventory search. It's usually not protected by the fourth. So recent cases of this, you guys saw this. It was actually just in the news again because the Supreme Court decided on this. The 13-year-old student that was subjected to a strip search for ibuprofen 800 milligrams. The Supreme Court basically said that was unreasonable, but they couldn't see the school for it because it hadn't been decided it was a great area of the law. And this one, the second case is really ridiculous. They subjected a female motorist to a strip search after a arrest for a misdemeanor marijuana charge. And the court really harped on him for the fact that only females were strip searched and set up in those circumstances. They didn't have the same rule for men and that it was on close-circuit television with the other officers watching. Did not go over well for the police station. Well, I mean, I don't, at least legally it didn't. During the strip search, the examining officer noticed a lump in SkyDog's throat. Hmm, so what are they gonna do? Yeah, they're gonna pull it out or X-ray. I'm gonna say it's a cavity search. It's a bodily intrusion as they're referred to. A non-routine, a lot of a crossover with the other amendments. We can talk about that in the other room if you want. It may require a warrant depending on the urgency. They've got reasonable suspicion, but if they think he's got drugs, he says life is in danger, they can search. So it's X-ray and X-ray, for instance, at that point. Let's just say he definitely saw it in the morning. That's for sure. So he gets arrested because he's being a jackass at the border of all the odd behavior. SkyDog's arrested on suspicion of smuggling something. During the booking, his phone rings. Does anybody know what happens? Are they allowed to answer it or not? Yes, they are, potentially. There's a couple drug user cases. We're not gonna really talk about this in my Passover. It was a slide that got left in. But basically, if they've got a reason to think they should answer your phone, they can. If they think the evidence will be lost, otherwise. It becomes an exigent circumstances exception. So the beat down, this case is ridiculous. Please stop me in 106 afterwards and I'd love to explain the facts on this some more. But so after some investigation, SkyDog's released. He returns home to his neighbor being beaten by a masked man who runs through his house. Police arrives at SkyDog's consent to search the house. The police notice a stolen credit cards folder on his desktop and they begin to search through his computer. What do you guys think? What's gonna happen? Ah. Well, he did. This is right. He gave consent, but we're gonna talk about the scope of consent. Plain view. Plain view is the other one, exactly. So here we go. Even though the consent to the search was given, the consent did not extend whether they're on the evidence, the assault. The individual evidence, plain view was seen on there. They let him in. However, it would be available under the plain view exception. Okay, does that make sense to everybody? So on his desktop, he had a file sitting there. The officers were given the right to come into his house. They were looking around. They just happened to see this folder on his desktop. They started looking through the folder. That's beyond the scope. They were looking for what? Evidence of what? Of the assault. They started looking for evidence of credit card stuff. They went too far. Okay, this would be stopped. This would be not allowed. Once, okay. Oh, so yes. Never put an elephant in a matchbox. Never put an elephant in a matchbox. It's a terrible, terrible for the elephant. They're not happy about it. No, yes, they have to, if they're looking for evidence of something, it has to be reasonable to the size of what they're looking in. So if they are looking for an elephant, they can't go looking through a matchbox. Unless it's a really tiny elephant. I couldn't hear, I'm sorry. No, no, exactly right. If it would have been something in his closet, if they would have opened the closet and started looking where it would have been hiding. Don't look in Sky Dogs' closet. No, no, then it would have been okay. It would have been something that he, the intruder could have been there. There could have been evidence in there. But yeah, I doubt the guy went and beat the people, ran through the house and started playing solitaire. Who knows, you never know. People have done stupider things. Read the cases, they're amazing. But so we're gonna talk about this military invasion stuff. Now, this actually hasn't been litigated, but it's odd. So it turns out that Sky Dogs still on credit card folder. It was actually just an Alan Tigger porn. Anybody know Al? The best way to refer to him is, yay, Al. Al's awesome if you haven't met him. He's not here this time, which is sad. But whoever knows Al, he's great. You'd know him if you know him, trust me. But so the search there was Alan Tigger porn, all 25 terabytes of it. So Sky Dogs released again. Unfortunately, those emails letters that Sky Dogs sent to Bush look like terrorist documents. The president orders a raid by the military of Sky Dogs and Bush's houses. Sky Dogs. But this is what Al Tigger porn looks like. If you've never been to Freaknik, this is actually what happens. Yeah, well played, sir. That's Al, by the way, obviously. But so military invasion, the Bushmen of 2003. Has anybody read this? It's this one line that a lot of people harped on, but it says, our office recently concluded that the Fourth Amendment has no application to domestic military operations. What they were implying was, is if we just want to send the military in to raid you, it's cool. Which obviously people who know anything about Pasi Comotatus, really odd thing to write. It's never been litigated. As far as I know, this has never actually been happened. I know there's no court cases on it. Training tried to think about everything. Well, we're going after someone up there. I wouldn't doubt it. I'm not too familiar with that part of it. Basically, we're saying that Cheney tried to send the military after someone in Buffalo. Does anyone know about that? Yeah, I'll have to check that out, because that's just weird. But I always wanted to have a shirt that said, I'm Cheney and I'm in your constitution messing things up, but I'm just saying, you guys, it would be a good one, I think. But the second case, it's 2009. This is in re-terrorist bombings. This is a really, really interesting one. It deals with border, going across the border and foreign stuff. The Fourth Amendment's requirements of reasonableness, but not the warrant clause applies to extraterritorial searches of seizures of U.S. citizens. Basically, there's two guys in Africa. I can never remember the country, so I apologize. But two American citizens in Africa, they were over there, they basically was accused of running a terrorist training camp, something like that. They sent our government in to raid them. Obviously, they got permission to the sovereign country. But the court said it was cool. They didn't have a warrant. They just went and raided their house, took all their stuff, searched and seized the people. And the court said, yeah, that's cool. They don't have to have a warrant for it, but it has to be reasonable. So they couldn't walk in and shoot their dog or something like that. But if they just took everything, it was okay because they're outside the country. Interesting, so if you're outside the country, I mean, if you fly outside the country and they want to search you, they can just do that now. Just keep that in mind. These were American citizens, not foreign citizens. So what can you do about this? Don't keep sensitive data. Memorize and eat everything. Very important. Skydog can show you later. Only travel with clean equipment. So if you're gonna cross a border, format, download the data over a secured channel upon arrival. Now, if you're transferring data over the border, what do they need to get it? Nothing. Nothing, they can just take it, that's right. They can just go in and check your data. So what do you want to do to it? Encrypt it. Very good. Now, do you want to write down that password or not? Okay, you guys are good. So encrypt liberally. Never physically store the key. Ideally, use a physical and a non-physical key, something you've memorized and a USB tag, something to biometrics and something to two-part system. Shut down the equipment long before crossing. If it's down and there's a bio-password, what can they do? Not much, they can image your drive, they can take your laptop if they want. Don't cross with anything you can't leave behind, okay? Use bio-passwords and like I said, never travel with something you can't afford to lose. They have to give it back to you, it's a taking that they don't work if it's contraband, they could keep it obviously. I don't think that's been litigated yet, I'm sure it will be. Sure. There's actually been a case where a judge said that encryption was an indication, thank you, was an indication of increase the suspicion standard since it was encrypted that there was probably something on there. That was a very low level. Anybody know how jurisdiction works in courts? It's really messed up and if you want to talk about it, we'll talk about it in one of six, but it was a thing, it was a circuit case, so it doesn't have a lot of application, but a judge basically said yeah, it was encrypted, so it was really sketchy, so it kind of provided suspicion. I don't know if it provided enough to actually search it though. Well, I actually had a debate with someone not too long ago. Sure, I'm sorry. He said that it's basically, it's the same analogy as if someone locked their door that must be suspicious, they're trying to hide someone, and that's true. I think we all know how encryption works, but a lot of this is education to the courts and people who don't understand this. You hear encryption on the news, it's usually implied in what context? The movie Hackers, which portrayed us so well. No, yeah, basically, you're doing something nefarious is what people think. I mean, we see encryption, we're like, oh, it's encrypted, cool, I wonder if I can crack that. But a court sees that and that's not what they think. And I agree, I've actually had some arguments with people that, not an argument, a good debate, Whitty Banter. But I was talking to someone the other day and they said to me that if it was encrypted, they obviously were trying to hide someone, it was their argument was, and no, that's not true. And it really comes down to education. People just don't understand. So if you ever get to talk to a judge, they're actually usually nice people, just tell them encryption's cool, it's okay. Sometimes you just don't want people like these jokers reading your email. Don't let them read your email, by the way. But yeah, never travel is something you can't afford to lose. Because if you don't want them to open it, what do you do? Well just leave it behind. Walk away and get another laptop when you get across the border. That's why we have a corporate expense account, right? No, that's the best thing you can do. Right now we're gonna talk about some miscellaneous cases here. This is just modern stuff that's been happening that has applications here. And like I said, please keep in mind a lot of this deals with jurisdictional levels. So some of these cases are state court, not federal. And they're very, very low level. Don't have a lot of application, but they're just interesting decisions. Sure. Did they take your laptop? Usually they'll provide it back within two weeks of imaging. Most of the time they'll take it for 30 minutes and give it back to you. They'll image your hard drive, something like in case, drop an image and give it back. I'm not sure. I've read cases where people have had their laptop taken for six months, eight months. I have a friend who's had his equipment gone for, I don't think he's ever gonna see it back, honestly. And there are arguments that if it's encrypted and you left it there, you probably abandoned it. So they could probably keep it at that point. If it's encrypted and they couldn't open it, my guess would be, I don't think it's been litigated yet, that they could say that it was, it could have contained contraband so it could be destroyed just as you were trying to come across with something illegal, they can obviously destroy it. But since they can't validate that it is safe and doesn't contain something, I don't know how a court would decide on that one. But otherwise, it has to be reasonable and give it back to you at some point. I think it will be litigated soon. I really do think there'll be a case that's on the point with this. Because it's gonna become more and more common occurrence, I assume. Oh, and also, cell phones, any equipment. When I said equipment before, they can search cell phones, any equipment that's coming across. So on iPhone, you can dump an iPhone. Everybody knows that, right? Your iPhone can be dumped, so don't keep anything stupid on there you don't want. Drank, okay. But, any other questions real quick? Okay, I'm gonna go through these. Could you stand up please? Could you, I can't. Okay, what he's asking was, I mentioned Gmail and Yahoo, versus if you had a server co-load somewhere, what's your rights there? If you own the server, it's not on a remote machine, it would be yours. And, I don't know any cases on point, but my guess would be that they would require a warrant. Because that would be your machine. You have an expectation of privacy. Well, if it's somewhere else, like I said, this hasn't been litigated yet, but my guess is if you owned it and put it somewhere else and there was an expectation of privacy, as long as it's a reasonable expectation of privacy, they should require a warrant. Since you own it, yes. Okay, mail-in transit deals with what then? Well, I'm gonna work you through this. If you're sending something, if I'm sending an email, if I was making a phone call, what would they require? It'd be a wiretapping, it'd be a warrant. So same with an email-in transit. If it's in the country, they're gonna require a warrant. If it's going over the country, it may not. So an interesting thing, what if it's bouncing through a foreign country just because the routes went that way? If you're controlling it, oh, sorry, if he said that, he was asking if a leasing equipment versus owning the equipment made a difference is what the gist of the question is. I honestly am not sure. My guess would be no. As long as you had sole control over the equipment and it was yours for that slotted time, it's the same as renting a house. If you're renting a hotel room, you have an expectation of privacy. They need a warrant to go into your hotel room and I think that would be analogous in that case. So I'm gonna go over these real quick. We'll take more questions in 106 just so I'm not gonna run out of time. Hearing via US, exclusionary rule does not apply when police makes mistakes or reasonable or results of negligence such as that is described here. What happened in this case is a man who was a known criminal in the area had been, came into the police station to pick up his truck. It had been impounded. While he was there, an officer decided, well, he usually does a lot of sketchy stuff in this neighborhood. Let's make sure he doesn't have outstanding warrants. So he called the clerk and asked to check for an outstanding warrants. There were none in the county. So he called the other clerk in the other county to check to see if that county had any outstanding warrants because he knew the guy had frequented those areas. Basically, the other clerk said, yeah, he's got two outstanding warrants for X and Y. Cop pulled him over for the outstanding warrants. Arrested him, searched his car, searched him, sent him to arrest. A car stopped, found a gun in marijuana, I believe. He was a felon, so he couldn't have a gun, obviously, so he was in deep shit, to say lightly. Turns out that the other clerk was wrong. The warrants had been removed. He actually had no outstanding warrants. It was an illegal search. It was illegal search and seizure. However, it was under the good faith deception, basically. The cop didn't know, and the clerk made a reasonable mistake. So it was okay. I don't like decisions like this, specifically because they're easy to mess with. You can definitely call a clerk and say, hey, are there outstanding warrants? Wink, wink. I mean, this is what we do. We're social engineer, right? And that's open. I don't like that at all, for obvious reasons. State Visa Stevenson, defendant excluded by home from court order has no reasonable extation of privacy. So this is interesting. Obviously, a domestic abuse case here. A man was removed from his home under a court order, so basically, you know, don't go home. And because of that, he had no expectation of privacy, so they could search for his things without a warrant. Kind of interesting. A very odd case. Court can order you out of house and then the police can search you. But notice in Minnesota, appellate court case, that's not federal. Please. Wisconsin via SWEAM, warrantless GPS tracking. Okay, you guys all saw this on slash.dot or one of the new sites. So basically, they said it's cool. We can track you with a GPS without a warrant. But then New York said, no, no, you can't. Two different jurisdictions, so it's completely fine, but that'll probably get litigated in federal eventually, I assume. So I've got, I don't know how long, but I can do a couple more questions. Yeah, I got five minutes. If we wanna do some questions here and then we'll go to 106 for any follow-ups. If they can't crack your password, they can make an image of your hard drive in the system and then try to crack it afterwards. That's completely fine. Oh, I'm sorry. He asked, so what do they do if they can't crack your password at the border? Did you have a follow-up? If they can never crack it, they can't crack it, what are they gonna do? I mean, they can't force disclosure from you unless you wrote it down. And they'd have to have some reason to force it then. Well, that's, the Boucher case is that, exactly. Forced disclosure of passwords, the Boucher case is actually just that. They can if they have a separate way to authenticate the laptop. Otherwise, it's a Fifth Amendment right, you can plead the Fifth. Something being keylogged, consider being writing it down. If it's a physical generated file has been made from it, then yes, it would be physical evidence. Even though someone else produced that unbeknown to you, it would still, yeah, be physical evidence that could be produced. That would be my guess on that. Did the government have to arrest the Turkish citizen because they hacked on someone's computer? Police can do what? Anybody know? They have discreet, well, they can't do anything they want. But they have discretion to choose who they prosecute. Prosecutors have discretion, prosecutatory discretion. So no, they didn't, and they weren't going to, I assume he was helping them out. They never did go after him. Actually, they weren't even sure who he was. They couldn't force him to testify at trial so that they didn't even know who he was. Sure. They asked if the data lives on your friend's computer if all the same rules apply. No. That's my guess, specifically because it's, unless you had an expectation of privacy there, if you're like, here's my stolen credit card files, enjoy, then if you just gave them to him freely and he was allowed to do anything he wanted with it, but if you'd hidden them on his computer somewhere, maybe that would make a difference, if that made sense. I think it would reduce your rights, at least. I can't hear you, could you speak up? Yes, the friend would have an expectation of privacy in those files. He could assert your rights. No, yeah, you'd given it to someone else so you've lessened your rights, at least, if not given them all, removed them, but your friend would still have an expectation, yes. He could assert the rights on that. Dude, that's not my weed. Okay. Who's got a really good one? Sure, it's actually what he asked. Does encryption give you, similar to what he asked, I should say, does encryption give you an expectation of privacy? Yes, if you encrypted something, you can definitely assert that in a court. It's gonna be a question of fact to be decided by a jury, but if you encrypted something, you obviously didn't want people looking at it. Sure. Well, he asked if it was placed into a public space, what would that do? If it's encrypted in a public space, it's still a public file, so it's been publicly, they can sit and try to crack away at it all they wanted, and they couldn't stop, you couldn't assert your fourth or fifth amendments on that. Yes, sir. I couldn't hear the middle part. Are nonlinear junction detectors used in searches? I'm actually not sure what that is. Is that something from Back to the Future? The question was, is a flux capacitor available? I actually do understand analog electronics, but can we ask it in 106? Because I think I need more information to answer that. If you don't write down your password, but you have an encrypted or a password manager, like a key pass or something, it's physically stored somewhere, so my guess is that they could request the key pass file, but since that's encrypted, they couldn't force you to disclose the password to open the key pass file, but if they could crack it, they can crack it. That would be my guess. I don't think that's ever been litigated, though. Man on the floor. Keyloggeries. Well, that's a whole different area of a law, and if they're keylogging, they're what? Wiretapping. What do they need? And less? You guys are good. So you guys can work through this. Everybody here is not an attorney. Yes, sir. Well, that wasn't a case. Basically, what he asked is, oh, I'm out. Sorry, 106.