Friday Feb 23, 2007

Courts Encouraging Online Vigilantes?

As the Orange County Register reports, former Superior Court judge Robert Kline has been sentenced to 27 months of prison for child pornography. I hadn't heard of this case until Slashdot featured it yesterday, but it's not hard to see that it has a long and complicated history.

That history makes it pretty clear that Kline is guilty (having even admitted such, at one point). He committed a serious and indefensible crime, and the conviction is bound to make his neighborhood a safer place. But does that mean the conviction was right? Not necessarily.

You see, police never would have known about Kline's activities if not for the unlawful activities of Brad Willman, a young Canadian hacker who had compromised Kline's computer and monitored his activities there. In fact, Willman says he has done the same with some 3000 others who he suspects of exchanging and viewing child pornography. For this, the Ottowa Citizen calls him a "cyber hero", and the U.S. courts declared that the resulting evidence was admissible against Kline (and no doubt led to his conviction).

Every court involved said that Willman's hacking and surveillance was illegal. Every court said that law enforcement officials must never engage in such blanket surveillance--and that if they did, any resulting evidence would be inadmissible. And yet, the 9th U.S. Circuit Court of Appeals ruled that this case could go forward with the evidence. Why? Because Willman's hacking was done of his own volition and not due to any request or coordination from law enforcement (whose involvement came later).

That feels to me like the slipperiest of slopes. This court has effectively said that civil liberties may be violated, as long as the government outsources its dirty work. If done directly by the police, these monitoring activities would be illegal and result in inadmissible evidence. If done by others, they're still illegal--but somehow the resulting evidence is allowable. How does that logic work? How does it not turn into an open invitation for more vigilantes like Brad Willman? And how can we possibly expect such vigilantes to choose who is and isn't a valid target?

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woodjr

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