cgshaw

(another attorney here)

Tweets aren't under oath or anything, but it opens up Carmack to lots of questions and possibly affects his credibility.

Often times cases come down to "he said / she said" types of claims and how a jury views them.

If ZeniMax mentions the tweets in court, it will likely be to try and make Carmack look like he acted out of hand, and that he rushed to make claims that arne't true (i.e. the IP / code distinction the poster makes).

Here's the thing about software suits. Most judges / juries are in a TERRIBLE position when it comes to evaluating the nuance involved in a suit like this. Think about the average person and how much they understand about what you do.

Lawyers will try to boil it down to themes and narratives that portray you as "bad." "Winning" in terms of how you evaluate claims or the press or your followers evaluate claims does not matter. It's all about how the lawyers convince a judge or jury you are wrong.

It doesn't depend on anonymous tips, but encourages them.

PJ is basically saying she wants to prevent folks from sending her honest questions about things they have done or are involved from admitting guilt to law enforcement who can read everything.

I said rooted in officer safety, not solely because, ;-).

Even if the search happens AFTER the arrest (assuming it's lawful, without that there is no internal link to a legal search), the court is still going to look at whether the seized item was taken incident to the arrest. That's why trunk's can't be searched unless there is a "particularized" reason, i.e. drugs, contraband, other evidence of the specific crime for which the offender was arrested for.

Under that line of reasoning, it's pretty likely courts would be ok with thumbing through the offender's call history to find other possible offenders for the related crime.

Not saying it's right, but that's how the law is evolving on evidence collection. Truth is, we need much deeper analysis on the technology at hand, but our courts are OLDDDDDDDD. Not saying octogenarians can't make effective re: technology, but it certainly hasn't bore out that way yet.

Sweet. I had to jump off last night, but I did some criminal appointments in both federal and state court to get some courtroom experience while fresh out of law school. Certainly not an expert, but capable of having a fairly deep discussion on search & seizure.

I completely agree with what you wrote above about how just because folks like you or I say "oh, this is/isn't legal" doesn't mean we agree with it.

Attorney here.

DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender.

Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute)

The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.

Sort of, unfortunately.

Drugs laws, and the Court's interpretation of handling drug crimes gives officers a lot of latitude. I forget the name of the Court case that allows officers to intuit that ANY drug-related offender can be presumed to have a weapon, but the data was actually fairly compelling (without knowing how the data was derived, the outcome was pretty clear—statistical significance that people with drugs are likely to have weapons.

There's also a lot of law about "the person was a SUSPECTED drug offender" because they drove erratically, or were in the wrong neighborhood, or threw something out of the car..... basically anything, and those people can be treated much like folks found to have drugs on them in the first place.

But, if there is no reason to truly arrest someone, the search / seizure shouldn't take place. You usually don't get arrested for minor ordinances... (tickets, lane violations, etc.)

My example was more or less just a common example.

To my mind, if someone was arrested for selling pirated software on jump-drives, the officer would likely be able to check out the call log to look for other conspirators.

Attorney here.

The search incident to lawful arrest doctrine is rooted in officer safety. Specifically, the Court says officers should have the ability to look for guns and contraband when someone is pulled over and it's likely they are armed or their immediate person or vicinity poses a threat and/or has evidence of a crime. The courts have decided that any drug suspicion means they are likely to have a weapon, which is unfortunate, but at least based in some reality.

To my knowledge, the only court (and courts are split) that has allowed electronics to be searched is when a drug dealer was pulled over in California and incident to lawful arrest, the officer downloaded the call history to help them find others involved in the drug trade.

There is NO COURT to my knowledge that would authorize warrantless search or confiscation of someone's cell data, computer data, jump drives, etc. without an arrest taking place. That is a fishing expedition and it's exactly what the Court has ruled unconstitutional under the 4th amendment.

This is where I get very frustrated with the NSAs ability to collect the call information in the first place. The only reason to collect it is to fish later—that's not how the law is supposed to work.

These are complex problems that very few judges or lawmakers have enough understanding of technologically to make informed judgement, IMHO, however.

EDIT - My best guess is that the Court will allow basic access to a cell phone taken in a lawful arrest. I.E., like the article linked above, an officer would be able to look at the call history, but not necessarily download the content of the phone. I think the offender's brief will likely ARGUE that the phone not be accessed at all, with the true hope being the Court merely limits what officers can do.

I have a hard time believing they won't let officers look at any of the electronics with them. I also hope they don't just let officers download everything carte blanche.

I've been trying to grok the data coming out of the NSA yesterday and could use everyone's thoughts. I am by no means sold on my approach, but I've definitely put thought into it.

Feel free to critique / destroy / inform.

Edited.

Nm, I missed a demical point in a different spot. #fml, you are right. 97M.

Did some quick back of the napkin math.

Daily internet traffic (from the NSA white paper) is 1,826 Petabytes. 1.6% (* .016) is 29 Petabytes that the NSA "touches."

If the average email or chat is 75kb, then the NSA just admitted it touches 389 BILLION messages DAILY.

Also, the NSA says it only "reviews" .025% (* .00025) of the 1.6% it "touches." Small right? Well that means that the NSA "reviews...."

97 MILLION messages DAILY.

Assuming they probably don't check solicitations, I'm assuming they "touch" all emails, chats, etc. Right? And they "review" a non-trivial amount of them by quantity.

Math check? Please someone tell me I'm wrong.

Edited — I was off a decimal point, still a lot of messages daily.