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CP court orders and custody of HD

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Jamie
(@jamie)
Moderator
Joined: 5 years ago
Posts: 1288
 

jaclaz, you must have missed my post above. Let's concentrate on the issue at hand whilst keeping in mind the potential consequences for everyone involved in a public discussion of this nature. In other words, proceed, but with caution.


   
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jaclaz
(@jaclaz)
Illustrious Member
Joined: 18 years ago
Posts: 5133
 

@jamie
I saw it but evidently failed to understand (and still do) what you meant by it, sorry.

I do think that everyone should behave professionally in this field, expecially when we are talking of very "delicate" things. like CP or a person that has risked to be (or was) fired in "real life" for something connected to the board.

I used the quote to point out how miket065's sentence you quoted could be found - almost verbatim - somewhere else.

Sorry ( if this was seen as an attempt to go OT, or anyway disrupt the topic, my apologies.

jaclaz


   
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(@kovar)
Prominent Member
Joined: 18 years ago
Posts: 805
 

Greetings,

In the interests of minimizing potential consequences, perhaps the quote attributed to <redacted> could be removed? I spoke to him and he wants no part of this discussion.

-David


   
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hcso1510
(@hcso1510)
Reputable Member
Joined: 15 years ago
Posts: 303
 

I just thought I'd throw my two cents into the new age of civility.

I’ve heard of the Federal Law that prohibits copies of CP from being made or reproduced, but if someone knows of the Law that deals with it not being viewed outside a Government facility I would appreciate it if you could pass that on.

Judges doing something that is against or contrary to existing law isn’t a new thing. In Tennessee the Law specifically states in the DUI statute that Reckless Driving is not a lesser offense for the charge, but Judges allow these DUI charges to be lowered constantly. This is just one small example of things that go on all over the Country each day.

Now if the CP can’t be viewed outside a Government Facility isn’t it somewhat the responsibility of the Government to provide a suitable facility where the defense could have a properly trained examiner look at the material and conduct a thorough examination utilizing any and all software and processes the LE examiner used?

In lieu of local agencies not having access to a Government facility where a proper examination of the material could be conducted isn’t it “reasonable” to allow the State to provide an exact copy for the purpose of a properly conducted examination and to demand it be returned once the examination is completed? Now this practice may be totally against the current law, but maybe the Law needs to be rewritten???

Now “IF” someone were to have a Court Order directing them to perform an examination on a computer with CP, we know the Judge can’t be sued and I’d say the ADA would have to know about it, so where might the company or examiners criminal liability be if any?


   
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(@miket065)
Estimable Member
Joined: 21 years ago
Posts: 187
 

I wrote this in the original post. Here is the US Department of Justice's interpretation of the applicable law.

http//www.ojp.usdoj.gov/smart/pdfs/practitioner_guide_awa.pdf

I’ve heard of the Federal Law that prohibits copies of CP from being made or reproduced, but if someone knows of the Law that deals with it not being viewed outside a Government facility I would appreciate it if you could pass that on.

“reasonably available to the defendant if the Government provides
ample opportunity for inspection, viewing, and examination at a
Government facility of the property or material by the defendant, his or
her attorney, and any individual the defendant may seek to qualify to
furnish expert testimony at trial.”

Now if the CP can’t be viewed outside a Government Facility isn’t it somewhat the responsibility of the Government to provide a suitable facility where the defense could have a properly trained examiner look at the material and conduct a thorough examination utilizing any and all software and processes the LE examiner used?

It absolutely is the Government's responsibility. That is why most CF labs include a special room just for this purpose.

In lieu of local agencies not having access to a Government facility where a proper examination of the material could be conducted isn’t it “reasonable” to allow the State to provide an exact copy for the purpose of a properly conducted examination and to demand it be returned once the examination is completed?

It doesn't specify "Federal Government", only "Government". An office in your S.O. would suffice as "Government Facility".

Now “IF” someone were to have a Court Order directing them to perform an examination on a computer with CP, we know the Judge can’t be sued and I’d say the ADA would have to know about it, so where might the company or examiners criminal liability be if any?

If a judge give's you a court order to snort cocaine, and you do it, who is breaking the law?


   
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(@patrick4n6)
Honorable Member
Joined: 16 years ago
Posts: 650
 

I've written about the Adam Walsh Act before. They slipped in a provision at the last moment which restricts access to CP to a govt facility. I've seen numerous opinions from lawyers regarding this, and whilst early on it was uncertain how it applied to states, everything I've seen recently seems that possession outside a govt facility is prima facae unlawful, notwithstanding any state court order. I'm not a lawyer, this is not legal advice, you get the idea, but basically, there's no way in hell you'd find me touching this outside a govt lab. That's how I reviewed it last time, and if I find myself working this kind of material again, that's how I'd do it in the future.

I wrote about it here
http//www.memphis-computer-forensics.com/blog/2009/04/adam-walsh-act-part-2/

The NACDL (defense lawyers org) wrote about it here

http//www.nacdl.org/public.nsf/0/63becb18a7f11a9f8525729e005153dd?OpenDocument

For the specific language, see 18 USC 3509 (m) http//www.law.cornell.edu/uscode/18/usc_sec_18_00003509----000-.html

Short version, all CP evidence is to stay in the custody of the govt, court shall deny any request for an order to make copies available for the defense outside govt facility, defense examiner must view at a govt facility.


   
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hcso1510
(@hcso1510)
Reputable Member
Joined: 15 years ago
Posts: 303
 

Mike,
I believe snorting cocaine and examining the evidence outside a Government facility are somewhat different, but I don’t really have time to properly type my response. In a sense you can always flip that type of argument around as well. If you were caught speeding on your way to the Hospital while your wife was having a medical emergency, as long as you didn’t hurt someone else, do you really deserve the ticket? Could you not explain the reason you broke the law?

I can’t speak to how other States are laid out, but in Tennessee the TBI does most of the forensic examinations. I know that Chattanooga, Knoxville and some other jurisdictions do their own forensic work and may have the ability to provide an examination room as you mentioned, but for most of the smaller departments and most of the ninety five counties they do not have this ability.

In no way will I ever defend those people that look at, create, share or transfer CP. I believe they are broken people that cannot be fixed. This may sound crazy, but do you think Judges might be willingly showing disregard for the “Government facility” law because they are wanting to comply with the rules of discovery and they don’t want to create an undue burden on the defense? I’m sure the defense could go to the State lab to look at the evidence, but if they have to travel to a far away distance or spend excess monies they will appeal any decision. “Breaking one law to comply with another?”

We can sit here all day and say the hell with the defense and who cares how far they need to go or how much money they need to spend, but I believe that will bog down the legal system.


   
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(@joshsevo)
Trusted Member
Joined: 15 years ago
Posts: 89
 

Greetings,

In the interests of minimizing potential consequences, perhaps the quote attributed to Eric Huber could be removed? I spoke to him and he wants no part of this discussion.

-David

He emailed me also as I sent him a question last night anyways regarding something different.

As requested I have deleted what I said where I included him.

Done.


   
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(@miket065)
Estimable Member
Joined: 21 years ago
Posts: 187
 

Now the argument has shifted from "is there a law" to "I don't agree with its application" or "I don't think this should be against the law" or "I don't think this should be enforced".

That is a whole different thread…

If you were caught speeding on your way to the Hospital while your wife was having a medical emergency, as long as you didn’t hurt someone else, do you really deserve the ticket? Could you not explain the reason you broke the law?

No I wouldn't "deserve" a ticket and yes I could explain why I broke the law but the fact is, I still broke the law.

The fact that someone order's you to break a law does not mean that the law was not broken. Justifying the reason for breaking the law does not change the fact that the law was broken.

I am simply stating what the law is, how it has been interpreted, and pointing out that it appears to have been broken in this case. I'm sure it was NOT intentional. I don't think that ANYONE needs to go to jail and I think that everyone is entitled to an adequate defense.

I know that Chattanooga, Knoxville and some other jurisdictions do their own forensic work and may have the ability to provide an examination room as you mentioned, but for most of the smaller departments and most of the ninety five counties they do not have this ability.

They don't have an office an examiner can use?

We can sit here all day and say the hell with the defense and who cares how far they need to go or how much money they need to spend, but I believe that will bog down the legal system.

I never stated or insinuated that we should say "to hell with the defense".


   
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(@miket065)
Estimable Member
Joined: 21 years ago
Posts: 187
 

requested I have deleted what I said where I included him.

Done.

I removed his name from my follow-up post too.


   
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