Torrential Downpour Defense Expert Report (USAvGonzales)

How many people have access to the internet at an individual house? You have to go to the house and find what’s inside to make the proper connection to the download and be able to articulate PC for possession and distribution

What school are you a professor at?

How many people have access to the internet at an individual house? You have to go to the house and find what’s inside to make the proper connection to the download and be able to articulate PC for possession and distribution

 

Posted by: @armresl

Guessing you are not in court very much.

TDP could be akin to a bad tip which leads to a bad search, heck even bad evidence.

Still comes down to what they find at the suspects house and on the system. TDP is basically a tip. You can’t arrest because of a TDP hit no matter what the source code is

I’m at UNH.  That’s basically my point is that it could be bad.  I think we are all probably saying the same things and it would be different sitting at a round table then back and forth with pieces and not even knowing what each person is basic their first statement on.  Regardless, let me go a little further cause I did read. A little bit of the case. 

following up to armwresl.  My exact point is that evidence could be tainted in many different ways so LE gets the hit and then investigate further to develop the PC for the house.  At that point it is only a SW they are getting no arrest will be made.  Now it is possible and usually the case that subsequent to that SW an arrest is made.  However, if that SW does not produce any child pornography no arrest is going to be made at that point either.  Perhaps additional information will be obtained and followed up on that leads to an arrest, but I dont see any arrest coming without an image to demonstrate what the CP is.  Maybe you could stretch some crazy scenarios in certain ways where there are certain statements and confessions or who knows but I can’t think of a prosecutor who is going to go to court on a CP case without having an image to go to. 

now in reading up on the first part of Gonzalez and the reference to another TDP case it said neither case asked for the source code.  They were asking for training and documentation records of the device.  I’m surprised that was denied.  

there is documentation involved in every tool out there Cellebrite, EnCase all have documentation that is readily available.  

I’m wondering what is in this pages to not turn over paperwork?  That part is more concerning then not turning over the source code.  The source code I kind of understand.  There are IP rights to it and I think it was mentioned earlier on here that not many people would be able to review it correctly anyway. 

But as I stated earlier, repeatable and reproduction are the keys so why not allow that process to take place? 

The brief provided referenced some other cases where the defense was able to show that there were issues with LE process and investigation.  It was clear in Gonzalez that the Gov believes there was no issue with the case and the defense did not offer any evidence as to why the defense would need to be provided such material. 

I think it also said that the defendant confessed while on scene.  

when I earlier mentioned that asking for source code is a desperate move, to me the desperation shows in this case. 

typically in a CP case you can’t argue what’s there so you have to argue how they got there.  Can the defense go back and find evidentiary issues that would trigger exclusionary rule/ fruits of poisonous tree events?  Is there something that would make the confession inadmissible or the search warrant invalid. 

If the defendants been arrested and in this case to trial already it’s desperation for sure. 

going back to the training materials and documentation, it seems that would be where the defense is looking to make a case of false positives and issues with the program.  Issues with TDP means the SW may not be any good. 

based on the little info I’m surprised those records were not turned over and it doesn’t seem fair to. It turn it over.  Could very well be a 4th or 14th amendment issue.  Argument sounds similar to the NIT application in the Play Pen cases. 

now to stir the pot a little more, does anyone think the nature of the cases is driving the decisions?  If this was a white collar crime would the information on training and documentation be turned over?  Or does the child abuse issue drive these cases a bit?  Could the courts actually be thinking the ends justifies the means ? 

sorry for going on and on so long