Justice Rules Police Can't Steal Other Kid's Toys

Just over a month ago, Breaking News brought LinuxJournal.com readers the story of Riccardo Calixte, the Boston College computer science student targeted by heavy-handed investigators for the capital offense of being a Linux user. Now it's time to update that story, and for once, with a victory for the forces of freedom.

Calixte, as readers may remember, had his computer equipment, including his iPod and cellphone, seized by Massachusetts authorities investigating anonymous emails sent to a college mailing list alleging that another student was — and yes, this is 2009 — gay. The Orwellian authorities relied on what has become an old standard for police wishing to conduct technological fishing expeditions in violation of the Fourth Amendment: the Computer Fraud and Abuse Act. According to the police, who couldn't even identify Windows, much less Linux, calling it "not the regular B.C. operating system," Calixte was suspected of — as are all citizens being smacked around with the CFAA — "obtaining computer services by fraud or misrepresentation" and obtaining "unauthorized access to a computer system," because the emails — if they were from him — were sent anonymously.

Though Calixte was forced to finish the rest of his semester without a computer — a rather important tool for a computer science student — or network access, which school officials saw fit to shut off without bothering to wait for the kangaroo court to conclude, he has now been vindicated, with the Massachusetts Supreme Judicial Court ordering the police to immediately return his property and cease all analysis of it. Justice Margo Botsford, hearing the matter under Massachusetts judicial rules which allow a single justice to hear an interlocutory appeal in the interests of the administration of justice, issued the order on Thursday, ruling that the alleged crimesPDF — violations of "a hypothetical internet use policy" — "goes well beyond the reasonable inferences that may be drawn from the affidavit, and would dramatically expand the appropriate scope of G. 1. c. 266, § 120F."

As for the laundry list of reasons that Calixte was obviously a dangerous criminal, including his use of Linux and fixing other student's computers, Justice Botsford determined that "[t]he factual "basis" thus appears as part of a listing of alleged activities that do not appear to be unlawful, are listed with no showing as to the basis of [Jesse] Bennefield's knowledge, or both." (Bennefield was Calixte's roommate.) She went on to, quite accurately, find that the police, having realized that there was no crime to justify their search, attempted to post-validate the warrant by making accusations completely unsupported by the testimony used to obtain it. The ruling which continues on for some time, stands as the highest court ruling to find that so-called "computer crimes" alleged under the CFAA are spurious and completely lacking in legal merit — quite the achievement at the end of the day.

Whether or not Calixte will eventually be charged remains an open issue, and while the order forbids further analysis and requires that the items be returned to Calixte, Justice Botsford declined to order that the evidence already obtained be suppressed, finding that it is appropriately a matter for the trial court to consider, should the matter end up there. However, with the strongly worded decision from the justice hanging over their heads, a smart investigator would do well to drop the matter altogether. Perhaps, now that a strong ruling has made perfectly clear that these sort of charges are utterly bogus and the searches based on them are unconstitutional, these heavy-handed "upholders" of the law will take the time to review the constitution they're supposed to protect.

We leave you with Justice Botsford's summation, an almost poetic ruling, if we do say so ourselves:

To conclude: taking into account the troublingly [sic] weak evidence of (1) Bennefield's reliability in connection with the allegation of unauthorized access to and hacking into the BC grading system, and (2) nexus, the search warrant affidavit fails to establish probable cause. Accordingly, because the search and seizure were not conducted pursuant to a lawful warrant, all ongoing forensic analysis of the items seized from Calixte must cease, see Commonwealth v. Kaupp 453 Mass. at 106-107, n.7 ([valid] search warrant required to search seized computer), and the items must be returned forthwith. See Commonwealth v. Sacco, 401 Mass. 204,207 and n.3 (1987). Cf. Matter of Lavigne, 418 Mass. at 836. With respect to the two seized laptop computers and any other property that the Commonwealth claims do not belong to Calixte, the Commonwealth is to undertake to identify the owner(s) of this property, and, with prior notice to Calixte, return the items to those owners.


Justin Ryan is News Editor for LinuxJournal.com.
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Justin Ryan is a Contributing Editor for Linux Journal.


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Encrypted file systems

Anonymous's picture

Watch out using those encrypted file systems.
(They) the courts WILL hold you in contempt for not giving them the password and hold you in jail until you do so.
As long as they hold you or find you in contempt they WILL keep you locked up.

Better off keeping that encrypted file system on an EXTERNAL serial ATA SSD-solid state drive with the aluminum cover removed (CHIPS EXPOSED) and a microwave oven close by set to POPCORN. (Chances are you will get less time for that)

The 5th is dead here in the US now and it will not protect you from self incrimination.

Trust me...................

It's the NWO folks.
Time for countermeasures.

Justice Rules Police Can't Steal Other Kid's Toys

Anonymous's picture

Well i must say that if i were going to do what this kid was accused of doing i would load up an operating system such as Slax or puppy LIVE off of DVD or CD and hide my connection in TOR.

Anyone for ANTIFORENSICS ????
You cannot unerase was is not there.

US Police are ignorent of Constitutional Rights

1776jedi's picture

The problem with this case and so many others is that law enforcement officers are generally ill informed of what the law is and the lawful restrictions of their powers. Too many times they obtain warrants or consent through deception to search and seize property and information. Once this is done it cannot be undone and even if a competent justice over rules the actions of law enforcement officers the hard ship on the accused has taken it's toll. Further officers will not pay attention to rulings such as this and continue to push the boundaries of their lawful powers. They often succeed in rail roading innocent people into jail. This is why I use linux with encrypted file systems. If I ever find myself in this sort of predicament, they may be able get my machines, but my data is safe from prying eyes and forensic investigators. You cannot rely on the State to secure your rights, you must do this yourself. Encrypt your disks, data, and communications, it goes a long way toward ensuring your 1st, 4th, and 5th amendment rights in the face of unchecked government power.

I use Linux, guess that makes me a criminal too!

Sum Yung Gai's picture

Hey, all we Linux-using "criminals" can band together and sing (to the tune of Kumbaya):

Come shoot me, Bill Gates, come shoot me,
I use Li-nux and, B.S.D.
Windows will not run, in my home,
I prefer K.D.E. and GNOME!



Anonymous's picture

Was this poor student ever compensated? I'd have to say they did some considerable damage to his education and his future...

Re: sic

Paul Collins's picture

"Troublingly" is a word, folks, and the Justice used it correctly.

Boston is a crime free zone now

Anonymouse's picture

Im happy to see that crime has been totally eradicated in Boston which when I last visited was a filthym, violent city.

Its nice that police have time to investigate such serious crimes as calling people names on mailing lists.
Seems like a lot nicer job to have than to chase real criminals.

Oh, oh... now Ive done it. The brilliant men in uniform are gonna get after me now for uttering these words that kill.

These stupid cases like the teacher in NH with the porn popups are never ending and while it is generalization what the indian chap said, the education level is so sad in the US that we shouldnt be surprised at being perceived this way.

What woukld you think if a major city like Detroit has HALF its population illiterate.... or that half of Texas grade 8 students fail math....
People read this stuff and then read about the universally dumbwitted cops and its very easy to forget that not everyone in the US is dumb.


Salvadesswaran's picture

I didn't know the police in US were illiterates! Here in India cyber crime police (in Tamil Nadu at least) are way better!

U.S. police aren't 'illiterates"

bigbearomaha's picture

What a poor attempt to use a technical article to paint all U.S. Police with one brush.

I'm very sure you would not stand for comments attributed to a group of persons in India that way.

This is a group of poorly educated, in terms of technology, investigators who thought to use 'brute force" where lack of knowledge failed them.

What it does show is that there are certain areas of training that must be improved upon as the technological age plays more of a role in criminal acts and criminal investigation.

If nothing else, it shows just how much impact the 'monopoly' that Microsoft enjoyed and greatly benefited from has limited the experiences of so many people so as to not knowledgeably be able to discern other software products.