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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