What: Pennsylvania man accused of possessing illegal images objects to Circuit City technician perusing his video files and then alerting police.
When: Superior Court of Pennsylvania rules on December 5.
Outcome: Evidence of illegal images allegedly discovered by technician can be used in court.
What happened, according to court documents:
On October 15, 2004, Kenneth Sodomsky brought his computer to a Circuit City store in Wyomissing, Pa., and asked store technicians to install a DVD burner.
Circuit City told Sodomsky that the upgrade would be finished in about an hour. After installing the DVD burner, the technicians tested the drive's new software by searching the computer's hard drive for video files to play back. (Amusingly, the court refers to "codecs"--video compression and decompression software--as "code X.")
When searching the Windows XP computer for some sample video files, a technician named Stephen Richert allegedly spotted files that "appeared to be pornographic in nature" based on their names. Richert clicked on one that had listed a male name and an age of 13 or 14 and found a video he believed to contain child pornography.
Then the usual series of events happened: Richert called Wyomissing police, who promptly showed up, seized the computer, and, after Sodomsky returned to pick it up, seized its owner as well.
What makes this case relevant to Police Blotter is the question of what privacy rights govern Sodomsky's computer when he drops it off for an upgrade. If he had an expectation of privacy, then the allegedly incriminating files could be suppressed. If not, they could be used as evidence against him.
The trial court granted Sodomsky's request to suppress the information, but prosecutors appealed.
Making this case tricky for the appeals court is that there's not exactly a clear precedent, leaving the judges to reason through analogy. Is this a no-reasonable-expectation-of-privacy situation such as when a defendant hands illegal drugs to a third party? Or is it closer to tenants or bank customers, who retain some privacy rights under state or federal constitutions?
In the case of Sodomsky, the appeals court noted that he gave Circuit City technicians access to the hard drive and consented to the installation of a DVD drive. The court also noted that the technicians weren't randomly perusing the drive for contraband, but instead were testing its functioning in a "commercially accepted manner."
The appeals court reversed the previous order, allowed the evidence to be introduced, and sent the case back to the trial judge for additional proceedings.
Excerpts from appeals court's opinion:
Appellee implies that the DVD drive should have been tested by inserting and playing a DVD. Nevertheless, as noted, Appellee did not ask how the burner would be tested nor did he place any restrictions regarding the manner of that procedure. As Mr. Richert's testimony indicated, the playing of videos already in the computer was a manner of ensuring that the burner was functioning properly. Once the search for videos was initiated, the list of appellee's videos appeared automatically on the computer screen. The employee testing the burner was free to select any video for testing purposes, as appellee had not restricted access to any files. Therefore, Mr. Richert did not engage in a fishing expedition in this case...
The final factor we utilize is the volitional nature of appellee's actions. In this case, Appellee removed the computer from his home, took the computer to Circuit City, and left it there without either removing the videos containing child pornography or changing the titles of the videos so that they did not appear to have illegal content...Appellee was aware of the child pornography and could have elected to leave the store with the computer rather than risk discovery of the pornographic files.
This scenario also stands in contrast with the landlord case relied upon by the trial court. Although landlords routinely retain the right to inspect their premises upon notice, people still retain a privacy expectation in their home despite its status as rental property. Here, however, we find that under the facts and circumstances presented, appellee knowingly exposed to the public, the Circuit City employees, the contents of his video files. It is clear that Circuit City employees were members of the public; hence, if appellee knowingly exposed the contents of his video files to them, as members of the public, he no longer retained an expectation of privacy in those videos nor could he expect that they would not be distributed to other people, including police.
Our result in this case is consistent with the weight of authority in this area. If a person is aware of, or freely grants to a third party, potential access to his computer contents, he has knowingly exposed the contents of his computer to the public and has lost any reasonable expectation of privacy in those contents...
We also conclude that the incriminating nature of the video files was immediately apparent. Appellee suggests that it was unclear whether the videos depicted child pornography because police could not ascertain the age of the naked male, whose face was not revealed, from the portion of the video that they viewed. We disagree....Finally, police had the lawful right to access the videos because, as analyzed extensively above, appellant had abandoned any reasonable expectation of privacy in them.
An anonymous reader, who claims to work for the company that distributed the video package, has posted the alleged video news release online. The video is shockingly bad—the narrator talks too slowly, the pacing is poor, and the "fly-in" bullet points look like they were produced in Windows Movie Maker.
Still, for the first half of the clip, it's generally accurate information about recent busts at duplication facilities. And then come the bullet points. "Watch for compilation CDs that could only exist in the dreams of a music fan," viewers are warned, a statement that only serves to highlight the fact that pirates do a better job of providing what music lovers want than the industry does. Whoops.
Then there's this gem: "Audio quality on pirated CDs is usually atrocious." Someone alert the RIAA to how digital copying actually works, please.
From there, the clip moves into straight-ahead advertising. "Make sure the music you buy is legitimate," says the narrator. How? Simple! Just use the "cool, innovative ways to get your favorite music" that the industry offers. The video then shows iTunes digital album gift cards and a cell phone, for which you can buy Christmas-themed ring tones.
The production values of the video initially led us to suspect it of being a fake, but the leaker has provided Ars with a copy of an alleged press advisory that went out promoting the clip. It's directed to "news assignment desk/consumer reporters," who are more likely to use the footage and basic "storyline" themselves than to simply run the unedited report. The RIAA has not yet responded to our request for authentication of the video.
Lending credence to the video, though, is the fact that it follows a recent RIAA press release almost exactly. Though that release says nothing about a video news feed, it does mention that the RIAA is launching a "holiday anti-piracy campaign" that "offers shoppers innovative gift ideas and tips for avoiding pirate product." The campaign is set to focus on 15 cities with "exceptionally high piracy rates" (every major US city, apparently).
For an industry already the target of so much consumer suspicion, feeding misleading claims and self-serving footage to ostensibly objective "news" outlets just doesn't seem like a great idea. Yes, piracy is bad; yes, we should shut down illegal commercial stamping operations. But trying to turn the news into such an explicit commercial? Unhelpful.
Sacha Baron Cohen is retiring the outrageously anti-Semitic, homophobic Kazakh journalist Borat as well as his alter ego, aspiring rapper Ali G.
Cohen readily admits he is more comfortable talking in the guise of the characters he has created, but unfortunately for him, both Ali G and Borat have had their day. Too many people know them and he reluctantly acknowledges that he can no longer retreat behind their personas.
“When I was being Ali G and Borat I was in character sometimes 14 hours a day and I came to love them, so admitting I am never going to play them again is quite a sad thing,” the 36-year-old actor-comedian says in the British newspaper’s Friday edition. “It is like saying goodbye to a loved one. It is hard, and the problem with success, although it’s fantastic, is that every new person who sees the Borat movie is one less person I `get’ with Borat again, so it’s a kind of self-defeating form, really.”
“It’s upsetting, but the success has been great and better than anything I could have dreamed of.”
We speak with a reporter from the Army Times who gives an inside account of how an army unit committed mutiny and refused to carry out orders in Iraq. After an IED attack killed five more members of Charlie 1-26, members of 2nd Platoon gathered for a meeting and determined they could no longer function professionally. Several platoon members were afraid their anger could set loose a massacre.
hit the title link for the rest of the story...
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