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Skipsmasher: Revisted

If you’ll remember a while back I posted an article about Skipsmasher. This is a database that uses one of the most invasive methods of all for gathering information about a person. Skipsmasher employs a deceptive method for obtaining a consumer’s exact location with an annoying text to a person’s cell phone, at which time when the consumer receives this nagging and annoying text they are presented with an option t opt out. When the consumer opts out, their exact location is sent to the customer of Skipsmasher that pays about $3.00 for this information.

Imagine that, you are at your child’s school, now someone knows where you child goes to school at. You are at your bank, now some stranger knows where you bank at. You are at your girlfriend’s house, now some stranger knows where your girlfriend lives. As a PI, I can tell you that it is not hard to deduct what this information that the person employing this deceptive tactic means. This is really scary when you consider the implications. A Pi can charge a client $30.00 to find out where you are at, anytime of the day. That client of the PI can be a stalker, a murderer, a rapist, whoever can come up with $30.00. And if that client of the PI can come up $300.00, that client can determine your travel habits and routines. And you, the unsuspecting target; you will NEVER know just how much of your real time, personal details have just been obtained by this complete stranger.

Now, I know what you are probably asking yourself.  Why would I be urging you to call your Congressmen and State Representatives over this issue, when it can eliminate a tool that I could do my job with more proficiently? Well, because I am all for public records, and innovative ways to locate information that is already available to those that know how to obtain it. It is one thing to use public information to find out what you need to know about a person. It is another thing to trick someone out of their privacy and obtain information that really is not publicly available. If your car is in your garage, should anyone that wants be able to know that you are home, without a public sign of a vehicle? You do have a right to be secure in your home. You do have a right to privacy in your home, especially when you are making an active effort to preserve that privacy. I don’t want to see anyone’s REAL reasonable expectation of privacy violated. The problem is that most people don’t know what a reasonable expectation of privacy is, and I can tell you that your personal comfort often times does nto enter into that expectation of privacy. But sometimes, people go to far for a quick dollar, and that is what Skipsmasher has done.

Here is a link that may interest you, if you are concerned about your telephone privacy: H.R. 4709 (109th): Telephone Records and Privacy Protection Act of 2006

Of particular interest is the quote from this act below:

SEC. 3. FRAUD AND RELATED ACTIVITY IN CONNECTION WITH OBTAINING CONFIDENTIAL PHONE RECORDS INFORMATION OF A COVERED ENTITY.

(a) Offense- Chapter 47 of title 18, United States Code, is amended by inserting after section 1038 the following:

`Sec. 1039. Fraud and related activity in connection with obtaining confidential phone records information of a covered entity

`(a) Criminal Violation- Whoever, in interstate or foreign commerce, knowingly and intentionally obtains, or attempts to obtain, confidential phone records information of a covered entity, by–

`(1) making false or fraudulent statements or representations to an employee of a covered entity;

`(2) making such false or fraudulent statements or representations to a customer of a covered entity;

`(3) providing a document to a covered entity knowing that such document is false or fraudulent; or

`(4) accessing customer accounts of a covered entity via the Internet, or by means of conduct that violates section 1030 of this title, without prior authorization from the customer to whom such confidential phone records information relates;

shall be fined under this title, imprisoned for not more than 10 years, or both.

`(b) Prohibition on Sale or Transfer of Confidential Phone Records Information-

`(1) Except as otherwise permitted by applicable law, whoever, in interstate or foreign commerce, knowingly and intentionally sells or transfers, or attempts to sell or transfer, confidential phone records information of a covered entity, without prior authorization from the customer to whom such confidential phone records information relates, or knowing or having reason to know such information was obtained fraudulently, shall be fined under this title, imprisoned not more than 10 years, or both.

`(2) For purposes of this subsection, the exceptions specified in section 222(d) of the Communications Act of 1934 shall apply for the use of confidential phone records information by any covered entity, as defined in subsection (h).

`(c) Prohibition on Purchase or Receipt of Confidential Phone Records Information-

`(1) Except as otherwise permitted by applicable law, whoever, in interstate or foreign commerce, knowingly and intentionally purchases or receives, or attempts to purchase or receive, confidential phone records information of a covered entity, without prior authorization from the customer to whom such confidential phone records information relates, or knowing or having reason to know such information was obtained fraudulently, shall be fined under this title, imprisoned not more than 10 years, or both.

`(2) For purposes of this subsection, the exceptions specified in section 222(d) of the Communications Act of 1934 shall apply for the use of confidential phone records information by any covered entity, as defined in subsection (h).

`(d) Enhanced Penalties for Aggravated Cases- Whoever violates, or attempts to violate, subsection (a), (b), or (c) while violating another law of the United States or as part of a pattern of any illegal activity involving more than $100,000, or more than 50 customers of a covered entity, in a 12-month period shall, in addition to the penalties provided for in such subsection, be fined twice the amount provided in subsection (b)(3) or (c)(3) (as the case may be) of section 3571 of this title, imprisoned for not more than 5 years, or both.

`(e) Enhanced Penalties for Use of Information in Furtherance of Certain Criminal Offenses-

`(1) Whoever, violates, or attempts to violate, subsection (a), (b), or (c) knowing that such information may be used in furtherance of, or with the intent to commit, an offense described in section 2261, 2261A, 2262, or any other crime of violence shall, in addition to the penalties provided for in such subsection, be fined under this title and imprisoned not more than 5 years.

`(2) Whoever, violates, or attempts to violate, subsection (a), (b), or (c) knowing that such information may be used in furtherance of, or with the intent to commit, an offense under section 111, 115, 1114, 1503, 1512, 1513, or to intimidate, threaten, harass, injure, or kill any Federal, State, or local law enforcement officer shall, in addition to the penalties provided for in such subsection, be fined under this title and imprisoned not more than 5 years.

`(f) Extraterritorial Jurisdiction- There is extraterritorial jurisdiction over an offense under this section.

`(g) Nonapplicability to Law Enforcement Agencies- This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or political subdivision of a State, or of an intelligence agency of the United States

I submit to you that every time a nagging text message is sent to your phone for the purpose of getting you to opt out, so your physical location can be sent to someone that you have not authorized to know your physical address, your bank, your child’s school, or any other private information that you would not want a complete stranger to know, that a type of misrepresentation and fraud has been committed: `(2) making such false or fraudulent statements or representations to a customer of a covered entity;

Call your State Representatives and your Congressmen, and make this known. DEMAND an investigation into this practice. And if the investigative findings are that this violates this act quoted above; demand penalties for Skipsmasher, and the owner. You true privacy is worth it, it’s not like we have a lot of it left; don’t let this company nibble away at what privacy you DO have!

State Senators Directory

U.S. House Of Representatives Directory

California State Representatives  Mr. Robert Scott lives in California.

Search State House of Representatives This is the Google Search Link, all you have to do is click it and peruse the results.

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Beware Of What You Don’t Know: SKIPSMASHER!

 

That pesky weather bulletin that you are getting, you know the one that keeps “popping up” on your cell phone? That text message to call a number that is listed in the text, you know the one that looks like there is some kind of a dire emergency that you need to be warned about? BEWARE, these could very well be some unethical Private Investigator trying to locate your exact geographical position! Yeah, REALLY!

The average consumer is probably unaware of how many times a day his or her privacy is violated. The average consumer is probably unaware that at any give time most Private Investigators and Collection Agencies, Repossession Agencies can find a person’s exact location. Thanks to sites like “Skip Smasher” you’ll never know if that Weather Bulletin is a real weather alert that was sent to you strictly to warn you about weather conditions, or if it is someone trying to find out what your exact location is. Below is the description from “Skip Smasher” of the service it offers to it’s customers:

Cell Stinger

This is actually a wonderful way to invade someone’s privacy and claim it is legitimate because they have location services turned on, on their phone. The problem is that this method uses subterfuge to exploit your location bases services that were originally designed to help drives and hikers navigate. What happens is the weather bulleting starts to pop up and nag the unsuspecting victim and it asks the unsuspecting victim if they would like to opt out of receiving these alerts, when the unsuspecting victim does this the opt out process captures the unsuspecting victim’s location and sends it to a server where it is processed and sent to the person paying to have this service in the form of a  Google Map with as much details as can be processed on the unsuspecting victim’s location.

Enter Robert Scott, the man that owns “Skip Smasher” and who is making good money off of showing Private Investigators how to exploit your privacy. And he does not care at all that this could be an invasion of privacy, because he is a Private Investigator himself and that is how he markets this service, as a service for Investigative Professionals by Investigative Professionals. Actually what happens here is some Private Investigator uses this to locate you, the unsuspecting citizen for someone that is paying that Private Investigator money. And the service is CHEAP! For under five dollars ($5.00) a Private Investigator can use this service to “ping” your exact location. Does it not seem a little “creepy” that a person that does not like you, or is obsessed with you, or intends you harm can get someone with this type of technology to find your exact location at almost any given time, for a price? Are you still comfortable with that weather bulletin that just came in on your cell phone?

Okay, so you are a Private Citizen and you want to do something about this. What do you do? Well, right now this service is not illegal, however in 2001 pretexting a cell phone for a third party’s cell phone records was not illegal either. Until Senator Charles Schumer made it illegal to gain another person’s cell phone call details without authorization. If you feel like you don’t want to be the victim of this type of privacy invasion, call your State Representatives, Call your Senators; request that they open an investigation into Robert Scott and “Skip Smasher” . Request that your Senator or your State Representative try to pass new legislation to outlaw this practice. Request that your State Senators and State Representatives send Robert Scott a stern message that it is not acceptable to profit from the wholesale invasion of people’s privacy.

Below are links that will help you find the contact details for your State Senators and State Representatives, if you decide that you don’t want to accept this type of privacy invasion:

State Senators Directory

U.S. House Of Representatives Directory

California State Representatives  Mr. Robert Scott lives in California.

Search State House of Representatives This is the Google Search Link, all you have to do is click it and peruse the results.

Privacy is in short supply. You will find the word “privacy” nowhere in the constitution. But we should all have an expectation that the items we purchase to make our lives a little more comfortable should not be exploited and turned against us to take what little bit of privacy we have left.

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Confidentiality: Good P.I.’s Remain Silent About Their Cases And Clients!

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I have been on the Internet for a very long time, probably longer than most Private Investigators have. I am always amazed at the information one can find on the Internet. Most of the information on the Internet is information that we freely give about ourselves. Between social networks, email, and the “deep web”, we can find out almost anything about anyone. It has become accepted and even expected that the consumer will inadvertently give out private information about their self on the Internet in current times. But what about Private Investigators? One would think that a Private Investigator would be cautious of what they allow others to see about them and their business on the Internet. Sadly, this does not seem to be the case.

The Private Investigation business is a funny business, while the Private Investigator has to be able to keep his or her case information confidential, he or she also has to find an effective way to advertise or market on the Internet these days, also. Often times Private Investigators blur the lines between marketing and giving out confidential information on the Internet. I was amazed eight years ago when I found a naked picture of one Private Investigator on the Internet. Not surprisingly this Private Investigator was the very person responsible for their naked picture being on the Internet. If this Private Investigator had not sent their naked picture to other unsuspecting people of the opposite sex in email, their picture would have never been found on the Internet. This is just an example  of how careless one Private Investigator had become with their information. But there are literally hundreds of examples like this where Private Investigators have shared a little too much on the Internet.

We all remember the Baby Lisa Irwin Case, and one Private Investigator’s attempt to grab some attention by proclaiming how he was working this case, then “backpedaling” and stating that he was blogging this case as an “Investigative Journalist”, right? Look at all of the information and inferences one could make from that situation. First, the question comes to mind; why wouldn’t anyone actually hire him to work this case? Second, one has to wonder was this Private Investigator using his fee based, proprietary databases to cull information on this case, while he was clearly not working as a hired Private Investigator conducting a Private Investigation? Third, was it appropriate to share the results of his investigation with the public, while the Police were conducting an investigation into the disappearance of this infant, if he was not hired by anyone to conduct this investigation? It is one thing to conduct an investigation as a hired Private Investigator where you have an obligation to your client to investigate the case and keep the information that you gather confidential; it is entirely another thing to possibly interfere with a Police investigation by conducting an investigation for the sake of blogging about your findings for a little media attention. And to this day, this Private Investigator has put himself in the unenviable position of not being able to prove that he did one single thing that helped in locating this child; the only thing he did do was make himself look like an attention starved, low-rent Private Investigator that would do anything for a little media attention.

RMRI, Inc. works a good deal of very sensitive cases that go to court and can be “life altering” to our clients if certain critical information were to come out about our cases. RMRI, Inc. has a few hard and fast rules and protocols about how we conduct business and what we choose to let the public know about our business. First, the ONLY time we are working a case is when we have a paying client, we don’t work cases for free in the hopes of getting some media attention. In all cases that go to court, we enter into a contract with the client. If the case is something simple, where a contract is not necessary (such as: serving a summons) we get an email acknowledgement or an on-line acknowledgement that we are working for the client and that the client expects any information we find in the course of doing our work to remain confidential. We NEVER speak to anyone outside of the client and our team members about an active and ongoing case. Even after a case is completely finished we have a ninety (90) day wait time before we can even acknowledge that we had any involvement with the case whatsoever, and then after that ninety (90) days we can not mention anything that identifies the case we can just speak in general terms about the case.  Our approach is quite simple; “we don’t want attention, we want to be paid”. We liken our work to that of any other job, we “punch in” and work, we “punch out” and go home, and we collect our pay. We work to make a living, not for glamour and fame.

While it is true that you can find RMRI, Inc.’s company name in certain publications for attorneys and certain news papers and magazines, what you wont find is any specific information about cases we work, such as names, dates, and specific locations. While you might see a mentioning of cases on our website, what you will not see is any specific mentioning of the details of these cases unless they are over seven (7) years old. While you might see a Facebook Page for RMRI, Inc., what you won’t see is any mention of a case we are working. We make tremendous efforts and take great pains at RMRI, Inc. not to blur the lines between advertising and giving out even a hint of information about our clients and our cases. RMRI, Inc. is not so desperate for attention that we are willing to forsake our client’s privacy for some media attention.

RMRI, Inc. is made up of two (2) licensed Private Investigators, one (1) Pending Licensed Private Investigator, one (1) Process Server, two (2) Technical Consultants qualified as Expert Witnesses, and one (1) Secretary and all of our staff have committed to keeping all case and client data at RMRI, Inc. confidential. Each member is well aware that intentionally “leaking” case and/or client information outside of the confines of RMRI, Inc. is grounds for termination and possible civil action.

In Summary

A Private Investigator’s ability to keep his or her case and client information is paramount. Confidentiality in the Private Investigation Business is a justified expectation of the client. A successful and confident Private Investigator feels no need to boast about their cases or their clients. Confidentiality is the hallmark of any successful Private investigation Business. If you don’t understand confidentiality, you don’t understand the Private Investigation Business!

Cyber-Investigations For The Defense: Fair Discovery?

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Last week the Missouri Lawyer’s Media did an article on a discovery issue that Prosecutors, Defense Attorneys, and Investigators have been wrestling with for a while now. In this article I was quoted by the reporter that interviewed me for this article. I wanted to take some time and elaborate a little further on my position in regards to this issue. First I’d like to present to you a copy of the article. I snipped the full article, but cropped out the other articles that were mentioned in this Trade Journal. Below is the entire article:

Lawyers Weekly Article with Rick Gurley 1

Lawyers Weekly Article with Rick Gurley 2

 

 

 

 

 

 

 

 

 

 

 

 

 

First of all I should state that I know some of the members of our Local Internet Crimes Task Force, and the ones that I know are good and honest people. I do trust the members of our local Internet Crimes Task Force and I don’t think they would ever do anything intentional that might send an innocent person to prison. I should caution anyone reading this that attempting to gain access to the hard drive of the investigating agency’s computer should not be the first course of action by the defense, a Digital Forensic’s Expert should first read the reports written by the Investigating Officer’s to try to determine if there is any cause to try to gain access to the investigating agency’s hard drive; often times there is no cause to do so. I should also state that I am not an attorney but I think it is also fair to state that most of the attorneys mentioned in this article are not Digital Forensics Experts either; and certainly not Merilee Crockett as evidenced by some of her statements in this article.  The first quote from Merilee Crockett that I noticed was this:

A lot of people believe that once something is on a hard drive it is there forever. That’s a myth. There are no layers. It’s either there or it is not.

Well in essence that is true, but it is also over-simplistic. What is important to remember here in these types of cases is that we are dealing with Digital Evidence, and there is nothing simple about Digital Evidence. When someone tries to over-simplify how data on a computer is stored, over-written, or deleted there are a lot of key issues that get lost in the translation from complex to simple. First of all let me explain data deletion. When a file is “deleted” as the layman may believe, the file is not actually deleted initially, instead it is simply no longer linked to a “file tree” on the computer. The file is still on the computer for the time being until another file is saved and the space where that old file is at is reallocated for the new file, and then the old file gets overwritten. So often Digital Forensics Experts will say something like this to a layman as an example:

Nothing is ever deleted from a computer, it is overwritten. Think of the data on a computer as layers of information, and think of computer forensic software as a tool that can lift these layers of data to expose what you thought was once “deleted”.

Now one must understand that this quote is usually being made from a Digital Forensics Expert trying to explain data storage and deletion to a layman. This too is also an over-simplification of how data is stored, overwritten, and deleted. The difference is that what Merilee Crockett is saying here is for the purpose of trying to give an excuse as to why the defense should be hampered in discovery by limiting what can be key and important information that the defense needs, while all the Digital Forensics Expert is trying to do is give a layman an idea of what to expect in a Computer Forensic Examination. What may be the most accurate way to explain what happens is through this illustration listed below that was provided to me by a well known, and world renowned Digital Forensics Examiners and close associate of mine; Brian Ingram

Hard Drive Data Illustration by Brian Ingram

How many computer novices and laymen do you think would completely understand that illustration above? There is one thing that is clear, if there is a file that occupies a portion of a cluster on a hard drive, then there is room for data from another file on the portion of that cluster that is not occupied, that portion of the cluster that is not occupied is called “File Slack“; and it is not only possible but also likely that a completely different file may occupy this same cluster in the unused portion of this cluster or the “File Slack”. This is a completely accurate illustration of the example that Digital Experts are trying to give laymen when they explain how data is overwritten and they use an example involving “layers of data”. And if you look at the example carefully, and read closely you will see that Merilee Crockett did actually simplify this issue to the point that some key issues on how data is recovered from a hard drive are lost in her “translation” of how data is stored, over-written, and deleted from a hard drive.

There is a reason that I gave the example of how an over-simplified interpretation of an issue such as what we are addressing here can be harmful. Prosecutors typically want to try to limit as much as they can with regard to discovery in a criminal case; but I should also say that there are a few Prosecutors that also believe in “Open Discovery” and Full Disclosure. There is nothing wrong with that, the defense also does the same thing. This is a good example of attorneys doing their jobs. But when a Prosecutor tries to limit evidence that can be exculpatory to the defendant; they start to breach a more sinister area resulting in a denial of justice to the defendant. As any good attorney knows this at the very least may border on what is known as a “Brady Violation”.

One of the key points that the prosecution tries to make when arguing against the defense looking at the hard drive from the Law Enforcement Agency that conducted the forensic examination on a defendant’s hard drive is that the hard drive from the Law Enforcement Agency’s computer will contain sensitive case information from other cases.  If you read what Merilee Crockett has to say in this article, she proposes the same argument:

The hard drive contains chats from ongoing investigations. It has names of potential suspects never charged with crimes. It has the photos and names of underage personas used by undercover investigators, which a disgruntled defendant could easily post online. Defense attorneys can’t prevent that from happening. They have an ethical obligation to give the client everything they can

That sounds like a good argument; doesn’t it? I’d say that if I did not know what I know about Digital Forensics, encryption, and how to safely store data I’d agree with that as a good reason NOT to have to hand over the hard drive from the Law Enforcement Agency’s computer. But the problem with this argument is that the whole issue of exposing such sensitive case information to Defense Investigators is that there are a number of remedies that can be applied here. A digital image can be transferred to a hard drive and check-summed to show that it is a true bit image of the original hard drive from the defendant and all of the notes and other such pertinent information that is gathered in the course of the investigation of the specific case in question can also be transferred to that same hard drive; thereby consolidating the case information generated from the Law Enforcement investigation onto one hard drive for the Defense Investigator and keeping all of the other non-pertinent sensitive case information protected. Encryption could also be used on the hard drive belonging to the Law Enforcement Agency to limit what is viewed to only the pertinent data that applies to the case at hand. Under the Adam Walsh Child Protection Safety Act the Defense Investigator has to view the evidence at the Law Enforcement Agency’s facility, so a Law Enforcement Officer can easily sit down and decrypt the section or sections of the hard drive that needs to be examined by the Defense Investigator, thereby protecting all of the non-pertinent sensitive case information on the hard drive in question. The court can also impose orders that limit what the Defense Investigator can discuss with the Defense Attorney and their client to only case related material. There should also be multiple computers that are being used by the Law Enforcement Agency tasked with these types of investigations that have specific purposes; for example the computer that is being used to image and analyze the defendant’s hard drive should be a stand alone computer, not attached to the Internet in any way, that has all wireless adapters turned off this way there is a minimal chance of any evidence corruption issues. The computer that is used to chat with potential offenders should also have that one specific purpose; this way with the use of encryption all chat logs for a specific case can be freely examined by the defense in these types of cases. Are some of these methods labor intensive? Sure, but we are discussing a criminal case in which there is a possibility that a person can be wrongly accused, sent to prison, put on a sex offender registry for the rest of their life, and have their entire life negatively impacted as a result; isn’t doing everything we can to eliminate that possibility worth a little more work? There are ways around this issue; IF the concern here is a level playing field for the defense?

There are always questions in these cases when it comes to best practices in the forensic analysis of the defendant’s computer, evidence preservation and storage, and evidence spoliation issues. Often times these issues are insignificant enough that the chance of them presenting a problem in a case are so unlikely that they don’t warrant any consideration. I am not saying that I don’t trust that Law Enforcement is dong the best they can to make sure that their evidence is correct, but I am saying that it is real easy to make a mistake in cases that involve digital evidence. However when these questions rise to a level of concern to cause a realistic possibility that they could impede a defendant’s right to a fair trial; if the Defense’s expert can clearly articulate the reason for that concern the court should weigh the defendant’s right to a fair trial against the possibility that the investigating agency may have to expose some of it’s sensitive data to the Defense team. In my personal opinion; if you are looking at sending a man to prison for ten (10) years, then his right to a fair trial trumps a risk of exposure of sensitive data from the investigating agency’s computer.

There are a number of questions that the Defense Investigator should be trying to answer when looking over the discovery material from the prosecution.

(1) Was the computer that was used to conduct the Digital Forensic Examination attached to the Internet?

(2) What digital forensic software was used to conduct the examination with?

(3) Was there a virus scanner used by the investigating agency to see if the defendant’s hard drive may have a virus, Trojan, or some other type of malware that could have caused any content to be downloaded to the defendant’s computer without the defendant’s knowledge? If so, what virus scanner was used, what version, was it updated, and are there any known vulnerabilities associated with the virus scanner?

(4) Are there any anti-forensic tools on the investigating agency’s computer? If there are; why are they there?

These are only a small sampling of the questions that the Defense Investigator should be asking and trying to answer by reading the discovery material. If enough of these questions are answered in such a way that they give the Defense Investigator clear concerns that may need to be further examined, then it may be necessary to ask for the hard drive from the investigating agency’s computer. The Defense Investigator should be able clearly articulate these concerns to the court and explain the impact that they may have on the evidence. If the court finds that the Defense Investigator gave a reasonable accounting to the court of his or her concerns, and the court is convinced that these concerns are realistic; then perhaps it is not such a bad thing that the Defense Investigator is given what he or she needs to further explore these concerns instead of having to be forced to trust a detective that may not even know if he or she made a mistake in how they gathered and handled the case evidence?

I have noted that Merilee Crockett has compared handing over the hard drive from the investigating agency’s computer in cases that involve digital evidence to handing over a breathalyzer machine. One difference to note in these two examples is that with regard to digital evidence, usually the defense gets a copy of a detailed report from the investigating agency that outlines their computer examination in fair detail. With breathalyzer tests, there is less detail, and less tools and procedures for the Law Enforcement Officer to detail in his or her report, thus short of a fishing expedition there usually is not enough information to articulate a need to examine the breathalyzer machine source code. In People v. Cialino, 831 N.Y.S.2nd 680, 681 (Crim. Ct. 2007) the court did not deny access to the breathalyzer source code because it was not significant to the case; the court denied access to the breathalyzer because the defense could not clearly articulate why access to the breathalyzer source code was significant to the case; this can be seen in the language the court used when the court first called the defendant’s request a “fishing expedition” but then went on to say “it is incumbent on the defendant to show that a software change has altered the reliability and accuracy of the machine” and the court said that the defendant had not provided a reasonable basis that changes in the software of the Intoxilyzer 5000 had caused it to become unreliable. So the court left the door open for the examination of the source code of the breathalyzer machine in question, but it required a clear articulation as to why it would be reasonable for the defense should be permitted to examine the source code. In cases involving digital evidence that is gathered from imaging a hard drive, the investigative agency’s digital forensic analysis report will usually allow the Defense Investigator more information on the software used, processes used, and evidence interpretations made by the Detective to form any questions that might be pertinent to the case and research these questions to see if there may be good cause and NOT just a “fishing expedition” to ask for the hard drive from the investigating agency’s computer.

In summary; I am not saying that in every case the defense should have access to the investigating agency’s computer hard drive. What I am saying is that the courts should try to be open to seriously considering any request by the defense to examine the investigating agency’s hard drive if the defense can clearly articulate a need to do so. In my mind the whole issue comes down to a balancing act; the court should balance the defendant’s right to a fair trial against the need for Law Enforcement to keep sensitive case information confidential; once a clear articulation is made by the defense that demonstrates that there are reasonable issues that need to be explored by the defense in order to defend the defendant against any evidence corruption issues that may negatively impact the defendant’s right to a fair trial.

Ricky B. Gurley

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