Darren Chaker Selected Articles

The Fifth Amendment, Your Password, And Police.
By Darren Chaker

When confronted with this issue, courts have analogized electronic storage devices to closed containers, and have reasoned that accessing the information stored within an electronic storage device is akin to opening a closed container. Because individuals generally retain a reasonable expectation of privacy in the contents of closed containers, see United States v. Ross, 456 U.S. 798, 822-23 (1982), they also generally retain a reasonable expectation of privacy in data held within electronic storage devices. Accordingly, accessing information stored in a computer ordinarily will implicate the owner's reasonable expectation of privacy in the information. See United States v. Barth, 26 F. Supp. 2d 929, 936-37 (W.D. Tex. 1998) (finding reasonable expectation of privacy in files stored on hard drive of personal computer); United States v. Reyes, 922 F. Supp. 818, 832-33 (S.D.N.Y. 1996) (finding reasonable expectation of privacy in data stored in a pager); United States v. Lynch, 908 F. Supp. 284, 287 (D.V.I. 1995) (same); United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993) (same); United States v. Blas, 1990 WL 265179, at *21 (E.D. Wis. Dec. 4, 1990) ("[A]n individual has the same expectation of privacy in a pager, computer, or other electronic data storage and retrieval device as in a closed container.").

Although courts have generally agreed that electronic storage devices can be analogized to closed containers, they have reached differing conclusions over whether each individual file stored on a computer or disk should be treated as a separate closed container. In two cases, the Fifth Circuit has determined that a computer disk containing multiple files is a single container for Fourth Amendment purposes. First, in United States v. Runyan, 275 F.3d 449, 464-65 (5th Cir. 2001), in which private parties had searched certain files and found child pornography, the Fifth Circuit held that the police did not exceed the scope of the private search when they examined additional files on any disk that had been, in part, privately searched. Analogizing a disk to a closed container, the court explained that "police do not exceed the private search when they examine more items within a closed container than did the private searchers." Id. at 464. Second, in United States v. Slanina, 283 F.3d 670, 680 (5th Cir. 2002), the court held that when a warrantless search of a portion of a computer and zip disk had been justified, the defendant no longer retained any reasonable expectation of privacy in the remaining contents of the computer and disk, and thus a comprehensive search by law enforcement personnel did not violate the Fourth Amendment.

Simply put, police have a very difficult job, however a suspect has no obligation to make their job easier. If confronted with a demand for your password/passphrase, simply request to speak to any attorney.

California Law & Benefits of Expungement.
By Darren Chaker

What is 1203.4 Relief?
Although the past cannot be completely erased, some relief from the disadvantages of a criminal conviction is available. Penal Code Section 1203.4 permits defendants, previously convicted of a probation or have been discharged early, to have their case dismissed and a plea of 'not guilty' replacing a guilty plea/verdict.

If the petition is granted, the person must be released from all disabilities resulting from the conviction. Perhaps the most significant benefit applies to future applications for employment in the private sector. By regulation, a private employer cannot ask a job applicant about any misdemeanor dismissed under Penal Code 1203.4. (Cal.Code Regs 7287.4(d). Penal Code Section 1203.4a provides similar relief to persons convicted of a felony or misdemeanor, who have successfully completed their sentence.

Automatic Entitlement
If the person successfully completed probation (or had his or her probation terminated early), and is not then serving a sentence, on probation, or charged with any new offense, relief must be granted. People v. Hawley (1991) 228 Cal.App.3d 247, 249. But, relief need not be granted when probation expired without successful completion. People v. Covington (2000) 82 Cal.App.4th 1263 (failure to make full restitution).

Persons convicted of a felony and sentenced to prison: If you were convicted of a felony and sentenced to prison (either initially or after having had your probation violated), you are not eligible for relief under Penal Code 1203.4.

Many sex related offenses: Penal Code 1203.4 relief is not available for violations of Penal Code 286(c), 288, 288a(c), 288.5, 289(j), or any felony conviction for a violation of 261.5(d).

The Bad News
A dismissed charge may still be pled and proved just like any other prior conviction in a subsequent prosecution. This means a prior DUI conviction will remain available for ten years to enhance the penalty for any subsequent DUI offense. SeePeople v. Diaz (1996) 41 Cal.App.4th 1424 (dismissed charge used as strike also under Three Strikes law).

A person who secures Penal Code 1203.4 relief must still disclose the conviction in response to any direct question contained in any questionnaire or application for public office or licensure by any state or local agency, or for contracting with the state lottery.

Dismissal does not make the conviction records unavailable to the public. People v. Field (1995) 31 Cal.App.4th 1778, 1787.

The Very Good News
Expunged conviction (dismissal) is inadmissible as impeaching evidence. People v. Mackey (App. 2 Dist. 1922) 58 Cal.App. 123, 208 P. 135. "Penalties and disabilities" in Section 1203.4 providing that defendant who fulfills conditions of probation shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he was convicted has reference to criminal penalties and disabilities or to matters of a criminal nature. Copeland v. Department of Alcoholic Beverage Control (App. 2 Dist. 1966) 50 Cal.Rptr. 452, 241 Cal.App.2d 18 People v. Field (1995) 31 Cal.App.4th 1778 in which expunged felony convictions were held to be inadmissible for purposes of impeaching witnesses. (Id. at p. 1787.) See also, Cal. Const., art. I, § 28, subd. (f) (prior felonies usable for impeachment) do not have any effect because once a conviction has been expunged, it no longer is a viable conviction for impeachment purposes. By virtue of expungment, there no longer is a prior conviction. People v. Field (1995, Cal App 4th Dist) 31 Cal App 4th 1778, 37 Cal Rptr 2d 803, 1995 Cal App LEXIS 87, review denied (1995, Cal) 1995 Cal LEXIS 3255.

Basics of Information Security.
By Darren Chaker
Accessing information stored in a computer ordinarily will implicate the owner's reasonable expectation of privacy in the information. See United States v. Barth, 26 F. Supp. 2d 929, 936-37 (W.D. Tex. 1998) (finding reasonable expectation of privacy in files stored on hard drive of personal computer) The below are a few examples to insure your private information remains private.
1. Encrypt the file/folder; Have a passphrase, do NOT use a word due to software that can do dictionary attacks in multiple languages, but you must utilize a passphrase with numbers and characters. DO NOT write it down. If you are a corporation, remember, industrial espionage is rampant. Ex-KGB, and other out of work intelligence officers make a living applying their trade to the highest bidder these days.

2. Use a wiping utility, CyberScrub, Evidence-Eliminator, etc. that wipes the cache area of your computer; this is where passwords are sometimes stored, and the software also has features that allow you to permanently destroy web browsing history, photographs, recently opened documents, etc. Do not live in Alice in Wonder Land believing when you delete a file that it is simply gone. If you want to truly protect your privacy, use a pseudo random wiping method that overwrites files at least 20 times.

3. Trust your computer to no one. Software and hardware devices cost as little as $30 and will record each character you type and e-mail it to the person who wants to know your passphrase, bank account info, etc. Of course, do NOT open e-mail, click on a link, or open an attachments you do not know who it is from since spyware and malware may be installed in these methods.
4. If you want to put the icing on the computer security cake, use a proxy that does not keep logs of their users activity, and has a rotating IP address fortified with 128 + bit encryption used to
tunnel your way through the internet which makes hacking or tracing your computer next to impossible.

The Good, The Bad, and The SLAPP Lawsuit: Don't Sue For Speech Without Consulting With Counsel
While legitimate criticism is protected, postings which constitute defamation are not. Ibid.; see also Chaker v. Crogan, 428 F.3d 1215, 1223 (9th Cir. 2005). The Supreme Court has explicitly held that "defamation...[is] 'not within the area of constitutionally protected speech.'" R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (quoted in Chaker, supra, 428 F.3d 1215, 1223 (9th Cir. 2005)).

Prior to filing a lawsuit for comments posted online, it is important to know what a "SLAPP" lawsuit is and if what you believe is defamation is that, or merely protected speech. The acronym "SLAPP" stands for Strategic Lawsuits Against Public Participation, see California Code of Civil Procedure § 425.16. I cite California law, however most states have similar SLAPP laws as California. The crux of SLAPP law allows someone who is sued for doing activity which is protected by the federal or state constitution. If the Defendant's activity sued for is protected activity, then an anti-SLAPP motion could be filed. An anti-SLAPP motion usually seeks dismissal of "lawsuits that 'masquerade as ordinary lawsuit' but are brought to deter common citizens from exercising their political or legal rights or to punish them from doing so." Batzel v. Smith, 333 F.3d 1018, 1023-24 (9th Cir. 2003).

Keep a couple of things in mind before you go to court:
• Once a Plaintiff files a lawsuit, and Defendant files an anti-SLAPP motion, the complaint is frozen. Thus, Plaintiff cannot amend the lawsuit to avoid the court ruling on the anti-SLAPP motion. (Simmons v. Allstate Ins. Co. (2001) 92 CA4th 1068, 1073) Amendments could frustrate the Legislature's objective of providing a "quick and inexpensive method of unmasking and dismissing such suits." See, Simmons at p. 400)
• Plaintiff has the option to dismiss the lawsuit. Nonetheless, Code of Civil Procedure § 425.16 gives the trial court limited jurisdiction to decide whether to award attorney fees and costs to Defendant. (Law Offices of Andrew L. Ellis v. Yang, supra, 178 CA4th at 879, 100 CR3d at 777-778)
• A typical California attorney with 10+ years of experience bills from $325-500/hr. If a person files a lawsuit based on defamation, or other protected right, and loses, the court must award attorney fees to "adequately compensate the defendant for the expense of responding to a baseless lawsuit," Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777, 785 (1996). As such, if you lose your case, attorney fees of $12,000-25,000 are typical.
• If you are self-represented, this doesn't buy you any credit with the court for suing someone for doing what the law allowed them to do (e.g. free speech). Self-represented litigants are held to the same standard as those represented by trained legal counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984- 985) Thus, you can't say in opposition, "Opps I didn't know".

In short, I strongly recommend do NOT file a lawsuit unless an attorney, who is competent in First Amendment law, agrees to file it for you.

Laptop Inspection/Seizure at Border.
By Darren Chaker
As technology evolves, so to does government interest. It use to be top secret papers would need to be copied and given to a KGB handler, to get back to Moscow, now, mini-SD chips fit 8+ GB, which can hold thousands of pages of documents. American's have the Fourth Amendment as a shield to protect them from unreasonable searches and seizures. The Fourth Amendment has evolved with technology. See, United States v. Blas, 1990 WL 265179, at *21 (E.D. Wis. Dec. 4, 1990) ("[A]n individual has the same expectation of privacy in a pager, computer, or other electronic data storage and retrieval device as in a closed container.").

However, the Fourth Amendment ceases when you want to enter back into the USA. Every body cavity and computer is open to inspection with little more than reasonable cause. A true border search can be made without probable cause, without a warrant, and, indeed, without any articulable suspicion at all. The only limitation on such a search is the Fourth Amendment stricture that it be conducted reasonably. Note that the reasonableness calculus is different at the border (i.e., looser) than it is inland. Despite such, when entering the USA, and, for the purposes of this post, a person has the Fifth Amendment as a shield.

In a recent decision in Vermont, In re Boucher, a federal magistrate judge held that the Fifth Amendment right against compelled self-incrimination protects a suspect against having to reveal the password permitting access to his computer files. The software the defendant used, and which I recommend, besides using file wiping software in conjunction with other counter-forensic measures, is PGP whole disk encryption. Nothing has broken this encryption. The court determined that if Boucher was "forced" to provide the passphrase, then the contents could incriminate Boucher thus violate the Fifth Amendment. You can find the court's opinion here: http://www.volokh.com/files/Boucher.pdf

The end result, if you have material on a computer you do not want inspected, encrypt it. If the government can get a warrant to place spy ware on your computer while 'inspecting it' to reveal your pass phrase, then encrypt the file on a thumb drive.

Of course, if your 'vacation' included taking pictures, then transfer those pix to an encrypted drive and insure the SD card from the camera is securely wiped. In short, for every measure to obtain information, there's a counter-measure. However, if you are doing something while outside of the USA which can attract the Feds, I recommend---DON'T DO IT. Freedom is not free, but stupidity will put the most intelligent in prison.