A justice of the Massachusetts Supreme Judicial Court has ordered police to return a laptop and other property seized from a Boston College computer science student's dorm room after finding there was no probable cause to search the room in the first place. The police were investigating whether the student sent hoax emails about another student.

The Electronic Frontier Foundation (EFF) and Boston law firm Fish and Richardson are representing the computer science student, who was forced to complete much of the final month of the semester without his computer and phone. Boston College also shut off the student's network access in the wake of the now-rejected search.

"The judge correctly found that there was no legitimate reason to search and seize this student's property," said EFF Civil Liberties Director Jennifer Granick. "Our client was targeted because law enforcement was improperly suspicious of our client's computer skills and misunderstood computer crime laws. We're grateful that the court was able to see through the commonwealth's smokescreen and rectify this mistake."

In her order Thursday, Justice Margot Botsford rejected the commonwealth's theory that sending a hoax email might be unlawful under a Massachusetts computer crime statute barring the "unauthorized access" to a computer, concluding that there could be no violation of what was only a "hypothetical internet use policy." Thursday's decision now stands as the highest state court opinion to reject the dangerous theory that terms of service violations constitute computer "hacking" crimes. Justice Botsford further found that details offered by police as corroboration of other alleged offenses were insufficient and did not establish probable cause for the search.

"No one should be subjected to a search like this based on such flimsy theories and evidence," said EFF Senior Staff Attorney Matt Zimmerman. "The Fourth Amendment flatly bars such fishing expeditions. Computer expertise is not a crime, and it was inappropriate for the commonwealth to employ such transparent scare tactics in an attempt to hide the fact that they had no case."

EFF had appealed the case to the Massachusetts Supreme Court with Fish & Richardson attorneys Adam Kessel, Lawrence Kolodney, and Tom Brown.

NB: Some of these links are to the EFF website. Since the database server was down previously, it may be that they, too, are down. I also apologise for hyperlink colouration. Forum software, I can't change it.

On Friday, EFF and the law firm of Fish and Richardson (http://www.fr.com/) filed an emergency motion to quash (http://www.eff.org/files/filenode/inresear...ememsupport.pdf) [pdf] and for the return of seized property on behalf of a Boston College computer science student whose computers, cell phone, and other property were seized as part of an investigation into who sent an e-mail to a school mailing list identifying another student as gay. The problem? Not only is there no indication that any crime was committed, the investigating officer argued that the computer expertise of the student itself supported a finding of probable cause to seize the student's property.

The warrant application (http://www.eff.org/files/filenode/inresearchbc/exhibit-a.pdf) [pdf] cites the following allegedly suspicious behavior:

(http://www.eff.org/files/warrant1.jpg)
...
(http://www.eff.org/files/warrant2.jpg)
...
(http://www.eff.org/files/warrant3.jpg)
Should Boston College Linux users (http://gd.tuwien.ac.at/linuxcommand.org/) be looking over their shoulders?

In his application, the investigating officer asked that he be permitted to seize the student's computers and other personal effects because they might yield evidence of the crimes of "Obtaining computer services by Fraud or Misrepresentation (http://www.mass.gov/legis/laws/mgl/266-33a.htm) " and "Unauthorized access to a computer system (http://www.mass.gov/legis/laws/mgl/266-120f.htm) ." Aside from the remarkable overreach by campus and state police in trying to paint a student as suspicious in part because he can navigate a non-Windows computer environment, nothing cited in the warrant application could possibly constitute the cited criminal offenses. There are no assertions that a commercial (i.e. for pay) commercial service was defrauded, a necessary element of any "Obtaining computer services by Fraud or Misrepresentation" allegation. Similarly, the investigating officer doesn't explain how sending an e-mail to a campus mailing list might constitute "unauthorized access to a computer system."

During its March 30th search, police seized (among other things) the computer science major's computers, storage drives, cell phone, iPod Touch, flash drives, digital camera, and Ubuntu Linux CD. None of these items have been returned. He has been suspended from his job pending the investigation. His personal documents and information are in the hands of the state police who continue to examine it without probable cause, searching for evidence to support unsupportable criminal allegations.

Next up? An emergency court hearing as soon as the court will hear us in which we will ask that the search warrant be voided and the student's property returned. Stay tuned...