|The Password is “Trouble”|
|By Art Bowker, Cybercrime Specialist|
Years ago there was a game show called Password where one contestant had to guess the secret word or “password” known by the other contestant. I see Saturday Night Live does a parody on it every once and a while for those too young to know what I am talking about. Well, I am hearing some rather distributing things in regards to passwords and social networking sites that I thought I would delve into here. Lets deal with it first from an officer and offender relationship and then we will move to agency and officer perspective.
Officers and Offenders
Officers supervising offenders, particularly those dealing with offender computer management, frequently ask for all an offender’s social networking site (SNS) profiles as well as the passwords associates with those profiles. Some sex offender jurisdictions are likewise asking for passwords as part of registration. Before SNS became a phenomenon supervision officers frequently asked for e-mail passwords. Obviously, having a password is the key to an offender’s accounts. However, and this is a BIG HOWEVER. Having the password and using it to gain access to an offender’s account is a BIG NO! NO! There are legal prohibitions against accessing someone’s e-mail account or SNS, even if you have the password. Even if one does have permission or authorization, it can create a chain of custody nightmare. After all and offender could allege the officer deleted or sent something from the account. There can be better ways of getting at the information. For instance, directing the offender to log on to the account in your presence and going through it with them, in the presence of another officer.
So why ask for the password in the first place? Well, it is a good practice to ask for the password in case it is needed later after the appropriate legal authorizations are in place. Additionally, individuals may use a password numerous times. It may be used to log into an e-mail account, SNS, or to log in to their computer or an encrypted file. Let me explain. You have an offender’s e-mail password and you find a computer later they were not suppose to have. The computer is secured with a password. The offender tells you he doesn’t remember the password. Well the e-mail password might be the same one to unlock the computer. Even if is not, it might be very similar to the password and be of use by password cracking tools in brute force or dictionary attack to access the computer.
Think of it in these terms. Officers are allowed to visit offenders in their homes and even to conduct searches upon authorization. However, I can’t think of any supervision agency that demands an offender provide a key for the officer to enter the home at any time they wish. In short, having the password to a SNS or e-mail account means an officer has the key to the offender’s virtual home. That does not translate into accessing the virtual home at will, even if they are on supervision.
Officers and Agencies
Now lets move on to the officers and their agencies. I have previously noted the concerns with officers posting personal information on SNS. Well some agencies are starting to look at new employees and current officer’s SNS profiles. I see no issue at looking at what is publicly posted on these profiles. However, some agencies are taking a more aggressive position and asking for passwords to their employee’s profiles. They want access to the private areas too. Imagine, officers being subject to a “search” of their personal space as a condition of employment. The next step is obviously having to consent to a search of their home at any time without a warrant.
It really is not that farfetched. Take Google+, which is Google’s venture into creating a social networking site business. If one has a profile on this site the password that accesses it is the same as the user’s e-mail account. Imagine an employer being able to not only search the SNS profile but each and every e-mail sent or received from the user’s account. Oh yeah and Google’s wonderful search engine works just as great on a user’s e-mail account on their server. Google also has Google Documents that allow the user to save letters, resume’, spreadsheets, etc. on Google servers. Yep, those are also accessed by the same password. So as a condition of government employment, an officer has to consent to having their digital life searched…even private information. Now there is an incentive to get a low paying dangerous job! Well, not all is loss. In large part due to the efforts of the American Civil Liberties Union of Maryland, the Maryland Department of Corrections suspended their SNS policy for prospective hires.
So what is the point to all this. Sit down with some legal beagles and hammer out a policy for this stuff. As it stands, offenders can be asked for their passwords but using those passwords to access a SNS or e-mail account without the proper legal authorization will get the officer and their agency in very hot water. For agency’s asking for passwords of their employees or potential employees, don’t even think of asking unless you want a call from your local ACLU. In short, the password for not knowing what you are doing in today’s technological and legal environment can be “Trouble.” By the way my password is CIGAR…. I am of course kidding. Be safe out there!
Art Bowker is the author of the soon to be released book The Cybercrime Handbook for Community Corrections: Managing Offender Risk in the 21st Century, publisher Charles C Thomas Pub Ltd. He has over 26 years experience in both law enforcement and corrections at the state and federal level. In 2008, Art was the International President of the High Technology Crime Investigation Association (HTCIA). This professional non-profit organization is the largest of its kind devoted to the prevention, investigation, and prosecution of crimes involving advanced technologies (htcia.org). Art is also member of the American Probation and Parole Association (APPA) and is a member of their Technology Committee, He has a Master of Corrections degree from Kent State University. Follow Art on Twitter.com at: (http://twitter.com/Computerpo)
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Its all symatics Art. The Court is not infallable. The truth remains the same, by requiring the offender to prove that their statements would lead to a new criminal investigation, you are requiring the person to incriminate themselves. It goes against the plain language of the Fifth Amendment. It is a complete contradiction. I have never done probation or parole, as stated before, for these reasons. I would never voluntarily waive any of my rights for any amount of "freedom." I would never allow another person to hang over my head going back behind bars based on thier restrictive trespassing on my rights as a human being; that is not freedom.
JohnDoeUtah, instead of shooting from the hip read the caselaw on it, which I included in my last post. Individuals on supervision typically have a condition that requires they answer all inquires of their officer truthful. If an offender refuses to answer a question, they may be subject to revocation if they can't establish that their answer has some 5th Amend implication. Read: Minnesota v. Murphy, 465 U.S. 420 (1984), the Supreme Court. So if one refuses to answer a question, they very well be taken to court for a violation. In reality, refusing to answer the question will likely result in increased scurnity... such as a search, etc., and there will be evidence for a violation. I am not making this up it is in the case law I cited. No one has a 5th Amend right to refuse to answer questions posed by their probation/parole officer, unless the question can lead to a new criminal case. For instance, an offender could refuse to answer the question, Did you kill so and so? However, if they were asked where they using a computer last night, they would have to answer, because using a computer can't lead to new criminal charges. Does that mean they might go to jail if aren't allowed on a computer by their conditions...yep...but that is not a new criminal conviciton. Again, do some reading as opposed to just typing JohnDoe..
Did this guy get his information from a jail house lawyer? Sounds like it, they think they always have the answers. As it is next to murderers I think sexual prditors are the lowest form of slimmy life we have on the planet. here try this on for size "Chester", http://www.utahcriminallawyer.com/Articles/10th-Circuit-Rules-Utah-Sex-Offender-Law-Requiring-Online-ID-Disclosure-Constitutional.shtml
I've never been on probation, but I have herd the horror stories, specifically when it comes to registered sex offenders. Bottom line, I'd refuse to answer the question, no matter what the conditions of parole (warrantless search, seizure, or any other condition) an offender is not required to answer any question you demand of them. Good luck getting a revocation upheld (sticking) by the district court without any proof of a probation violation... The offender does not have to prove that giving up such information would lead to a criminal investigation, that would entail ADMITTING they violated the law, which again would be self-incrimination. Better try next time Art.
First John how the heck are you doing? Has that case come down yet that tells you don't have to register anymore? Did you see the article out there about sex offender registeration? See http://www.healthcanal.com/mental-health-behavior/21534-Study-casts-doubt-sex-offender-notification-laws.html. The study found that making offender register with the police reduces the chances they'll re-offend. However, the same study found that publicizing sex offenders' identities may actually increase the chances they'll commit another sex crime. Kind of a mix bag for your position on this stuff. Reg yes..notification no. Okay now to your comment yes the cases you cite did stop some juridictions from asking for passwords... Something I never adovocated as for part of the reg. The point I was trying to make was there is a movement to ask for passwords..both from offenders and even from correction employees. Yes a probation officer can request a password....and here is a shock for you it can also be manadated as a conditions of supervision that an offender disclose that information. You see the 5th Amend privelege only applies if one is incriminating one self in a NEW criminal prosecution. There are exceptions and nuances but for the most part, asking for a password of an email account or SNS profile at the start of supervision is not going to lead anything. You see supervised offenders can refuse to answer the question and then they can be revoked for refusing to answer a quesiton where the answer can't lead to a new criminal case. So either answer the question or go to jail on a supervision violation. One exception would be if they were not allowed to have the account under a criminal statute, such as NC and LA which prohibt certain sex offenders from having social networking profiles. So a supervised sex offender can't claim a 5th Amend privilege UNLESS they demonstrate their answer will lead to a new criminal proseuction. For more information on this issue check out: Vance, S. (2011) “Looking at the Law: An Updated Look at the Privilege Against Self-Incrimination in Post-Conviction Supervision” Federal Probation, June 2011 Also these cases are on point too: U.S. v. Antelope, 395 F. 3d 1128, 9th Cir. (2005); U.S. v. Lee, 315 F. 3d 206, 3rd. Cir. (2003); and U.S. v. Stoterau, 524 F. 3d 988, 9th Cir. (2008). But again, the point I was making in all this was just because an officer has password doesn't mean they can just access the offender's account...WHY...because it could violate the law which protects citizens..including offender's rights. As always John a pleasure to have the opinion of a registered sex offender available on these topics.. I mean you give a different view point. Nothing implied good or bad on you having to register. Take care.
All jurisdictions that required sex offenders to hand over passwords have taken that requirement off the books after court challenges (Doe v. Shurtleff at. el., Utah; and, White v. Baker, Georgia). Art, please be more responsible in your reporting of alleged facts. Also, a probation officer can request passwords, however cannot demand passwords. No matter if a search is authorized, or any other new sex offender laws, you have to do it the hard way - the Fifth Amendment protects against self-incrimination Art. Damn don't you just hate the limits our constitution places on you guys?