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Internet crimes: disclosure of hacking software may be necessary

Last month, we wrote about the important intersection between law enforcement powers and our right to privacy. The Fourth Amendment offers protections against "unreasonable search and seizure," but that standard isn't always easy to define - especially when it comes to our electronic devices.

Generally, law enforcement agencies must be able to show that evidence was obtained legally (with a warrant and after citing probable cause). Defense attorneys must then be given access to the evidence and the information about its origins. In the software age, that often means access to the computer programs used to access allegedly illegal material.

A recent case is an example of what the consequences can be for prosecutors who fail to turn over important evidence to the defense. In Washington State, a man was charged with several crimes related to possession of child pornography. He was one of many defendants charged in the wake of an FBI sting operation involving a child pornography website.

But prosecutors have refused to turn over the software code used in hacking the defendant's computer, even though the software is not classified and would not threaten national security. Because prosecutors won't turn over the code, a judge recently ruled that all criminal evidence obtained through the use of that software must be thrown out.

The judge noted that the government must not only provide the evidence of wrongdoing, it must also disclose how that evidence was gathered. If they cannot or will not do so, the evidence should be barred from use in the courtroom.

If you have been charged with a serious crime, the evidence against you may not be as strong as it seems. Before you decide on any course of action, you may wish to consult with an experienced criminal defense attorney about your rights and legal options.

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Robert D. DiDio
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