On May 21, 2009, the Massachusetts Supreme Judicial Court quashed a search warrant for the computers, electronic equipment, and digital storage devices of a Boston College computer science student and ordered the seized items returned. Riccardo Calixte’s ordeal has received quite a bit of coverage, likely in part because of the involvement of the EFF, but there are a couple of interesting points in the Court’s order that are worth highlighting here.
First, a quick synopsis of the case. In January of 2009, soon after Riccardo Calixte and his (now ex-) roommate suffered “domestic issues,” the roommate made certain allegations to Boston College Detective Kevin Christopher, including that Calixte had “hack[ed] into the B.C. grading system . . . to change grades for students” and had “a cache of approximately 200+ illegally downloaded movies as well as music from the internet.” On March 30, Detective Christopher applied for, and was granted, a search warrant to seize Calixte’s computers, electronic devices, and digital storage devices. In his application for the warrant, Christopher also alleged that Calixte was the author of a mass email to the Boston College community that “outed” his ex-roommate as gay and included a link to a profile on a gay online-dating site created in his ex-roommate’s name.
Although Calixte’s motion to quash the search warrant and have his property returned was denied by the Newton District Court, Justice Margot Botsford of the Massachusetts Supreme Judicial Court reversed that decision, quashing the search warrant and ordering that all forensic analysis be ceased and the property returned.
Of particular interest is Justice Botsford’s response to the Commonwealth’s claim, outlined in their memo opposing Calixte’s appeal, that the email might be illegal because it “violate[d] a hypothetical internet use policy maintained by BC.” According to the EFF, this is likely the first time a state high court has addressed the central question in the (in)famous Lori Drew/MySpace suicide case – whether violation of terms of service can constitute unauthorized access to a computer system creating criminal liability. Justice Botsford firmly rejected this theory under state law, stating that such an outcome “would dramatically expand the appropriate scope of G. L. c. 266, § 120F,” the relevant Massachusetts code provision.
The text of this Massachusetts law is remarkably similar to that of section 1030(a)(2)(C) of the federal Computer Fraud and Abuse Act (CFAA), under which Lori Drew was convicted. In fact, the Massachusetts law has a lower threshold for liability, as it requires only knowledge that the access be unauthorized, not intent. It also lacks the CFAA’s requirement that information be obtained from a protected computer. Whether this ruling will have any effect on the ongoing Drew case remains to be seen, although it seems unlikely.
Justice Botsford also shot down the Commonwealth’s assertion that the unsubstantiated, uninvestigated, and uncorroborated allegations of a former roommate could supply sufficient probable cause for a search warrant. Questioning the ex-roommate’s reliability, she wrote that “the complete lack of both detail and corroboration as to the alleged crime itself makes [the roommate’s] statement insufficient . . . to allow it to be relied on as the sole basis for a warrant.”
As an example of this lack of detail, she noted that the search warrant affidavit contained no information regarding when, where, and with what computer the alleged hacking of the BC grading system took place. As to the lack of corroboration, she shrewdly noted that, while Detective Christopher provided “two pages of detailed information” encompassing “the bulk of the affidavit” to support the allegation that Calixte sent the mass email, “no effort or attempt [was made] to verify the sketchy information supplied” in support of the allegation of hacking the grading system, despite the fact that the latter allegation more clearly constitutes unauthorized access than the former.
The takeaway from this case seems to be simple common sense: unsubstantiated, vague allegations from a potentially biased informant are insufficient, in themselves, to form the basis of a search warrant. Yet it took almost two months for the police and courts to reach this conclusion, during which time a computer science student was deprived of his computer and other electronic paraphernalia, items essential to completing his degree and keeping in touch with friends and family.
For more information on this case, see our database entry, Boston College Campus Police v. Calixte.
(Lee Baker is a rising second-year law student at Harvard Law School and a CMLP legal intern.)
