Fish Wins Verdict Upholding Civil Rights in Digital Domain

Massachusetts Supreme Judicial Court Rules Search and Seizure Illegal;

Rejects Arguments that Email Hoax Constituted Criminal Activity and that

Non-specific Allegations of Computer Hacking Could Establish

Probable Cause to Seize Computer Equipment

Boston, MA, June 5, 2009 - Fish & Richardson recently won an important victory for Boston College student Riccardo Calixte in a closely watched case that established important limits on police power in the digital domain. On May 21, 2009, Massachusetts Supreme Judicial Court Associate Justice Margot Botsford ruled in favor of Calixte's motion to quash a search warrant, ordering police to return a laptop and other electronic property seized from Mr. Calixte's dorm room. In ruling that the search warrant was not supported by probable cause, Justice Botsford made two important legal determinations that were issues of first impression in Massachusetts.

First, Justice Botsford held that spreading rumors by email, even if in violation of an Internet service provider's terms of service, does not constitute the crime of "unauthorized access to a computer system" under Massachusetts law. This decision now stands as the highest state court opinion to reject that theory.

Second, Justice Botsford held that a conclusory report by Mr. Calixte's disgruntled former suite mate, who claimed to have witnessed "grade hacking" by Mr. Calixte but provided absolutely no details about the alleged incident, did not constitute probable cause to search Mr. Calixte's dorm room and seize his computer equipment. In so ruling, the justice noted the complete lack of any specific details in the allegation, including the time, place or manner of the alleged incident. Justice Botsford agreed with Mr. Calixte's attorneys that such a non-specific allegation, even when made by a named individual who claimed personal knowledge, did not satisfy the constitutional requirement to show probable cause that a crime was committed. Nor, Justice Botsford ruled, did the bare allegation satisfy the requirement that a nexus be shown between the alleged crime and the place and things to be searched.

Mr. Calixte was represented pro bono by Fish & Richardson attorneys Larry Kolodney, Adam Kessel and Tom Brown, and by the Electronic Frontier Foundation.

The case began on March 30, 2009 when Boston College police sought and obtained a warrant to search Mr. Calixte's dorm room and to seize his laptop computer and all other objects capable of storing digital data. In the affidavit supporting the search warrant, the police accused Mr. Calixte of using a campus email list to spread a rumor regarding his former suite mate. The affidavit focused on evidence intended to show how one of the emails in question was traced to Mr. Calixte's dormitory (but not to his dorm room). The affidavit also briefly explained that campus police had been called in January to settle a dispute between Mr. Calixte and the former suite mate, who, at that time, accused Mr. Calixte of having used his computer skills to change a student's grades.

The Massachusetts State Police and the Boston College police searched Mr. Calixte's dorm room and confiscated several personal computers, two iPod music players, a cell phone, and a variety of software and external data storage drives.

The Court found that the search and seizure was unlawful because the affidavit failed to establish probable cause that a crime had been committed, or that evidence of a crime existed in Mr. Calixte's computer equipment. The affidavit failed to establish that any grades had been hacked by anyone, much less by Mr. Calixte. Although the affidavit contained an unsubstantiated report from an alleged eyewitness (the former suite mate), the affidavit failed to explain when the alleged incident occurred, where it occurred, and how (and with what equipment) it was accomplished. These are all facts that any actual eyewitness would have been able to supply. Moreover, the affidavit also lacked evidence that the police ever tried to confirm with the College's computer administrators and professors that such a breach had occurred before searching Mr. Calixte's room.

The Court also rejected the Commonwealth's theory that spreading rumors by email could constitute the crime of unauthorized access to a computer system. To the contrary, the Court noted that such a reading of the statute would "dramatically expand [the law's] appropriate scope."

"This case establishes two important legal principles at the intersection of criminal law and computer technology," said Larry Kolodney, a principal in Fish & Richardson's Boston office and chair of the firm's pro bono committee who served as lead counsel in the case. "First, it clearly rejects the concept, which has found some support in other jurisdictions, that violating the fine print of a computer use policy is a crime. This is an important decision that should serve as a bulwark against similar efforts at prosecutorial overreaching in the online world. In addition, the case provides important safeguards against arbitrary searches of computers and other digital devices - devices that often contain our most private information - based merely on the flimsy accusations of someone with an axe to grind."