May 22, 2009 | By Matt Zimmerman

Massachusetts Supreme Judicial Court Tosses Out Warrant in Boston College Case, Says No Probable Cause Existed

On May 21, 2009, Justice Botsford of the Supreme Judicial Court of Massachusetts granted our client Riccardo Calixte's motion to quash the illegal search warrant with which it seized Calixte's computers, phones, ipods, camera and other personal property. Not only is this an enormous victory for Calixte himself, but the ruling is also the highest state court opinion to repudiate the nascent law enforcement "trend" of charging internet users who violate websites' terms of service as criminals. (Case page with background documents here.)

First, a quick recap. According to the warrant application, on January 27, 2009, Boston College police filed a report stating that Calixte and a roommate were having "domestic issues." During a subsequent conversation with police the next day, Calixte's roommate made a series of unsubstantiated and misleading claims about Calixte's computer expertise that the police later used in an attempt to portray him as a criminal, by alleging that Calixte was a "computer science major who is considered a master of the trade among his peers," that Calixte had a reputation as a "hacker," that it is "not uncommon for Mr. Calixte to appear with unknown laptop computers which he says are given to him by Boston College for field testing or he is 'fixing' for other students," and that he "uses two different operating systems to hide his illegal activities. One is the regular B.C. operating system and the other is a black screen with white font which he uses prompt commands on." As part of this laundry list of purportedly suspicious things Calixte allegedly did, the roommate also stated, without any explanatory detail, that he had observed Calixte somehow "hack into the B.C. grading system that is used by professors to change grades for students." Neither Boston College nor any professor apparently reported such a breach, and the police did no follow-up investigation on this or any other of the roommate's aspersions. At some unspecified later date, Calixte's former roommate was the subject of a mass e-mailing to the Boston College community in which he was reported to be gay. Based on some follow-up investigation by the police and by the Boston College IT department, police sought and obtained a search warrant for Calixte's dorm room on March 30, 2009, arguing that all of the above information amounted to probable cause that crimes had been committed.

Justice Botsford agreed with EFF that no probable cause existed and that the search was illegal. The following are a few of Justice Botsford's important findings.

* Rejecting the Commonwealth's argument that the sending of an e-mail from a Yahoo! or gmail account to a Boston College listserv could constitute "obtaining computer services by fraud or misrepresentation" under G.L. c. 266 § 33A or "unauthorized access to a computer system" under G.L. c. 266 § 120F because it might violate some unidentified Boston College terms of service provision:

This appears to be the highest state court to address the question of whether a terms of service violation can itself constitute a "computer hacking" crime, an argument that the district court and jury got wrong in the Lori Drew case.

* Rejecting the Commonwealth's argument that the unsupported allegation of "grade hacking" constituted probable cause:

* Rejecting the idea that using two operating systems is either suspicious or corroborative of the former roommate's claims, as we previously argued, but was simply "part of a listing of alleged activities that do not appear to be unlawful":

* Rejecting the Commonwealth argument that probable cause existed regarding the allegedly "illegally downloaded" music and movies:

* Rejecting the Commonwealth's argument that simply asserting that their witness was "reliable" was enough to support a finding of probable cause:

* Rejecting the Commonwealth's argument that the information provided by the informant established a sufficient "nexus" with Mr. Calixte's apartment and property:

In short, the court rejected every significant argument raised by the Commonwealth. Referring to the information submitted by the police as "sketchy" and "troublingly weak," the court ordered that "all ongoing forensic analysis of the items seized from Calixte must cease." Not a minute too soon...

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