Massachusetts’ highest court invalidated a search warrant on May 21 that, two months earlier, had allowed Boston College (BC) and State Police to confiscate a BC student’s electronic equipment from his dorm room—mainly because the student had allegedly sent e-mails that were legal but deemed “harassing” by the authorities.
One day in late January, campus police reported that BC student Riccardo Calixte and his roommate were having “domestic issues.” The roommate alleged that Calixte had been involved in various criminal activities via computer, such as hacking into the BC computer system to change grades, and illegally downloading movies and music. Nothing came of the allegations, for which no substantial evidence was submitted.
But in early March, Calixte allegedly sent two e-mails to a BC Residence Life listserv, using message headers that suggested the e-mails had come from a BC organization named BC GLBTQ Leadership Council. According to a court filing by Patrick Michael Grogan, Assistant District Attorney for the Commonwealth of Massachusetts, the e-mails claimed that Calixte’s roommate was “gay and ‘coming out of the closet.’ A gay website … profile for the [roommate] was included in the e-mail[s].” The website profile, according to an affidavit from the roommate, was false.
After the e-mails were sent, BC authorities responded. The messages were “reported to the Office of Institutional Diversity as a ‘bias motivated incident’ and labeled as harassment in reference to a student’s sexual orientation,” BC’s student newspaper, The Heights, reported on March 26. “[The e-mail] harasses a student and simultaneously insinuates [that] a community of people who themselves may be potential victims of harassment were in fact perpetrators,” BC’s Dean for Student Development Sheliah Shaw Horton told The Heights.
After using network records to make a reasonable guess that Calixte had sent the e-mails, BC police filed a search warrant application on March 30 to fish for direct evidence that Calixte may have written the e-mails and had committed the other acts alleged by his roommate. The warrant application included the roommate’s vague claims from January. Thus, based almost entirely on unsubstantiated criminal allegations from a roommate who clearly had strong reasons to dislike Calixte, the search warrant called for confiscation of “all objects capable of storing digital data in any form” belonging to Calixte.
The Newton District Court, the lowest rung of the Massachusetts court system, granted police the authorization to search Calixte’s campus dorm room. On March 30, authorities seized 23 electronic devices—including laptops, iPods, cell phones, and a digital camera. Since then, no charges have been filed against Calixte, and he has fought the search warrant and the use of the materials seized with the aid of the Electronic Frontier Foundation (EFF), a nonprofit organization that defends Internet privacy.
Massachusetts authorities had argued that “it is reasonable to infer that Boston College has a use policy regarding its computer systems … and also reasonable to infer that sending harassing emails … would be a violation of that policy.” Essentially, they were equating violating a terms-of-use policy with an actual crime, giving that policy consequences far beyond Boston College’s own disciplinary reach.
Moreover, they accepted the idea that Calixte’s e-mails were “harassing,” even though Calixte was never charged with harassment or a hate crime of any sort. A harassment claim would be hard to prove, for the standard for peer-on-peer harassment announced by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), requires conduct which is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
Contradicting the authorities’ claims, Justice Margot Botsford of the Massachusetts Supreme Judicial Court, in her May 21 opinion, agreed with the district court that even if Calixte did send the e-mails, such activity was not criminal. Thus, the e-mails did not justify the search and seizure, absent evidence of the alleged criminal activity:
Faced with the reality that the alleged email activity was probably not illegal, the Commonwealth now seeks to justify the search warrant, post hoc, based on an affidavit that fails to indicate either the time or the place of the criminal activity its informant claims to have witnessed, and that reflects no effort or attempt to verify the sketchy information supplied.
Botsford wrote that the “hypothetical internet use policy” imagined by the Massachusetts authorities was not enough to make the e-mails illegal, meaning that the central claim on which the warrant was based “goes well beyond the reasonable inferences that may be drawn from the affidavit, and would dramatically expand the appropriate scope” of the state law barring unauthorized access to a computer system.
Given Botsford’s ruling that the search warrant had not provided probable cause that a criminal act had occurred, police were forced to return Calixte’s property last week. “The judge correctly found that there was no legitimate reason to search and seize this student’s property,” EFF Civil Liberties Director Jennifer Granick said in a press release. “Our client was targeted because law enforcement was improperly suspicious of our client’s computer skills and misunderstood computer crime laws.”
FIRE Co-founder and Chairman Harvey Silverglate, prior to Justice Botsford’s ruling, had pointed out the legal problems with relying on Calixte’s roommate’s unsubstantiated claims in the April 15 Boston Globe:
[The BC detective] has to do some investigation in order to establish that the informant is telling the truth … and the investigation has to be something other than breaking into the kid’s dorm room.
The Middlesex District Attorney’s office has not yet announced that it will formally drop charges against Calixte. With much of the potential evidence now inadmissible in court, it’s unlikely that the case will continue. Instead, campus and state authorities are likely hoping that this embarrassment—and the violations of Calixte’s rights—will soon be forgotten. Meanwhile, this ruling should bring a sigh of relief to college students across the state, who no longer need to fear criminal charges if the worst thing they’ve done is violate a terms-of-use network policy at their school.