April 16, 2009, 2:13 PM — Boston College is finding itself in the middle of a controversy over its handling of a case involving a student who allegedly sent an e-mail claiming that a fellow student was gay and used a college computer network to change grades.
The alleged action by computer science student Riccardo Calixte resulted in campus and Massachusetts state police searching his dormitory room and seizing several computers, a cell phone, iPod, storage disks and even a 'PostIt' note on which he was taking notes about the officers' actions during the search. The affidavit seeking the seizure of the materials claimed that Calixte had broken two state laws involving unauthorized access to a computer and defrauding a commercial service provider.
The March 30 search and seizure is being challenged by the Electronic Frontier Foundation, a civil liberties group, and the Boston law firm Fish & Richardson, which works with the EFF and has agreed to represent Calixte in the case. In an emergency motion filed last Friday, attorneys for the EFF and the law firm asked for a court trial in Newton, Mass., to quash the search warrant and have the seized property returned to Calixte immediately.
In their motion, the attorneys claimed the affidavit the Boston College police filed when asking for the search warrant did not show any criminal activity had taken place. Rather they claim the affidavit was largely based on "cursory, unsubstantiated, and stale" information provided to the police by a student with a grudge against Calixte.
"Nothing cited in the warrant application could possibly constitute the cited criminal offenses," EFF attorney Matthew Zimmerman wrote in a blog on Tuesday.
A hearing on the motion to quash the search warrant has not been scheduled but could happen as soon as this week, Zimmerman said. A Boston College spokesman could not immediately be reached for comment.
Calixte, 21, has not been charged with any crime. The affidavit presented by the investigating officer to obtain the search warrant claimed there was probable cause to believe that Calixte had gained unauthorized access to computers and had obtained computer services by fraud and misrepresentation.
The affidavit said Calixte had used a B.C. list server to send e-mails to the college community claiming that another student was gay. That action caused considerable stress to the other student, the affidavit said, while also presenting evidence gathered from B.C.'s director of IT security that ties Calixte's computer to the e-mails. The affidavit also cited Calixte as having used B.C.'s computer networks to change grades for multiple students and for having "fixed" other students' computers so they can't be scanned for illegal music downloads.
Zimmerman said the affidavit doesn't show that Calixte violated the two state laws mentioned in it. For the most part, the affidavit reveals numerous unsubstantiated statements about Calxite that were made by the student whom Calixte said was gay, Zimmerman said Wednesday in an interview.
The EFF motion to quash the search warrant filed last week noted various examples where the B.C. police had used unsubstantiated information provided by the student to make a case for the search warrant. The affidavit noted that Calixte had a reputation as a hacker and a "master of the trade," who used two operating systems to hide his 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," the affidavit read. The student who was the target of Calixte's gay e-mail, also reported the latter's computer had "three log on fields," that he had "jail broken" cell phones that were "possibly stolen" and had illegally downloaded software and music on to his computer.
Apart from being unsubstantiated, none of these alleged activities have anything directly to do with the criminal behavior that Calixte is supposed to have been engaged in, Zimmerman said. The affidavit doesn't show what illegal access Calixte might have used, or how he might have defrauded a commercial service provider. It also is unreasonable for the investigators to argue that Calixte's computer expertise, his use of the command prompt, and the apparent fact that he uses two operating systems, demonstrated suspicious behavior, Zimmerman said.
"If you strip everything away, the only thing they say actually happened is that someone sent an e-mail to a mailing list that outed another college student," Zimmerman said.
Even if Calixte was responsible for the e-mail, that action does not necessarily constitute a criminal offense, but a civil offense, he said. Though the affidavit mentions Calixte as having changed grades for students, that allegation appears to be based purely on what the other student said and isn't supported by anything presented in the affidavit, Zimmerman said. "In order to obtain a warrant, the police have to establish probable cause that the crime they are investigating actually occurred," he said, "You can't have conclusionary allegations and tangential evidence," thrown into the affidavit to try and establish probable cause, he said.
"Aside from the remarkable overreach by campus and state police in trying to paint a student as suspicious in part because he can navigate a non-Windows computer environment, nothing cited in the warrant application could possibly constitute the cited criminal offenses," Zimmerman added in his blog.