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There are reports on the internet this morning that a group of people were able to hack Parler and download around 70tb of data from the servers before AWS ceased hosting the platform. There are plenty of accusations being levelled at Parler's users in regards to using it to coordinate activity during the 6th January Capitol Riots.

/r/ParlerWatch/ All Parler user data is being downloaded as we speak!

Can law enforcement agencies in the USA use this data without violating any laws themselves? Would it be admissible in a court of law should charges be brought? Would this complicate legal proceedings should law enforcement seek a court order to seize the same data from the source (it is presumably still being held by AWS).

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  • I'm not seeing any mention of this being the result of hacking. The person doing the archiving said she was "crawling" URLs". Sounds like it's just using publicly available URLs to download the data, probably even using Parler's public API. Jan 12 at 14:30
  • @PhilippNagel - Indeed, more information has come to light about the practice used by the archivists and it does appear to be an unsecured API which allowed downloading of the content. However, that doesn't affect the question, it is merely posed as an example scenario for the context of the question. Jan 12 at 16:02
  • UDL crawling might be illegal, depending upon exactly how it was done. The Auernheimer case featured the generation of an obvious sequence of numerical URL components. Auernheimer was subsequently released on jurisdiction grounds. The URLbit was never addressed. Jan 14 at 7:32
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Yes:

So long as law enforcement did not compel the hackers to hack the data and the data was recovered by Law Enforcement through their investigation of the Hacker's breeching the server's security. Evidence of a crime committed by a third party is admissiable if it came to light during an unrelated investigation.

The party that did the hacking could still be liable for any crimes they committed in their retrieval of the data. There are occasions where someone who is committing a crime stumble upon evidence of a more serious crime and informs the police of the problem either because they would never want to be party to a serious crime, but also because it can help them get reduced sentancing to give up the greater evil.

As an example, in "Home Alone," when Kevin tricks Harry with the film clip of the gangster murdering Snakes with his Tommy Gun, Harry is freaking out telling this to Marv, but Marv realizes what's going to happen if they get caught: They've been robbing houses in the neighborhood and the police would likely pin the murder on them rather than assume two seperate crimes occured in the same block. Marv suggests they snoop around so they can see who walks out of the house and give the cops a face with a name. This leads them to discovering Kevin's ruses and the film's climax.

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    Do you have real-life example to cite? Hollywood fiction isn't always the most reliable source of legal precedent.
    – Rick
    Jan 11 at 19:12
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    Off the top of my head, the best answer I can think of is the additional Hilary Clinton e-mails discovered on her aid's (can't spell the name) laptop that was uncovered during the unrealted investigation into the aid's husband (Anthony Weiner) in relation to an ivestigation into allegations he was sending lude pictures to minors. It didn't yield a conviction but it did prompt the FBI to inform Congress that the previously closed case of Clinton's e-mail scandle had to be reopened in light of potential new evidence.
    – hszmv
    Jan 11 at 19:32
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    Lewinsky also taped phone-calls with Clinton and his aides (at Tripp's direction...) the evidence gathered was still used and though they pressured Lewinsky by threatening to charge her for wire-tapping, they knew it was a hollow threat.
    – pcalkins
    Jan 12 at 0:08
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    It should be noted that this is not true in every jurisdiction in the US. This is true if it was a Federal prosecution for a Federal crime. In Texas, for example, this would be inadmissible as evidence in a State criminal trial. See TCCP 38.23(a), "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." Jan 12 at 11:44
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    @DavidSchwartz: Actually, it's a question of law, so the judge would determin if the evidence was legally obtained or if it (and all resultant evidence) is inadmissable in the case. The jury decides question of facts based on evidence presented at trial (if the evidence dropped was high profile, the jury instructions will stress that they can only consider what they learned during trial... it's not surefire to change the verdict as people aren't perfect.).
    – hszmv
    Jan 12 at 13:08
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The admission of such evidence would not be barred by the 4th Amendment (in federal court) or the 4th Amendment as incorporated through the 14th Amendment (in state court).

Whether or not the evidence would be admissible, however, does not automatically follow from resolution of the constitutional criminal procedure question.

If the illegally obtained evidence was privileged (e.g. a tape recording of a secret conversation between an attorney and client or husband and wife) it would not be admissible as illegally obtaining the evidence would not waive the privilege.

A court could also employ a balancing test of the probative value of the admitted evidence against the harm caused by admitted illegally obtained evidence, just as courts do when considering whether to admit illegally obtained evidence in a civil case where the 4th Amendment exclusionary rule does not apply.

Also, there is not a uniform rule of law that applies in all state and federal jurisdictions as it is not a question of federal constitutional law.

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