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Cyberspace and the Fourth Amendment

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Cyberspace and the Fourth Amendment Powered By Docstoc
					                     Cyberspace and the
                      Fourth Amendment
                                                K. A. Taipale



                                                    Presented at:
                     U.S. Court of Appeals for the Armed Forces
                               2010 Annual Judicial Conference
                             Washington, DC, March 10-11, 2010




K. A. Taipale        Slide 1
                Center for Advanced Studies
February 4-6, 2010                              www.advancedstudies.org
 •  http://taipale.com/

 •  http://advancedstudies.org/

 •  http://cybercrime.advancedstudies.org/

 •  Slides at: http://caaf.advancedstudies.org/

 •  “Data Mining”, “Frankenstein” and “Dionysus”



K. A. Taipale             Slide 2
           Center for Advanced Studies
February 4-6, 2010                              www.advancedstudies.org
                        Overview

 1.  Digital Evidence
 2.  Fourth Amendment
 3.  Searching and Seizing without a Warrant
 4.  Searching and Seizing with a Warrant
 5.  Computer Networks and Third Parties
 6.  Electronic Surveillance
 7.  Future Trends?



K. A. Taipale            Slide 3
           Center for Advanced Studies
February 4-6, 2010                             www.advancedstudies.org
             Computer Crime vs. Digital Evidence


 •  Computer as Tool, Target, or Place of Crime
         Computer misuse (cf. “use of comp to commit crime”)
             •  Unauthorized access or interference with proper use
             •  “Exceeding user privileges or denying others theirs”
         Traditional Crimes (information crimes)
             •  Fraud, threats, child pornography, theft of trade secrets,
                espionage, etc.


 •  Computer as “Witness” – digital evidence
         Much broader than “computer” crime


K. A. Taipale                       Slide 4
                 Center for Advanced Studies
February 4-6, 2010                                              www.advancedstudies.org
              Rules for collecting Digital Evidence

 •  From subject’s computer (4th A)
         “Search and Seizure” law

 •  From network/third party computer (4th A, statutory)
         United States v. Miller (1976)
         Smith v. Maryland (1979)

 •  Communications (4th A, III, ECPA, FISA)
         Katz v. United States (1967)
         Electronic Surveillance


K. A. Taipale                   Slide 5
    Center for Advanced Studies
February 4-6, 2010                             www.advancedstudies.org
                 Fourth Amendment, two clauses

 1.  The right of the people to be secure in their persons,
     houses, papers, and effects, against unreasonable
     searches and seizures, shall not be violated,

 2.  and no Warrants shall issue, but upon probable
     cause, supported by Oath or affirmation, and
     particularly describing the place to be searched, and
     the persons or things to be seized.




K. A. Taipale              Slide 6
         Center for Advanced Studies
February 4-6, 2010                             www.advancedstudies.org
          Fourth Amendment (conventional view)

 •  Prohibits Unreasonable Searches and Seizures
         Searches: Reasonable Expectation of Privacy test
         Seizures: Interference with Possessory Interest

 •  A search or seizure is reasonable if:
         Warrant was obtained or
         An exception to the warrant requirement applies




K. A. Taipale                  Slide 7
             Center for Advanced Studies
February 4-6, 2010                                     www.advancedstudies.org
                     NB: Warrant / Privacy Trends

 •  Traditionally, warrant was used to seize contraband or
    the person, not information
         Rise of white collar crime led to records based evidence
         And “victimless” (non-reported) crime records
 •  Traditionally, privacy was for physical location not
    information
         Home is your castle based on physical property rights
          (~universal norm?)
         Informational privacy is culturally contingent (~ Greece)
         Modern notion that combines the two is the response to
          technology (print/reading, camera, computer, etc.) (Enl.)

K. A. Taipale                   Slide 8
             Center for Advanced Studies
February 4-6, 2010                                      www.advancedstudies.org
                     Privacy Interest in Computers

 •  “Because intimate information is commonly stored on
    computers, it seems natural that computers should fall
    into the same category as suitcases, footlockers, or
    other personal items that command a high degree of
    privacy.” United States v. Andrus (10th Cir. 2007).
 •  Retrieving data is ordinarily a search. If REP for
    computer, retrieving data from it violates REP (?)
 •  NB: Should we transition to privacy/use right in
    information itself ???


K. A. Taipale                  Slide 9
       Center for Advanced Studies
February 4-6, 2010                               www.advancedstudies.org
                     Defining searches

 •  Different theories - property right, reasonable
    protection, or reasonable expectation – REP
 •  Sealed container cases – letters, packages, boxes,
    trunks, etc. (Robbins 1981, Ross 1982) applies to
    computers (Runyan 2001, Andrus 2007)
 •  But, no 4th A protection for what is knowingly exposed
    to public (Katz, 1964) (~ no REP if expose information
    in private computer to public network, i.e., file-sharing
    software, see U.S. v. Ganoe (9th Cir. 2008)


K. A. Taipale            Slide 10
           Center for Advanced Studies
February 4-6, 2010                              www.advancedstudies.org
               Cf. search to unauthorized access

 •  United State v. Borowy (9th Cir. 2010)
         Misconfigured LimeWire software ≠ REP
 •  But, what is exposed to “public”
         Password problem (protected directories) (virtual/physical)
         URL hacking (is this a search?)
 •  Virtual v. physical theories of access/search
 •  Searching erased space, temp folders, etc. (what if on
    public computer)
 •  Smart radio? Peer to peer distribution? Distributed
    computing? Virtual machines? Cloud?

K. A. Taipale                  Slide 11
             Center for Advanced Studies
February 4-6, 2010                                      www.advancedstudies.org
                        Government Action

 •  4th Amendment limits government (and agents) but
    does not limit even unreasonable searches by private
    individuals acting in private capacity (Jacobson,1984)
 •  Computer repairman cases
         US v Hall (7th Cir. 1998) “private actor” not agent
 •  Government can “reenact” private search but cannot
    “exceed the scope” (Jacobson) What is “scope”?
         Files (see US v Barth, WD Tx. 1998)
         Folders (see NY v Emerson, NY Sup Ct. 2003) (xxx, .mpg)
         Disks (see US v Runyan, 5th Cir. 2001)


K. A. Taipale                   Slide 12
              Center for Advanced Studies
February 4-6, 2010                                        www.advancedstudies.org
             Vigilante hacker/illegal private search

 •  Jarrett (4th Cir, 2003) (“Turkish” hacker contacts FBI)
         Burden to prove agency on defendant, test is:
             •  Whether gov knew of and acquiesced in the private search
                (simple acquiescence not sufficient), and
             •  Whether private individual intended to assist LE or had other
                independent motivation

 •  Private search in cyber v. physical:
           From anywhere
           Can be systematic
           Scope/Intrusiveness
           Should there be statutory suppression rule for illegal search?

K. A. Taipale                      Slide 13
                Center for Advanced Studies
February 4-6, 2010                                             www.advancedstudies.org
                     No REP for “stolen” computer

 •  Caymen (9th Cir. 2005) no REP for computer obtained through
    credit card fraud
 •  Following Wong (9th Cir. 2003) actually stolen (see also Hicks,
    Fla. Ct. App. 2006)
 •  Following the no REP in stolen car cases
 •  No REP for innocent third party? No REP where proceeds from
    any fraud paid for IT infrastructure?
 •  No REP for mislaid property? See Michael (CAAF 2008) (search
    of “recent documents” to find owner of laptop left in men’s room
    reveals child porn)



K. A. Taipale                 Slide 14
            Center for Advanced Studies
February 4-6, 2010                                    www.advancedstudies.org
                        Seizure?

 •  Seizure is “some meaningful interference with an
    individual’s possessory interest” in the property
    (Jacobsen, 1984).
 •  Taking away the physical device seizes it but what
    about copying data and leaving the original behind?
 •  Yes, copying takes away exclusive control over data
    (Jefferson, E.D.Va. 2008)
 •  No, copying does not take anything away (In re United
    States, D.Or. 2009)


K. A. Taipale           Slide 15
          Center for Advanced Studies
February 4-6, 2010                            www.advancedstudies.org
                Summary of Search and Seizure

 •  For practical purposes, accessing data inside an
    electronic storage device is a search and copying that
    data is a seizure
 •  Thus, collection of computer data by the government
    generally triggers Fourth Amendment requirements
    for reasonableness and/or warrant
         Search without a warrant (“warrant exceptions”)
         Search with a warrant




K. A. Taipale                  Slide 16
            Center for Advanced Studies
February 4-6, 2010                                     www.advancedstudies.org
                     Search without Warrant

 •  Major exceptions to Warrant Requirement
         Consent
         Exigent circumstances
         Incident to Arrest
         Border Searches
         Government workplace searches
         Special Needs




K. A. Taipale                  Slide 17
   Center for Advanced Studies
February 4-6, 2010                            www.advancedstudies.org
                                    Consent

 •  Voluntary consent by one who can consent
 •  Scope of consent: What a “typical reasonable person”
    would think (Jemino 1991)
             •  U.S. v. Al-Marri (S.D.N.Y. 2002) (consent to search of his home
                inherently included consent to search containers) Rossby (9th
                Cir. 2003) (office); Lucas (WD Ky. 2008) (house for records)
             •  But see Carey (10th Cir. 1999) (general consent for drug related
                evidence does not include searching computer off site for child
                porn) citing Turner (1st Cir 1999) (search for physical evidence)
             •  Forensic exam OK - Luken (8th Cir. 2009); Long (7th Cir. 2005);
                “manual” method irrelevant (Brooks, 10th Cir. 2005) (cf. warrant)


K. A. Taipale                       Slide 18
                Center for Advanced Studies
February 4-6, 2010                                              www.advancedstudies.org
                              Scope of consent

 •  Wallace (CAAF 2008)
             •  Voluntariness – totality of circumstances test –
             •  Revocation – wife’s objection did not fit Randolf (does not permit non-
                accused co-resident refusal to supercede over accused consent)
             •  Inevitable discovery (confession included use of computer)

 •  What if suspect consents, copy is made, then suspect withdraws
    consent? Cf. US v. Megahed (M.D. Fla. 2009)
 •  Fraud victim/non-suspect search “rule” ?
             •  Fraud victim: Richardson (WD Pa. 2008); Stierhoff (DRI 2007); Prinzing
                (Ill.Ct.App. 2009) (consent to search for victim of fraud, not child porn)
             •  Ossorio (CCA 2008) consent and warrant confined to search for
                evidence of assault where computer owner not a suspect – court
                focuses on date of files sought, does this make sense?



K. A. Taipale                         Slide 19
                    Center for Advanced Studies
February 4-6, 2010                                                    www.advancedstudies.org
                     Third party consent

 •  Shared computer, sharer can consent to search (Hudspeth, 8th
    Cir. 2008) (wife) (but can’t revoke suspects consent, Wallace)

 •  But can’t consent to search of other user’s password-protected
    files (Trulock, 4th Cir. 2001)

 •  But search OK based on “apparent” third-party consent where
    officer had no knowledge of password protected files (Buckner,
    4th Cir. 2007) (wife consented to search, password protection
    bypassed by using forensic software – logical vs. physical search
    issue)



K. A. Taipale                Slide 20
            Center for Advanced Studies
February 4-6, 2010                                   www.advancedstudies.org
                     Exigent Circumstances

 •  Electronic evidence can be easily destroyed and
    reason to believe it will be justifies warrantless seizure
    as reasonable (but not search)
         Trowbridge (N.D. Tx. 2007) (hackers knew police coming)
         David (D.Nev. 1991) (saw password over shoulder, saw
          suspect start to delete files so seizure was OK, but couldn’t
          use password – search - based on belief battery might fade)
         Cell phone cases - Santillan (D Ariz 2008); Parada (D. Ks
          2003); Zamora (ND Ga. 2006) (cf. incident to arrest)
 •  Cf. Volitile (requires power) vs. nonvolitile memory


K. A. Taipale                  Slide 21
             Center for Advanced Studies
February 4-6, 2010                                      www.advancedstudies.org
                     Search Incident to Arrest

 •    Pager and cell phone searches of caller logs generally upheld incident
      to arrest on limited memory theory (new calls displace old) (e.g.,
      Robinson; Murphy, 4th Cir. 2009) (Cf. wallets, address books, etc.)

 •    But not where phone numbers have nothing to do with safety (Wall, SD
      Fl. 2008) or offense charged (Quintana, MD Fla. 2009) or not sufficiently
      contemporaneous with arrest (Park, N.D. Cal. 2007) (90 minutes).

 •    Urbina (ED Wis. 2007) upheld address book and call log search of cell
      phone but dicta reserves “personal computer” issue (also, Park, cell
      phone case but dicta disapproving gov assertion that could also search
      computer) (smart phones?)

 •    Gant (2009) vehicle search case, OK only if S is unsecured and reason
      to believe evidence in vehicle – courts. could limit computer to same

K. A. Taipale                     Slide 22
               Center for Advanced Studies
February 4-6, 2010                                           www.advancedstudies.org
                      Border Searches

 •  Courts have allowed complete searches of computers at the
    border (Arnold, 9th Cir. 2008)
 •  Roberts (5th Cir. 2001) “border” can be moved! Non-routine,
    outbound search of disks for child porn OK on jetway in Houston
    on outbound flight to Paris
 •  See also Ramsey (1977) OK to search first class mail at border
    (4th A or stat?)
 •  However, some courts have suggested limitations on when and
    where a computer search can occur under border exception (see
    Cotterman, D. Ariz. 2009) (on appeal) invalidated border search
    when computer was sent for forensic analysis away from border


K. A. Taipale               Slide 23
             Center for Advanced Studies
February 4-6, 2010                                   www.advancedstudies.org
                Government workplace computer

 •  Banner or warning? Customary practice? REP?

 •  Government normally uses banner to obtain waiver of rights
 •  But, see: Quon v. Arch Wireless (9 Cir. 2008) and US v Long
    (CAAF 2006) (in both cases practice overruled banner/policy)

 •  US v Larson (CAAF 2008) distinguishes Long (sysadm practice)
    and holds no REF in government computer
 •  Even if REP, exception if the search “reasonable” in light of
    legitimate workplace needs (non-LE) Leventhal v. Knapek (2d.
    Cir. 2001) (Sotomayor) (~ special needs)



K. A. Taipale               Slide 24
            Center for Advanced Studies
February 4-6, 2010                                  www.advancedstudies.org
                     Special needs

 •  Search serves "special government needs" beyond
    the normal needs of law enforcement; in which case,
    the search may be reasonable despite the absence of
    a warrant, probable cause, or even individualized
    suspicion
 •  Administrative searches, drug testing, airport
    screening, government buildings, etc.
 •  Applicability to monitoring electronic networks in
    counterterrorism/national security? In cybersecurity?


K. A. Taipale            Slide 25
          Center for Advanced Studies
February 4-6, 2010                             www.advancedstudies.org
                             Plain view

 •  Agent must be (1) in a lawful position to observe and
    access the evidence, and (2) its incriminating
    character must be immediately apparent (Horton,
    1990) (“inadvertent” discovery not a requirement)

 •  Plain view and computers
         On screen (Mays, Ohio App. 2005) (“he will die today”)
         Search pursuant to warrant but discover evidence of another
          crime (e.g., Wong, 9th Cir. 2003 – looking for evidence of
          murder in graphics files found child porn)



K. A. Taipale                 Slide 26
             Center for Advanced Studies
February 4-6, 2010                                     www.advancedstudies.org
                     Plain view – computer scope

 •  Carey (10th Cir. 1999) searching with warrant for drug trafficking
    evidence opened .jpg found child porn. Spent next five hours
    looking for child porn. Court held plain view only applied to first
    file.
 •  Some have criticized Carey for resurrecting “subjective”
    inadvertant discovery test – agent motivation
 •  But 10th Cir. Has subsequently interpreted Carey narrowly as
    simply “law enforcement may not expand the scope of a search
    beyond its original justification” Grimmett (10th Cir. 2006)




K. A. Taipale                 Slide 27
              Center for Advanced Studies
February 4-6, 2010                                      www.advancedstudies.org
                     US v Osorio (CCA 2008)

 •  Search authorization for computer and consent for hard drive to
    find evidence (pictures from party) of assault. Search by forensic
    SA found child porn.
 •  SA unaware of warrant limits, clicked on thumbnail to “determine
    if it was child porn” (subjective intent to find porn) (also rejects
    good faith exception as search was not within term of warrant)
 •  Osorio cites Carey, resurrects “subjective” test? “we find the
    intent of [the SA] during her search significant on the issue of
    scope”
 •  Rejects “plain view” on bases that SA clicked on thumbnail citing
    Hicks (1987) (moved stereo to get serial numbers)


K. A. Taipale                 Slide 28
              Center for Advanced Studies
February 4-6, 2010                                      www.advancedstudies.org
                     Search with Warrant

 •  “… and no Warrants shall issue, but upon probable
    cause, supported by Oath or affirmation, and
    particularly describing the place to be searched, and
    the persons or things to be seized”

                                      U.S. Const Amend IV.




K. A. Taipale             Slide 29
          Center for Advanced Studies
February 4-6, 2010                              www.advancedstudies.org
                     Two stages of computer search

 1.  Physical Search
         Seize computer
         Mirror image

 2.  Electronic Search
         Search the copy for “evidence”
         Logical or forensic search




K. A. Taipale                  Slide 30
     Center for Advanced Studies
February 4-6, 2010                              www.advancedstudies.org
                              Facial Validity

 •  Probable cause
         Fair probability to think that data or item would be somewhere in the
          place to be searched (Gourde, 9th Cir. 2006)
         File names sufficient? Yes (US v Leedy, CAAF 2007)

 •  Particularity (hardware vs. information)
         “All computers” vs “all computers containing evidence of
          …” (Riccardi, 10th Cir. 2005) (computer containing child porn is itself
          contraband)

 •  Searches for physical writings generally cover writings
    in electronic form (Gall, Colo. 2001)

K. A. Taipale                      Slide 31
                Center for Advanced Studies
February 4-6, 2010                                             www.advancedstudies.org
                     Physical Search Stage

 •  Seize all computers and drives, search later. Courts
    have widely allowed as reasonable. (see, e.g.,
    Schandl, 11th Cir. 1991)
 •  But some courts require the warrant affidavit to
    explain the need for the over seizure (e.g., Hill, 9th Cir.
    2006)
 •  No “elephant” hiding in sock drawer




K. A. Taipale              Slide 32
          Center for Advanced Studies
February 4-6, 2010                               www.advancedstudies.org
                     Electronic Search Stage

 •  Forensic vs. manual search and virtual vs. physical theories
 •  Evidence within scope of warrant admitted, even if it is a deleted
    file (U.S. v. Upham, 1st Cir. 1999)
 •  Evidence outside warrant admitted only if in “plain view”. Test for
    plain view in computer cases has tended to “sound” subjective,
    not objective: was agent intending to comply with the warrant
    when he came across evidence? Carey (10th CirCir. 1999)
 •  Osorio (CCA 2008) “we find the intent of [the SA] during her
    search significant on the issue of scope” citing Carey, but see
    Grimmett (10th) that tries to shift focus back from subjective to
    what warrant justified (Osorio is right result, wrong reason?)


K. A. Taipale                 Slide 33
              Center for Advanced Studies
February 4-6, 2010                                      www.advancedstudies.org
                      Search Protocols

 •  Some courts have considered or imposed search protocols for
    how warrant executed as a way to ensure the warrant is
    executed narrowly (e.g., In re Search of 3817 W. End, N.D. Ill.
    2004). (See also Osorio (CCA 2008) where court implies picture
    “dates” should govern search scope (?)
 •  However, most courts have rejected specifying protocols on the
    grounds that warrants govern what and when search occurs not
    how (Upham, 1st Cir. 1999); (Brooks, 10th Cir. 2006)
 •  Also, compare requiring protocol in warrant with consent cases
    where courts have generally held protocol doesn’t matter (Long,
    Brooks)


K. A. Taipale               Slide 34
             Center for Advanced Studies
February 4-6, 2010                                   www.advancedstudies.org
                     Comprehensive Drug Testing
                                (9th Cir. Aug 26, 2009)


 •  “Blockbuster”/”Earthquake”!
 •  Search warrant for ten players doesn’t cover 100s of others but
    court goes farther (off the deep end?)
 •  Magistrates must impose limits on warrants, including:
            1.    Require government waiver of plain view
            2.    Use of taint teams
            3.    Specify search protocols
            4.    Procedure for destruction or return of evidence and
            5.    Whatever else the magistrate wants to impose

 •  Will it stand appeal? Will any other court follow? Is it based on
    9th Cir. administrative power or is it “constitutional” ruling ???


K. A. Taipale                         Slide 35
                  Center for Advanced Studies
February 4-6, 2010                                                  www.advancedstudies.org
                     More recent splits on plain view

 •  Williams (4th Cir. 2010) expressly disagrees with
    Carey and rejects subjective “inadvertence” approach
    citing Horton. Computer same as big file cabinet,
    same rules should apply.

 •  Mann (7th Cir. 2010) follows Carey or proposes new
    test? – whether agent “knew or should have known”
    that file search was outside scope of warrant. But
    rejects CDT (9th Cir.) abandoning plain view entirely
    for digital evidence cases as “overbroad” solution.


K. A. Taipale                   Slide 36
       Center for Advanced Studies
February 4-6, 2010                                 www.advancedstudies.org
                        New Fed R Crim Pro 41

 •    Effective 12/2009, amendments that specifically deal with computer search and
      seizure:
 •    “A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage
      media or the seizure or copying of electronically stored information Unless
      otherwise specified electronically stored information. Unless otherwise specified,
      the warrant authorizes a later review of the media or information consistent with
      the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A)
      refers to the seizure or on-site copying of the media or information, and not to
      any later off-site copying or review.”
 •    “In a case involving the seizure of electronic storage media or the seizure or
      copying of electronically stored information the the seizure or copying of
      electronically stored information, the inventory may be limited to describing the
      physical storage media that were seized or copied. The officer may retain a copy
      of the electronically stored information that was seized or copied or copied.”



K. A. Taipale                        Slide 37
                   Center for Advanced Studies
February 4-6, 2010                                                  www.advancedstudies.org
                     Networks and Third Parties


 •  U.S. v. Miller
         Bank’s “business records”
         Cf. bailee cases
 •  Smith v. Maryland (information “communicated to”)
         Phone # (~ duration, etc.)
         Email headers?
         LOCATION DATA (3rd Cir. – Pa. ATF case) (what standard?)
 •  Issues: account data vs. transaction data, retail vs.
    wholesale collection, sharing vs. storage, etc.
 •  Possession by “carrier” (REP) vs. “recipient” (no REP)
K. A. Taipale                 Slide 38
          Center for Advanced Studies
February 4-6, 2010                                  www.advancedstudies.org
                         Electronic surveillance

 •  The Wiretap Act
         “Super” warrant
         Transit requirement
         Voice/video distinction (~ FISA)
 •  The Stored Communications Act
         Regular warrants <180 days
         Admin subpoena > 180 days
 •  The Pen Register Act
         Smith ph# > address headers (?)
         Wholesale vs. retail (individual) collection

 •  FISA
         Special needs (not LE)
         Targeted vs. programmatic

K. A. Taipale                         Slide 39
          Center for Advanced Studies
February 4-6, 2010                                          www.advancedstudies.org
                     Electronic surveillance

 •  Katz (1964) – 4th A “protects people not places”
 •  Katz plus TIII (and FISA) apply binary standard (no-PC or PC) to
    electronic surveillance
 •  This works in “traditional” cases where electronic surveillance is
    supplement to suspicion and probably cause based on
    observation of physical world behavior
 •  But how does this apply in a world where online (i.e., “electronic”)
    behavior is the first (or only) evidence of criminality or
    conspiracy? For example, contact with known terrorist?
 •  Need for “e-Terry” to enable some limited electronic surveillance
    follow up on “reasonable suspicion” – see my “Dionysus” article


K. A. Taipale                 Slide 40
              Center for Advanced Studies
February 4-6, 2010                                      www.advancedstudies.org
                                Future trends

 •  Technology
           Encryption/decryption
           Cloud computing/Virtualization
           Data mining/data analysis (use vs. collection)
           Virtual Worlds
           Implants/Biocomputing
           Sensing/reading new signals
 •  Law/policy
         Caballes (2005) (dog sniff not a search) –so is filter/hash based
          contraband detection not a search? Filter at nodes? Network
          search of connected computers or hard drives?
         Monitoring online behavior as special needs not LE?


K. A. Taipale                       Slide 41
                Center for Advanced Studies
February 4-6, 2010                                              www.advancedstudies.org
                     <taipale.info>
                        </end>




K. A. Taipale          Slide 42
      Center for Advanced Studies
February 4-6, 2010                       www.advancedstudies.org

				
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