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CYB3RCRIM3 
Legal and policy issues raised by cybercrime.
Post Frequency: 2.1/day Last Entry: November 20, 2009 at 09:06:00 Recent Entries: 291
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Electronic Indictment Issues
Posted on November 20, 2009A recent decision of the U.S. Court of Appeals for the Sixth Circuit addresses an issue I, for one, hadn?t run across before. The case is U.S. v. Simms, 2009 WL 3617543 (2009). And to put the issue the case addressed into context, I need to explain what Simms was charged with and how the charge arose...
Evidence of Other Crimes
Posted on November 18, 2009In a post I did earlier this year, I explained that Rule 404(b) of the Federal Rules of Evidence limits the use of a defendant?s ?other crimes, wrongs, or acts? as evidence in a criminal trial. Under the Rule 404(b), evidence of other crimes, etc...
Authenticating MySpace Evidence
Posted on November 16, 2009In an earlier post, I explained that one of the things the prosecution (or any litigant) must do to be able to introduce evidence is to ?authenticate? the item to be introduced, i.e., to show that it is what it purports to be. In that post, I talked about how someone goes about authenticating emails they want to introduce as evidence...
Juror Emails Defense Attorney
Posted on November 13, 2009As I noted in an earlier post, courts are grappling with technology?s impact on what is called ?juror misconduct.? As I explained, "juror misconduct" refers to conduct by jurors that is inconsistent with their proper role in a criminal trial...
The Cioffi Email Search Warrant: Residual Issues
Posted on November 11, 2009My last post was about U.S. v. Cioffi, in which a federal judge held that the search warrant issued for a suspect?s gmail account violated the 4th Amendment?s particularity requirement. The judge therefore granted the suspect?s motion to suppress evidence ?seized from his personal email account...
Lack of Particularity in Email Search Warrant
Posted on November 09, 2009The 4th Amendment to the U.S. Constitution requires that search warrants be based on probable cause and particularly describe ?the place to be searched and the . . . things to be seized.? This post is about a case in which a court had to decide if a warrant issued to search an email account satisfied the 4th Amendment?s particularity requirement...
Privilege and Email Strings
Posted on November 06, 2009This post is about how the attorney-client privilege applies to emails; more precisely, it?s about how the privilege applies to a series of emails between an attorney and a client. As Wikipedia explains (and as everyone probably knows), the attorney-client privilege is an evidentiary privilege ?that protects communications between a client and his or her attorney and keeps [them] confidential...
Defendant Wins on Motion to Compel
Posted on November 04, 2009This post is about a case in which a defendant in a criminal case filed what is known as a ?motion to compel.? As Wikipedia explains, a motion to compel asks a court to order either the opposing party or a third party to take some action...
"Fruit of the Poisonous Tree"
Posted on November 02, 2009As Wikipedia explains, the ?fruit of the poisonous tree? is ?a legal metaphor in the United States used to describe evidence gathered with the aid of information obtained illegally. The logic of the terminology is that if the source of the evidence (the `tree?) is tainted, then anything gained from it (the `fruit) is as well...
Jurors Use Prosecutor's Laptop . . .
Posted on October 30, 2009An unusual issue ? or what I assume is an unusual issue ? came up in Weber v. State, 971 A.2d 135 (Supreme Court of Delaware 2009). Paul Weber was charged with attempted first-degree robbery and attempted first-degree carjacking in violation of Delaware law...
Fraud on the Court
Posted on October 28, 2009This post isn?t about a cybercrime case, as such. It is about a kind of related conduct which, in the case I?m going to talk about, involved fabricating an email. The case is Munshani v. Signal Lake Venture Fund II, LP, 60 Mass...
Copying as Search and Seizure
Posted on October 26, 2009In other posts, I?ve argued that copying data is a ?seizure? under the 4th Amendment. As I explained in those posts, if copying is a 4th Amendment seizure, law enforcement officers must either get a warrant authorizing the seizure or be able to use one of the exceptions to the warrant requirement to justify copying the data...
Disturbing the Peace . . . Virtually
Posted on October 22, 2009According to Wikipedia, disturbing the peace is a crime that is ?generally defined as the unsettling of proper order in a public space through one's actions.? Here, for example, is how Idaho defines disturbing the peace: Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood, family or person, by loud or unusual noise, or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting, or fires any gun or pistol, or uses any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner, is guilty of a misdemeanor...
Terrorism or Terroristic Threat?
Posted on October 21, 2009This post is about the Supreme Court of Michigan?s decision in People v. Osantowski, 481, Mich. 103, 748 N.W.2d 799 (2008) and the lower court decisions that brought the case to the state Supreme Court. As this news story explains, in 2005 18-year-old Andrew Osantowski was convicted of ?making a terrorist threat? in violation of Michigan Compiled Laws § 750...
Taking the Fifth in a Civil Suit
Posted on October 18, 2009As I assume everyone knows, the 5th Amendment to the U.S. Constitution creates what is known as the privilege against self-incrimination. The privilege derives from the part of the 5th Amendment that says no person ?shall be compelled in any criminal case to be a witness against himself?...
Impossibility
Posted on October 16, 2009Impossibility is another defense someone who has been charged with a crime can claim. As Wikipedia explains, U.S. criminal law traditionally distinguished between factual and legal impossibility. Factual impossibility exists when circumstances of which the defendant was unaware made the commission of the crime he intended to carry out impossible...
Necessity
Posted on October 14, 2009As Wikipedia explains, necessity is an affirmative defense to a criminal charge. That means it is a defense which the defendant must raise and which the defendant must prove; a court won?t instruct a jury on an affirmative defense unless the defendant has introduced evidence sufficient to warrant a reasonable jury?s acquitting on the basis of the defense...
"Criminal Simulation," Copyright and "Criminal Tools"
Posted on October 12, 2009I?ve done a couple of posts on the crime usually known as possession of burglar?s tools. This post is about a related offense and how it applies, or doesn?t apply, to copyright violations. As I explained in my first post on the topic, state criminalize the possession of burglar?s tools for two reasons: One is that it lets them stop someone who has burglar?s tools before he or she goes ahead and commits burglary; this, as I noted in that first post, means the possession of burglar?s tools crime is a kind of inchoate (incomplete) crime...
"Obtaining" versus Asportation
Posted on October 09, 2009This post deals with one of the crimes created by 18 U.S. Code § 1030, the general federal computer crime statute. More precisely, it deals with one of the elements of the crime created by 18 U.S. Code § 1030(a)(2)(A). Section 1030(a)(2)(A) makes it a federal crime to (i) intentionally access a computer without authorization or by exceeding the scope of one?s authorized access to a computer and (ii) thereby obtain ?information contained in a financial record of a financial institution, or of a card issuer ...
"Burglarious Tools"
Posted on October 07, 2009As I explained in a post I did last year, many (if not all) U.S. states make it a crime to possess ?burglar?s tools.? As I explained in that post, the premise behind criminalizing the possession of ?burglar?s tools? is the same premise that justifies our criminalizing attempts to commit crimes...
Polls and Threatening the President
Posted on October 05, 2009You probably saw the stories last week about the Facebook poll that asked whether President Obama should be assassinated. On Friday, the U.S. Secret Service said the poll was posted by a juvenile and it would not be seeking charges against him...
Wallpaper
Posted on October 02, 2009This post is about what I assume is a rather unusual issue that came up in Philbrook v. Perrigo, 2009 WL 2223048 (U.S. District Court for the District of Massachusetts 2009). According to this opinion, the case arose when the plaintiff, Melanie Philbrook filed a complaint against 1) the City [of Malden]; 2) the Police Department; 3) Douglas F...
Earthquake: Miranda and Computers?
Posted on September 29, 2009In my last post, I essentially argued that the explicit language of the 4th Amendment doesn?t give courts the constitutional authority to impose requirements such as requiring the government to forfeit its right to rely on the plain view doctrine...
Earthquake: Further Thoughts
Posted on September 28, 2009About a month ago, I did a post on the U.S. Court of Appeals for the Ninth Circuit?s decision in the Comprehensive Drug Testing case: U.S. v. Comprehensive Drug Testing, Inc., 2009 WL 2605378 (2009). In it, I outlined the five principles the Ninth Circuit said should guide federal magistrates when they are asked to issue a warrant to search for, seize and then search computers and digital storage media...
Privacy and the Cloud - Part 2
Posted on September 25, 2009A while back, I did a post on privacy and cloud computing. In it, I focused on the extent to which the 4th Amendment?s guarantee of privacy applies to data stored in a cloud. This post is about a different but related issue: the extent to which the federal statutes that govern intercepting communications and accessing stored data apply to cloud computing...
Vindictive Prosecution
Posted on September 22, 2009In the U.S. justice system, prosecutors have broad discretion in deciding whether to charge someone with a crime and, if they do, to decide what and how many crimes they will be charged with. Prosecutorial discretion is not, however, unlimited...
"Authorization" -- Follow-up
Posted on September 21, 2009This is a follow-up to what I said at the end of my last post, i.e., that conflating damage and authorization misinterprets and misapplies ?access? crimes. I thought of a way to illustrate what I mean. As I?ve probably noted before, criminal law makes ?burglary? a crime...
"Authorization" Revisited
Posted on September 21, 2009Last November I did a post on U.S. Court of Appeals for the Seventh Circuit?s opinion in International Airport Centers, L.L.C. v. Citrin, 440 F.3d 418 (2006). I disagreed with several things the Seventh Circuit did in the case, one of which was to construe the ?exceeding authorized access? crime very broadly (and erroneously, IMHO)...
Citations
Posted on September 18, 2009I got an email recently from someone who said my including frequent citations (e.g., "People v. Smith," "State v. Smith") is a distraction when someone is reading a post.I'm afraid that didn't really surprise me. I find it tedious to put all those short citations in, and I'm sorry if they are distracting...
"Computer Tampering"
Posted on September 18, 2009As I may have noted, U.S. states tend to vary in terms of the terms they use to denote various computer crimes. For example, consider what is generically known as hacking, i.e., accessing a computer without being authorized to do so...
Criminal Impersonation (again)
Posted on September 16, 2009This is another post about how criminal law deals, or should deal, with people who pretend to be someone else. In several posts, I?ve argued that we need general criminal impersonation ? or imposture ? statutes because people can now assume another?s identity for purposes other than committing fraud or theft...
"Evidence Elimimator" and Possession
Posted on September 14, 2009This post is about the extent to which the finder of fact in a trial can infer mens rea from the use of data erasing software. As I assume we all know, it is a crime to possess child pornography under both state and federal law. The possession of child pornography statutes often use ?knowing? as the mens rea; that is, they often require that the defendant have ?knowingly? possessed the child pornography...
The Vehicle Exception and Laptops
Posted on September 11, 2009This post is about the extent to which officers may be able to search a laptop without first obtaining a search warrant . . . if the laptop is being carried in a car or other vehicle. As I?ve explained in earlier posts, the 4th Amendment creates a right to be free from ?unreasonable? searches and seizures...
Soliciting Violence?
Posted on September 09, 2009I?ve done several posts that dealt with using cyberspace to threaten someone (or something) with harm. This post is about a related crime: using cyberspace to solicit someone to commit a crime of violence against another person. As Wikipedia explains, solicitation is ?the name of a crime, an inchoate offense that consists of a person offering money or something else of value ...
Evidentiary Tweets?
Posted on September 07, 2009A while back, I got an email asking me to do a post on how the rules of evidence might apply to Twitter posts, or tweets. I hadn?t done anything on it until now because the only reported case I can find that deals with Twitter (as opposed to a few old cases dealing with twittering birds) concerns a juror?s use of Twitter during trial...
Vanishing Data (2)
Posted on September 04, 2009This post is a follow-up to my last post. The purpose of this post to analyze the two grand jury scenarios I outlined in the earlier post. We?ll take them in order. In the first scenario, I used Vanish software in sending emails and, as explained in my last post, FBI agents are trying to obtain the contents of those emails...
Vanishing Data (1)
Posted on September 02, 2009You?ve probably see a news story about Vanish, the software developed by computer scientists at the University of Washington. The New York Times had an article on it several weeks ago; since then, articles have appeared in a variety of sources...
New Border Search Directives
Posted on August 31, 2009As you may know, on August 27 the Department of Homeland Security announced its ?new directives on border searches of electronic media.? There?s a Customs and Border Patrol (CBP) policy and an Immigrations and Custom Enforcement (ICE) policy...
Earthquake
Posted on August 29, 2009Last Wednesday a federal court of appeals issued an opinion that?s going to have an impact on how law enforcement searches for and seizes electronic evidence. I called this post ?earthquake? because the decision is definitely going to shake things up in this area; whether it?s a 2...
Obscene Child Pornography: Two Cases
Posted on August 28, 2009As I noted in an earlier post, in 2003 Congress created a new child pornography crime: producing, receiving, possessing or manufacturing obscene child pornography. PROTECT Act of 2003, Pub. L. No. 108-21 (2003). The new crime is codified as 18 U...
"Friends" - Part II
Posted on August 26, 2009This is a follow-up to my last post ("Friends_ - Part I). In that post (?Friends? ? Part I), I reviewed a bar ethic committee?s ruling on the questions submitted by an unidentified attorney. As I explained, the attorney asked about the ethical permissibility of having a ?third person? approach a woman who was going to testify in an upcoming case involving his client...
"Friends" - Part I
Posted on August 24, 2009This post is arguably a little off topic. It does deal with conduct online. But it isn?t about cybercrime, as such. It?s about what I think is a related issue: How much can you trust people you befriend in sites like MySpace and Facebook? Unlike most of my posts, this one isn?t based on a criminal case...
Technical Difficulties
Posted on August 21, 2009I apologize for the inconsistent fonts in my last post . . . and for some similar problems in earlier posts.Since I upgraded Firefox, I'm occasionally having formatting problems when I upload posts to Blogger. I'll keep working on them, though.
Cyberterrorism . . . ?
Posted on August 21, 2009This post is about a case in which one company sued another claiming it was the victim of cyber-terrorism. The case is Margae, Inc. v. Clear Link Technologies, LLC, 2009 WL 1248952 (U.S. District Court for the District of Utah 2009), and here, according to Plaintiff Margae, is what led to the filing of the lawsuit: Plaintiff is an internet marketing company that contracts with individuals and entities to act as an internet referral agent...
Cyberbullying??
Posted on August 20, 2009Fox and some other news sites are reporting that a Missouri woman has been charged with ?cyberbullying? in violation of the statute that was adopted after Megan Meier?s suicide. According to the Fox story, 40-year-old Elizabeth Thrasher posted a 17-year-old girl?s picture, email address and cell phone number on the ?Casual Encounters? of Craigslist ?in a posting that suggested the girl was seeking a sexual encounter...
Sneaking and Peeking
Posted on August 19, 2009In a post I did last year, I noted that federal law allows the issuance of ?sneak and peek? search? warrants. This post examines the use of a ?sneak and peek? in a particular cybercrime case. Before I get to that case, though, I need to explain what ?sneak and peek? warrants are and how they differ from traditional search warrants...
Miranda and the Fifth Amendment Bummer
Posted on August 17, 2009This is a follow-up to a comment on a post I did earlier this year. More precisely, this is a follow-up to Jeremy R. Fishman?s comment on my 5th Amendment Bummer post.In that post, which updated an earlier post on the Boucher case, I explained that a federal judge had held that Boucher couldn't take the 5th Amendment privilege against self-incrimination as the basis for refusing to surrender the key needed to access his encrypted hard drive...
Hacking a Heart - Updated
Posted on August 16, 2009Last year, I did a post that dealt with what could be a new way to commit murder. In it, I explained that researchers were able to use wireless signals to turn off a pacemaker. I also explained that if someone used this technology to shut off a pacemaker for the purpose of killing the person who had it, the person who shut down the pacemaker could be prosecuted for murder under existing law...
Lack of Expert Witness in Child Pornography Case
Posted on August 14, 2009This post is about a federal judge?s ruling on a habeas petition filed by Luis Rodriguez, who was convicted of receiving and possessing child pornography in violation of federal law. As Wikipedia explains, the writ of habeas corpus is ?a civil . ...
Witnesses: Lay and Expert
Posted on August 12, 2009Those who testify in court essentially fall into two categories: expert witnesses and lay witnesses. I suspect we all have a pretty good idea of what an expert witness is. As Black?s Law Dictionary explains, an expert witness is someone who is ?qualified by knowledge, skill, experience, training, or education to provide a scientific, technical, or other specialized opinion about the evidence or a fact issue...
Merger . . . ?
Posted on August 10, 2009As Wikipedia explains, merger is a legal doctrine that prevents someone from being convicted of both a larger crime and what is called a lesser-included offense. The doctrine of merger is to some extent based in the prohibition on double jeopardy; like the 5th Amendment?s Double Jeopardy Clause, the doctrine of merger prevents the prosecution from multiplying criminal liability by charging someone with a larger crime (murder, say) and with lesser offenses the commission of which was a necessary part of committing the murder...
Blockburger and Child Pornography
Posted on August 07, 2009This post is about the rule -- which derives from a U.S. Supreme Court case -- that sets limits on how many criminal charges can arise from a single set of facts. As I explained in a post I did last year, charging documents like indictments and informations contain ?counts,? each of which charges the defendant(s) with committing a distinct crime...
Instant Messages - Evidentiary Issues
Posted on August 05, 2009This post is about the issues that can arise when someone wants to used instant messages as evidence. There are quite a few reported cases that deal directly or tangentially with the admissibility of instant messages under the federal or state rules of evidence...
Private Cyber Investigators
Posted on August 03, 2009This post was prompted by questions I was asked to address when I participated in a panel discussion of cybersecurity. Here are the relevant questions: Should we reconsider the notion that companies under attack are prohibited from investigating the attackers and trying to locate them? We allow private investigators to conduct some activities that usually only the police are allowed to do; should we accredit private cyber investigators? I?m not really sure what my response is to the first question...
Shredder Programs and Obstruction of Justice
Posted on July 31, 2009This is a follow-up to a post I did a couple of years ago, that dealt with using a forthwith grand jury subpoena to obtain computer hardware and other digital evidence. I used a federal case from Connecticut to illustrate how forthwith subpoenas work in this context...
The Fake Salvation Army Website
Posted on July 29, 2009This post is about an evidentiary issue that arose in U.S. v. Stephens, 2009 WL 1608845 (U.S. Court of Appeals for the 5th Circuit 2009). Here, according to the Court of Appeals, is how brothers Bartholomew Stephens and Steven Stephens came to be prosecuted: [I]n the wake of Hurricane Katrina, Steven registered a website: www...
Networks and War of Aggression
Posted on July 27, 2009This is another follow-up to the post I did last week on cyber war. This post is a response to someone who raised these questions after reading the earlier post: I am a law student at Cornell University, and one other issue struck me while reading your article: What about potential liability for private carriers in allowing cyberwar signals to reach US government servers? In the event that these carriers have the capacity to identify enemy attacks, and the capacity to stop them, do they have a duty under the law as it currently stands to prevent such attacks from accessing sensitive computers in the first place? They?re good questions, and I?m going to do my best to respond to them, given the limitations imposed by the relative brevity of a blog post and the fact that I am not an expert in the laws of war...
Proffer Gone Wrong . . .
Posted on July 24, 2009In federal criminal practice a ?proffer? (also known as a ?proffer letter? or ?proffer agreement?) is a written agreement between a prosecutor and someone suspected of committing federal crimes. Defense attorneys use proffers to negotiate plea bargains or immunity for their clients, but they can be tricky...
"True Threats" - Revisited
Posted on July 23, 2009Last year, I did a post about a case in which a college student was charged with violating 18 U.S. Code § 875(c). I explained that § 875(c) makes it a federal crime to transmit a ?threat . . to injure the person of another? via interstate commerce, and using the Internet satisfies the Internet commerce element of the offense...
Networks and Treason
Posted on July 22, 2009This post is a follow-up to a post I did recently in which I analyzed whether the federal government could nationalize private computer networks if the owners refused to let them be used in defensive (or offensive) cyberwarfare. This post is about a related issue: if the civilian owners of such networks refused to let them be used to carry offensive or defensive cyberwarfare traffic, would that constitute treason? To answer that question, we first have to define treason...
Networks and Nationalization
Posted on July 20, 2009This post isn't about -- or isn't only about -- the use of computer technology to commit crimes. It's more about the use of computer technology to commit war.A few weeks ago, I was part of a conversation about the legal issues cyberwarfare raises...
Power Point and the Plain View Doctrine
Posted on July 17, 2009The plain view doctrine is a 4th Amendment principle that lets an officer seize an item without first obtaining a search warrant, as long as the seizure comports with certain requirements. As Wikipedia explains, the requirements are that The officer is lawfully present at the place from which he/she can plainly see the evidence; The officer must be able to lawfully access the item to be seized; and The incriminating character of the object must be `immediately apparent...
Copying as a Seizure (Again)
Posted on July 15, 2009I?m going to revisit an issue I addressed in a post I did several years ago. The issue is whether copying data files is a seizure under the 4th Amendment. As I?ve noted in earlier posts, the 4th Amendment prohibits unreasonable searches and seizures...
Controlling Child Pornography
Posted on July 13, 2009This post is about a Pennsylvania statute that seems to create a fifth child pornography crime. As I?ve noted, there are ? or I?ve assumed there are ? four child pornography crimes: manufacturing child pornography, distributing child pornography, possessing child pornography and accessing (looking at) child pornography...
Interception and Device
Posted on July 10, 2009This post is about a recent decision from a federal court in Wisconsin that deals with email interception in violation of 18 U.S. Code § 2511(1)(a). The case is U.S. v. Szymuszkiewicz, 2009 WL 1873657 (U.S. District Court for the Eastern District of Wisconsin 2009) and here is the government?s version of the facts: [D]efendant, a revenue officer with the IRS, created a `rule? on his supervisor Nella Infusino's computer, which auto-forwarded to defendant all of Infusino's e-mails...
Mules
Posted on July 08, 2009You?ve probably seen the news stories about the Ukrainians who extracted $415,000 from a Kentucky bank, courtesy of a Trojan horse program. If you haven?t seen the stories, here?s a brief recap: Ukrainian hackers used a Trojan horse program to acquire access to and authentication authority over bank accounts belonging to Bullitt County, Kentucky...
File-sharing and Child Pornography: Two Views
Posted on July 06, 2009I?ve done a couple of posts on police officers using file-sharing software like Limewire or Kazaa to find child pornography on people?s computers. The issue I was dealing with in those posts was whether law enforcement?s using Limewire or Kazaa to access files on someone?s hard drive is a search under the 4th Amendment...
Privacy in the Virtual World
Posted on July 03, 2009I usually write about privacy in the context of the police searching places and seizing evidence. That is, I usually write about privacy in the context of the 4th Amendment?s prohibition of ?unreasonable? searches (and seizures). This post is about privacy in a different context...
MySpace Assault Case
Posted on June 30, 2009A law dictionary defines ?assault? as the ?threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful . . . contact; the act of putting another person in reasonable fear . . . of an immediate battery by means of an act amounting to an attempt or threat to commit battery?...
Incrimination and Encryption -- UK Style
Posted on June 29, 2009I?ve done a couple of posts about the 5th Amendment privilege against self-incrimination?s applicability to encryption keys. I?ve analyzed whether US officers can compel someone to give up their encryption key without violating the privilege. This post is about how that issue is handled ? or has been handled ? under UK law...
Private Prosecution
Posted on June 26, 2009As I?ve noted here and elsewhere, law enforcement officers are having a very difficult time battling cybercrime. They?re having a very difficult time for several reasons: one is that cybercrime is a quantum of new crime that?s added to the old, real-world crime they still have to deal with...
Exigent Circumstances Letters
Posted on June 24, 2009This post is about one of the ways officers can get information about someone from the person?s ISP. Before we get to the law, I need to outline the facts in U.S. v. Beckett, 544 F.Supp.2d 1346 (U.S. District Court for the Southern District of Florida 2008) as described by the court...
Pyrrhic Tactic
Posted on June 22, 2009As I assume we all know, a Pyrrhic victory is essentially winning a battle but, in so doing, putting yourself in a situation that is ruinous for your hopes of winning the war. This post is about two provisions in the Senate Bill 773 ? the Cybersecurity Act of 2009 -- which was introduced in the Senate on April 1, 2009...
Staleness
Posted on June 19, 2009This post is about the nature of the information police officers rely on to get a magistrate to issue a search warrant.As I?ve explained, the 4th Amendment?s default position is that to be ?reasonable? a search (and seizure) must be conducted pursuant to a search (and seizure) warrant...
Ghosts, Contraband and Seeking the Return of Seized Property
Posted on June 17, 2009I?ve done several posts about trying to get the government to return computers and computer storage media it seized while executing a search warrant or pursuant to an exception to the 4th Amendment?s warrant requirement. As I explained, someone whose computer equipment was seized can file a motion for return of property to try to get it back...
Loss, Aggregation and Multiplicity
Posted on June 15, 2009This post is about an opinion a federal judge issued a little less than a year ago. It deals with some interesting issues involving the application of the general federal computer crimes statute: 18 U.S. Code § 1030.The case is U.S. v. Lanam, 2008 WL 2705514 (U...
"Creates a Digitized Image"
Posted on June 12, 2009In a sense, this post is about the need for -- and difficulty of -- drafting criminal statutes that define crimes with precision while still addressing the "harm" to be outlawed,As you may have noticed, I seldom do posts on child pornography or child exploitation cases ...
Privacy and the Cloud
Posted on June 10, 2009This is another post about how technology can make it difficult to decide if something is or is not "private."I?m going to speculate about cloud computing and the 4th Amendment?s protecting us from ?unreasonable? searches and seizures. The issue briefly came up at a meeting I attended last week, as one of the so-far unresolved issues evolving technology raises...
Bailments and Border Searches
Posted on June 08, 2009Last year, I did a post (one of several I?ve done) on border searches, i.e., on the exception to the 4th Amendment?s warrant requirement that encompasses searching the luggage ? and laptops ? of people entering or leaving the United States. In that post, I talked about a new policy ? the Policy Regarding Border Search of Information ? that had just been adopted by U...
Saucy Jack
Posted on June 05, 2009This post is about a case that doesn?t raise any interesting legal issues. It?s just really creepy, so I decided to write about it.The case is Thompson v. State, 2009 WL 1382020 (Court of Appeals of Texas ? Houston 2009). Earl Thompson appealed his conviction for stalking (and for unlawfully carrying a weapon in a liquor-licensed premises, but we?re not interested in that one), which arose from these facts:On October 25, 2006, [Thompson] began sending Suzi Hanks, a Houston radio personality, a series of strange and threatening emails...
"Access" as Over-inclusive
Posted on June 03, 2009I recently exchanged several emails with Lokkju Brennr, Lokkju brought up an interesting issue about the way law approaches the crime of gaining unauthorized access to a computer (often generically referred to as ?hacking? a computer). Before I get to that issue, I want to review how law deals with this crime...
Downside of Being a Good Samaritan
Posted on June 01, 2009This post is about a case that demonstrates the hazards that can sometimes attend being a Good Samaritan. The case also raises an evidentiary issue.The case is State v. Mellert, 2009 WL 1365024 (Ohio Court of Appeals 2009). Here are the facts that led to Karen Mellert being charged with knowingly making a false statement with the purpose of committing a theft offense:[William] Oakes ...
Inevitable Discovery
Posted on May 29, 2009This is another post about the rules that dictate what police can and cannot do in seizing evidence, including computers and laptops.Unlike my earlier posts on this topic, this post is really about the remedy that is used to enforce those rules.As I?ve explained in earlier posts, the 4th Amendment creates a right to be free from ?unreasonable? searches and seizures conducted by law enforcement...
Virtual Extortion?
Posted on May 27, 2009Maybe you saw this story: A Chinese man (whose name is not given) has been sentenced to serve three years in prison for extorting ?virtual items and currency? from a ?fellow Internet café user.? The currency was worth 100,000 yuan or $14,700.The man who?s sentenced to three years and the three friends who helped him also ?extorted virtual equipment for online games? from their victim...
Franks v. Delaware
Posted on May 25, 2009In Franks v. Delaware, 438 U.S. 154 (1978), the U.S. Supreme Court considered the issue of false information?s being used to get a search warrant. This post is about a case that applied the Franks decision to email, but before we get to that case, I need to provide a little context...
Border Search . . . Fails
Posted on May 22, 2009This post is another in a series of posts I?ve done that deal with Customs agents searching people's laptops at international borders.As I've explains in several posts, the border search exception is one of the exceptions to the 4th Amendment?s requirement that officers get a warrant before searching someone?s property...
Facebook and Witness Tampering
Posted on May 20, 2009This post is about a case in which Facebook was implicated in a claim of witness tampering. Before we get to the facts of the case, we need to review the law at issue.Section 1512(b)(1)- (2) of Title 18 of the U.S. Code makes witness tampering a crime:Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to...
Marque and Reprisal
Posted on May 18, 2009As I?ve noted before, cyberspace erodes the importance of territorial boundaries and, in so doing, erodes the efficacy of the approaches we?ve traditionally used for maintaining order within a society (criminal law + law enforcement = controlling crime) and among societies (military forces = repel and discourage military attacks)...
Parsing Crimes
Posted on May 15, 2009As I explained in a post I did last year, criminal charges against someone are brought in a charging document, which is usually an indictment (charges returned by a grand jury) or an information (charges brought by a prosecutor without using a grand jury)...
Evidence versus Contraband
Posted on May 13, 2009This post was inspired by a question I got from someone whose computer, computer equipment and storage media were seized by police pursuant to a search warrant. The police clearly had probable cause to obtain the search warrant and, we?ll assume, were within the scope of the warrant when they seized the computer equipment...
Scope of Consent (2)
Posted on May 11, 2009This post is a follow up to a post I did last year, which dealt with consents to search a person or property. In that post, I explained that consent is an exception to the 4th Amendment?s requirement that officers get a warrant to search a person or a place...
Identities: The Living, the Dead and the Imaginary
Posted on May 08, 2009A couple of days ago, I did a post on the recent case in which the Supreme Court held that to commit identity theft under the federal statute, you have to know you?re using the personal identifying information of a ?real person.? In a comment to the post, someone asked what ?real person? means, i...
Thoughts, Witches and Crimes
Posted on May 06, 2009In 2001, I published an article on ?virtual crime.? It analyzed the extent to which we needed to create a new vocabulary ? and a new law ? of ?cybercrimes.? The article consequently focused on whether there is a difference between ?crime? and ?cybercrime...
Identity Theft and Real People
Posted on May 05, 2009The U.S. Supreme Court recently decided a case that deals with an issue I wrote about in an earlier post. So I thought I'd update that post a bit. The post was on an issue that had arisen under federal criminal law: whether someone can be convicted of identity theft if they did not know they were using the identity of a real person...
Hearsay and Sentencing
Posted on May 04, 2009This post is, as the title indicates, about using a specific kind of evidence to impose a sentence on someone who has been convicted of a crime.As I explained in an earlier post, the rules of evidence bar the use of hearsay in trials and in other judicial proceedings unless the hearsay in question falls into one of a number of exceptions to the general rule barring hearsay...
"Uses"
Posted on May 01, 2009In an earlier post, I explained that the federal system and every U.S. state ? and many other countries ? criminalize what is commonly known as hacking. As I explained there, U.S. statutes, anyway, tend to define hacking as ?accessing? a computer without being authorized to do so...
Private Stingers
Posted on April 29, 2009This post is basically about stings -- the ruses police use to catch people who are committing a crime. I got a question from someone who was curious about the use of ?stings? in the online context. He wondered if it?s legal for an officer to go into a chat room or use some other online resource to engage in conversation with someone while pretending to be a child or a parent of a child who?s offering the child for sex...
Medieval
Posted on April 27, 2009Not long ago, something I?d written was peer-reviewed as part of being vetted for publication. In it, I wrote about the problem of keeping order in cyberspace, and one reviewer criticized me for not analogizing cyberspace to the Old West. I submitted my response to that reviewer?s comments ? and the comments of the other reviewers ? to the press considering my manuscript...
Spyware, Divorce and the Law Firm
Posted on April 24, 2009This post is about a federal civil case in Louisiana. Becker v. Toca, Civil Action No. 07-7202 (U.S. District Court for the Eastern District of Louisiana). I?m doing a post on this civil case because it arose from the defendant?s allegedly installing a Trojan horse on a law firm?s computers...
Mixing Metaphors
Posted on April 22, 2009Last year I did a post in which I talked about how the use of cyberspace challenges the efficacy of the law enforcement model in dealing with crime and terrorism. In this post, I want to talk about how, and why, cyberspace can blur the distinctions between the three categories of threats nation-states have to deal with if they are to survive and prosper...
Gant
Posted on April 22, 2009On April 21, the U.S. Supreme Court decided a case that significantly reduces a police officer?s ability to conduct a search incident to arrest when the person arrested was in a vehicle. The case is Arizona v. Gant. As I?ve explained before, search incident to arrest is an exception to the 4th Amendment?s warrant requirement...
Boston College Case
Posted on April 20, 2009Maybe you?ve read about this: On March 30, Kevin Christopher, a Detective for the Boston College Police Department, executed a search warrant at a BC dorm room that was occupied by Riccardo Calixte. If you want to know more about the warrant and why it was issued, the Electronic Frontier Foundation has information about the search, including court filings, on its website...
Reply E-Mail Doctrine?
Posted on April 17, 2009As I explained in an earlier post, evidence has to be authenticated before it can be admitted in a trial or other legal proceeding. As I also explained there, authentication is intended to sure that the evidence to be admitted is what the proponent of the evidence (the party offering it) claims it is...
Substantially Contemporaneous
Posted on April 15, 2009In an earlier post, I explained that search incident to arrest ? usually truncated as ?search incident? ? is an exception to the 4th Amendment?s requirement that law enforcement officers get a warrant before searching someone or something. This post was prompted by a question I got recently: whether officers can rely on the search incident exception to search a cell phone AFTER the person has been arrested and taken away...
Exigent Seizure of a Computer
Posted on April 13, 2009Last fall, I did a post about how police can lawfully search a computer without getting a search warrant. This post is about how the same principle applies in a different context: seizing computers instead of searching them.As I?ve noted before, the 4th Amendment gives the right to be free from unreasonable searches (which violate a legitimate expectation of privacy in a place or thing) and seizures (which violate our right to possess and use property)...
Unlawful Posting of Criminal Activity for Notoriety and Publicity
Posted on April 10, 2009This spring I'm teaching a class in which students research cybercrime laws in various states.One of the states they're working on this term is Louisiana. A student working on Louisiana law came across a statute that creates a crime I?ve not heard of before: unlawful posting of criminal activity for notoriety and publicity...
Revocation of Consent to Seize Computer
Posted on April 08, 2009This post is about what happens when you revoke -- take back -- your consent to let police officers seize your laptop of desktop.As I explained in an earlier post, consent is a valid exception to the 4th Amendment?s warrant requirement.As I?ve also noted before, the 4th Amendment requires that a search or a seizure must be ?reasonable;? the default way a search or seizure can be reasonable is for it to be conducted pursuant to a search and/or seizure warrant...
Section 230 Immunity -- Revisited
Posted on April 06, 2009A while back, I did a post in which I explained that a federal statute 47 U.S. Code § 230(c)(1) ? immunizes certain parties from liability based upon content they publish online.This post is about a Michigan case in which a criminal defendant claimed his defense attorney was ineffective because he did not raise this statute at trial: People v...
The Privacy Privilege
Posted on April 03, 2009This post is going to argue that we should slightly revised how we think about the legal principle that guarantees us privacy.As I?ve explained before, the primary privacy guarantee we have is the Fourth Amendment, which protects us from ?unreasonable? state-initiated searches and seizures...
Uttering and Publishing
Posted on April 02, 2009This post is about the use of a computer to commit a crime I must confess I hadn?t heard of: uttering and publishing. As Wikipedia explains, ?uttering and publishing is a crime similar to counterfeiting. Uttering is the act of offering a forged document to another when the offerer has knowledge that the document is forged...
Search Warrants and the Attorney-Client Privilege
Posted on March 30, 2009A recent case from Georgia illustrates how federal prosecutors deal with the task of preserving attorney-client privilege when a search warrant is executed at a law office.The case is U.S. v. Sutton (U.S. District Court for the Middle District of Georgia 2009), and here are the facts that led to the search:Berrien Sutton is an attorney in Homerville, Georgia at the firm of Sutton & Associates, P...
iPhone Search Warrant
Posted on March 27, 2009Last year I did a post on a case in which the court held that officers could search an arrestee?s Blackberry under the search incident exception to the 4th Amendment?s warrant requirement. As I explained in that post, the Supreme Court has held that it is reasonable (and all the 4th Amendment requires is reasonableness when it comes to searches and seizures) for an officer to search the person of an arrestee (pockets, purse, shoes, clothes) in order to find (i) any weapons he/she may have and/or (ii) any evidence he/she might be able to destroy if it isn?t located early in the process...
Clergy-Penitent Privilege
Posted on March 25, 2009In Waters v. O?Connor, 209 Ariz. 380, 103 P.3d 292 (Court of Appeals of Arizona 2004), Korri Waters was prosecuted for sexual misconduct with a minor, a 16 year old boy. During the pendency of her criminal case, Waters sent an e-mail to `Minister? D...
Cyber-Monroe Doctrine?
Posted on March 22, 2009I was recently involved in a discussion in which someone argued that a cyberspace equivalent of the Monroe Doctrine would be the best way to protect the U.S. from spam and various kinds of cyberattacks. The Monroe Doctrine, in case you?ve forgotten (I was pretty fuzzy on it), is a policy President James Monroe announced on December 2, 1823...
Robbery
Posted on March 20, 2009We were talking about online theft in a class, and that led me to think about robbery. Specifically, I started thinking about whether it is possible to commit robbery online.To understand why that may be an issue, you need to know a little bit about the law of theft: Centuries ago, English common law developed a crime called larceny...
Juror Misconduct and Technology
Posted on March 18, 2009This post is about the that effect technology is having on what is called juror misconduct. As I explain below, juror misconduct is the term that is used to refer to actions by jurors that are at least arguably inconsistent with their role in a criminal trial...
More Absurdity
Posted on March 16, 2009Last fall, I did a post about a case in which a prosecutor refused to attach images of child pornography to an application for a search warrant because he said he was afraid he?d be prosecuted for ?distributing child pornography? if he did. The U.S...
Prescriptive rules
Posted on March 13, 2009I?ve done a couple of posts on the ?insider? issue: the problem of defining when someone who is authorized to access a computer system exceeds the permissible bounds of that access and therefore becomes subject to criminal liability. As I explained in a post I did earlier this year, the problem arises because the crime these ?insiders? are prosecuted for is called ?exceeding authorized access...
Possession of Identity Theft Tools
Posted on March 11, 2009Colorado has an unusual statute that makes it a crime to possess identity theft tools. I can?t find a statute like it in any other state.This is what the statute says:A person commits possession of identity theft tools if he or she possesses any tools, equipment, computer, computer network, scanner, printer, or other article adapted, designed, or commonly used for committing or facilitating the commission of the offense of identity theft ...
Can You Trust Your Car? - Part 2
Posted on March 09, 2009A couple of years ago I did a post about a federal case in which the FBI used a car?s integrated telecommunications system to listen in on what people in the vehicle said without their knowing about it. As I explained in that post, the opinion in that case had nothing to do with the people whose conversations the FBI eavesdropped on, courtesy of the car?s cellular phone system...
Gossip
Posted on February 25, 2009This post is based on an article I've been working on with one of my students. It's about cyber bullying, and the issue of gossip keeps coming up. It also comes up in the context of other online crimes like stalking and harassment.Gossip comes up when we consider the propriety of using criminal law ? crimes like stalking, harassment and defamation ? to discourage people from posting certain types of information online...
RFID Crime
Posted on February 23, 2009On February 10, Nevada Senate Bill 125 was introduced into the Nevada legislature and then referred to the Nevada Senate Judiciary Committee.The Committee is scheduled to discuss the bill today, February 23, 2009. Section 1 of the bill would add the following new crime to the Nevada criminal code:1...
Exclusionary Rule
Posted on February 19, 2009In this post, I?m going to take issue (a bit) with some comments Bruce Schneier included in his February 15 version of Cryptogram. The post was about the Supreme Court?s recent decision in Herring v. U.S. 129 S.Ct. (U.S. Supreme Court 2009). The facts in the case are very simple: a police officer did a warrant check on Bennie Herring to see if there were any outstanding warrants for his arrest...
Hue and Cry
Posted on February 17, 2009As Wikipedia explains, at English common law the hue and cry ?was a process by which bystanders were summoned to assist in the apprehension of a criminal who had been witnessed in the act of committing a crime.? The hue and cry was part of the system England used to enforce criminal law centuries ago, before professional police appeared (which began in the nineteenth century)...
Keeping Your Jurisdictions Straight
Posted on February 16, 2009This post is about a perfectly logical ? but completely wrong ? argument a defendant made in moving to suppress evidence in a criminal case. The case is U.S. v. Christie, 570 F. Supp.2d 657 (U.S. District Court for the District of New Jersey 2008).Basically, Christie was charged with multiple counts of possessing, receiving and advertising child pornography, all in violation of federal law...
"Damage"
Posted on February 13, 2009This is not a post that's going to resolve an issue of law or policy related to computer crime. It's a post in which I'm trying to work through an issue that came to my attention recently.More precisely, it?s a rumination on the notion of ?damage? to computers; more precisely, it?s a rumination on the notion of ?damage? to computers as the term is used in cybercrime statutes...
Viewing Child Pornography as a Crime
Posted on February 11, 2009I?m indebted to Sigmund, News Editor for SLentrepreneur Magazine, for calling this to my attention: The Nevada legislature is debating a bill that would let Nevada authorities prosecute people who simply view child pornography online. Currently, Nevada like most, if not all, U...
Remote Murder?
Posted on February 09, 2009I did a post not long ago about the possibility of using computer technology to commit murder. David Schumann, a Wisconsin lawyer and proprietor of the GPS Evidence Issues blog, recently sent me an email suggesting a new and pretty devious way to commit computer murder...
Malware Possession
Posted on February 06, 2009I assume everyone knows what malware (e.g., computer viruses, worms) is. In the U.S., it is a federal crime to use malware to intentionally cause ?damage without authorization? to a computer that is used in a manner that affects interstate or foreign commerce...
"Stigma Plus"
Posted on February 04, 2009This post isn?t about a cybercrime case. It?s about what I think is an interesting issue concerning the use of online postings to shame some people and thereby deter others from following their example.Here are the facts that led to the filing of this civil case:On or about June 10, 2008, petitioner, with no prior arrests or convictions, was arrested and charged by the Nassau County Police Department and the Nassau County District Attorney's Office with a violation of the Vehicle and Traffic Law (VTL) § 1192...
Co-Tenant Consent to Search Computer
Posted on February 02, 2009As I explained in an earlier post, consent is an exception to the 4th Amendment?s requirement that officers get a warrant to search a place or a thing and seize any evidence of criminal activity they find. As I also explained in that post, to be valid, consent to search has to have been given by someone (i) who had actual authority to consent to the search or (ii) who did not have actual authority to consent but whom officers reasonably (though mistakenly) believed did have such authority...
"Without Authorization"
Posted on January 30, 2009As I?ve noted before, there are two different kinds of computer hacking (or computer trespass) crimes: Accessing a computer without being authorized to do so (outsider attack) and exceeding the scope of one?s authorized access to a computer (insider attack)...
Authentication and the Erased Hard Drive
Posted on January 28, 2009As I explained in an earlier post, evidence must be authenticated before it can be admitted in a trial or other court proceeding. That is, the party offering the evidence (the proponent) must show that it is what it purports to be. Rule 901(a) of the Federal Rules of Evidence governs authentication in federal cases...
New Book
Posted on January 27, 2009My new book is out (actually, it's been out for about a week).It's essentially about how the traditional threats to social order -- crime, terrorism (which is a kind of crime) and warfare -- can morph and fuse when they move online.The book analyzes the attribution and response problems this creates, but from a primarily legal perspective...
Passwords
Posted on January 26, 2009Maybe you?ve seen one of the news stories about the revised Georgia statute (Georgia Code § 41-1-12) that now requires sex offenders to turn their Internet passwords, screen names and email addresses over to authorities. The purpose of the revised statute is to give authorities the ability to track what sex offenders are doing online, to, in the words of one news story, ?make sure? they ?aren?t stalking children online or chatting with them about off-limits topics...
Technology as an Aggravating Factor
Posted on January 23, 2009As you may have seen, the Supreme Court rather recently granted certiorari in U.S. v. Abuelhawa, 523 F.3d 415 (U.S. Court of Appeals for the Fourth Circuit 2008). That, of course, means the Court will hear arguments on whether the Fourth Circuit?s decision is correct...
Chutzpah in Kansas City
Posted on January 21, 2009Maybe you saw this story: It says a Kansas City woman has been indicted by a federal grand jury for using her U.S. Department of Agriculture laptop to manage ?prostitution businesses and correspond with clients?. According to the story, Laurie Lynn McConnell, a statistician for the USDA?s Risk Management Agency, operated the prostitution businesses with John Miller, who also lives in Kansas City...
Motion to Quash Search Warrant
Posted on January 19, 2009I ran across something I wasn?t familiar with in a recent decision from a federal district court in Florida: U.S. v. Shaygan, 2009 WL 86678 (U.S. District Court for the Southern District of Florida).In Shaygan, the defendant filed a motion to quash a warrant to search a laptop...
Misusing Authorized Access?
Posted on January 16, 2009In a post I did a couple of years ago, I talked about the ?insider? hacking crime: exceeding one?s authorized access to a computer to do . . . something. The premise of the crime is that we need to make it illegal for insiders ? people who legitimately have access to a computer or computer system ? knowingly to exceed the scope of that access in order to destroy data, copy data, install a logic bomb that shuts down the system, etc...
Computer Theft
Posted on January 14, 2009A lot of state statutes and the general federal computer crime statute, 18 U.S. Code § 1030, criminalize the theft of computer data. And I?ve done at least one post about computer data theft. As I explained, computer data theft is a little different from real-world theft because the data being stolen is usually copied ...
Computer Forgery
Posted on January 12, 2009This post is about computer forgery . . . or, more accurately, about what is not computer forgery. Like many of my posts, this one is inspired by a case: People v. Carmack, 34 A.D.3d 1299, 827 N.Y.S.2d 383 (Supreme Court of New York 2006). In 2003, an Erie County Grand Jurycharged [Howard Carmack] with three counts of Forgery in the Second Degree, arising out of [his] actions in sending electronic mail messages (`e-mail?) purporting to have originated from three different e-mail accounts without permission from the accounts' owners...
(Attempted) Computer Murder
Posted on January 09, 2009There has for years been speculation about whether a computer could be used to commit murder, i.e., to intentionally kill a human being. I was researching that issue for something I?m writing, and managed to track down what seems to be the original version of a story I?ve heard for a long time...
Fear
Posted on January 07, 2009I?m reading a great book: The Science of Fear by Daniel Gardner. I highly recommend it. It?s an analysis of how and why our fears are often irrational; we fear things that are not particularly likely, and don?t fear things we should.In one of this early chapters, he talks about how people refused to fly in the months after 911, and drove instead...
They?re heeere!! . . . Remote Computer Searches
Posted on January 05, 2009I did a post not long ago about the European Union?s announcing new initiatives against cybercrime, one of which was to let law enforcement officers conduct remote computer searches. Since then, more information surfaced about precisely what this means...
The 861 Defense
Posted on January 02, 2009This post is maybe only tangentially about cybercrime because it?s about an activity ? what some would call a scam ? that is primarily perpetrated via websites. The scam (which is what I?m going to call it) is an updated version of something that was going on when I clerked for a federal judge twenty years ago...
Constructive Possession
Posted on December 31, 2008Most people know that law makes it a crime to possess certain things, like drugs or child pornography. Most people may not know that under the law, there are two kinds of possession: actual and constructive.Here?s how a pattern jury instruction from the U...
Jurisdiction and Practicing Medicine without a License
Posted on December 29, 2008As I?ve noted before, jurisdiction is a court?s power to act in a case. If a court doesn?t have jurisdiction to hear and decide a particular case, then the judgment, or conviction, it enters will void and unenforceable. As I?ve also noted, in criminal cases jurisdiction is a court?s power to adjudicate the charges brought against someone...
Fraud and Interstate Commerce
Posted on December 26, 2008Section 1343 of Title 18 of the U.S. Code creates the crime of wire fraud as follows:Whoever, having devised . . . any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire ...
Invasion of Privacy
Posted on December 24, 2008A few states have criminal invasion of privacy statutes. Most of them are pretty narrow in scope; they make it a crime to photograph or videotape someone when they?re in a bathroom or a dressing room or similar places. Other invasion of privacy statutes make it a crime to photograph or videotape someone?s ?intimate parts? under their clothes...
Cartoons . . . Again
Posted on December 22, 2008a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://1.bp.blogspot.com/_wQGKFvCpglY/SU-hxwp0MxI/AAAAAAAAAfg/-qD-pH1yFCs/s1600-h/Sm2.jpg"img style="margin: 0pt 10px 10px 0pt; float: left; cursor: pointer; width: 239px; height: 320px;" src="http://1...
Map Quest as a Rat
Posted on December 19, 2008a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://2.bp.blogspot.com/_wQGKFvCpglY/SUuIkeWDQMI/AAAAAAAAAfY/Zcl-bdPbDE8/s1600-h/rat.jpg"img style="margin: 0pt 0pt 10px 10px; float: right; cursor: pointer; width: 300px; height: 239px;" src="http://2...
Chain of Custody in Remote Computer Searches
Posted on December 17, 2008a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="http://1.bp.blogspot.com/_wQGKFvCpglY/SUkRhFRptHI/AAAAAAAAAfQ/I1YYRny9SLw/s1600-h/revolver.jpg"img style="margin: 0pt 10px 10px 0pt; float: left; cursor: pointer; width: 320px; height: 263px;" src="http://1...
eWMDs
Posted on December 15, 2008Maybe you?ve seen the recent Hoover Institution report which argues that botnets and malware constitute ?electronic Weapons of Mass Destruction? or eWMDs.The authors of the report say they created the eWMD term (or acronym, I guess), and I?m sure they did...
Fantasy Crime
Posted on December 13, 2008You can file this post under shameless self-promotion: My law review article on "fantasy crime," i.e., crime in virtual worlds like Second Life and World of Warcraft, has just been published.If you'd like to find out more about the published version of the article (and where to find it), you can do that here...
MapQuest as Hearsay
Posted on December 12, 2008As I explained in an earlier post, the U.S. states and the federal legal system all bar the admission of hearsay, except pursuant to certain exceptions. I noted that these rules define hearsay, essentially, as ?a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted...
The Nigerian Defense?
Posted on December 10, 2008A couple of years ago, I did a post on the Trojan horse defense, i.e., the claim that a Trojan horse program put the child pornography on the defendant?s hard drive. This post is about what might be called the Nigerian Defense.it was raised by Jeffrey Kelly, who was charged with forgery and theft ?after he presented two counterfeit checks to a bank in Valdez?, Alaska...
Cartoon Child Pornography?
Posted on December 08, 2008You may have seen the story from Australia: The New South Wales Supreme Court held, essentially, that cartoons showing Bart, Lisa and Maggie Simpson (along with others?) having sex with each other was child pornography under New South Wales and Australian law...
Trojan Horse Warrant?
Posted on December 08, 2008Maybe you saw the stories that were getting a fair amount of play a couple of days ago . . . the ones about the European Union?s new five-year plan to target cybercrime?According to the press release and some other information I found, the plan encompasses conducting ?remote searches? of computers...
Scope of Consent
Posted on December 05, 2008As I explained in an earlier post, consent is an exception to the 4th Amendment?s requirement that law enforcement officers get a search warrant before searching your property for evidence of a crime. As an exception, consent eliminates the need to get a warrant...
"Name"
Posted on December 03, 2008This post is about a federal identity theft case: U.S. v. Blixt, 2008 WL 5003239 (9th Circuit Court of Appeals 2008). Here, according to the Ninth Circuit, are the facts that resulted in Ms. Blixt?s being charged with identity theft:Blixt began working for Crawford and Company in 1998 in its Helena, Montana office...
Antiforensics
Posted on December 01, 2008This is probably going to be a short post, because it?s about something I know essentially noting about: anti-forensics, or anti-computer forensics.According to Wikipedia, one definition of anti-forensics is that it consists of ?`[a]ttempts to negatively affect the existence, amount and/or quality of evidence from a crime scene, or make the analysis and examination of evidence difficult or impossible to conduct...
Attempt?
Posted on November 28, 2008A California Court of Appeals recently decided a case that involved the difference between a completed crime and an attempt to commit that crime. The case is People v. Love, 166 Cal.App.4th 1292, 83 Cal.Rptr.3d 428 (Cal. App. 2008), and here are the facts that gave rise to the issue:[Ms...
Laptops and Borders . . . Again
Posted on November 26, 2008I?ve done a couple of posts on the rules that govern Customs searches of laptops travelers are carrying into or out of the United States. In those posts, I explained that the rules evolved to deal with luggage and other ?containers.? As I also explained, the traditional rule ? in the U...
"Willfully"
Posted on November 23, 2008A recent case from North Carolina highlights the role mens rea ? or intent ? plays in a criminal prosecution. The case is State v. Ramos, 2008 WL 4906318 (N.C. App. 2008), and here, according to the court, are the facts that resulted in charges against being filed against Ms...
Password-protection and the 4th Amendment
Posted on November 21, 2008On November 3, I wrote about a decision in which a court held that the use of EnCase forensic software was a search under the 4th Amendment. This post is about a related but slightly different issue: whether the use of password-protection on computer files establishes a 4th Amendment expectation of privacy in those files...
Corporate Identity Theft Revisited
Posted on November 19, 2008Last year I did a post in which I speculated on whether we really need corporate identity theft statutes (among other things). As you may know, most identity theft (and identity fraud) statutes make it a crime to steal a real person?s ? a human being?s ? identity...
Identity Theft or Defamation - Revisited
Posted on November 17, 2008A few months ago I did a post on a case from Wisconsin: State v. Baron, 2008 WL 2201778 (Wisconsin Court of Appeals). As I explained in that post, the issue in the case was whether the defendant had committed defamation or identity theft. He was prosecuted for identity theft, but the facts of the case seemed more to establish defamation than identity theft...
Identity "Theft"
Posted on November 14, 2008In a case decided last summer, the U.S. Court of Appeals for the First Circuit considered the level of mens rea ? or intent ? required by the federal identity theft statute. The case is United States v. Godin, 534 F.3d 51 (1st Cir. 2008), and here are the rather unusual facts that led to Cori Godin?s being charged with identity theft: In 2006, Godin defrauded eight banks and credit unions (collectively, the `banks?)...
Not-Harassment (2)
Posted on November 12, 2008Not long ago, I did a post (?Not-Harassment?) on a New York case in which the court threw out harassment charges against an 18-year-old boy who used MySpace to declare his love for a 14-year-old girl. This post is about a somewhat similar decision from an Ohio Court of Appeals...
Too Much Hearsay
Posted on November 10, 2008In several recent posts, I?ve explained what hearsay is and written about how courts apply the exceptions to the rule . . . exceptions that let certain types of hearsay be admitted into evidence. This post is about a case in which the prosecution admitted too much hearsay into evidence, which led to the reversal of a murder conviction...
"Transmit"
Posted on November 07, 2008Section 1030(a)(5)(A) of Title 18 of the U.S. Code makes it a federal crime ?knowingly" to cause the transmission of "a program, information, code, or command. and as a result" intentionally cause "damage" to a computer. (Until September 26, this provision was codified as 18 U...
PCTDD & the 4th Amendment
Posted on November 05, 2008Last year, I did a post in which I talked about the Supreme Court?s decision in Smith v. Maryland, 442 U.S. 735 (1979).In Smith, the government put a pen register -- a device that captures the numbers dialed on a telephone -- on Smith?s home phone. They were investigating him for making harassing calls, and used the data collected by the pen register against him in a prosecution for doing so...
Hashing = 4th Amendment Search
Posted on November 03, 2008On October 22, a federal district court issued what may be a notable opinion in U.S. v. Crist, 2008 WL 4682806 (U.S. District Court - Middle District of Pennsylvania 2008).The issues the opinion addresses were raised by Crist?s motion to suppress evidence seized from his computer...
Not-Hearsay
Posted on October 31, 2008As I noted in an earlier post, every state and the federal system have rules of evidence that bar the use of what?s called ?hearsay.? Rule 801(c) of the Federal Rules of Evidence defines hearsay as ?a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted...
Unlawful Use of Encryption
Posted on October 29, 2008I?ve written a few times about encryption issues; those posts were about legal rules that facilitate or restrict your ability to use encryption to protect your data. This post is about something different: making it a crime to use encryption.Six states ? Arkansas, Illinois, Iowa, Minnesota, Nevada and Virginia ? have statutes that make the ?unlawful use of encryption? a crime...
Textual Child Pornography?
Posted on October 27, 2008About a month ago, I did a post on textual obscenity, which is at least a conceptual possibility under U.S. law. This post is about something different: textual child pornography . . . which I suspect is not a crime under U.S. law. The question came up in the course of a conversation I had a couple of days ago with a reporter from Detroit...
Virtual Divorce = Virtual Murder
Posted on October 24, 2008You?ve probably seen the news stories about the recent virtual murder in Maple Story, a Second Life-style MMORPG. According to these stories, a 43-year-old Japanese woman was ?so angry? about being divorced by her virtual Maple Story husband she murdered his avatar...
Not Cybercrime But . . .
Posted on October 23, 2008Someone was kind enough to send me a link to a news story about a recent decision from a federal district court in Connecticut. It is not a cybercrime case, as such, but it does touch on issues I?ve written about before, so I?d like to review it here...
The Rule of Completeness
Posted on October 22, 2008I got an email from a forensic computer analyst in which he raises some good questions about how a rule of evidence applies to instant messages, comments posted on a blot and comments made during a chat session. I?m going to take a shot at dealing with his questions, but I?d be interested in hearing what others have to say on the issues...
Aiding & Abetting Unauthorized Access
Posted on October 20, 2008About a month ago, I did a post on aiding and abetting the crime of exceeding authorized access to a computer. As I noted there, the exceeding authorized access crime is necessarily committed by an ?insider,? somehow who has authorization to access part of a computer system but intentionally goes beyond the scope of their legitimate access...
EnCase, Consent & Kyllo (2)
Posted on October 17, 2008Someone sent me two really good questions: What about someone who consents to a search of his computer without a warrant, but the officer uses Encase by surprise without telling the owner of the computer first? Does this constitute an illegal search because he used technology not available to the general public without the owner's consent?The questions are a follow-up to my post ?EnCase, Consent & Kyllo...
"Distribution"
Posted on October 15, 2008I?ve done at least one post on the music and movie industries? war against file-sharing. Personally, I think, as I said earlier, that they?re pursuing a strategy that will ultimately prove futile, but they continue to pursue it.Late last month there was an interesting development in a civil suit against an alleged file-sharer...
Business Records Exception
Posted on October 13, 2008As I explained in an earlier post, U.S. law bars the introduction of hearsay evidence unless it falls into one of the exceptions to this basic rule. As I explained in that earlier post, hearsay is ?a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted...
Not-Harassment
Posted on October 10, 2008As I explained in an earlier post, the crime of harassment essentially consists of using telephonic or electronic communications to ?harass, alarm or annoy? another person. This post is about a New York case in which the court dismissed charges of harassment against an 18-year-old boy who professed his love for a 14-year-old girl online...
Absurdity
Posted on October 08, 2008This is to some extent a follow-up to my last post on the Adam Walsh Act, 18 U.S. Code § 3509. As I noted there, the Act requires prosecutors to maintain custody of the digital images of child pornography they intend to use in a prosecution, as long as they give defense experts a reasonable opportunity to examine those images (usually in a federal law enforcement facility)...
18 U.S. Code § 3509(m)
Posted on October 06, 2008If you?ve ever watched old movies about criminal trials, you?ve probably seen the moment when the defense springs its surprise evidence on the prosecution and wins the case. I read a book severalf years ago about Earl Rogers, a famous criminal defense lawyer who practiced in the Los Angeles area around a century ago...
EnCase, Consent & Kyllo
Posted on October 03, 2008This is a follow-up to the post I did on Monday (?Encase and Consent to Search a Computer?). It?s actually a follow-up to the thoughtful and thought-provoking comments sankyu contributed to that post.The issue I raised in my post was whether the police?s using EnCase to search a hard drive ? with the consent of someone who owned/had legitimate access to the hard drive ? violated the 4th Amendment insofar as the search bypassed password protected files on the hard drive...
Private and Not-So-Private Searches
Posted on October 01, 2008An issue that often gets overlooked when we talk about police's searching and seizing property is the role of private citizens in that process. While most of the time it will be police officers -- local, state or federal -- who search for and seize evidence, sometimes private citizens get involved, as well...
Encase and Consent to Search a Computer
Posted on September 29, 2008EnCase, as you may know, is the leading software police officers (and others) use in conducting a computer forensics analysis of a computer. It?s routinely employed by law enforcement; if you're not familiar with it, you can read about it here.In an earlier post I wrote about consent as an exception to the 4th Amendment?s requirement that police obtain a warrant to search a place or a thing, like a computer...
Textual Obscenity?
Posted on September 26, 2008On August 7, Karen Fletcher, a 56-year-old agoraphobic, was sentenced to five years probation after she pled guilty to violating federal obscenity law. According to a story in the Pittsburgh Post-Gazette, she has spent the last seven years in her home, unable to leave...
Power
Posted on September 16, 2008This is what it looks like where I am . . . only much, much worse. Estimates are that between 300,000 and a million people here are without electricity because of an incredibly windstorm on Sunday . . . four hours of sustained winds 60 mph+. I'm one of those people ...
The DOJ and the WTO
Posted on September 12, 2008This post is specifically about the U.S. District Court of Utah?s opinion in U.S. v. Lombardo, 2007 WL 4404641 (2007), but it?s also about how cyberspace often leads to a clash between domestic, national law and international law.The Lombardo case began with a 34-count indictment which charged an assortment of defendants with conspiring to violate the federal RICO act, bank fraud, transmitting wagering information in violation of the Wire Act and money laundering...
Failed Defense: First Sale Doctrine
Posted on September 10, 2008The U.S. Court of Appeals for the Eleventh Circuit recently decided a case involving a conviction under 18 U.S. Code § 2318: U.S. v. Harrison, 534 F.3d 1371 (11th Cir. 2008).The relevant portion of § 2318 provides as follows: Whoever, in any of the circumstances described in subsection (c), knowingly traffics in ...
Zappers and Tax Evasion
Posted on September 08, 2008You may have seen the article in the August 30 edition of the New York Times that discusses the use of ?zappers,? computer software that can be used to siphon cash from a business? receipts. As the Times article explains, zappers are used to alter the electronic sales records in a cash register: If the business is a restaurant, the owner uses the zapper to erase the register?s record of food orders the total cost of which is equivalent to the amount of money the owner has siphoned from the take...
Exigent Search of a Computer
Posted on September 05, 2008This post is about the rule that lets officers seize -- but not search -- evidence, such as a computer, because they believe it would be risky or even dangerous to delay and follow usual procedure.As I?ve explained before, under the 4th Amendment officers must have either (i) a search warrant or (ii) an applicable exception to the warrant requirement in order to conduct a lawful search of someone or of their property or to seize their property...
Aiding and Abetting the Crime of Exceeding Access to a Computer
Posted on September 03, 2008That?s a long title, but I can?t come up with anything shorter that captures what this post is about.Let?s start with the facts in U.S. v. Reyeros, 2008 WL 2924837 (Third Circuit Court of Appeals 2008), the case this post is about:[In 1999, Juan Reyeros asked Hernan Uribe] for help identifying an American company through which ...
Search Incident to Arrest of a Blackberry
Posted on September 01, 2008This post is about whether police can search a Blackberry carried by an arrestee without getting a warrant to do so.That is, it's about what's known as "search incident to arrest."As Wikipedia explains, search incident arrest is a traditional exception to the 4th Amendment?s requirement that police get a warrant before searching a place or a person...
Securing "Places"
Posted on August 29, 2008The picture is a photograph of Hadrian?s Wall, the Wall the Romans built across what is now England. The Romans built it to protect Roman Britain from raids by the Picts, the tribes that inhabited what would become Scotland. It marked the northern boundary of the Roman Empire in Britain, the dividing point between the unsettled outlands and the area encompassed by the Roman Peace, the Pax Romana...
Defamation, Harassment and the First Amendment
Posted on August 27, 2008I?ve written about criminal defamation and harassment before, but here I want to summarize the result in a civil defamation case out of California . . . because it?s a little depressing. Here are the facts, as reported by the California Court of Appeals in Evans v...
Computer Fraud and Conspiracy . . . ?
Posted on August 25, 2008Conspiracy is a traditional common law crime, one that has become very popular in modern U.S. law. Learned Hand, a distinguished federal judge for almost forty years, said conspiracy was ?the darling of the modern prosecutor?s nursery? because it is used so often and in so many ways...
Aggravation
Posted on August 22, 2008You probably missed the story from Brunswick, Ohio that ran a couple of weeks ago: A hacker triggered the city?s 8 emergency warning sirens, so they blared out a false tornado warning. You can read about the hack, and watch a video story about it, via this link...
"Community Standards"
Posted on August 20, 2008In the U.S. and elsewhere, it is a crime to publish ?obscene? material. Obscenity is actually a very recent crime, as crimes go. If you look back in history, especially ancient history, you find that people were not concerned about what we would call obscenity...
Weird Cyberstalking Case
Posted on August 18, 2008I?m again indebted to Magistrate Marcia Linsky of the Allen County (Indiana) Superior Court ? she sent me a link to a news story on what is a pretty weird cyberstalking case.You can find the story in text and video here. One thing that?s interesting about it is that it identifies the victims, but not the perpetrator (maybe for his safety????)...
Hacking a Heart
Posted on August 15, 2008You may have seen the recent news stories about how some researchers have figured out how to hack a heart.Researchers at the University of Massachusetts have figured out how to turn off a pacemaker remotely, using wireless communications. There were a number of news stories about their research last spring, but it got a lot of press recently because they did a DefCon presentation on the heart hack...
An Honest and Stupid Mistake
Posted on August 13, 2008A case from Texas illustrates how people can get caught up in what is known as a Nigerian or a 419 (after a provision in the Nigerian criminal code) scam.The case is Tran v. State, 2007 WL 2050305 (Texas Court of Appeals 2007), and here are the facts:On October 29, 2004, Tran, an engineer for a NASA contractor, opened an account in his son's name at the Johnson Space Center (`JSC?) Credit Union...
Loophole
Posted on August 11, 2008Like a fire escape, a loophole lets us escape from something . . . legal liability, a job assignment we don?t want, etc. In a recent case from the U.S. Court of Appeals for the Federal Circuit, the U.S. government exploited a kind of loophole to avoid being held liable for copyright infringement and for violating the Digital Millennium Copyright Act (the DMCA)...
Missouri's New, Lori Drew Stalking Statute
Posted on August 08, 2008On June 30, Missouri Governor Matt Blunt signed a bill that updates the state?s stalking and harassment statutes. The stalking statute, in particular, seems designed to address the conduct attributed to Lori Drew, the woman who has been (incorrectly IMHO) indicted in the Megan Meier suicide case...
Keystroke Logging
Posted on August 06, 2008As you may know, law enforcement officers sometimes use keystroke loggers: devices that can be installed on a computer and log (record) the keystrokes someone types on it. It?s a way of reconstructing what someone is writing, in emails, etc.This post isn?t about law enforcement?s using a keystroke logger...
Crossing Borders
Posted on August 04, 2008As you may have read, on July 16 the Department of Homeland Security and the office of U.S. Customs issued a ?Policy Regarding Border Search of Information.? You can find a link to the policy in this article on Wired.I did a post a couple of years ago in which I talked about the applicability of the border search exception to the 4th Amendment...
Postscript
Posted on August 01, 2008In my last post I talked about Steven Voneida.He's the student who was convicted of violating 18 U.S. Code § 875(c), which makes it a crime to send a threat via interstate commerce.As I explained in that last post, Voneida was prosecuted for putting a poem about the Virginia Tech shooter and related materials on his MySpace page...
"True Threat"
Posted on July 30, 2008In an earlier post, I talked about the Alkhabaz case, in which a federal court dismissed a charge of using the Internet to transmit a ?threat? to someone. The defendant in that case was charged under 18 U.S. Code § 875(c), which makes it a crime to transmit in interstate commerce ?any communication containing any threat to kidnap any person or any threat to injure the person of another?...
Crime, War and . . . ?
Posted on July 28, 2008I?m reading Jane Mayer?s book, The Dark Side, which is about how the U.S. went seriously off-track in its efforts to pursue Al-Qaeda. I recommend it very highly; it?s revelatory, depressing and infuriating.But this is a blog about cybercrime, not about the so far pretty unimpressive War on Terror...
Complicity
Posted on July 25, 2008As a Chicago television station reported a little over a month ago, for two years the Cook County Sheriff?s office has been targeting the use of Craigslist to facilitate prostitution.According to the story, prostitutes advertise in the ?erotic services? section of Craigslist...
ISP Subscriber Records Private in NJ
Posted on July 23, 2008As I explained last fall, in two decisions issued in the 1970s the U.S. Supreme Court held that we do not have a 4th Amendment expectation of privacy in what are called third-party records. In one of the cases, the Supreme Court held that a man who made calls from his home did not have an expectation of privacy in the numbers he dialed because he ?knowingly revealed? them to the phone company and thereby assumed the risk the company would give them to the police (without the police?s having a search warrant)...
Best Evidence
Posted on July 21, 2008As Wikipedia explains, the best evidence rule is a principle that can be traced back to common law. In an often-cited eighteenth century decision, an English judge noted that evidence was not admissible unless it was ?the best that the nature of the case will allow?...
Photoshop Crime
Posted on July 18, 2008A year ago today, Thailand?s Computer Crime Act, B.E.2550 (2007,) went into effect. If you?re interested, you can find an unofficial translation of the Act here. Most of it is straightforward computer crimes legislation that focuses on offenses like unauthorized access and causing damage to data or computer systems...
Video Voyeurism
Posted on July 16, 2008A New York Criminal Court judge recently dismissed charges of disseminating an unlawful surveillance image that had been filed against Angelo Morriale. According to the court?s opinion, Morriale ?used a camera phone to videotape himself having sexual intercourse with the [victim] on two separate occasions on the same date, without her knowledge, permission, or authority...
Kyllo
Posted on July 14, 2008As I?ve explained in earlier posts, the 4th Amendment to the U.S. Constitution protects citizens from ?unreasonable? searches (and seizures). As I?ve also explained, a search intrudes on a cognizable 4th Amendment expectation of privacy ? what the Supreme Court in Katz v...
Warshak: 6th Circuit Blinks
Posted on July 12, 2008As I explained in an earlier post, last year a decision issued by three of the judges on the Sixth Circuit Court of Appeals held, in effect, that we have a 4th Amendment expectation of privacy in our emails, even when the emails are stored on the servers of our Internet Service Provider...
Lawyer Hacks Email Accounts
Posted on July 11, 2008The West Virginia Supreme Court recently suspended a lawyer for hacking. While this isn?t really a cybercrime case (since he wasn?t facing criminal charges), it?s still a case about hacking. And it raises some interesting legal issues . . . as well as illustrating the various motives that can drive people to do things they know they shouldn?t...
Spam Jurisdiction
Posted on July 09, 2008As I explained in an earlier post, jurisdiction is a court?s power to act in a given case. Law divides jurisdiction into two categories.Subject-matter jurisdiction is a court?s ability to hear and decide a particular kind of case. In the U.S., copyright law is exclusively federal law, so a state court doesn?t have subject-matter jurisdiction to decide a copyright case...
Burglar's Tools
Posted on July 07, 2008As I?ve noted before, many U.S. states (and probably many countries) outlaw the possession of ?burglar?s tools.? Here?s New York?s possession of burglar?s tools statute:A person is guilty of possession of burglar's tools when he possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving forcible entry into premises...
Remote Monitoring of Sex Offenders' Computer Use
Posted on July 04, 2008Once again, I am indebted to Magistrate Marcia Linsky of the Allen County (Indiana) Superior Court for an interesting new decision. It was issued by the U.S. District Court for the Southern District of Indiana in John Doe et al. v. Prosecutor, Marion County, Indiana (Case No...
Computer-Generated Records and Hearsay
Posted on July 02, 2008As I?m sure you know (if you?ve ever watched a fictional trial in a movie or on TV or have ever watched a real-trial on TV or in real-life), the law has rules that define the kinds of evidence that ARE admissible in court and the kind that ARE NOT admissible...
Can You Trust Your Webcam?
Posted on June 30, 2008This is about a case the California Court of Appeals recently decided: People v. Wilkinson, 2008 WL 2441101 (California Court of Appeals, June 18, 2008). The issue in the case is a Fourth Amendment issue, which I?ll get to. Mostly, I want to explain what happened to get Joseph Wilkinson charged with ?unauthorized access and taking of computer data?...
Overreaction?
Posted on June 27, 2008You?ve probably seen the news stories about the two Orange County teen-agers who have been charged with crimes ? lots of crimes ? for hacking into high school computer systems to change grades and cheat on exams. As the Orange County Register reported last Wednesday, one of the students, 18-year-old Omar Khan, has been charged with 69 felony counts; the charges include altering public records, unauthorized access to computers, fraud, burglary, identity theft and conspiracy...
IP Spoofing
Posted on June 25, 2008In an opinion issued a few months ago, a federal district court in Nevada ruled on a defendant?s motion to suppress. The motion challenged whether evidence that an Internet Protocol (IP) address has allegedly been used to access and download child pornography, combined with evidence regarding the IP address subscriber's identity and residential address, is sufficient to provide probable cause to believe that evidence of child pornography will be found at the subscriber's residence...
Prosecuting Minors for Child Pornography
Posted on June 23, 2008I recently ran across an article that raised some of the same issues I?ve been thinking about with regard to charging minors with possessing and disseminating child pornography. You can find that article here.Four years ago, a 15-year-old Pennsylvania girl who allegedly posted ?photographs of herself in various states of undress and performing a variety of sexual acts? online was charged with sexual abuse of children, possession of child pornography and distributing child pornography...
Ninth Circuit on Text-Messaging Privacy
Posted on June 21, 2008Last week, the U.S. Court of Appeals for the Ninth Circuit decided a case that deals with the privacy, or lack of privacy, in text messages sent via a pager. Quon v. Arch Wireless Operating Co., Inc. 2008 WL 2440559 (9th Cir. 2008).The Ninth Circuit docket number is 07-55282; you can use it to find the opinion here...
Hacking Appliances
Posted on June 19, 2008You may have seen the post Tuesday on Security Focus: Compromise by Coffee.In the post, the owner of what I understand is a very expensive coffeemaker says he?s discovered that the coffeemaker, which has the capacity ?to communicate with the Internet via a PC? can be hacked...
Trojan Horse Defense . . . Works
Posted on June 19, 2008A while back, I wrote a post on the Trojan horse defense. It could just as easily be called the ?malware defense,? since it lays the blame for computer-facilitated activity on malicious software.As I explained in that post, the Trojan horse defense came to public notice back in 2003, when UK citizen Aaron Caffrey was prosecuted in Britain for a hack attack that shut down the Port of Houston in the U...
Searches Must Stay within the Scope of the Warrant
Posted on June 17, 2008As I?ve noted before, the 4th Amendment prohibits ?unreasonable? searches and seizures, and a search or seizure will be ?reasonable? if it is conducted pursuant to a warrant.The 4th amendment is interpreted as incorporating a preference for searches that are conducted pursuant to a search warrant, so that?s pretty much the best way for law enforcement officers to ensure that a search is constitutional...
Insider Attacks: School as Target
Posted on June 15, 2008As I was checking legal databases to see what?s new in cybercrime, I found an opinion involving an insider attack.In the opinion, the court rejects a defendant?s request to vacate the sentence it imposed after he pled guilty to ?unauthorized computer intrusion ...
Harassing or Threatening Text Messages
Posted on June 13, 2008Until very recently, South Dakota had a telephone harassment/threat statute that looked pretty much like similar statutes in other states.Here is what it said:It is a Class 1 misdemeanor for a person to use a telephone for any of the following purposes:(1) To call another person with intent to terrorize, intimidate, threaten, harass or annoy such person by using obscene or lewd language or by suggesting a lewd or lascivious act;(2) To call another person with intent to threaten to inflict physical harm or injury to any person or property;(3) To call another person with intent to extort money or other things of value;(4) To call another person with intent to disturb him by repeated anonymous telephone calls or intentionally failing to replace the receiver or disengage the telephone connection...
Breathalyzer Source Code
Posted on June 11, 2008This post isn?t about cybercrime. It?s about a kind-of digital evidence issue: a defendant?s right to obtain the source code of technology used to generate evidence against him or her.The issue can, and will, I believe, come up in a variety of contexts, including the use of particular software programs to analyze seized hard drives and otherwise locate digital evidence...
Notes on Cyberwarfare
Posted on June 09, 2008I don?t know about you, but I often see news stories and features that talk about cyber-warfare.They seem generally to fall into two categories: (i) those that, IMHO, grossly exaggerate the likely nature and consequences of cyberwar; and (ii) those that take completely the opposite approach and essentially deny it?s possible...
CD-ROM Not a "Computer"
Posted on June 07, 2008As I explained in an earlier post, 18 U.S. Code § 1030, which is the basic federal computer crime statute, also creates a private cause of action for people who were injured by criminal conduct in violation of § 1030. This essentially means that a victim of a federal computer crime can sue the victimizer, seeking ?compensatory damages? and/or injunctive relief (I...
Identity Theft or Defamation?
Posted on June 05, 2008A recent Wisconsin case illustrates how identity theft can incorporate elements of defamation while remaining a separate and distinct offense.The case is State v. Baron, 2008 WL 2201778 (Wisconsin Court of Appeals). The case's docket number is 2007AP1289-CR; you can use it to find the opinion on the Court of Appeals? website, if you like...
Email and the Marital Privilege
Posted on June 03, 2008As you may know, in the U.S., people who are married enjoy the marital privilege, an evidentiary privilege that actually has two aspects.The marital privilege encompasses (i) the marital confidences privilege and (ii) the spousal testimonial privilege...
"Plain View"
Posted on June 01, 2008The plain view doctrine is a principle that essentially can expand the scope of a lawful Fourth Amendment intrusion. As I?ve explained before, the Fourth Amendment creates a right to be free from ?unreasonable? searches and seizures. A search violatea a legitimate expectation of privacy (police unlawfully come into my home, for example), while a seizure violates a legitimate interest in the possession and use of my property (police seize my laptop without a warrant or any justification, for example)...
Authenticating Evidence (E-mail)
Posted on May 30, 2008One of the things the prosecution must do in order to be able to introduce items into evidence at trial is to ?authenticate? them, i.e., be able to show they are what they purport to be. A recent Ohio Court of Common Pleas case illustrates the approach one court took to authenticating emails...
Misprision
Posted on May 28, 2008I recently ran across a case from last year in which a lawyer pled guilty to misprision of a felony for destroying ?a laptop containing pornographic images of children?. Alison Leigh Cowan, Lawyer Admits Destroying Evidence of Pornography, New York Times (September 28, 2007)...
P2P ID Theft
Posted on May 26, 2008The use of peer-to-peer file-sharing networks to steal people's identities is not anything new.A Google search shows people have been writing about it for at least two years.P2P identity theft has gotten more publicity lately, since the first person to be convicted of using file-sharing networks for identity theft was sentenced by a Seattle federal judge a couple of months ago...
"Crime" vs. "Cybercrime"
Posted on May 24, 2008This is a follow-up to Atis? comments on my last post, the one about the woman who was prosecuted for ?computer crime? after she allegedly called into an automated unemployment office system and falsely indicated that she wasn?t working when, in fact, she was...
Computer Crime??
Posted on May 22, 2008On May 15, the Colorado Court of Appeals decided People v. Rice, 2008 WL 2053490, which, IMHO, is an odd "computer crime" case.(The opinion doesn't seem to be online -- yet?-- at the Colorado Court of Appeals site, I'm afraid.)Here are the facts that led to the defendant?s ? Nina Rice?s ? being charged with and convicted by a jury of ?computer crime? under Colorado law:[D]efendant made biweekly unemployment benefits claims by calling an automated phone system, the CUBLine, maintained by the Department...
Sentencing: "Harm" and Punishment
Posted on May 21, 2008This post is about how we decide what kinds of penalty to impose on someone who commits a cybercrime. Part of the problem in reconciling the "harm" the person committed (which can be actually or potentially very severe) with their personal characteristics (e...
Imposture (Revisited)
Posted on May 19, 2008At the end of 2006, I did a post on online imposture. In that post, I was talking about pretending to be someone else by posting information or messages in their name. I was primarily concerned with whether that would qualify as defamation and, if so, if that would provide the victim with adequate redress...
Harassment, MIddle School Style
Posted on May 18, 2008I?ve written recently ? and not so recently ? about how the law deals with people who "annoy, alarm and harass" each other, but that post, and an earlier one, were both about adult conduct.Magistrate Marcia Linsky of the Allen County (Indiana) Superior Court sent me a link to a recent opinion from the Indiana Supreme Court that deals with a very different kind of harassment...
Having Absolutely Nothing To Do With Cybercrime
Posted on May 17, 2008A friend of mine just sent me the link to a recent decision issued by the U.S. Court of Appeals for the Seventh Circuit.It?s an appeal in a civil case and has nothing to do with cybercrime. It does involve some First and Fourth Amendment claims but, all in all, it's not the kind of case students go to law school to handle...
Why?
Posted on May 16, 2008I assume everyone has seen the stories about the indictment in the Megan Meier suicide case. I did a post on the case last fall, because it at once outraged and mystified me.(How could an adult get involved in all this?)If you want a review of the facts and my take on the permissibility (not) of charges, check out that earlier post...
Searching a Pastor's Computer
Posted on May 14, 2008In State v. Young, 974 So.2d 601 (Fla. App. 2008), a Florida court of appeals had to decide whether a search of a minister?s office was valid under the Fourth Amendment. As I?ve mentioned before, consent is an exception to the Fourth Amendment?s warrant requirement...
Faithless Friends and Good Faith Mistakes
Posted on May 14, 2008This post is based on some questions that were emailed me . . . questions about a private citizen searching your private property, finding evidence and then taking it to the police. The questions and my thought on each follow. B gives C access to a computer server containing illicit materials...
Ineffective Assistance of Counsel
Posted on May 13, 2008A while back, I did a post on the Trojan horse defense, which is basically a cyber-version of an old defense: Some Other Dude Did It, or the SODDI defense. In this post, I want to talk about how a defense lawyer?s failure to raise a similar defense was found to constitute ineffective assistance of counsel...
"Counts" and "Crimes"
Posted on May 11, 2008This is a follow-up to my last post, which talked about a prosecutor?s discretion in deciding how many charges to file against a defendant. In that post, I talked a bit about how the prosecutor in that case increased the number of charges against Mr...
Prosecutorial Discretion, Charges & Sentences
Posted on May 07, 2008In this post, I want to talk about the discretion a prosecutor has in deciding what ? or, more precisely, how much ? to charge someone with. I also want to talk about how that decision can impact on the sentence a convicted defendant receives. To do that, I want to use a recent decision of the Second District of the Ohio Court of Appeals: State v...
Privacy: Our Responsibility?
Posted on May 06, 2008Last October I wrote about how, and why, encrypting the contents of our emails would guarantee that they are ?private? under the 4th Amendment, for the same reasons sealed letters sent through the mail are ?private.?As I mentioned in that post, a three-judge panel of the Sixth Circuit Court of Appeals held, in June of last year, that the contents of emails stored with an ISP are ?private,? notwithstanding the fact that they have not been encrypted...
Texas Online Harassment Statute Held Unconstitutional
Posted on May 06, 2008In 2005, Nikolai Ivanov Karenev was charged with using email to harass his wife, Elena. He was, more precisely, charged with one count of harassment by means of an electronic communication. Karenev v. State, ___ S.W.3d ___, 2008 WL 902799 (Tex. App...
(More) Hard Drive Questions
Posted on May 04, 2008This is a follow-up to the last post I did, which was on how the use of P2P file-sharing networks can impact on whether someone has a reasonable expectation of privacy in the files on their hard drive.For what a reasonable expectation of privacy under the 4th amendment is and why it matters whether you have one, see the post just before this one...
Using P2P Networks to Search Hard Drives: 4th Amendment Issues
Posted on May 03, 2008Someone emailed me to ask if it is a 4th Amendment ?search? for a law enforcement officer to use P2P networks -- such as LimeWire -- to access files on a hard drive that have been marked ?NOT TO BE SHARED?.It?s a very good question, one I have debated with people at various meetings and with students in my classes...
Borders and Laptops: U.S. v. Arnold
Posted on May 03, 2008First, I apologize for having been MIA for so long. It was due to a combination of things, classes, outside commitments, travel, etc. . . . basically not having the ability to turn down interesting things.Second, I?m doing this post because I got an email from someone who?s read what I?ve written about laptop searches and who wondered what my take is on the 9th Circuit Court of Appeals? recent decision in U...
My New Book
Posted on February 17, 2008At the end of December, Oxford University Press published my new book: Law in an Era of ?Smart? Technology. It's for sale on Amazon, among other places. It?s a difficult book to describe. Essentially, what I set out to do is to figure out why we keep adopting what are usually called technologically specific laws...
Mea Culpa
Posted on February 17, 2008My apologies for not having posted anything for so long.It's been due to a combination of things: travel, finishing up a big writing project, personal things, weather, law school commitments, external projects, etc., etc. But I'm back now, and I plan to be posting as regularly as I was last year...
Court upholds using the Fifth Amendment to refuse to disclose your password
Posted on December 15, 2007The U.S. District Court for the District of Vermont has held that you can invoke the Fifth Amendment privilege against self-incrimination and refuse to give up the password you have used to encrypt data files.Here are the essential facts in United States v...
"Consent to Assume Online Presence"
Posted on December 12, 2007I just ran across something I?d not seen before: a law enforcement (FBI) form called ?Consent to Assume Online Presence.?Before I get to the form, what it does and why it?s new to me (anyway), I should explain what I mean by ?consent.?As I wrote in an earlier post, the Fourth Amendment creates a right to be free from ?unreasonable searches and seizures...
Law and the 3D Internet
Posted on December 08, 2007Over the last month or three, I?ve read several news stories about how IBM and Linden Labs, along with a number of IT companies, are working to develop ?avatar interoperability.??Avatar interoperability,? as you may know, means that you, I or anyone could create an avatar on Second Life and use that same avatar in other virtual worlds, such as HiPiHi or World of Warcraft or Entropia...
Criminal liability for unsecured wireless networks?
Posted on December 08, 2007I just received this email (from a source that will remain anonymous):Good afternoon,I have a wireless router (WiFi) which for technical reasons I won?t bore you with, has no encryption. If a third party were to access the internet via my unencrypted router and then commit an illegal act, could I be held liable? I?m not sure if this question in anyway broaches your area of expertise and if not please excuse the intrusion...
Defrauding a machine
Posted on December 02, 2007A recent decision from the United Kingdom held that it is possible to defraud a machine, as well as a human being.The case is Renault UK Limited v. FleetPro Technical Services Limited, Russell Thoms (High Court of Justice Queen?s Bench Division) (November 23, 2007), [2007] EWHC 2541...
The Stop Terrorist and Military Hoaxes Act of 2004
Posted on November 21, 2007I?d somehow overlooked this one.This statute, which was added to the federal code in December of 2004 by § 6702(a) of Title VI of Public Law # 108-458, criminalizes disseminating hoax information about possible terrorist or military attacks.It's codified as 18 U...
Fradulently obtaining a website?
Posted on November 19, 2007When someone is hired to create a website for a business, does so, turns it over to the business but isn?t paid for their work, who owns the site . . . the website creator or the business that contracted for it?That?s the issue the New Mexico Supreme Court addressed in State v...
Causing suicide (again)
Posted on November 17, 2007A few months ago I did a post about whether someone could be held criminally liable for causing another person to commit suicide.In that post I primarily focused on whether it would be possible to hold a person criminally liable if the prosecution could show that this was their purpose, i...
Privacy and anonymity
Posted on November 17, 2007As you may have read, Donald Kerr, a deputy director of national intelligence, said last week Americans need to re-think their conception of privacy. He said privacy will no longer mean anonymity but will, instead, mean that government and the private sector will have to take appropriate steps to ?safeguard people?s private communications and financial information...
Virtual child pornography -- the product?
Posted on November 03, 2007Some may find this posting offensive or even disturbing. I?m going to explore some scenarios that might ensue from the current state of U.S. law on child pornography.I?m not arguing that these or any scenarios will come to pass . . . . I'm just working through the logical possibilities, based on the current state of U...
Bonnie & Clyde and Cybercrime
Posted on November 01, 2007I spoke at a conference in Italy last week; after I spoke I got a question from a member of the audience. His question, which went to how and why we in the U.S. federalize certain crimes, made me think about a part of our history in a way I had not done before...
A law of cyberspace
Posted on October 16, 2007I?ve heard many people complain about the fact that law in cyberspace is a mess: different laws in different countries (and different laws in different parts of countries, as with the U.S. states), laws that conflict, laws that seem to make no sense when they are applied to online activity, etc...
Envelopes and encryption
Posted on October 12, 2007As I?ve mentioned, last June the U.S. Court of Appeals for the Sixth Circuit held, in United States v. Warshak, that Americans have a reasonable expectation of privacy in the contents of emails they have stored on an ISP?s servers. (If the Warshak link doesn?t work, you can find it by going to http://www...
Booze and bytes
Posted on September 29, 2007We were talking in my cyberspace law class about the DMCA and the recording and movie industries? war on file-sharing. Specifically, we were talking about whether our current system for controlling the ownership and use of intellectual property makes sense in a world in which such property generally ceases to be tangible and instead becomes digital...
GPS detectors, jammers & spoofers
Posted on September 23, 2007On Friday, I spoke to a group of lawyers about various issues in criminal law and technology. One of the issues we talked about is the police's use of Global Positioning System (GPS) devices to track people?s movements. (GPS devices are used by private parties, as well, but my focus here is on criminal matters, so I?m only going to deal with the government?s use of them...
Fourth Amendment privacy: IP addresses & URLs
Posted on September 22, 2007In United States v. Forrester, 2007 WL 2120271 (9th Circuit 2007), the Ninth Circuit Court of Appeals considered whether a defendant had a Fourth Amendment expectation of privacy in the ?to and from addresses? of his email messages, the addresses of the websites he visited and the ?total amount of data transmitted to or from? his Internet account...
Fourth amendment privacy and websites
Posted on September 22, 2007In United States v. D?Andrea, 497 F. Supp. 117 (D. Mass. 2007), a federal district court was asked to decide if the police's accessing a password-protected website was a ?search? under the Fourth Amendment.Under the Fourth Amendment, police must have either a search warrant or an exception to the warrant requirement, such as consent of someone with authority to allow the search, for a search to be ?reasonable? under the Constitution...
Virtual world, virtual cops
Posted on August 28, 2007I was chatting with a friend the other day ? a former police officer, who now works in the area of computer crime. We were talking specifically about virtual worlds like Second Life and, basically, about whether they may evolve their own law enforcement presence...
Cyberconflict
Posted on August 21, 2007We have all, I'm sure, seen news stories about an incident of "cyber war," which turns out to have been something else . . . crime or terrorism.I want to talk a bit about why I think those errors occur . . . and what I think we need to do to avoid them...
Anti-GPS technology
Posted on August 05, 2007You may have heard about these ? devices that block (purport to block?) GPS tracking devices installed on vehicles. Here?s the description of one such product, available on Chinavasion:small sized Anti GPS Tracking Device, powered by and for use with any car that has a standard Cigarette Jack for power and supplys 12V ...
Identity theft case fails due to coerced confession
Posted on July 29, 2007You may have seen the story that came out a few days ago about how a man who stole the identity of Todd Davis, CEO of the LifeLock company and used the information to get a $500 loan. The man, who has never been identified, had obtained Davis? name and Social Security number ...
How long can the government keep seized computers"
Posted on July 23, 2007I got a really good question not too long ago (it?s taken me too long to respond, I?m afraid): How long can the government keep the computers it seizes in a criminal investigation? It?s a very good question because, as I thought about it and did a little research, the answer seems to be a variation of ?it depends? and ?beats me...
Forthwith subpoenas
Posted on July 17, 2007"`Forthwith' subpoenas should be used only when an immediate response is justified and then only with the prior approval of the United States Attorney."U.S. Department of Justice, U.S. Attorney?s Manual section 9-11.140.Following up on a my relatively-recent post about grand jury subpoenas for computer hardware and data, I want to talk a bit about a different kind of grand jury subpoena: a forthwith subpoena...
Owning "hacker tools" is now a crime in Germany
Posted on July 09, 2007As you may have seen, the German Parliament made certain revisions to the German criminal code, one of which added a new section 212c StGB. According to the only (unofficial) translation I can find right now, it provides roughly as follows:Whoever prepares a crime according to §202a or §202b and who creates, obtains or provides access to, sells, yields, distributes or otherwise allows access to * passwords or other access codes, that allow access to data or * computer programs whose aim is to commit a crimewill be punished with up to one year jail or a fine...
Subpoenas for computers and data
Posted on July 04, 2007I?ve talked a lot about Fourth Amendment constraints on law enforcement officers? ability to search for and seize computer equipment and data. That?s one of the two models of criminal investigation we have in the United States. Today, I want to talk about the other model and how it operates with regard to the government?s obtaining computer equipment and data stored on that equipment...
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