Academic

Text Messages and the SODDI Defense

Posted on June 28, 2010
As Wikipedia explains, the SODDI (?Some Other Dude Did It?) defense is often used when there is no question that a crime occurred, such as in murder or assault cases, where the defendant is not asserting self-defense. The SODDI defense in a murder, rape or assault case is often accompanied by a mistaken identity defense and/or an alibi defense...

Gigatribe and the 4th Amendment

Posted on June 25, 2010
As I?ve noted in earlier posts, courts have consistently rejected defendants? claims that it is a ?search? under the 4th Amendment for a law enforcement officer to use file-sharing software, such as LimeWire, to locate child pornography on someone?s hard drive...

ID Theft and Threatening the VP

Posted on June 23, 2010
I?m sure you?ve see the stories about Barry Ardolf, the Minnesota man who is accused, as Wired notes, of ?hacking into his neighbor?s computer and sending a threatening e-mail to Vice President Joe Biden?. Ardolf had apparently entered into a plea deal with prosecutors under which he would serve 2 years, but abandoned the deal earlier this week...

The Performance of Official Duty Defense

Posted on June 21, 2010
Maybe you?ve heard of this defense? . . . I hadn?t until I read the case this post is about. The case is U.S. v. Flynn, 2010 WL 1782157 (U.S. District Court for the District of South Dakota 2010), and this is all I know about how it arose and the issues it involves: [Leo Flynn] has been indicted on one count of possession of child pornography, in 18 U...

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State Action and the 4th Amendment

Posted on June 18, 2010
As I?ve noted in earlier posts, the 4th Amendment?s prohibition on ?unreasonable? searches and seizures only applies to ?state action,? i.e., to searches and/or seizures that are carried out by law enforcement officers or others who are acting on behalf of the federal government or a state government...

Best Evidence Rule and Digital Copies

Posted on June 16, 2010
I?ve done a few posts that discussed the best evidence rule and digital copies of documents, such as emails. The rule has historically focused only on documents. As Wikipedia notes, the rule can be traced back at least as far as the 18th century...

Charges Dismissed for Not Giving Defense Expert Access to Child Pornography

Posted on June 14, 2010
As I explained in a post I did a couple of years ago, in 2006 Congress adopted the Adam Walsh Act, which added § 3509(m) to Title 18 of the U.S. Code. As I explained, § 3509(m) basically creates an exception to the rules of ?discovery,? i...

"Disrupting Public Services"

Posted on June 11, 2010
This post is about a crime you may not have heard of: disrupting public services. More precisely, it?s about someone who was convicted of committing this particular crime based on his having ?purposely or knowingly damage[d] an operable cell phone, thereby rendering it inoperable...

Witness Intimidation?

Posted on June 09, 2010
As Wikipedia explains, witness intimidation consists of threatening or pressuring witnesses not to testify. This post is about a case in which a defendant charged with child molestation claimed that law enforcement officers had intimidate the computer expert he was going to use at trial, causing the expert not to testify...

Time Period for Seizing Computers

Posted on June 07, 2010
As I noted in an earlier post, the Federal Rules of Criminal Procedure (and comparable provisions of state law) specify a period within which a search warrant must be ?executed.? ?Executing? a search warrant means that the officers do what it authorizes them to do which, in a cybercrime case, is usually finding, seizing and then searching one or more computers...

"One-Act, One-Crime"

Posted on June 04, 2010
A couple of years ago, I did a post in which I explained that in a charging document, like an indictment or an information, each ?charge? ? each accusation that the defendant committed a specific ?crime? ? must be set out in a separate and distinct ?count? of the charging document...

MySpace Evidence Not Authenticated But . . .

Posted on June 02, 2010
I did a post last fall on the process involved in authenticating content posted on social networking sites ? like MySpace ? so it can be deemed admissible in court. In that post I explained that authenticating evidence simply means that the proponent of the evidence (the party trying to get it introduced) must show that it is what it is claimed to be...

Child Pornography and Criminal Forfeiture

Posted on May 31, 2010
This post is about a forfeiture order entered in a federal child pornography prosecution. As Wikipedia explains, asset forfeiture is a term used to describe the confiscation of assets, by the state, which are either (a) the proceeds of crime or (b) the instrumentalities of crime...

Thumb Drives, the 4th Amendment and Inadvertence

Posted on May 28, 2010
This post is about a case that raises two 4th Amendment issues ? consent to seized and/or search property and exigent circumstances ? in a rather unusual context. As I?ve noted in earlier posts, both doctrines are exceptions to the 4th Amendment?s requirement that law enforcement officers obtain a search warrant before searching for and seizing evidence...

Metadata and the 5th Amendment Privilege

Posted on May 26, 2010
As I?ve explained in earlier posts, the U.S. Supreme Court has held that (1) You can?t claim the 5th Amendment privilege against self-incrimination as the basis for refusing to provide the government with physical evidence by, say, handing over the drugs in your pocket or letting a law enforcement officer take a sample of your DNA or of your blood because the privilege applies to ?testimony,? not to physical evidence...

Contempt and the Demise of "Virtual Presence"

Posted on May 24, 2010
This is a follow-up to a post I did about a month ago. That post dealt with Chicago U.S. District Court Judge Robert Gettleman?s holding a litigant in criminal contempt for basically having a spam email attack launched at the judge. When I wrote that post, the litigant ? Kevin Trudeau ? had appealed Judge Gettleman?s order to the U...

Administrative Subpoenas and the 4th Amendment

Posted on May 21, 2010
This post is about a recent decision from the U.S. Court of Appeals for the 4th Circuit that addressed the use of administrative subpoenas in online investigations. The case is U.S. v. Bynum 2010 WL 1817763 (2010) and this is how it arose: On July 8, 2003, FBI Agent Zack, working undercover and using an informant's password, entered a child-pornography online chat group administered by Yahoo! Inc...

Malware and Search Warrant

Posted on May 19, 2010
A recent decision from a federal district court addresses an issue I hadn?t seen before: whether searching malware on the suspect?s computer was outside the scope of the search warrant issued for that computer. It seems a narrow issue, and unfortunately the opinion issued in the case doesn?t tell us a whole lot about what happened; but I thought the issue was worth writing about, if only to note that it arose...

Jurors Going Online . . . Again

Posted on May 17, 2010
As I?ve noted in earlier posts, it?s improper ? misconduct, in fact ? for jurors to conduct their own research into factual matters at issue in the case they're going to decide. As I noted, the reason this is not allowed is because it can distort and thereby undermine the fairness of the process...

Enhancement for Mass Marketing

Posted on May 14, 2010
This post is about a sentencing issue that arose in a federal cybercrime case. Before I get to the case itself, I need to provide a little background on federal sentencing law and practice. As Wikipedia explains, the federal government uses what is known as guideline sentencing...

Scope of Consent Issue

Posted on May 12, 2010
As I explained in a post I did several years ago, consent is one of the exceptions to the 4th Amendment?s warrant requirement. Like the other exceptions, consent lets an officer search for and/or seize evidence without first obtaining a search (and seizure) warrant...

Postcards, Emails and Unauthorized Access

Posted on May 10, 2010
As I?ve noted in earlier posts, lawyers sometimes analogize emails to postcards. As I?ve also noted, prosecutors often do this when they?re arguing that emails aren?t entitled to as much 4th Amendment protection as are sealed letters sent through the mail...

Software and the Transportation of Stolen Goods

Posted on May 07, 2010
In 2008, Mohammad Reza Alavi was indicted on 4 counts of violating several provisions of the federal code. U.S. v. Alavi, Superseding Indictment, 2008 WL 6914701 (U.S. District Court for the District of Arizona 2008). Three of the counts ? illegal export under 17 U...

Ratemycop.com

Posted on May 05, 2010
Maybe you?re familiar with the Ratemycop.com website. It?s been around for . . . what? . . . several years, I think. Here?s how the site describes itself: RATEMYCOP.com is a privately-held company based in Los Angeles. The website allows registered users to leave written feedback about their interactions with police officers, and rank the officer's service based on three criteria: Professionalism, Fairness and Satisfaction...

Peer Spectre?

Posted on May 04, 2010
This isn?t a post. It?s essentially a response to an email. This morning, I received an email from someone who had heard about law enforcement?s using a program called Peer Spectre. The email said the author had heard about the program which, according to reports from some source(s), lets law enforcement officers see what files are on a suspect's hard drive even if they have file sharing turned off...

"Duplicating" versus "Receiving"

Posted on May 03, 2010
This post is about a recent decision from the Arizona Court of Appeals: State v. Windsor, 2010 WL 1215064 (2010). A jury convicted Paul Windsor of 5 counts of sexual exploitation of a minor in violation of Arizona Revised Statutes § 13-3553(A)(1)...

Laptops and the Vehicle Exception

Posted on April 30, 2010
As I explained in a post I did last fall, the vehicle exception is one of the principles that lets law enforcement officers search a place and seize evidence without first obtaining a search (and seizure) warrant. As I noted in that post, the vehicle exception dates back to 1925, when the U...

Passwords and the 5th Amendment Privilege

Posted on April 28, 2010
In two earlier posts I analyzed Sebastien Boucher?s efforts to rely on the 5th Amendment privilege against self-incrimination as his justification for refusing to give law enforcement officers the key used to encrypt part of the files on his laptop...

"Telecommunications Device"

Posted on April 26, 2010
Several years ago, I did a post dealing with one of the offenses created by 47 U.S. Code § 223. In it, I focused on the statute?s apparently making it a federal crime to use a ?telecommunications device? to transmit communications with the ?intent to annoy, abuse, threaten, or harass? any person who ?receives the communications...

MySpace Page as Impeachment Evidence

Posted on April 23, 2010
Last fall I did a post on authenticating MySpace content as evidence that could be admitted at a trial. I?ve also noted other issues concerning the authentication of MySpace pages and similar online content. This post is about another evidentiary issue that can arise when MySpace content is offered as evidence in a judicial proceeding...

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