Academic

Wi-fi Privacy?

Posted on February 12, 2010
A recent decision from a federal district court in Oregon addressed the 4th Amendment?s applicability to information sent over an unsecured wireless network. The case is U.S. v. Ahrndt, 2010 WL 373994 (U.S. District Court for the District of Oregon 2010), and the opinion contains the court?s ruling on a motion to suppress...

BDSM and Prosecutorial Misconduct

Posted on February 10, 2010
As I explained in a post I did a while back, law enforcement officers (assisted, for a while, by NBS?s Chris Hansen) often run ?sting? operations that are designed to catch predators. As I noted in that post, the sting takes the form of having a law enforcement officer (an adult, obviously) log into likely chat rooms and pretend to be a minor (usually female, but sometimes they pretend to be a male)...

Kidnapping and Ransomware

Posted on February 08, 2010
This post is about an old phenomenon that?s been back in the news lately: ransomware. Wikipedia defines ransomware as ?malware which holds a computer system, or the data it contains, hostage against its user by demanding a ransom for its restoration...

Plagiarism, Copyright and Computer Crime

Posted on February 05, 2010
This post is about a decision from the U.S. Court of Appeals for the Fourth Circuit that was issued in the civil case of A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (2009) [A.V. v. iParadigms]. Before we get to the facts of the case, I want to note the causes of action that were at issue in it...

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Bad Idea

Posted on February 03, 2010
Maybe you saw the stories recently about comments that were made at a recent World Economic Forum debate on cyberwarfare. As one of them notes, Hamadoun Toure, Secretary General of the International Telecommunications Union, proposed a treaty in which countries would pledge not to attack each other without having been attacked...

Extortion?

Posted on February 01, 2010
As I explained in an earlier post, extortion is a type of theft; but instead of simply taking someone else?s property away from them, the extortionist uses threats to force the owner of the property to hand it over to him/her. As I noted in that earlier post, the Model Penal Code ? a template of model criminal laws drafted by the American Law Institute ? defines extortion as ?purposely obtain[ing] property of another by threatening to inflict bodily injury on anyone?...

"Computer Tampering" as Exceeding Authorized Access

Posted on January 29, 2010
As I?ve noted in earlier posts, federal and state statutes criminalize two kinds of unlawful ?access? to a computer: the ?outsider? crime (unauthorized access, i.e., the person is not authorized to have any access to the computer or computer system); and the ?insider? crime (exceeding authorized access, i...

Attorney-Client Privilege & U.S. Department of Justice Emails

Posted on January 27, 2010
As I?ve noted before, it?s far from clear that we have a 4th Amendment expectation of privacy in emails we leave stored on an ISP?s servers. As I?ve also noted, there?s a good argument that unless we encrypt our emails, we ?knowingly expose? them to the ISP?s employees, thereby forfeiting any 4th Amendment expectation of privacy in them...

Emails, Interception and Private Actors

Posted on January 25, 2010
This post is about a case that raised issues I?ve discussed in prior posts that arise in a rather unique context. But before we get to the issues, I need to note how the case arose. The case is People v. Theobald, 2009 WL 5062033 (California Court of Appeals 2009)...

SHA-1 Hash Values and Defense Motions

Posted on January 22, 2010
Using Westlaw, I find six reported cases that mention SHA-1 hash values. Three merely note that the United States ?adopted the SHA-1 has algorithm . . . as a Federal Information SMWgo2 Processing Standard.? U.S. v. Schmidt, 2009 WL 2836460 (U...

P2P Software and 4th Amendment "Standing"

Posted on January 20, 2010
This is a follow up to a post I did last year, which also dealt with ?standing? to raise a claim that law enforcement officers violated someone?s rights under the 4th Amendment. As Wikipedia notes, ?standing? is a term that refers to a party?s ability to ? demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...

Hash Values and 4th Amendment Particularity

Posted on January 18, 2010
A defendant in a federal child pornography case made an interesting argument recently. The case is U.S. v. Farlow, 2009 WL 4728690 (U.S. District Court for the District of Maine 2009), and here is how it arose: On March 1, 2007, March 8, 2007, and April 14, 2007, Nassau County Detective Peter Badalucco, posing as a 14 year old teenager, `Chris?, received sexually suggestive emails from a person using the AOL screen name `FarlowMeCasa?, that included explicit sexual advances and a request for an in-person meeting...

Cyberbullying

Posted on January 17, 2010
A former student and I recently published an article on cyber bullying in the First Amendment Law Review.The article grew out of a presentation I made at the First Amendment Law Review's symposium on cyber bullying and related issues, which was held last spring...

Clocks

Posted on January 15, 2010
The accuracy and other admissibility of records generated by clocks on computers has come up in a surprising number of reported cases. I can?t discuss all of them, but I?m going to note a few that deal with what I think are representative issues involving clocks...

Authenticating Blog Postings

Posted on January 13, 2010
This post is about a civil. I?m writing about the case because it raises an interesting issue with regard to authenticating evidence. As I?ve noted in several posts, for a prosecutor or defense attorney (or for a plaintiff?s or civil defendant?s lawyer) to introduce evidence, it has to be ?authenticated,? i...

The 4th Amendment and U.S. Citizens Abroad

Posted on January 11, 2010
This post is about a case in which a U.S. citizen claimed that a search conducted in Thailand primarily by Thai police violated his rights under the 4th Amendment. The case is U.S. v. Stokes, 2009 WL 4894600 (U.S. District Court for the Northern District of Illinois 2009)...

Encryption and the Execution of Computer Search Warrants

Posted on January 08, 2010
This post is about a recent decision from a federal court in Texas: U.S. v. Kim, 2009 WL 5185389 (U.S. District Court for the Southern District of Texas 2009). This opinion contains the court?s ruling on the arguments Steven Kim made in support of his motion to suppress evidence found on computers and hard drives seized from his home in Houston...

"Electronic Storage" versus "Storage"

Posted on January 06, 2010
This post is about a recent federal district court opinion parsing certain of the elements of the Electronic Communications Privacy Act (ECPA). As Wikipedia notes, ECPA was adopted in 1986 ?to extend government restrictions on wire taps from telephone calls to include transmissions of electronic data by computer...

Emails, Murder and the Physician-Patient Privilege

Posted on January 04, 2010
This post is about whether the physician-patient privilege applied to emails that were evidence in an Ohio murder case. As a Michigan court explained, the purpose of the ?privilege is to protect the confidential nature of the physician-patient relationship and to encourage the patient to make a full disclosure of symptoms and conditions...

Grand Jurors, Technology and Juror Misconduct

Posted on January 01, 2010
As I?ve noted in earlier posts, it?s improper for trial jurors to use the Internet (or any other resource) to investigate the facts or law at issue in the case they?re going to decide. As I noted, the reason it?s improper for trial jurors to conduct their own investigation ? with or without technology ? is that trial jurors are supposed to be passive and impartial...

Cyber Pimping

Posted on December 30, 2009
After being convicted of pimping and pandering in violation of California law, Michael Cason appealed. People v. Cason, 2009 WL 4548313 (California Court of Appeals 2009). He raised several issues on appeal, but we?re only concerned with one, which I?ll get to in a minute...

The Petite Policy

Posted on December 28, 2009
This post deals with issues similar to those I addressed in an earlier post. That is, it also deals with a defendant who sought to have federal charges dismissed on the grounds that they improperly duplicated the substance of charges brought earlier, by another sovereign...

Steganography?

Posted on December 25, 2009
I?ve done a few posts in which I speculate about the state of the law in a particular area involving law and technology. This post, I?m afraid, is going to be even more inconclusive. For a long time I?ve been looking for a good steganography case, by which I pretty much mean a reported (or unreported) decision in which a court addresses a stego issue...

Double Jeopardy and Dual Sovereignty

Posted on December 23, 2009
As I may have noted, the Double Jeopardy clause of the Fifth Amendment to the U.S. Constitution says ?[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb.? As Wikipedia explains, the clause is intended to ?limit abuse by the government in repeated prosecution for the same offense as a means of harassment?...

Mandamus and Jurisdiction

Posted on December 21, 2009
As I noted in an earlier post, jurisdiction is a court?s power to act in a given case. As I also noted there, defendants will, whenever possible, challenge a court?s jurisdiction over the charges or civil claims against them; if a court doesn?t have jurisdiction, it can?t preside over the case and so must grant a motion to dismiss the charges or civil claims...

Clicking and the Plain View Doctrine

Posted on December 18, 2009
As I?ve noted in earlier posts, the plain view doctrine is a principle that can expand the scope of a lawful 4th Amendment intrusion (i.e., a search conducted pursuant to a valid searchwarrant or pursuant to a valid exception to the warrant requirement, such as exigent circumstances or consent)...

Warrant Needed to Search Cell Phone

Posted on December 16, 2009
On December 15, 2009, the Supreme Court of Ohio decided State v. Smith. You can find the opinion here. The Smith court addressed an issue I?ve done posts on before: whether officers who arrest someone can search the contents of her cell phone without first obtaining a search warrant...

Ghost v. EnCase

Posted on December 14, 2009
I could have entitled this post ?battling computer forensic software programs.? It?s about a discovery dispute in a criminal case that centered around two such programs: EnCase and Ghost. The case is State v. Dingman, 149 Wash...

Multiple Images of Child Pornography: 1 Crime or Many?

Posted on December 11, 2009
This post returns to an issue I've dealt with in prior posts: How do you decide when one crime or more than one crime should be charged? As I explained in a post I did last year, in criminal procedure charging documents (e.g., indictments, informations) charge separate crimes in separate ?counts? of the document...

Forgery and Computer Fraud

Posted on December 09, 2009
As I?ve noted in earlier posts, the test courts use to determine if two crimes are the same is the Blockburger test. In Blockburger v. United States, 284 U.S. 299, 304 (1932), the Supreme Court held that the test is ?whether each provision requires proof of a fact which the other does not...

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