Academic

"Data Carving" and Metadata

Posted on December 07, 2009
This post is about an argument that was made in U.S. v. Haymond, 2009 WL 3029592 (U.S. District Court for the Northern District of Oklahoma 2009). In December of 2008, Andre Ralph Haymond was indicted on federal charges of possessing and attempting to possess child pornography...

MySpace and § 230 Immunity

Posted on December 04, 2009
This post deals with an issue I've addressed before, i.e., whether the operator of a website can be held liable for what is posted on the site. As I explained in prior posts, § 230 of the Communications Decency Act (47 U.S. Code § 230) immunizes certain parties from liability based upon content they post online...

Judicial Notice and Websites

Posted on December 02, 2009
As Wikipedia notes, judicial notice is an evidentiary principle that ?allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted.? As Wikipedia explains, a party must ask a court to take judicial notice of a particular fact, and facts ?admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence?...

Bivens Claims & IP Addresses

Posted on November 30, 2009
This post is about a civil action brought by a prisoner who was convicted of crimes involving child pornography and who is currently incarcerated. The case is Christie v. MacFarlane, 2009 WL 3536550 (U.S. District Court for the District of New Jersey 2009), and it involved what is known as a Bivens claim...

To access this complete feed in the blog feed reader login or register for free.

Access? Disruption?

Posted on November 27, 2009
As I explained in a post I did several years ago, the U.S. federal government and every U.S. state (and many other countries) make it a crime to ?hack,? i.e., to gain access to a computer or computer system without being authorized to do so...

Courtroom Tweets?

Posted on November 25, 2009
I did a post earlier this year on how courts are trying to discourage jurors from using the Internet (including Twitter) during trials. As I explained, the concern here is that jurors will use these resources to conduct their own investigations into issues involved in a trial, which violates the premise that a jury should only decide a case based on evidence that was properly admitted during the trial...

Fail-Safe Argument

Posted on November 23, 2009
A Mississippi court recently addressed what, as far as I can tell, was a novel computer forensics argument. The case is Renfrow v. State, 2009 WL 3740656 (Mississippi Court of Appeals 2009). We?re really not concerned with the facts in this case...

Electronic Indictment Issues

Posted on November 20, 2009
A 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, 2009
In 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, 2009
In 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, 2009
As 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, 2009
My 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, 2009
The 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, 2009
This 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, 2009
This 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, 2009
As 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, 2009
An 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, 2009
This 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, 2009
In 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...

Earthquake: Miranda and Computers?

Posted on September 29, 2009
In 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, 2009
About 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, 2009
A 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, 2009
In 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, 2009
This 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, 2009
Last 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, 2009
I 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, 2009
As 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, 2009
This 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, 2009
This 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, 2009
This 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...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.