Academic

Soliciting Violence?

Posted on September 09, 2009
I?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, 2009
A 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, 2009
This 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, 2009
You?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...

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New Border Search Directives

Posted on August 31, 2009
As 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, 2009
Last 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, 2009
As 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, 2009
This 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, 2009
This 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, 2009
I 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, 2009
This 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, 2009
Fox 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, 2009
In 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, 2009
This 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, 2009
Last 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, 2009
This 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, 2009
Those 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, 2009
As 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, 2009
This 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, 2009
This 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, 2009
This 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, 2009
This 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, 2009
This 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, 2009
This 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, 2009
In 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, 2009
Last 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, 2009
This 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, 2009
This 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, 2009
The 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, 2009
I?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...

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