Academic

Controlling Child Pornography

Posted on July 13, 2009
This 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, 2009
This 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, 2009
You?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, 2009
I?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...

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Privacy in the Virtual World

Posted on July 03, 2009
I 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, 2009
A 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, 2009
I?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, 2009
As 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, 2009
This 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, 2009
As 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, 2009
This 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, 2009
I?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, 2009
This 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, 2009
In 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, 2009
This 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, 2009
Last 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, 2009
This 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, 2009
I 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, 2009
This 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, 2009
This 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, 2009
Maybe 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, 2009
In 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, 2009
This 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, 2009
This 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, 2009
As 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, 2009
As 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, 2009
This 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, 2009
This 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, 2009
A 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, 2009
In 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...

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