Academic

Identity Theft and Real People

Posted on May 05, 2009
The U.S. Supreme Court recently decided a case that deals with an issue I wrote about in an earlier post. So I thought I'd update that post a bit. The post was on an issue that had arisen under federal criminal law: whether someone can be convicted of identity theft if they did not know they were using the identity of a real person...

Hearsay and Sentencing

Posted on May 04, 2009
This post is, as the title indicates, about using a specific kind of evidence to impose a sentence on someone who has been convicted of a crime.As I explained in an earlier post, the rules of evidence bar the use of hearsay in trials and in other judicial proceedings unless the hearsay in question falls into one of a number of exceptions to the general rule barring hearsay...

"Uses"

Posted on May 01, 2009
In an earlier post, I explained that the federal system and every U.S. state ? and many other countries ? criminalize what is commonly known as hacking. As I explained there, U.S. statutes, anyway, tend to define hacking as ?accessing? a computer without being authorized to do so...

Private Stingers

Posted on April 29, 2009
This post is basically about stings -- the ruses police use to catch people who are committing a crime. I got a question from someone who was curious about the use of ?stings? in the online context. He wondered if it?s legal for an officer to go into a chat room or use some other online resource to engage in conversation with someone while pretending to be a child or a parent of a child who?s offering the child for sex...

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Medieval

Posted on April 27, 2009
Not long ago, something I?d written was peer-reviewed as part of being vetted for publication. In it, I wrote about the problem of keeping order in cyberspace, and one reviewer criticized me for not analogizing cyberspace to the Old West. I submitted my response to that reviewer?s comments ? and the comments of the other reviewers ? to the press considering my manuscript...

Spyware, Divorce and the Law Firm

Posted on April 24, 2009
This post is about a federal civil case in Louisiana. Becker v. Toca, Civil Action No. 07-7202 (U.S. District Court for the Eastern District of Louisiana). I?m doing a post on this civil case because it arose from the defendant?s allegedly installing a Trojan horse on a law firm?s computers...

Mixing Metaphors

Posted on April 22, 2009
Last year I did a post in which I talked about how the use of cyberspace challenges the efficacy of the law enforcement model in dealing with crime and terrorism. In this post, I want to talk about how, and why, cyberspace can blur the distinctions between the three categories of threats nation-states have to deal with if they are to survive and prosper...

Gant

Posted on April 22, 2009
On April 21, the U.S. Supreme Court decided a case that significantly reduces a police officer?s ability to conduct a search incident to arrest when the person arrested was in a vehicle. The case is Arizona v. Gant. As I?ve explained before, search incident to arrest is an exception to the 4th Amendment?s warrant requirement...

Boston College Case

Posted on April 20, 2009
Maybe you?ve read about this: On March 30, Kevin Christopher, a Detective for the Boston College Police Department, executed a search warrant at a BC dorm room that was occupied by Riccardo Calixte. If you want to know more about the warrant and why it was issued, the Electronic Frontier Foundation has information about the search, including court filings, on its website...

Reply E-Mail Doctrine?

Posted on April 17, 2009
As I explained in an earlier post, evidence has to be authenticated before it can be admitted in a trial or other legal proceeding. As I also explained there, authentication is intended to sure that the evidence to be admitted is what the proponent of the evidence (the party offering it) claims it is...

Substantially Contemporaneous

Posted on April 15, 2009
In an earlier post, I explained that search incident to arrest ? usually truncated as ?search incident? ? is an exception to the 4th Amendment?s requirement that law enforcement officers get a warrant before searching someone or something. This post was prompted by a question I got recently: whether officers can rely on the search incident exception to search a cell phone AFTER the person has been arrested and taken away...

Exigent Seizure of a Computer

Posted on April 13, 2009
Last fall, I did a post about how police can lawfully search a computer without getting a search warrant. This post is about how the same principle applies in a different context: seizing computers instead of searching them.As I?ve noted before, the 4th Amendment gives the right to be free from unreasonable searches (which violate a legitimate expectation of privacy in a place or thing) and seizures (which violate our right to possess and use property)...

Unlawful Posting of Criminal Activity for Notoriety and Publicity

Posted on April 10, 2009
This spring I'm teaching a class in which students research cybercrime laws in various states.One of the states they're working on this term is Louisiana. A student working on Louisiana law came across a statute that creates a crime I?ve not heard of before: unlawful posting of criminal activity for notoriety and publicity...

Revocation of Consent to Seize Computer

Posted on April 08, 2009
This post is about what happens when you revoke -- take back -- your consent to let police officers seize your laptop of desktop.As I explained in an earlier post, consent is a valid exception to the 4th Amendment?s warrant requirement.As I?ve also noted before, the 4th Amendment requires that a search or a seizure must be ?reasonable;? the default way a search or seizure can be reasonable is for it to be conducted pursuant to a search and/or seizure warrant...

Section 230 Immunity -- Revisited

Posted on April 06, 2009
A while back, I did a post in which I explained that a federal statute 47 U.S. Code § 230(c)(1) ? immunizes certain parties from liability based upon content they publish online.This post is about a Michigan case in which a criminal defendant claimed his defense attorney was ineffective because he did not raise this statute at trial: People v...

The Privacy Privilege

Posted on April 03, 2009
This post is going to argue that we should slightly revised how we think about the legal principle that guarantees us privacy.As I?ve explained before, the primary privacy guarantee we have is the Fourth Amendment, which protects us from ?unreasonable? state-initiated searches and seizures...

Uttering and Publishing

Posted on April 02, 2009
This post is about the use of a computer to commit a crime I must confess I hadn?t heard of: uttering and publishing. As Wikipedia explains, ?uttering and publishing is a crime similar to counterfeiting. Uttering is the act of offering a forged document to another when the offerer has knowledge that the document is forged...

Search Warrants and the Attorney-Client Privilege

Posted on March 30, 2009
A recent case from Georgia illustrates how federal prosecutors deal with the task of preserving attorney-client privilege when a search warrant is executed at a law office.The case is U.S. v. Sutton (U.S. District Court for the Middle District of Georgia 2009), and here are the facts that led to the search:Berrien Sutton is an attorney in Homerville, Georgia at the firm of Sutton & Associates, P...

iPhone Search Warrant

Posted on March 27, 2009
Last year I did a post on a case in which the court held that officers could search an arrestee?s Blackberry under the search incident exception to the 4th Amendment?s warrant requirement. As I explained in that post, the Supreme Court has held that it is reasonable (and all the 4th Amendment requires is reasonableness when it comes to searches and seizures) for an officer to search the person of an arrestee (pockets, purse, shoes, clothes) in order to find (i) any weapons he/she may have and/or (ii) any evidence he/she might be able to destroy if it isn?t located early in the process...

Clergy-Penitent Privilege

Posted on March 25, 2009
In Waters v. O?Connor, 209 Ariz. 380, 103 P.3d 292 (Court of Appeals of Arizona 2004), Korri Waters was prosecuted for sexual misconduct with a minor, a 16 year old boy. During the pendency of her criminal case, Waters sent an e-mail to `Minister? D...

Cyber-Monroe Doctrine?

Posted on March 22, 2009
I was recently involved in a discussion in which someone argued that a cyberspace equivalent of the Monroe Doctrine would be the best way to protect the U.S. from spam and various kinds of cyberattacks. The Monroe Doctrine, in case you?ve forgotten (I was pretty fuzzy on it), is a policy President James Monroe announced on December 2, 1823...

Robbery

Posted on March 20, 2009
We were talking about online theft in a class, and that led me to think about robbery. Specifically, I started thinking about whether it is possible to commit robbery online.To understand why that may be an issue, you need to know a little bit about the law of theft: Centuries ago, English common law developed a crime called larceny...

Juror Misconduct and Technology

Posted on March 18, 2009
This post is about the that effect technology is having on what is called juror misconduct. As I explain below, juror misconduct is the term that is used to refer to actions by jurors that are at least arguably inconsistent with their role in a criminal trial...

More Absurdity

Posted on March 16, 2009
Last fall, I did a post about a case in which a prosecutor refused to attach images of child pornography to an application for a search warrant because he said he was afraid he?d be prosecuted for ?distributing child pornography? if he did. The U.S...

Prescriptive rules

Posted on March 13, 2009
I?ve done a couple of posts on the ?insider? issue: the problem of defining when someone who is authorized to access a computer system exceeds the permissible bounds of that access and therefore becomes subject to criminal liability. As I explained in a post I did earlier this year, the problem arises because the crime these ?insiders? are prosecuted for is called ?exceeding authorized access...

Possession of Identity Theft Tools

Posted on March 11, 2009
Colorado has an unusual statute that makes it a crime to possess identity theft tools. I can?t find a statute like it in any other state.This is what the statute says:A person commits possession of identity theft tools if he or she possesses any tools, equipment, computer, computer network, scanner, printer, or other article adapted, designed, or commonly used for committing or facilitating the commission of the offense of identity theft ...

Can You Trust Your Car? - Part 2

Posted on March 09, 2009
A couple of years ago I did a post about a federal case in which the FBI used a car?s integrated telecommunications system to listen in on what people in the vehicle said without their knowing about it. As I explained in that post, the opinion in that case had nothing to do with the people whose conversations the FBI eavesdropped on, courtesy of the car?s cellular phone system...

5th Amendment Bummer

Posted on March 06, 2009

Cyberbullying

Posted on March 03, 2009

Standing

Posted on March 02, 2009

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