Academic

Aiding & Abetting Unauthorized Access

Posted on October 20, 2008
About a month ago, I did a post on aiding and abetting the crime of exceeding authorized access to a computer. As I noted there, the exceeding authorized access crime is necessarily committed by an ?insider,? somehow who has authorization to access part of a computer system but intentionally goes beyond the scope of their legitimate access...

EnCase, Consent & Kyllo (2)

Posted on October 17, 2008
Someone sent me two really good questions: What about someone who consents to a search of his computer without a warrant, but the officer uses Encase by surprise without telling the owner of the computer first? Does this constitute an illegal search because he used technology not available to the general public without the owner's consent?The questions are a follow-up to my post ?EnCase, Consent & Kyllo...

"Distribution"

Posted on October 15, 2008
I?ve done at least one post on the music and movie industries? war against file-sharing. Personally, I think, as I said earlier, that they?re pursuing a strategy that will ultimately prove futile, but they continue to pursue it.Late last month there was an interesting development in a civil suit against an alleged file-sharer...

Business Records Exception

Posted on October 13, 2008
As I explained in an earlier post, U.S. law bars the introduction of hearsay evidence unless it falls into one of the exceptions to this basic rule. As I explained in that earlier post, hearsay is ?a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted...

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Not-Harassment

Posted on October 10, 2008
As I explained in an earlier post, the crime of harassment essentially consists of using telephonic or electronic communications to ?harass, alarm or annoy? another person. This post is about a New York case in which the court dismissed charges of harassment against an 18-year-old boy who professed his love for a 14-year-old girl online...

Absurdity

Posted on October 08, 2008
This is to some extent a follow-up to my last post on the Adam Walsh Act, 18 U.S. Code § 3509. As I noted there, the Act requires prosecutors to maintain custody of the digital images of child pornography they intend to use in a prosecution, as long as they give defense experts a reasonable opportunity to examine those images (usually in a federal law enforcement facility)...

18 U.S. Code § 3509(m)

Posted on October 06, 2008
If you?ve ever watched old movies about criminal trials, you?ve probably seen the moment when the defense springs its surprise evidence on the prosecution and wins the case. I read a book severalf years ago about Earl Rogers, a famous criminal defense lawyer who practiced in the Los Angeles area around a century ago...

EnCase, Consent & Kyllo

Posted on October 03, 2008
This is a follow-up to the post I did on Monday (?Encase and Consent to Search a Computer?). It?s actually a follow-up to the thoughtful and thought-provoking comments sankyu contributed to that post.The issue I raised in my post was whether the police?s using EnCase to search a hard drive ? with the consent of someone who owned/had legitimate access to the hard drive ? violated the 4th Amendment insofar as the search bypassed password protected files on the hard drive...

Private and Not-So-Private Searches

Posted on October 01, 2008
An issue that often gets overlooked when we talk about police's searching and seizing property is the role of private citizens in that process. While most of the time it will be police officers -- local, state or federal -- who search for and seize evidence, sometimes private citizens get involved, as well...

Encase and Consent to Search a Computer

Posted on September 29, 2008
EnCase, as you may know, is the leading software police officers (and others) use in conducting a computer forensics analysis of a computer. It?s routinely employed by law enforcement; if you're not familiar with it, you can read about it here.In an earlier post I wrote about consent as an exception to the 4th Amendment?s requirement that police obtain a warrant to search a place or a thing, like a computer...

Textual Obscenity?

Posted on September 26, 2008
On August 7, Karen Fletcher, a 56-year-old agoraphobic, was sentenced to five years probation after she pled guilty to violating federal obscenity law. According to a story in the Pittsburgh Post-Gazette, she has spent the last seven years in her home, unable to leave...

Power

Posted on September 16, 2008
This is what it looks like where I am . . . only much, much worse. Estimates are that between 300,000 and a million people here are without electricity because of an incredibly windstorm on Sunday . . . four hours of sustained winds 60 mph+. I'm one of those people ...

The DOJ and the WTO

Posted on September 12, 2008
This post is specifically about the U.S. District Court of Utah?s opinion in U.S. v. Lombardo, 2007 WL 4404641 (2007), but it?s also about how cyberspace often leads to a clash between domestic, national law and international law.The Lombardo case began with a 34-count indictment which charged an assortment of defendants with conspiring to violate the federal RICO act, bank fraud, transmitting wagering information in violation of the Wire Act and money laundering...

Failed Defense: First Sale Doctrine

Posted on September 10, 2008
The U.S. Court of Appeals for the Eleventh Circuit recently decided a case involving a conviction under 18 U.S. Code § 2318: U.S. v. Harrison, 534 F.3d 1371 (11th Cir. 2008).The relevant portion of § 2318 provides as follows: Whoever, in any of the circumstances described in subsection (c), knowingly traffics in ...

Zappers and Tax Evasion

Posted on September 08, 2008
You may have seen the article in the August 30 edition of the New York Times that discusses the use of ?zappers,? computer software that can be used to siphon cash from a business? receipts. As the Times article explains, zappers are used to alter the electronic sales records in a cash register: If the business is a restaurant, the owner uses the zapper to erase the register?s record of food orders the total cost of which is equivalent to the amount of money the owner has siphoned from the take...

Exigent Search of a Computer

Posted on September 05, 2008
This post is about the rule that lets officers seize -- but not search -- evidence, such as a computer, because they believe it would be risky or even dangerous to delay and follow usual procedure.As I?ve explained before, under the 4th Amendment officers must have either (i) a search warrant or (ii) an applicable exception to the warrant requirement in order to conduct a lawful search of someone or of their property or to seize their property...

Aiding and Abetting the Crime of Exceeding Access to a Computer

Posted on September 03, 2008
That?s a long title, but I can?t come up with anything shorter that captures what this post is about.Let?s start with the facts in U.S. v. Reyeros, 2008 WL 2924837 (Third Circuit Court of Appeals 2008), the case this post is about:[In 1999, Juan Reyeros asked Hernan Uribe] for help identifying an American company through which ...

Search Incident to Arrest of a Blackberry

Posted on September 01, 2008
This post is about whether police can search a Blackberry carried by an arrestee without getting a warrant to do so.That is, it's about what's known as "search incident to arrest."As Wikipedia explains, search incident arrest is a traditional exception to the 4th Amendment?s requirement that police get a warrant before searching a place or a person...

Securing "Places"

Posted on August 29, 2008
The picture is a photograph of Hadrian?s Wall, the Wall the Romans built across what is now England. The Romans built it to protect Roman Britain from raids by the Picts, the tribes that inhabited what would become Scotland. It marked the northern boundary of the Roman Empire in Britain, the dividing point between the unsettled outlands and the area encompassed by the Roman Peace, the Pax Romana...

Defamation, Harassment and the First Amendment

Posted on August 27, 2008
I?ve written about criminal defamation and harassment before, but here I want to summarize the result in a civil defamation case out of California . . . because it?s a little depressing. Here are the facts, as reported by the California Court of Appeals in Evans v...

Computer Fraud and Conspiracy . . . ?

Posted on August 25, 2008
Conspiracy is a traditional common law crime, one that has become very popular in modern U.S. law. Learned Hand, a distinguished federal judge for almost forty years, said conspiracy was ?the darling of the modern prosecutor?s nursery? because it is used so often and in so many ways...

Aggravation

Posted on August 22, 2008
You probably missed the story from Brunswick, Ohio that ran a couple of weeks ago: A hacker triggered the city?s 8 emergency warning sirens, so they blared out a false tornado warning. You can read about the hack, and watch a video story about it, via this link...

"Community Standards"

Posted on August 20, 2008
In the U.S. and elsewhere, it is a crime to publish ?obscene? material. Obscenity is actually a very recent crime, as crimes go. If you look back in history, especially ancient history, you find that people were not concerned about what we would call obscenity...

Weird Cyberstalking Case

Posted on August 18, 2008
I?m again indebted to Magistrate Marcia Linsky of the Allen County (Indiana) Superior Court ? she sent me a link to a news story on what is a pretty weird cyberstalking case.You can find the story in text and video here. One thing that?s interesting about it is that it identifies the victims, but not the perpetrator (maybe for his safety????)...

Hacking a Heart

Posted on August 15, 2008
You may have seen the recent news stories about how some researchers have figured out how to hack a heart.Researchers at the University of Massachusetts have figured out how to turn off a pacemaker remotely, using wireless communications. There were a number of news stories about their research last spring, but it got a lot of press recently because they did a DefCon presentation on the heart hack...

An Honest and Stupid Mistake

Posted on August 13, 2008
A case from Texas illustrates how people can get caught up in what is known as a Nigerian or a 419 (after a provision in the Nigerian criminal code) scam.The case is Tran v. State, 2007 WL 2050305 (Texas Court of Appeals 2007), and here are the facts:On October 29, 2004, Tran, an engineer for a NASA contractor, opened an account in his son's name at the Johnson Space Center (`JSC?) Credit Union...

Loophole

Posted on August 11, 2008
Like a fire escape, a loophole lets us escape from something . . . legal liability, a job assignment we don?t want, etc. In a recent case from the U.S. Court of Appeals for the Federal Circuit, the U.S. government exploited a kind of loophole to avoid being held liable for copyright infringement and for violating the Digital Millennium Copyright Act (the DMCA)...

Missouri's New, Lori Drew Stalking Statute

Posted on August 08, 2008
On June 30, Missouri Governor Matt Blunt signed a bill that updates the state?s stalking and harassment statutes. The stalking statute, in particular, seems designed to address the conduct attributed to Lori Drew, the woman who has been (incorrectly IMHO) indicted in the Megan Meier suicide case...

Keystroke Logging

Posted on August 06, 2008
As you may know, law enforcement officers sometimes use keystroke loggers: devices that can be installed on a computer and log (record) the keystrokes someone types on it. It?s a way of reconstructing what someone is writing, in emails, etc.This post isn?t about law enforcement?s using a keystroke logger...

Crossing Borders

Posted on August 04, 2008
As you may have read, on July 16 the Department of Homeland Security and the office of U.S. Customs issued a ?Policy Regarding Border Search of Information.? You can find a link to the policy in this article on Wired.I did a post a couple of years ago in which I talked about the applicability of the border search exception to the 4th Amendment...

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