Academic

"Plain View"

Posted on June 01, 2008
The plain view doctrine is a principle that essentially can expand the scope of a lawful Fourth Amendment intrusion. As I?ve explained before, the Fourth Amendment creates a right to be free from ?unreasonable? searches and seizures. A search violatea a legitimate expectation of privacy (police unlawfully come into my home, for example), while a seizure violates a legitimate interest in the possession and use of my property (police seize my laptop without a warrant or any justification, for example)...

Authenticating Evidence (E-mail)

Posted on May 30, 2008
One of the things the prosecution must do in order to be able to introduce items into evidence at trial is to ?authenticate? them, i.e., be able to show they are what they purport to be. A recent Ohio Court of Common Pleas case illustrates the approach one court took to authenticating emails...

Misprision

Posted on May 28, 2008
I recently ran across a case from last year in which a lawyer pled guilty to misprision of a felony for destroying ?a laptop containing pornographic images of children?. Alison Leigh Cowan, Lawyer Admits Destroying Evidence of Pornography, New York Times (September 28, 2007)...

P2P ID Theft

Posted on May 26, 2008
The use of peer-to-peer file-sharing networks to steal people's identities is not anything new.A Google search shows people have been writing about it for at least two years.P2P identity theft has gotten more publicity lately, since the first person to be convicted of using file-sharing networks for identity theft was sentenced by a Seattle federal judge a couple of months ago...

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"Crime" vs. "Cybercrime"

Posted on May 24, 2008
This is a follow-up to Atis? comments on my last post, the one about the woman who was prosecuted for ?computer crime? after she allegedly called into an automated unemployment office system and falsely indicated that she wasn?t working when, in fact, she was...

Computer Crime??

Posted on May 22, 2008
On May 15, the Colorado Court of Appeals decided People v. Rice, 2008 WL 2053490, which, IMHO, is an odd "computer crime" case.(The opinion doesn't seem to be online -- yet?-- at the Colorado Court of Appeals site, I'm afraid.)Here are the facts that led to the defendant?s ? Nina Rice?s ? being charged with and convicted by a jury of ?computer crime? under Colorado law:[D]efendant made biweekly unemployment benefits claims by calling an automated phone system, the CUBLine, maintained by the Department...

Sentencing: "Harm" and Punishment

Posted on May 21, 2008
This post is about how we decide what kinds of penalty to impose on someone who commits a cybercrime. Part of the problem in reconciling the "harm" the person committed (which can be actually or potentially very severe) with their personal characteristics (e...

Imposture (Revisited)

Posted on May 19, 2008
At the end of 2006, I did a post on online imposture. In that post, I was talking about pretending to be someone else by posting information or messages in their name. I was primarily concerned with whether that would qualify as defamation and, if so, if that would provide the victim with adequate redress...

Harassment, MIddle School Style

Posted on May 18, 2008
I?ve written recently ? and not so recently ? about how the law deals with people who "annoy, alarm and harass" each other, but that post, and an earlier one, were both about adult conduct.Magistrate Marcia Linsky of the Allen County (Indiana) Superior Court sent me a link to a recent opinion from the Indiana Supreme Court that deals with a very different kind of harassment...

Having Absolutely Nothing To Do With Cybercrime

Posted on May 17, 2008
A friend of mine just sent me the link to a recent decision issued by the U.S. Court of Appeals for the Seventh Circuit.It?s an appeal in a civil case and has nothing to do with cybercrime. It does involve some First and Fourth Amendment claims but, all in all, it's not the kind of case students go to law school to handle...

Why?

Posted on May 16, 2008
I assume everyone has seen the stories about the indictment in the Megan Meier suicide case. I did a post on the case last fall, because it at once outraged and mystified me.(How could an adult get involved in all this?)If you want a review of the facts and my take on the permissibility (not) of charges, check out that earlier post...

Searching a Pastor's Computer

Posted on May 14, 2008
In State v. Young, 974 So.2d 601 (Fla. App. 2008), a Florida court of appeals had to decide whether a search of a minister?s office was valid under the Fourth Amendment. As I?ve mentioned before, consent is an exception to the Fourth Amendment?s warrant requirement...

Faithless Friends and Good Faith Mistakes

Posted on May 14, 2008
This post is based on some questions that were emailed me . . . questions about a private citizen searching your private property, finding evidence and then taking it to the police. The questions and my thought on each follow. B gives C access to a computer server containing illicit materials...

Ineffective Assistance of Counsel

Posted on May 13, 2008
A while back, I did a post on the Trojan horse defense, which is basically a cyber-version of an old defense: Some Other Dude Did It, or the SODDI defense. In this post, I want to talk about how a defense lawyer?s failure to raise a similar defense was found to constitute ineffective assistance of counsel...

"Counts" and "Crimes"

Posted on May 11, 2008
This is a follow-up to my last post, which talked about a prosecutor?s discretion in deciding how many charges to file against a defendant. In that post, I talked a bit about how the prosecutor in that case increased the number of charges against Mr...

Prosecutorial Discretion, Charges & Sentences

Posted on May 07, 2008
In this post, I want to talk about the discretion a prosecutor has in deciding what ? or, more precisely, how much ? to charge someone with. I also want to talk about how that decision can impact on the sentence a convicted defendant receives. To do that, I want to use a recent decision of the Second District of the Ohio Court of Appeals: State v...

Privacy: Our Responsibility?

Posted on May 06, 2008
Last October I wrote about how, and why, encrypting the contents of our emails would guarantee that they are ?private? under the 4th Amendment, for the same reasons sealed letters sent through the mail are ?private.?As I mentioned in that post, a three-judge panel of the Sixth Circuit Court of Appeals held, in June of last year, that the contents of emails stored with an ISP are ?private,? notwithstanding the fact that they have not been encrypted...

Texas Online Harassment Statute Held Unconstitutional

Posted on May 06, 2008
In 2005, Nikolai Ivanov Karenev was charged with using email to harass his wife, Elena. He was, more precisely, charged with one count of harassment by means of an electronic communication. Karenev v. State, ___ S.W.3d ___, 2008 WL 902799 (Tex. App...

(More) Hard Drive Questions

Posted on May 04, 2008
This is a follow-up to the last post I did, which was on how the use of P2P file-sharing networks can impact on whether someone has a reasonable expectation of privacy in the files on their hard drive.For what a reasonable expectation of privacy under the 4th amendment is and why it matters whether you have one, see the post just before this one...

Using P2P Networks to Search Hard Drives: 4th Amendment Issues

Posted on May 03, 2008
Someone emailed me to ask if it is a 4th Amendment ?search? for a law enforcement officer to use P2P networks -- such as LimeWire -- to access files on a hard drive that have been marked ?NOT TO BE SHARED?.It?s a very good question, one I have debated with people at various meetings and with students in my classes...

Borders and Laptops: U.S. v. Arnold

Posted on May 03, 2008
First, I apologize for having been MIA for so long. It was due to a combination of things, classes, outside commitments, travel, etc. . . . basically not having the ability to turn down interesting things.Second, I?m doing this post because I got an email from someone who?s read what I?ve written about laptop searches and who wondered what my take is on the 9th Circuit Court of Appeals? recent decision in U...

My New Book

Posted on February 17, 2008
At the end of December, Oxford University Press published my new book: Law in an Era of ?Smart? Technology. It's for sale on Amazon, among other places. It?s a difficult book to describe. Essentially, what I set out to do is to figure out why we keep adopting what are usually called technologically specific laws...

Mea Culpa

Posted on February 17, 2008
My apologies for not having posted anything for so long.It's been due to a combination of things: travel, finishing up a big writing project, personal things, weather, law school commitments, external projects, etc., etc. But I'm back now, and I plan to be posting as regularly as I was last year...

Court upholds using the Fifth Amendment to refuse to disclose your password

Posted on December 15, 2007
The U.S. District Court for the District of Vermont has held that you can invoke the Fifth Amendment privilege against self-incrimination and refuse to give up the password you have used to encrypt data files.Here are the essential facts in United States v...

"Consent to Assume Online Presence"

Posted on December 12, 2007
I just ran across something I?d not seen before: a law enforcement (FBI) form called ?Consent to Assume Online Presence.?Before I get to the form, what it does and why it?s new to me (anyway), I should explain what I mean by ?consent.?As I wrote in an earlier post, the Fourth Amendment creates a right to be free from ?unreasonable searches and seizures...

Law and the 3D Internet

Posted on December 08, 2007
Over the last month or three, I?ve read several news stories about how IBM and Linden Labs, along with a number of IT companies, are working to develop ?avatar interoperability.??Avatar interoperability,? as you may know, means that you, I or anyone could create an avatar on Second Life and use that same avatar in other virtual worlds, such as HiPiHi or World of Warcraft or Entropia...

Criminal liability for unsecured wireless networks?

Posted on December 08, 2007
I just received this email (from a source that will remain anonymous):Good afternoon,I have a wireless router (WiFi) which for technical reasons I won?t bore you with, has no encryption. If a third party were to access the internet via my unencrypted router and then commit an illegal act, could I be held liable? I?m not sure if this question in anyway broaches your area of expertise and if not please excuse the intrusion...

Defrauding a machine

Posted on December 02, 2007
A recent decision from the United Kingdom held that it is possible to defraud a machine, as well as a human being.The case is Renault UK Limited v. FleetPro Technical Services Limited, Russell Thoms (High Court of Justice Queen?s Bench Division) (November 23, 2007), [2007] EWHC 2541...

The Stop Terrorist and Military Hoaxes Act of 2004

Posted on November 21, 2007
I?d somehow overlooked this one.This statute, which was added to the federal code in December of 2004 by § 6702(a) of Title VI of Public Law # 108-458, criminalizes disseminating hoax information about possible terrorist or military attacks.It's codified as 18 U...

Fradulently obtaining a website?

Posted on November 19, 2007
When someone is hired to create a website for a business, does so, turns it over to the business but isn?t paid for their work, who owns the site . . . the website creator or the business that contracted for it?That?s the issue the New Mexico Supreme Court addressed in State v...

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