Fricosu's co-defendant provides law enforcement with encryption password

For those of you following the Fricosu drama, you'll be saddened to hear that it is now over. Fricosu's co-defendant recently provided law enforcement with the password for the encrypted drive, and Fricosu's attorney received a copy of the files from the drive today. Here's a rundown of the history. A Colorado federal court ordered Fricosu to provide law enforcement with the password or an unencrypted copy of the files by February 29. Earlier this month, Fricosu's attorney suggested that she may have forgotten the password. She appealed to the...

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Indiana newspapers may be ordered to release commenter identity in defamation suits

I'm sure we all agree that one of the greatest achievements of the Internet has been to allow common folk to anonymously comment on newspaper articles. The good people of this country have managed to use that feature without resorting to bigotry or defamation, right? Well, maybe not in Indiana. In In re Indiana Newspapers Inc. v. Junior Achievement of Cent. Indiana, the Indiana Court of Appeals addressed whether a newspaper can be compelled to...

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6th Circuit remands sentence of one day in custody for CP possession

In United States v. Robinson, 669 F.3d 767 (6th Cir. 2012), the Sixth Circuit vacated and remanded the sentence of a defendant who had been ordered to serve only one day in custody after pleading guilty to child pornography possession. The defendant had possessed 7,100 images of child pornography including bondage, torture, and rape of prepubescent children and was sentenced to one day in custody, five years' supervised release, and a $100 special assessment.  Because of enhancements, the recommended sentence had been 78 to 97...

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FBI forced to remove 3,000 GPS devices after Jones

The Wall Street Journal reports that in the aftermath of the Jones decision (discussed here), the FBI was forced to remove about 3,000 GPS devices around the country because they had been placed without obtaining a search warrant. In some situations, the devices had been disabled and were thus lost, requiring the FBI to obtain a warrant in order to reactivate them and determine their locati...

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Limitations of the recent 11th Circuit compelled decryption case

One more post about encrypted drives, and then I promise I will move on. Many privacy advocates have been overjoyed by the recent Eleventh Circuit decision (discussed here), but as with all technology issues, we have to be careful with our understanding of the case. That decision can be much narrower than many think, and the evolution of technology is certain to restrict it. First, the decision only applies to encrypted drives. Possibly only to drives protected by TrueCrypt or similar software. And, more importantly, it likely only applies...

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Why can't investigators just hack encrypted drives? With unlimited resources and time, they can

I blogged yesterday about the Eleventh Circuit case finding that compelling a defendant to provide an unecrypted copy of files would violate the Fifth Amendment. The drives in that case were encrypted using TrueCrypt (which I've discussed here). To better understand the reason why law enforcement cannot simply "crack" the encryption, I wanted to better explain the situation. It can certainly be done through what is called a "brute-force attack"...

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CP defendant appeals sentence, 6th Circuit affirms

In United States v. Cunningham, the defendant made several interesting arguments on appeal concerning his child pornography sentence, but the Sixth Circuit affirmed the sentence. 669 F.3d 723 (6th Cir. 2012). These appellate court held: The § 2G2.2 enhancements are reasonable despite defendant's arguments concerning how often they are applied and lack of empirical grounding. The sentencing court preparing its opinion prior to the hearing was "disconcerting" but okay because the court had "carefully scrutiniz[ed] the parties' arguments...

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11th Cir. finds Fifth Amendment violation with compelled production of unencrypted files

The Eleventh Circuit held that compelled production of unencrypted files violates the Fifth Amendment as it would be testimonial, and the "foregone conclusion" doctrine does not apply. In Re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 671 F.3d 1335 (11th Cir. 2012). The case began with a child pornography investigation after videos of underage girls were found on YouTube. Officers seized multiple external hard drives and determined that parts of them were encrypted using TrueCrypt (discussed here). A grand jury subpoena was issued...

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3rd Circuit affirms CP conviction, creates privacy rule, and makes it impossible to satisfy that rule

In United States v. Coates, 2012 U.S. App. LEXIS 3582 (3rd Cir. 2012), the Third Circuit affirmed a conviction for child pornography offenses. Coates had consented to the viewing of a text message on his phone, but the officer detoured through Coates's pictures, finding images of child pornography. Coates had notified police that he was receiving text messages from a person threatening to kill his friend, and he took his phone to the local police station. An officer continued talking with Coates and apparently touching random buttons on the phone...

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10th Cir. denies interlocutory appeal on forced drive decryption in Fricosu

In previous posts (here and here), I have discussed the case of United States v. Fricosu where a federal judge has ordered the defendant to provide a decrypted copy of her hard drive to federal investigators. Just after the order, Fricosu claimed that she may have forgotten the encryption key. The deadline for providing the copy is later this month. Meanwhile, she has appealed to the Tenth Circuit on the issue. The appellate court dismissed the appeal, finding they have no jurisdiction due to a lack of a final decision from the district ...

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Conn. court finds no expectation of privacy in employee computer

In Dickman v. Warden, the Superior Court of Connecticut held that an employee had no reasonable expectation of privacy in her work computer despite the company not following their policy for obtaining those files. 2012 Conn. Super. LEXIS 257 (Conn. Super. Ct. 2012). Dickman was suspected of worker's compensation fraud and using her work computer to conduct private business. As a result, her employer obtained files from her work computer and turned...

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Court strikes down Louisiana law banning social networking use by sex offenders

A federal court struck down a Lousisiana law that forbade certain sex offenders from accessing social networking websites after finding the statute to be "substantially overbroad." Doe v. Jindal, 2012 U.S. Dist. LEXIS 19841 (M.D. La. 2012). In 2011, Louisiana enacted a law titled "Unlawful use or access of social media" that made it illegal for registered sex offenders whose victim was a minor to use social networking, chat rooms, or peer-to-peer networking. However, if the offender obtains permission from their probation or parole officer,...

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Two CP convictions vacated on double jeopardy grounds

A federal district court has vacated two convictions related to child pornography due to double jeopardy violations. Yarosius v. United States, 2012 U.S. Dist. LEXIS 18408 (N.D. Ohio 2012). The defendant had been convicted on three counts: Count One: receipt and distribution of visual depictions of real minors engaged in sexually explicit conduct (18 U.S.C. §2252(a)(2)) Count Two: receiving and distributing child pornography that had been transported in interstate commerce by computer (18 U.S.C. §2252A(a)(2)(A)) Count Three: possessing child...

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Court orders school Internet filtering be disabled due to pro-gay website discrimination

A federal court has issued a preliminary injunction requiring a school to disable its internet filter so as not to "discriminate against websites expressing a positive viewpoint toward LGBT individuals." Parents v. Camdenton R-III Sch. Dist., 2012 U.S. Dist. LEXIS 18914 (W.D. Mo. 2012). The school district had enacted a filter to comply with the Children's Internet Protection Act to prevent access to obscene materials. The software classified pro-gay information websites as "sexuality" and blocked them, but websites with negative views were accessible...

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Social Media in the News

Social media has been getting (or causing) a great deal of news coverage recently. Here are a few things going on: A Maine high school football coach accidentally posted a nude photo of himself on Facebook. It only appeared for 10 minutes, but the three-time state championship coach and middle school teacher still had to resign. Just when you thought it was dead, MySpace claims to be adding 40,000 new users each day. Part of the influx is attributed to the site's new music player and an integrated Facebook app. After a Tennessee man and woman...

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7th Cir. addresses CP double jeopardy claim, remands sentence due to consideration of improper fact

In United States v. Halliday, 672 F.3d 462 (7th Cir. 2012), the Seventh Circuit addressed whether possession of child pornography is a lesser-included offense of receipt and remanded the sentence because the sentencing judge considered an improper fact. Law enforcement downloaded child pornography from the defendant's computer using Limewire, and search of defendant's computer revealed 15 videos which had been downloaded on 8 dates. He was convicted on two counts of receipt and one count of possession - the receipt charges for the first...

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Government argues that fake name removes expectation of privacy

In an ongoing Arizona case, the government has filed a memo arguing that the defendant had no expectation of privacy in a cell phone when it was registered under a fake name because doing so is fraudulent. The memo cites cases holding similarly with other property - specifically storage units (Johnson) and mailboxes (Lewis). The most recent order from the court can be found at United States v. Rigmaiden, 2012 WL 27600 (D. Ariz. 2012). To learn more about the case, click here for a post from CYB3RCRI...

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6th Cir. vacates computer forfeiture, restitution award

The Sixth Circuit vacated on the issues of forfeiture and restitution in a child pornography possession and production case. United States v. Evers, 669 F.3d 645 (6th Cir.). After the defendant's son reported him to police for alleged sexual abuse of the defendant's niece, police executed a search warrant to find photographs the defendant had taken of the girl. Officers seized two computers, a digital camera, and other items. In relevant part to the appeal, the trial court ordered forfeiture of the seized items as well as restitution to...

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Torrent sites in frenzy, Google launching cloud storage, OneShar.es provides encrypted messages

Here are a few stories from the tech world: In the wake of the Megaupload seizure, many file sharing websites are deciding to get out of the business. BTJunkie recently closed voluntarily. Just in case something happens, one Pirate Bay user has collected all of the contents on that website into one .zip file so that users can access the 1.5 million+ torrents in case of a shutdown. Google is planning to launch a free cloud storage service within weeks. The size limit is unknown, but more storage can be purchased for a price. After the upcoming...

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Ohio court finds 40 year sentence for CP charges "difficult ... to justify"

The Ohio Court of Appeals has reversed a sentence of 40 years for four counts of child pornography possession because the court found "it difficult on this record to justify 40 consecutive years in prison for the nonviolent crime of possessing child pornography." Ohio v. Bonness, 2012 Ohio 474 (Ohio Ct. App. 2012). The defendant was a 53-year-old retired police officer. He pled guilty to attempted rape, eight counts of child pornography,...

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6th Cir. vacates sadistic or masochistic conduct enhancement

In United States v. Corp, 668 F.3d 379 (6th Cir.), the Sixth Circuit vacated an enhancement for materials depicting sadistic or masochistic conduct because the court only considered the victim's testimony concerning the defendant's conduct rather than the actual content of the images. The defendant had met the victim on an adult-only dating service, and after meeting, the defendant photographed the victim in many sexual acts. After it was discovered that the victim was 15, defendant was charged and pled guilty to sexual exploitation of...

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Texas court finds MySpace profile properly authenticated by page's content

The Court of Criminal Appeals of Texas found MySpace profiles to be properly authenticated in Tienda v. State, 358 S.W.3d 633 (2012). Tienda was on trial for murder after a multiple car shootout. The victim's sister found the MySpace profiles and testified at trial as to how she found them. Subscriber reports were also obtained by subpoena from MySpace. The court used the following circumstantial evidence to find that the MySpace pages belonged to the appellant and that he wrote the admitted posts: The page contained photographs of Tienda A...

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11th Circuit addresses 22 issues on appeal in international child pornography ring case

"If '[a]ll the world's a stage' as Shakespeare wrote, this case demonstrates just how much the dimensions of that stage are shrinking with the advent of the internet, at least in regards to child pornography," wrote Eleventh Circuit Judge Fay in an opinion concerning an international child pornography ring. The case, United States v. McGarity (669 F.3d 1218 (11th Cir. 2012)), was an appeal from multiple defendants convicted of taking part in a child exploitation enterprise involving 64 individuals and over 400,000 images. To become a member...

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7th Cir. denies that CP images were "grandfathered in"

Quick rule: An image of child pornography is child pornography despite when it was created. In United States v. Peel, 668 F.3d 506 (7th Cir. 2012), the defendant argued that because child pornography was defined as images of children under the age of 16 at the time he took the photos, the images were grandfathered in under current law that would make those images illegal. Not so, said the Seventh Circuit in an opinion by Judge Posner: If accepted the argument would have the ridiculous consequence of allowing a person who happened to possess...

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Miss. lawyer scammed by corporate identity theft

We often hear about identity theft as it relates to individuals, and some recent attention has been drawn to child identity theft, but the theft of a corporation's identity remains a serious, though seldom-discussed topic. The Mississippi Secretary of State reported today on "an internet scheme with international ties that bilked a Mississippi attorney out of hundreds of thousands of dollars." The Mississippi attorney received an email from someone purporting to be Robert Larsen of Larsen Fabrics located in the United Kingdom. “Mr. Larsen” claimed...

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Pa. court discusses whether defendant has standing in another's e-mail account

In Commonwealth v. Hoppert, 39 A.3d 358 (Pa. Super. Ct. 2012), a Pennsylvania appellate court examined whether probable cause existed to obtain defendant's e-mails when the account had been closed three months earlier. The defendant argued the e-mails were stale, but the court found that "the information sought was not easily disposable and there was a fair probability that AOL had retained it." Footnoted in the case was a discussion of whether the defendant had a reasonable expectation of privacy in the e-mail account which was in another...

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Woman ordered to decrypt drive has forgotten password

In a recent post, I discussed United States v. Fricosu, the case of a Colorado woman who was court-ordered to provide an unencrypted copy of her hard drive. Law enforcement had been unable to decrypt the drive, and Fricosu refused to turn over the password. Well, as reported by Threat Level, Fricosu has forgotten the password. "It's very possible to forget passwords," said her attorney. All along, Fricosu has claimed that she was not the one who encrypted the drive, but the court found that not to be true. Fricosu has until February 21 to turn...

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Tech Watch: Google Analytics reveals large amount of data

I have finally created another video, this time examining the features of Google Analytics. Many people are wondering what information Google collects on its users, and this video shows the information I am able to view about you, the visitors to my blog. Most websites are equipped with a similar tracking feature. An important note is that Google Analytics does not allow website owners to view IP addresses, though I'm sure Google is tracking that information as well. Thus, though I am able to find lots of information about each...

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Study reveals statistics on Facebook user habits

Pew Research has released a new study titled "Why most Facebook users get more than they give." It provides great insight into the average user's Facebook activity as well as what the report refers to as "power users." Other interesting factoids about the average user: Has 245 friends and 156,569 friends of friends Sends 9.5 private messages per month Receives 4 and sends 4 friend requests per month If you've ever wondered why people do what...

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Double jeopardy examined in CP case by 6th Circuit

In United States v. Hutchinson, the Sixth Circuit vacated a conviction for possession of child pornography and remanded a conviction for receipt of child pornography due to double jeopardy considerations. 448 Fed. Appx. 599  (6th Cir. 2012). The defendant had pled guilty, but argued on appeal that the conviction violated the constitution. The first conflict raised by the defendant was that convictions of Count Two (receipt and distribution of child pornography) and Count Three (possession of child pornography) violated double jeopardy. The...

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5th Circuit addresses "substantial step" requirement for persuading minor to engage in sexual activity

In United States v. Broussard, the Fifth Circuit addressed whether (1) defendant's conversations with minors suggesting meeting for sexual activity but without travel was a substantial step, and (2) imposing a 40-year sentence to give the defendant "treatment" was reasonable. 669 F.3d 537 (5th Cir. 2012). The court upheld the guilty plea as the substantial step issue was not plain error, but vacated and remanded the sentence because the court considered Broussard's rehabilitation. Broussard had met the victims on Facebook, obtained...

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3rd Circuit upholds search of cell phone photos folder for communications with a minor

In United States v. Karrer, the Third Circuit upheld a conviction for possession of child pornography after defendant's unsuccessful attempt to suppress evidence. 2012 U.S. App. LEXIS 1928 (3rd. Cir. 2012). The defendant, a 37-year-old man, had been engaging in "inappropriate communication" with teenage girls through the chat feature of Neopets, a children's website. The conversations discussed dating, and the defendant once told a girl he was in a nudist colony. A warrant was executed, seizing all computer devices and cell phones. On...

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Cal. court finds showing 25-minute video of CP to jury not overly prejudicial

A California defendant was found guilty of possession of child pornography after a 25-minute video from his computer was shown at trial. People v. Holford, 202 Cal. App. 4th 758 (2012) (Word Doc). The defendant argued the video caused undue prejudice, and in the alternative, the video should have been edited to show only part of the video. On appeal, the California Court of Appeal noted that "child pornography is not pretty and will always be...

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Porn companies seek revenge for illegal downloads

In Digital Sin, Inc. v. Doe, 2012 U.S. Dist. LEXIS 10803 (S.D.N.Y. 2012), the court held that the plaintiff may subpoena customer records for certain IP addresses that illegally downloaded - in whole or in part - a video titled "My Little Panties #2." The process is as follows: Once the ISP receives the subpoena, they have 60 days to serve the customers. Customers will have 60 days from service to contest the subpoena or request anonymous litigation. After 60 days, the ISP may release information to the plaintiff unless a customer has...

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Court: In CFAA definition of "loss," "'and' means 'or'"

The Computer Fraud and Abuse Act (18 U.S.C. § 1030) criminalizes the unauthorized access of computers. In its original forms, it was only concerned with computers of the federal government and financial institutions but has since expanded to cover computers in interstate or foreign commerce. Civil suits may also be brought for loss attributable to the access. Many cases now concern an employer filing suit against a former employer who continued to access the company's network after going to work for a competitor. It's a long statute complicated...

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