Loss of hard drive images not due process violation without bad faith says Third Circuit

In United States v. Heiser, 2012 U.S. App. LEXIS 6430 (3d Cir. 2012), the Third Circuit upheld a denial of a motion to suppress evidence where the state had not acted in bad faith in the destruction and loss of complete mirror images of Heisner's computer.

The drive was in poor condition when seized, but experts were able to find 495 images of child pornography. A mirror image was made, and a copy of the image was sent to the local police department. Additionally, the images were also placed on a CD. The district court ordered the government to provide a mirror image of the drive to the defense, but the hard drive where the image was stored had crashed. Also, the image that had been sent to local law enforcement was lost. A new image could not be made so a copy of the CD with the images was sent, and the government did not disclose that a mirror image was unavailable until months later. After two years of Heisner's continuances, a forensic data recover business was able to recover 97% of the hard drive's files, including 490 of the 495 images of child pornography.

On appeal, Heisner sought to suppress the evidence from the hard drive, essentially arguing that the other 3% of the drive contained exculpatory evidence. The Third Circuit denied a due process violation existed and held that there was no bad faith on the part of the government.

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7th Cir. reverses conviction for receiving CP, requires knowledge requirement in jury instructions

In United States v. Rogers, 2012 U.S. App. Lexis 6382 (7th Cir. 2012), the Seventh Circuit reversed a conviction for receiving child pornography because the jury instructions omitted the requirement of knowledge. Rogers had been convicted on several counts after engaging in chat room conversations with a 14-year-old where nude photographs of the child were sent to Rogers. Additionally, in a conversation with a second child, Rogers sent an obscene image of himself to the 13-year-old.

On appeal, Rogers argued that requirements of knowledge were omitted from jury instructions on two of the counts. The appellate court found that in Count 4 (enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct), it was not necessary for him to have knowledge that the minor was actually a minor.

However, with Count 3 (knowingly receiving child pornography), the omission of a knowledge requirement was in error. The review was done for plain error as the defense did not object to the instruction. The court held that in order "to convict an individual for receiving child pornography, the Government must prove that the defendant knew the age of the performer." This error "affected Rogers' substantial rights," requiring reversal.

Another issue the court addressed was whether a picture of an erect penis with a hand holding it should be considered obscene. Rogers argued that it "was anatomical" and "not sexual in nature." However, the court found it to be one of masturbation and sexual conduct and following the standard set in Miller v. California (413 U.S. 15, 24 (1973)), it should be classified as obscene.

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5th Circuit finds chat log authenticated with detective testimony

Concurring with decisions from other jurisdictions, a Fifth Circuit panel held yesterday that chat logs were properly authenticated by the "detective testifying that the transcripts were an accurate reflection of the chats." United States v. Lundy, 2012 U.S. App. LEXIS 6315 (5th Cir. 2012). The detective, who was a party to the conversation, had copied and pasted the text into a Word document. Additionally, he "was subject to cross-examination on his biases and methodology."

Also, the detective used software to take a video screen capture during the chat. The video was also found to have been properly authenticated.

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Illinois appellate court remands identity theft case

In People v. Hernandez, 2012 IL App (1st) 92841, an Illinois appellate court has held that the state must prove that a defendant knowingly used personal identifying information belonging to another person in order to convict on identity theft. Because the "defendant's knowledge was contradicted and not overwhelming," the charge was vacated and remanded for a new trial.

The defendant had used another person's social security number to obtain credit to purchase a vehicle. On the credit application, the defendant used both her own and the victim's SSNs, but the victim's was used for the credit check. When asked where she got the victim's SSN, the defendant said "that she 'made it up.'" It just so happened that the number belonged to a woman with the same first name, living in the same city who was alive and had good credit.

However, because the circumstantial evidence does not overwhelmingly prove the defendant's knowledge, the error was not harmless, and the case must be retried.

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Nebraska Supreme Court supresses CP evidence after law enforcement invented the probable cause

In State v. Sprunger, 283 Neb. 531 (2012), the Nebraska Supreme Court ordered suppression of evidence of child pornography obtained during an initial investigation for credit card fraud. The court found that law enforcement invented the child pornography suspicion themselves and committed "an obvious Fourth Amendment violation."

Law enforcement tracked unauthorized use of a debit card to Sprunger's IP address and went to his home for a knock-and-talk. They asked if they could search his computers, but he refused to consent, and they returned several months later with a warrant. Before they took his computers, he asked if he could delete some files, and the officers told him no. They asked if the computers contained child pornography, Sprunger denied that they did, and they told him he "that if there was no child pornography, ... [he] had nothing to worry about." Sprunger's lawyer contacted law enforcement a few days later asking "about the child pornography case the deputies were working on." Using Sprunger's request to delete files and the lawyer's call, a second warrant was obtained to search for child pornography. No evidence was recovered concerning the credit card crime, but child pornography was found. The trial judge found that no probable cause existed in the second search warrant, but that "the good faith exception saved the search."

The Nebraska Supreme Court also agreed that probable cause did not exist. Because the officers questioned Sprunger about child pornography and said he had nothing to worry about if child pornography was found, it was reasonable for his lawyer to have thought it was a child pornography investigation. That inquiry did not establish probable cause. Also, Sprunger's request to delete files does not raise enough suspicion to "amount to a fair probability that child pornography would be found."

With regard to good faith, the court found that the only evidence giving rise to probable cause for a search of child pornography "was of their own making," and the deputies should have been aware of such. "[A] reasonable officer would also know that telling a person that he had "nothing to worry about" if he had no child pornography on his computer would lead that person to believe he was being investigated for child pornography." As such, the search was "an obvious Fourth Amendment violation" and "to ignore such a blatant lack of probable cause would set a low bar for future police conduct."

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Judge expresses concern with CP sentencing guidelines

In United States v. Price, 2012 U.S. Dist. LEXIS 38397 (C.D. Ill. 2012), an Illinois federal judge "express[ed] concern with the overly harsh sentences that result from the application of the child pornography sentencing guidelines." Further, "[t]his Court finds that § 2G2.2 is especially problematic because it contains numerous enhancements based on facts that exist in almost every child pornography possession crime and considerably increase the offense level." The court found the same problem with the production section, and referenced many sources that have criticized the guidelines on crimes of child pornography.

The defendant was convicted of Use of a Minor to Produce Child Pornography and Possession of Child Pornography. The defendant possessed 937 images and 21 videos of child pornography in addition to the images he had produced of his daughter over an extended time of molestation and harassment. Throughout the judicial process, the defendant maintained that the photographs of his daughter were "art," and "the jury was unable to appreciate the artistic value because the Court sits in the 'conservative Bible-belt of the Midwest.'" None of the images depicted violence, sadistic, or masochistic conduct, acts of penetration, or sexual conduct.

The court found that 216 months for production and 72 months for possession running concurrently was appropriate, followed by a life term of supervised release.

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Court struggles with sentence of CP possessor, orders 18 months in prison

In what appears to be an agonizing decision for a federal judge, a defendant convicted of attempting to possess child pornography was sentenced to 18 months incarceration, ten years of supervised release, and a $100 special assessment. United States v. Rothwell, 2012 U.S. Dist. LEXIS 38379 (E.D. Tenn. 2012).

The defendant has an IQ of 77, and he spells and does math at elementary school levels. Additionally, he is a diabetic and has recently had a variety of other health problems including an enlarged liver, pancreatitis, thrombosis, and asthma. He has lived with his parents his entire life, takes care of them, and does the majority of the work on the family farm. His father, who recently had open-heart surgery, testified that the farm would have to be closed without the help from his son.

After federal agents took down a child pornography distribution company, the government continued to solicit customers in a sting operation. The defendant had ordered several DVDs from the company and was arrested after delivery (not of actual pornographic DVDs) where he gave a written statement, including:

I think child porn any one under 18 years old that doing sexual acts. The video that I ordered I believe that was possible child porn, I ordere them because I was just courious, I figered that they was not possible elagle bacause they was threw the mail. I have never had any sexual contact with children what so ever.

The offense level (minus reductions) was 22, and his criminal history category was I, giving a range of 41-51 months. His mental capacity allowed a downward departure of four levels.

In reaching the sentence, the court found the following factors persuasive:

• Because no child pornography was viewed by the defendant, there were no victims. Also, no child pornography was found in the defendant's possession.
• The defendant was going to pay for the child pornography whereas most possessors do not do so, making it more troubling.
• The fact that it did not involve a computer made it less troubling than cases that do.

However, these factors were not used:

• Though the court sympathized with the defendant's "unfortunate family circumstances," it followed Sixth Circuit precedent by not relying on it.
• Age
• Health
• Vulnerability in prison could not be considered because there was no evidence that the prison would not be able to "protect and provide" for him.
• Limited social awareness
• Adjustment

Considering all of those factors, the court found that 18 months incarceration and 10 years supervised release was sufficient to protect the public from the defendant reoffending. The judge does not seem to have come to this decision lightly, beginning the 51-page opinion by noting that this case:

illustrates the difficulty a federal judge faces in arriving at an appropriate sentence and the struggle in which the sentencing judge must engage over often compelling conflicting considerations that come into play in child pornography cases.

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Verizon Report: Data breaches rise 4,250% in 2011

According to Verizon's 2012 Data Breach Investigations Report, data breaches skyrocketed in 2011 to 174 million (up from only 4 million in 2010). The 80-page report provides a wealth of information about who is responsible for these acts and how they are committing them. It's definitely worth at least a quick skim.

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Court finds website editor's comment on post does not remove CDA immunity

A federal court recently upheld the "robust" immunity of the Communications Decency Act (CDA) in a case where the website's editor commented on a post referring to the plaintiff with rather crude language. S.C. v. Dirty World, LLC (W.D. Mo. 2012). The case concerned www.TheDirty.com where visitors are given the opportunity to post about a variety of topics. Many people use it to post about cheating significant others or former friends such as this one post about the plaintiff (edited for language and length):

This nasty b**** who was my `friend' started [deleted] my boyfriend in my bed and bringing her nasty a** horse teeth around my son trying to play house. This sl** claims to be a sweet little church girl. She even works for the church! Fugly sl**!

The post, which included a picture, was approved by the website without modification.

The CDA is popularly applied to websites such as newspapers with regard to the commenting feature on websites, immunizing the website for the content posted by visitors. "Courts ... have described CDA immunity as 'broad' and 'robust.'" However, there are situations where a provider will lose the immunity such as when they "are 'responsible, in whole or in part, for the creation or development of'" a defamatory post.

Knowing that under traditional CDA application, no liability would have existed here, the plaintiff focused on the fact that the website chooses which submissions to publish and the editor often comments on the posts as to whether or not he is romantically interested in them. In this case, he responded by making an opinion about the plaintiff's appearance (the case didn't say what was written, but a typical response from the site is "No, her nose hangs like a banana and her calves are elongated.") The court didn't buy the argument, but noted that a statement like "Why are all church girls freaks in the sack?" might have crossed the line.

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Magistrate addresses pretrial release conditions on Twitter, IRCs, and monitoring

A federal magistrate in California recently addressed several interesting conditions of pretrial release such as having no access to Twitter and deleting Internet history. United States v. Collins, 2012 U.S. Dist. LEXIS 35980 (N.D. Cal. 2012). The 14 defendants in the case are alleged members of Anonymous who executed a DDoS attack on PayPal's website after the site terminated WikiLeak's account.

At their initial appearance, the defendants were released after agreeing to these conditions:

1. not participate in or accessing Internet Relay Chats ("IRCs"); 
2. not use or access Twitter; 
3. designate the computer or computers that would be used while on release; 
4. not delete any internet history; and 
5. make available any designated computer for inspection by Pretrial Services

In a dispute over the fifth condition, the court found that inspection via a software installation on the defendants' computers was appropriate. A defendant argued that use of a USB drive with "Fieldsearch" was less intrusive, but the court found that it may delegate to Pretrial Services the decision to use "Fieldsearch, hardware installation of an alternative program, or manual searching - so long as it ... is 'reasonably calculated to fulfill' the purpose of the condition."

The court upheld the restriction to IRCs but not with Twitter. The defendants argued the conditions deprive them of free speech such as with President Obama's Twitter Town Halls. The court found that some constitutional rights may be intruded upon as reasonably necessary, and as IRCs were specifically addressed by the indictment, the condition was proper. Further, their ability to access e-mail, Tumblr, chatrooms, and Facebook provided a reasonable balance. Twitter, however, was not mentioned in the indictment, and that activity can easily be monitored.

One of the defendants was found to have had virus software "that [had] deleted the computer's internet history in order to restore the computer's performance." The court modified the fourth condition to specify that "intentional" (as opposed to inadvertent) deletion is prohibited.

The government was also instructed "to give back to defendants data outside the scope of the warrants" as they have "no claim to [it]."

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Oregon court reverses removal of children from father, a former "predatory sex offender"

The Court of Appeals of Oregon has reversed a decision to take children away from their parents because the father had sexually abused children and viewed child pornography in the past. The evidence did not support a finding of likely harm to the children. Dep't of Human Servs. v. B.B. (In re K.B.), 274 P.3d 242 (2012).

The father physically and sexually abused children in the past and was sexually abused as a child himself. In 1994, he went to prison for abusing two children. He was considered a "predatory sex offender" and occasionally attended treatment, but it was never completed. He also viewed child pornography on at least two occasions in 1998. There have been no known relevant events since that time, and the couple now has four children.

DHS took the children from the couple because of the father's history of child abuse. However, DHS was required to prove "current risk of harm" rather than simply past conduct. The court found that because no sexual abuse had occurred in over a decade, and it was possible the father was in remission, no current risk was shown. The children had also been taken from the mother because she was "endangering the children" by letting them be around the father, and the court reversed that decision in light of the findings regarding the father.

A dissent suggested that the father had not been sufficiently treated for his condition.

(I do realize this is not exactly a cybercrime case, but I'm assuming this issue comes up occasionally dealing entirely with past child pornography crimes. Also, there haven't been many great cases recently so I'm a little desperate.)

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Court awards $240,000 to CP victim in default judgment

In Larsen v. Larsen, 2012 U.S. Dist. LEXIS 34179 (D. Minn. 2012), the court awarded a victim of child pornography a default judgment of $240,000 for emotional distress and psychological treatment.

The suit was brought against the victim's uncle who adopted him at age eleven, began abusing him shortly thereafter, and posted videos of him from a hidden camera in the bathroom on the Internet. The victim, now an adult, originally brought suit against his uncle (who is serving a 25-year prison term) and anonymous downloaders, but ultimately dismissed the downloaders.

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Android's pattern lock halts FBI investigation

According to a report from Threat Level, the FBI has been unable to crack an Android phone's pattern lock. When trying to guess a password, the phone locks up after three tries, requiring the user's Google account username and password.

Now, the FBI is trying to obtain the pimp's username and password directly from Google with a search warrant. They are also seeking instructions for overriding the security as well as any information Google may have related to the phone (such as email, contacts, GPS locations, and Internet history).

CLARIFICATION: The fact that the FBI is requesting the username and password does not mean that they cannot obtain the data that is on the phone without it. The memory can be accessed through a forensics investigation, but there is a slight risk of losing information in that process. Getting full access to the phone will remove that risk.

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District court orders suppression after lengthy delay for cell phone search

A Georgia federal district court has ordered suppression of evidence obtained from cell phones because of an unreasonable three month delay in searching the phones. United States v. Shaw, 2012 U.S. Dist. LEXIS 32624 (N.D. Ga. 2012). The phones had been searched incident to arrest and were placed into inventory. Months later, the government obtained search warrants to further search the phones.

The court cited Eleventh Circuit precedent in Mitchell (565 F.3d 1347 (11th Cir. 2009)) which found that a 21-day delay to search a computer was unreasonable because it "constituted a significant interference with Defendant's possessory interest."

Because the government had no justification for the delay and cell phones may contain a great deal of personal information, the continued seizure and search was unreasonable.

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Michigan court addresses limited context test, image cropping

In United States v. Stewart, 2012 U.S. Dist. LEXIS 32550 (E.D. Mich. 2012), the defendant sought a new trial after being convicted of transporting child pornography. Finding no plain error in the defendant's six arguments, the motion was denied.

The closest argument was that images were improperly admitted in violation of the limited context test. "The Sixth Circuit's limited context test allows additional images only of the same victims and explicitly excludes images of other victims." These additional images (not "accused" images) are used to show "under what circumstances the photographs were taken ... and can help them resolve close judgment calls about whether an image inadvertently focuses on a child's genitalia, or whether it is intended to elicit a sexual response in the viewer." Most - if not all - of the images presented in Stewart under this rule did not depict the same children as the accused images. However, the court found that because the precedent applied to images "that could amount to 'a separate criminal act,'" there was no plain error.

The court also considered cropping of the images. The defendant argued that because the full images would not have been considered lascivious, a cropped image of the genitals should not be as well. The court, however, held that the jury could infer an intended sexual response because of the cropping. Further, the First Amendment does not protect the cropping, despite the fact that "no child abuse or exploitation occurred."

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NY court orders $3M in restitution to CP victim

A New York federal court has ordered a defendant convicted of child pornography crimes to pay restitution of $3,381,159 to the victim. (United States v. Lundquist, 2011 U.S. Dist. LEXIS 153971 (N.D.N.Y. 2012)). Many courts have only ordered defendants to pay a portion of the damages, but this court found "it is entirely fair, reasonable and appropriate to hold Defendant liable for payment of the full amount of restitution (rather than to apportion liability among all the individuals in question to reflect the level of contribution to Amy's loss and economic circumstances of each individual)."

Also worth noting is that before that holding, the court found three ways in which the defendant could be ordered to pay restitution. The first, under 18 USCS § 2259 allowed for defendant to pay a 1/113 share of the total damages of $3,381,159 (113 because that was the number of defendants convicted for possessing images of this victim). Alternatively, an award of $150,000 was permitted under Marsha's Law. Also, $5,000 may be awarded under 18 U.S.C. § 2259 as nominal damages.

To see how several circuit courts have addressed restitution in other child pornography cases, click here for previous posts.

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Mass. man committed as sexually dangerous person

A Massachusetts man has been civilly committed as a "sexually dangerous person" under 18 USCS § 4248 of the Adam Walsh Child Protection and Safety Act. The act allows commitment if the person:

1. has engaged or attempted to engage in sexually violent conduct or child molestation,
2. suffers from a serious mental illness, abnormality, or disorder, and
3. would have serious difficulty in refraining from sexually violent conduct or child molestation if released as a result of his mental illness, abnormality, or disorder.

The court found the man to be a sexually dangerous person because of his child pornography obsession "despite imprisonment, participation in sex offender treatment programs, recommitment for supervised release violations, and the pendency of these proceedings." During times when he had no access to pornography, he "collected materials that reminded him of it" and "planned how to access" it when released. Additionally, he engaged in conversations with multiple children and sought to have sex with them.

This long and persistent trajectory of obsession with child pornography—and with sex with children—counsels strongly against a conclusion that Volungus, if released, would be able to control his pedophilia and limit his activity to private masturbation sessions at his home computer. The evidence of volitional impairment by reason of his mental illness is clear and convincing.

 The case is United States v. Volungus, 2012 U.S. Dist. LEXIS 31069 (D. Mass. 2012).

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NM court reverses CP conviction for double jeopardy violation, asks legislature to revise statute

In a New Mexico child pornography case (State v. Ballard, 2012 N.M. App. LEXIS 10), the Court of Appeals of New Mexico addressed the appropriate unit of prosecution in a double jeopardy appeal. The court noted that the definition of the word "medium" was key as the relevant statute makes possession of a "visual or print medium" illegal. The defendant argued that only one count existed because the "medium" was his computer where all of the images were stored. The state suggested the number should be 25 - each with a different child victim and distinct act. The defendant also made an argument that charges should be based "on the timing and manner in which they were collected and housed together."

The court ultimately decided that because the defendant had downloaded child pornography on five separate occasions and kept the images in different folders, he should only have been charged with five counts. The downloads were "in the nature of a single bundling of images" just like "obtaining a book or magazine." The court then called on the legislature to revise the statute to make the statute less ambiguous. Therefore, the conviction was reversed and remanded.

Ballard, who had given the computer to a coworker to install updates on it, also argued that the search of the computer violated the Fourth Amendment. He admitted to the coworker that it contained child pornography and asked him to reformat the drives. Soon thereafter, the coworker gave the computer to law enforcement. The court found that Ballard lost any expectation of privacy upon voluntarily giving the computer to his coworker and admitting it contained child pornography.

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Conn. man loses suit against psychiatrist who knew of his CP addiction

A Connecticut man under investigation for child pornography crimes has had a lawsuit against his psychiatrist dismissed. In the suit, he alleged that he had told the psychiatrist that he viewed child pornography, then as a minor, and the psychiatrist took no action. After reaching adulthood, he continued viewing the illicit material and was caught by law enforcement. He sought redress for "the emotional distress occasioned by the execution of the search warrant and the anxiety associated with waiting to see if he is to be arrested," placing blame on the psychiatrist for negligent "failure to acknowledge, treat or address his disclosure."

The court, referencing a Michigan Supreme Court case, ruled that the claim should be dismissed on a variety of policy grounds, including that it would allow criminals to "receive a profit or compensation as a result of their illegal acts" and "be able to shift much of the responsibility ... to other parties."

The case is Greenwald v. Van Handel, 2012 Conn. Super. LEXIS 464 (2012).

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Former Perverted Justice volunteer's CFAA conviction affirmed by 3rd Cir.

In United States v. Raisley, 2012 U.S. App. LEXIS 5002 (3rd Cir. 2012), the Third Circuit affirmed the conviction of former Perverted Justice volunteer Bruce Raisley after he created malware to attack websites that had written about him. Perverted Justice, using volunteers pretending to be minors, engages in and investigates illicit conversations between the adults and the pretend children. Raisley had begun to disapprove of the group's methods and soon thereafter he was caught as he attempted to meet an underage girl at an airport. Radar and Rolling Stone wrote about the incident, and Raisley launched a DDoS attack which brought down their websites.

Raisley was convicted under the CFAA and sentenced to 24 months, 3 years supervised release, and $90,386.39 in restitution. On appeal, he made several arguments concerning the admission or exclusion of evidence, but each was readily struck down.

To learn more about this case, click a link below:

• Perverted Justice - Their website posts chat logs from each of their investigations, even ranking them by most slimy and noting throughout the discussion how advanced the perpetrators are.
• DOJ Press Release - Post-trial release from the US Attorney's office.
• Radar's Article - It's no longer on their website, but Corrupted Justice, a critic of Perverted Justice has posted it.

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10th Cir. relaxes standard for proving CP sent through interstate commerce

Last month, the Tenth Circuit held en banc that to prove child pornography had been sent through interstate commerce, the prosecution must only show it had happened "at any point in time." United States v. Sturm,   672 F.3d 891 (10th Cir. 2012). This decision reversed Tenth Circuit precedent which held that it must be proven that the defendant received the specific file through interstate commerce. United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007).

On appeal, a Tenth Circuit panel had found that "the Government was required, but failed, to present evidence that the particular images" crossed state lines when they moved from a defendant's computer to the investigator's computer. Afterward, the court sua sponte granted rehearing en banc.

The full Tenth Circuit held that the term "visual depiction" refers to "the substantive content of an image ... rather than the specific medium or transmission used to view, store, receive, or distribute that content." It "is created once" and not recreated with each transfer or transmission. Thus, once an image has been transmitted through interstate commerce at any point, it satisfies the statute. The court also explained that the government can prove its case by showing that an image "was made in a state and/or country other than the one in which the defendant resides."

Two judges dissented in the case, arguing that "visual depiction" refers to the particular file and that this interpretation alters "the federal-state balance in the prosecution of crimes."

Click here for a discussion of other circuits' approach to this issue.

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Ill. court reverses summary judgment grant in SCA case

An Illinois woman recently argued that her former employer violated the Stored Communications Act after they accessed her personal e-mail account. (Borchers v. Franciscan Tertiary the Sacred Heart, 2011 IL App 2d 101257 (Ill. App. Ct. 2012)). Two accounts were accessible on her computer - her personal and work e-mail, and the former employer connected to the personal account and printed 36 of the e-mails.

The trial court entered summary judgment. Not, as you might expect, for the plaintiff but instead for the employer, "finding that the plaintiff had not produced sufficient evidence that the defendants acted intentionally."

As the Appellate Court of Illinois noted, intent "may be gleaned from circumstances and actions, not simply words." The employee who searched the account testified that she thought the account was the plaintiff's work e-mail. Despite that, she printed 36 e-mails that were clearly personal and had subject lines such as "Re: mom." It's also worth mentioning that the defendants were aware that the plaintiff had filed a sexual harassment lawsuit against them, and these printed e-mails were used in their response. Here's some good language from the court:

The fact that Maxwell knew of the plaintiff's sexual harassment charges against her employer is also relevant to the issue of intent: conduct is "more likely to be intentional when it serves a party's self-interest to engage in such conduct." ... And, although the initial accessing of the AOL account could be viewed as innocent if Maxwell had immediately logged out of the account once she had seen that the in-box contained material not clearly related to work, that is not what happened here. Maxwell deliberately chose to click additional times to travel from the first screen she viewed, the in-box, to the portion of the AOL account displaying e-mails that the plaintiff had sent, actions that could be viewed as additional acts of "accessing" the plaintiff's e-mails through the AOL "facility."

The court held that in cases with similar facts, some courts have denied a summary judgment motion while others have used these facts to grant the plaintiff's motion. Therefore, the court reversed the entry of summary judgment.

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ICE seizure of bodog.com causes international concern

Visitors to bodog.com are now shown this image.

The federal government's "Operation Our Sites" has been used to seize nearly 1,000 domain names in the past few months - most of which were for websites used to illegally stream sports events and television shows. An Immigration and Customs Enforcement spokesperson recently told Threat Level that ICE "has the right to seize any .com, .net and .org domain name because the companies that have the contracts to administer them are based on United States soil."

Canadian-registered domain name Bodog.com, a website for an online gambling site, had its domain seized just last week, causing concern among many non-US companies using .com domains. American company VeriSign controls the .com TLD, allowing the US government to seize any .com domain.

Bodog began operating under the name Bovada in July 2011. Their new website, www.bovada.lv, is registered under Latvia's TLD. Their original website is still available under its IP address, 66.212.249.92, but American users are quickly told that their "funds are still accessible" on Bovada's website. Bodog's founder, Calvin Ayre, and others have been indicted for illegal gambling and money laundering.

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Court orders suppression for evidence found two years after warrant was issued

In United States v. Salceda, 2012 U.S. Dist. LEXIS 28211 (C.D. Cal. 2012), the district court ordered suppression of evidence found in unlawful searches. Law enforcement obtained an original warrant to seize the defendant's digital devices for evidence related to child pornography. The warrant was executed and devices seized, but two years later, law enforcement sought a new warrant to "conduct a more complete search" of the devices. The warrant was denied and law enforcement then determined the second warrant was unnecessary. Defendant argued that the evidence obtained during the new search was unconstitutional.

The warrant contained the following language:

If, after conducting such an initial search [within 60 days from the date of the execution of the search warrant], the case agents determine that a digital device is an item to be seized or contains any data falling within the list of items to be seized pursuant to this warrant, the government will retain the digital device for further analysis; otherwise, the government will return the digital device.

The defendant argued that the "further analysis" language refers only to what is discovered during the 60 days rather than allowing "repeated searches of every part of the digital media." The court, noting the government's denied second warrant and ex parte application, found the language to be ambiguous and ordered suppression of the evidence.

UPDATE: Professor Orin Kerr recently wrote a post on Volokh Conspiracy criticizing the Salceda analysis, suggesting (as he did in the comments of this post) that the proper consideration for the court is reasonableness, rather than the terms of the warrant.

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Helpful tools for developing presentations

While this is a little off-topic, I wanted to write a quick post highlighting some great tools for those of you who often present on the subject of cybercrime (or anything else). These are services that I have found helpful, and I hope that you will share your own in the comments.

• Prezi - very attractive presentation tool with a "zooming user interface." Prezi is an online application, but can be downloaded if you wish to pay for it. Otherwise, it is $59/yr except for the free student or teacher licenses they offer.
• SlideRocket - an even better online presentation tool. It has some of the best tools I've seen out there, but it's a little pricier. For the good functionality, it's $24/mo per user. Schools utilizing Google Apps get it for free.
• Screen Capture (by Google) - Google Chrome extension that allows you to capture an entire webpage, just the screen, or a selected region and save it as a PNG or JPG. After the capture, you can highlight, blur, add text, and more.
• ActivePresenter - allows you to record your computer screen while narrating your actions. Free edition has some advanced tools, no watermark, and allows export to AVI, MP4, and WMV. Paid editions provide greater functionality and end-user interactivity.

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7th Cir. okays cell phone search at arrest for device's number

The Seventh Circuit recently held that a search of a cell phone to obtain the phone's number at arrest was a valid search under the Fourth Amendment. United States v. Flores-Lopez, 2012 WL 652504 (7th Cir. 2012).

The defendant was arrested during a drug bust, and his cell phone was searched at arrest in order to determine the telephone's number which was later used to subpoena the call history. On appeal, the defendant argued that the search of the phone was unreasonable, making the call history fruit of an illegal search.

Judge Posner, the opinion's author, made the comparison to diaries - noting that if an officer searched a diary at arrest and found it to be personal but kept reading anyway, that search might be unconstitutional. He specified that even a $14.99 phone from Walgreens (actually citing a phone on Walgreens' website) contains a great deal of information, similar to a diary but with the potential to hold more.

Nonetheless, the search of the cell phone in this case was only for a phone number. It was relevant to the crime and did not require a search of the personal information on the phone. Since law enforcement may open the diary to obtain the owner's address, they should also be able to obtain the number from the phone. Likewise, since they cannot "peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone."

Also, because of the potential for wiping the phone - whether locally or remotely, "it is imperative that law enforcement officers have the authority to immediately 'search' or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence." Posner also suggested that a more intensive search might be permissible under certain circumstances as well.

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Maryland district court addresses cell site location data, finds no Fourth Amendment issue

The Maryland federal district court recently held that obtaining cell site location data does not implicate the Fourth Amendment, and even if it did, obtaining such information without a warrant does not require suppression. (United States v. Graham, 2012 U.S. Dist. LEXIS 26954 (D. Md. 2012)). Of the two orders issued under the Stored Communications Act, one "authorized [221] days and 20,235 individual cell site location data points." 

The defendants "argue[d] that the privacy intrusions available through this type of technology are far reaching and unconstitutional - allowing the government to retroactively track or surveil a suspect through his cellular telephone, a device he likely carries with him at all hours of the day and to constitutionally protected places such as his home or church."

The government counters with four arguments: (1) defendants lack standing because the phones were registered in a fictitious name (read more about this issue here), (2) there is no expectation of privacy because the locations were "business records voluntarily conveyed to a third party," (3) the SCA requires a lower standard than probable cause, and (4) even if the defendants' Fourth Amendment rights were violated, suppression is not required.

With regard to standing, the court held, "[T]he real issue is whether the Defendants have a legitimate expectation of privacy in their location data captured by their cellular service providers, and not whether they have a legal or possessory interest in the property." Next, the court addressed the concurring opinion in Jones and the mosaic theory in Maynard, but ultimately found that "unless and until the Supreme Court affirmatively revisits the third-party doctrine, the law is that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Also, even if the data was able to reveal when an individual is at home, that is obtainable by pen register under Smith v. Maryland.

Thus, the court held that the defendants did have standing despite the fictitious name, but there was no violation of the Fourth Amendment. Also, even if there was a violation, the good faith rule applies due to reliance on the SCA, and suppression is not necessary.

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7th Cir. affirms 32-year CP sentence; judge expresses sentencing guidelines concern

The Seventh Circuit has upheld a sentence of 32 years for production and possession of child pornography (United States v. Klug, 670 F.3d 797 (7th Cir. 2012)). The defendant had videoed children showering and changing clothes on church trips while he was serving as a chaperone. An investigation revealed 59,000 still images and 12,000 videos of child pornography. Noting a related case with a reasonable 80-year sentence (United States v. Noel, 581 F.3d 490, 500 (7th Cir. 2009)), the court affirmed.

In a concurring opinion, Judge Cudahy agreed to affirming the sentence because it fell within the sentencing guidelines but expressed that "the sentencing process need[s] to focus on a better provision of reasonable standards." Cudahy suggested too much speculation goes into these decisions with the result being that "uniformity cannot be achieved and justice is elusive."

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1st Cir. affirms restitution order to CP series victim "Vicky"

The First Circuit held that a distributor of child pornography may be ordered to pay restitution to the child victim portrayed in those images (United States v. Kearney, 672 F.3d 81 (1st Cir. 2012)).

Federal courts have long disagreed as to the requirements of a restitution order under 18 U.S.C. § 2259 for child pornography. These cases often concern a distributor of a pornography series (referred to by aliases such as "Amy" or "Vicky"), and the issues the court must address are (1) whether the child portrayed in the images is a victim, and (2) whether the defendant proximately caused the victim's damages. Decisions on these issues have resulted in a circuit split (read more here, here, and here), and the Supreme Court has denied cert on the issue (discussed here). However, it is important to note that the Fifth Circuit, which is the odd man out, recently decided to rehear its case on the subject en banc (United States v. Unknown (In re Unknown), 2012 U.S. App. LEXIS 1514 (5th Cir. 2012) (vacating Paroline)).

In Kearney, the First Circuit addressed these issues in a child pornography possession and distribution case involving the "Vicky" series. The court first found that "Vicky is plainly a victim of Kearney's crimes" as "[t]he  pornography's continued existence causes the child victims continuing harm by haunting the children in years to come." On the probable cause issue, the court held:

We hold that the proximate cause requirement was satisfied here, because Kearney's actions resulted in identifiable losses as outlined in the expert reports and Vicky's victim impact statements. ... We do not suggest that in all instances where there is a victim within the meaning of the statute, the victim is entitled to restitution....

The court also upheld the calculation of the restitution amount of $3,800, "which was arrived at by averaging the awards Vicky had received in thirty-three other restitution cases, after discarding the highest and lowest values awarded."

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