Dissenting judge in CP case argues that "sexual predator" label for 17 yr old offender, as applied, was cruel and unusual punishment

In In re Welfare of: J.E.M., 2012 Minn. App. Unpub. LEXIS 326, a 17-year-old's conviction for possession  of child pornography was upheld; that's not the main story, though. Judge Randall, concurring specially, made an impassioned argument that under the facts of this case, which were somewhat tenuous, applying the sexual predator label to a 17-year-old (for ten years) who hadn't actually had anything to do with their production or distribution,...

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Last week's tweets from @CybercrimeRev

Don't forget to follow Cybercrime Review on Twitter (@CybercrimeRev). Here are some of the stories we've tweeted about in the past week that we didn't discuss on the blog. 92-year-old WWII vet sends bootlegged movies to American soldiers abroad Germany's high court holds that phishing victims' losses are their own fault Justice Department clears Google in Wi-Fi sniffing scandal How to wipe your hard drive DoD-Clean Employee snooping in IRS database:...

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6th Circuit finds probable cause to search camera for evidence of underage drinking, one judge disagrees

The Sixth Circuit recently affirmed the denial of a motion to suppress in United States v. Westerlund, 2012 FED App. 0440N (6th Cir.). In the case, a 15-year-old boy was found drunk by his parents. He and his girlfriend claimed that Westerlund gave them alcohol. The boy's older brother (age 16) told police that he had also been given alcohol and marijuana by Westerlund before and that "a camera had been used at some of their parties and pictures had been taken but he thinks most of them were deleted." On this information, law enforcement...

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Tech Watch: Onion Browser for iPhone allows encrypted browsing, Tor traffic tunneling

Onion Browser, an app just released for the iPhone and iPad, uses the Tor network to allow users to access the Internet with encryption and anonymity. The app, which is not made by the Tor Project, is available for $0.99 in the iTunes store. The website lists the following features and benefits of the browser: Internet access is tunneled through the Tor network: traffic is sent through an encrypted tunnel and over several "onion router" machines...

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1st Circuit affirms sentence despite erroneous calculation in presentence report

In United States v. Roman-Portalatin, 2012 U.S. App. LEXIS 8393 (1st Cir. 2012), the First Circuit upheld a sentence for persuading a minor to engage in unlawful sexual conduct and possession of child pornography despite the defendant's argument that an enhancement was erroneously applied. The enhancement of USSG § 2G2.1(b)(6)(B)(ii) is applied for the use of a computer to "solicit participation with a minor in sexually explicit conduct for the purpose of producing sexually explicit material or for the purpose of transmitting such...

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District court denies restitution to child pornography victim because government failed to prove damages

A federal district court has denied an award of restitution to "Cindy," an individual depicted in child pornography. United States v. Veazie, 2012 U.S. Dist. LEXIS 57772 (D. Maine 2012). In the past, Cindy has been awarded restitution twelve times with awards ranging from $1,000 to $5,000, and she is seeking to recover approximately $71,000 total. The court first determined that the defendant was the proximate cause of Cindy's harm. However, "[j]oint and several liability is inappropriate" because he did not cause all of her injuries, and...

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FBI seizes server used to anonymize e-mail

The FBI recently seized an entire server that was used to anonymously make bomb threats against the University of Pittsburgh. The server was running Mixmaster, an anonymous remailer service, that was predominantly used by many civil and human rights groups. The shutdown of the server took out 300 email accounts, 50-80 email lists, and several websites. The organizations behind these accounts are not suspected of any wrongdoing. “The FBI is using a sledgehammer approach, shutting down service to hundreds of users due to the actions of one anonymous...

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Missouri appellate court finds search unconstitutional, affirms conviction

In State v. Sachs, the Missouri Court of Appeals considered whether pictures of a computer's screen introduced at trial were improperly obtained. 2012 Mo. App. LEXIS 571. Law enforcement had tracked child pornography activity to the defendant's home. They arrived to talk with him without a search warrant, and the defendant admitted downloading child pornography. When the defendant stepped outside to call his parents, the detective began opening...

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Court finds evidence of counterfeiting and giving minors drugs admissible in CP trial

In United States v. Stringer, 2012 U.S. Dist. LEXIS 56458 (W.D. Mo. 2012), the court held that evidence of a defendant's possession of counterfeit currency and giving methamphetamine to minors is admissible in his trial for possession of child pornography. The defendant had entered a guilty plea for the counterfeiting charge, and evidence of that crime was found on the same computer as the child pornography. He argued that it was immaterial and would be unfairly prejudicial. The court ruled it admissible "if offered to prove Defendant's possession...

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Search validated based on results of the search, rather than the method

The recent case of United States v. Johnston, 2012 U.S. Dist. LEXIS 53323 (E.D. Cal.), raised some thought-provoking questions. Essentially, it is a run of the mill CP motion to suppress - with one twist. The defendant had used his email address to register for a CP website, and an e-mail giving him access was “intercepted.” A search warrant was obtained and during the first search of the defendant’s hard drive plenty of CP was found, and a search for relevant communications turned up “some ‘emails of interest’ and chat logs.” A second search...

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Pre-Jones GPS data not subject to suppression in 7th, 8th, and 9th Circuits due to good faith exception

In United States v. Amaya, 2012 WL 1188456 (N.D. Iowa 2012), a motion to suppress GPS data because law enforcement obtained it in good faith prior to the Supreme Court's decision in Jones. The defendant is facing multiple drug charges. After Jones was handed down in January, Amaya was given the opportunity to file a motion to suppress GPS evidence in the case. Law enforcement had used GPS devices on multiple vehicles without a warrant for periods of time ranging from one to four months. In considering the motion to dismiss, the judge found...

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Social networking actions lead to crimes, but is it anything new?

A disagreement over a Facebook relationship status recently ended with gunshots being fired into the air outside a Georgia Waffle House. In February, a husband and wife unfriending someone on Facebook ended with that person's father shooting the couple. As these events happen, they get a great deal of news coverage. The stories are somewhat unique as they involve a specific element that hasn't existed before. They seem to demonize social networking...

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11th Circuit affirms use of chat transcript and virus scanner file list in CP case

In United States v. Rubinstein, 2012 U.S. App. LEXIS 7890 (11th Cir. 2012), the Eleventh Circuit upheld convictions for transporting and possessing child pornography. On appeal, the defendant argued that online chat transcripts and a list of files generated by the computer's antivirus program should not have been admitted into evidence. The investigation began with connecting the defendant's screen name to his ISP and residence, and then searching his home. His computer and DVD contained hundreds of images of child pornography. The Eleventh...

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FBI replaces Bin Laden on Most Wanted list with child pornographer

The FBI has finally replaced Osama bin Laden on its Ten Most Wanted list, replacing him with Eric Justin Toth, an alleged producer of child pornography. Toth was a third-grade teacher, and images of child pornography were found on a school camera that he had been using. It is thought that he has traveled to Virginia, Illinois, Indiana, Wisconsin, Minnesota, and Arizona while on the run. The top ten list produced by the FBI is not ranked so Toth's...

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3rd Circuit remands challenge of porn industry record-keeping requirements

In Free Speech Coal. v. Attorney General of the United States, 2012 U.S. App. LEXIS 7543 (3rd Cir. 2012), the Third Circuit remanded a case challenging the constitutionality of 18 U.S.C. § 2257 and § 2257A, a record-keeping requirement for the pornography industry, after the court granted the government's motion to dismiss. On remand, the district court must consider the plaintiff's First and Fourth Amendment arguments. The statute requires the producer to keep identifiable records of each performer and to have the records...

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Why Nosal’s dissent is surprisingly persuasive

Judge Silverman wrote an interesting dissent in United States v. Nosal, 2012 WL 1176119 (9th Cir. 2012) in which Judge Tallman joined. First off, let me be clear that Chief Judge Kozinski was accurate in his majority opinion that the Computer Fraud and Abuse Act (CFAA), when enacted, contemplated hackers and not necessarily violations of acceptable use policies or corporate internet policies. That being said, and giving Kozinski his well-deserved due deference, viewing the case in an as-applied fashion, as the dissent does, the following quote...

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2nd Circuit holds theft of computer code not covered under National Stolen Property Act

The Second Circuit has joined a list of courts in finding that the National Stolen Property Act does not criminalize the theft of "purely intangible property." United States v. Aleynikov, 2012 U.S. App. LEXIS 7439 (2d Cir. 2012). Aleynikov encrypted and uploaded 500,000 lines of code to a server on his last day of work before beginning a new job. He later downloaded the source code onto his home computer, was arrested nearly a month later, and was charged with violations of the CFAA and NSPA. The CFAA charge was dismissed because he "was...

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Colorado court reverses convictions of child luring, sexual exploitation

The Court of Appeals of Colorado has reversed convictions for state crimes of Internet luring of a child and Internet sexual exploitation of a child after a finding of insufficient evidence. People v. Douglas, 2012 Colo. App. LEXIS 549. The defendant had communicated with "Marsha," the alleged mother of a nine-year-old girl who would "make [her] daughter available ... for sex." Ultimately, the defendant traveled from Pennsylvania to Colorado...

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Arhndt's reference to Jones, and what Jones means in the context of wireless networks

This is the final post of a four-part series from Cybercrime Review on the Ninth Circuit's Ahrndt decision and the important legal issues concerning wireless networks. The most interesting portion of the 9th Circuit’s Ahrndt decision may be this line: “[t]he court should also evaluate whether a search occurred in light of Jones, 132 S. Ct. 945, decided after the district court’s original ruling.” Notably, this is the second to last line in the decision but is the most intriguing and ripe for analysis. First, it raises the question of whether...

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Ninth Circuit en banc adopts narrow reading of CFAA

In United States v. Nosal, 676 F.3d 854 (9th Cir. 2012), the Ninth Circuit adopted a narrow reading of the Computer Fraud and Abuse Act, finding that violating an employer computer policy or a website's terms of service is not a violation of federal law. Nosal quit his job and soon thereafter encouraged his former coworkers to send him confidential information from the company. The employees had access to the database but were not allowed to disclose the information. Nosal was charged under the CFAA "for aiding and abetting the...

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Ahrndt considerations on remand and cordless ≠ WiFi

This is the third of a four-part series from Cybercrime Review on the Ninth Circuit's Ahrndt decision and the important legal issues concerning wireless networks. The Ahrndt case is rapt with analogies – “When a person shares files on LimeWire, it is like leaving one's documents in a box marked "free" on a busy city street. When a person shares files on iTunes over an unsecured wireless network, it is like leaving one's documents in a box marked "take a look" at the end of a cul-de-sac.” What is missing from these analogies is a step-by-step...

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Examination of the technology involved in Ahrndt

This is the second of a four-part series from Cybercrime Review on the Ninth Circuit's Ahrndt decision and the important legal issues concerning wireless networks. Understanding the technology involved in the Ahrndt decision is essential. As I've covered in previous posts (here), the case involved a neighbor's use of Ahrndt's unsecured wireless network. She didn't have permission to use it, but she could freely connect because of her proximity...

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Maryland passes bill to prohibit employers from requesting Facebook account information

The Maryland General Assembly has approved a bill prohibiting employers from requesting or requiring any online account information for current of prospective employers. The bill (SB 443/HB 894) comes after a firestorm of criticism related to news that the Maryland Department of Corrections required job applicants to turn over that information for their Facebook accounts. An amendment to the bill specifies that employees "may not download [sic] unauthorized employer proprietary information or financial data to an employee's personal website, an...

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Ninth Circuit remands case involving CP found on an unsecured wireless network

This is the first of a four-part series from Cybercrime Review on the Ninth Circuit's Ahrndt decision and the important legal issues concerning wireless networks. In United States v. Ahrndt, 2012 U.S. App. LEXIS 6976 (9th Cir. 2012), the Ninth Circuit reversed and remanded the denial of Ahrndt's motion to suppress evidence obtained from his unsecured wireless network. The court found the record was missing important facts necessary to reach the conclusion that Ahrndt had no reasonable expectation of privacy in files shared on his wireless...

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Cybercrime Review adds new author

Cybercrime Review began nearly six months ago, and I am very grateful to all of my loyal readers and supporters for making it so successful. The blog has been read in every state (Maine took a while, but it finally came around!) and over 100 countries. To further the important work that has already begun, I am proud to announce that Justin Webb, a 3L at Marquette University Law School, will be joining me in authoring the blog beginning this week. Justin is a graduate of UCLA, serves on the Marquette Law Review as Technology Editor, and recently...

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Vermont Supreme Court reverses in camera review of images of CP by newspaper

In Rutland Herald v. City of Rutland, 2012 VT 26, the Vermont Supreme Court reversed a trial court's decision concerning the Public Records Act. The court had ordered disclosure of certain documents to a newspaper and in camera review of possible images of child pornography in an investigation of a city police officer.The Herald had obtained a copy of a search warrant showing that pornography had been viewed on police department computers....

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Comic illustrator loses appeal after accidentally giving images of CP to a funeral home

A Connecticut family, suffering the loss of their father, compiled an assortment of family photos to use in a slide show at the funeral home. After the photos were copied to a thumb drive, a family member took the drive to the funeral home. Once there, an employee opened the drive and found child pornography. Someone had moved the images to the trash on a Mac, but those images were easily accessible in Windows. The funeral home reported the...

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Massachusetts court finds warrant necessary for CSLI

A Massachusetts appellate court has joined the list of courts requiring a search warrant for cell site location information. Commonwealth v. Pitt, 2012 Mass. Super. LEXIS 39. (Please forgive the block quotes, but the court's language, though familiar, is worth reading.) [T]he Fourth Amendment's warrant requirement cannot protect citizens' privacy if a court determines whether a warrant is required only after the search has occurred, and...

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