Alabama district court applies good faith to pre-Jones GPS use based on 1981 beeper case from old Fifth Circuit

A district court in the Eleventh Circuit has held that use of a GPS device on a vehicle before the Supreme Court's decision in Jones was done in good faith because a 1981 case (old Fifth Circuit which included present-day Eleventh Circuit, en banc) "held that placing an electronic beeper on the exterior of a defendant's car when the car was parked in a public lot did not violate the Fourth Amendment." United States v. Rosas-llescas, 2012 U.S. Dist. LEXIS 74594 (N.D. Ala. 2012). Because the device was installed pre-Jones, it was done...

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Third Circuit holds that three-year-old information is not stale in child pornography cases

In United States v. Prawdzik, 2012 U.S. App. LEXIS 10840 (3d Cir. 2012), the Third Circuit affirmed a motion to suppress over an argument that a search warrant contained stale information because it had been three years since the sexual abuse had occurred. On appeal, the defendant argued that the information supporting the search warrant was stale because the sexual abuse had ended three years earlier. The appellate court acknowledged that information supporting child pornography crimes could potentially grow stale, but the facts of this case...

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Missouri Supreme Court reverses CP convictions due to ambiguous statute

In State v. Liberty, 2012 Mo. LEXIS 104, the Missouri Supreme Court reversed seven of eight child pornography possession charges because the statute was ambiguous as to whether it allowed a single or multiple prosecutions for possession of multiple images. The court, however, denied other arguments made by the defendant. The defendant had posted a description of physical contact with a 7-year-old child to a pedophile website, which...

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Congress investigates location data issues

House conducts hearing on GPS Act A recent congressional hearing addressed the proposed Geolocational Privacy and Surveillance Act which would require a search warrant to obtain GPS or CSLI data from phone companies. The bill is authored by Rep. Jason Chaffetz (R-Utah) and Sen. Ron Wyden (D-Oregon). John Ramsey, of the Federal Law Enforcement Officers Association, suggested that location data is often essential to obtaining a search warrant, and requiring a warrant for location data would make law enforcement's job more difficult. Ramsey...

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EU law requiring consent for cookies modified by British to allow implied consent

The European Union's "cookie law" (EU Directive 2009/136/EC) went into effect over the weekend, which requires: Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive...

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Court suppresses fruit of warrantless GPS tracking, but could inevitable discovery have saved it?

In United States v. Lee, 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. 2012), the court ordered suppression of evidence obtained as part of an investigation using a GPS device installed without a search warrant. A later search was not sufficiently attenuated, and the use of GPS was not in good faith. The defendant was suspected of drug trafficking, and a DEA officer installed a GPS device on his car without a search warrant. The device allowed them to track his movements, and the DEA notified state police of the investigation. State police were notified...

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Cal. court: CP possession no reason to modify father's parental rights without proof of risk to child

A California appellate court has reversed an order making a child a dependent of the court following his father's conviction of possession of child pornography. No evidence showed there was a risk that the father would sexually abuse or exploit the child. In re M.M., 2012 Cal. App. Unpub. LEXIS 3772 (Cal. Ct. App. 2012). The father had been convicted of possession of child pornography, and the state argued that the possession "created a detrimental and endangering home environment for the child ... and place[ed] the child at risk of physical and...

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NY district court allows wiretap evidence over multiple objections from defendant

In United States v. Kazarian, 2012 U.S. Dist. LEXIS 70050 (S.D.N.Y. 2012), the court denied the suppression of wiretap evidence over arguments that probable cause did not exist, the necessity requirement was not established, and minimization was not followed. The defendant allegedly worked to defraud Medicare of over $100 million and sought to suppress evidence from wiretaps (among other searches), arguing that probable cause did not exist and the applications did not show necessity for a wiretap. The court first found that probable cause existed,...

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District Court: Guessing location of IP address for Doe defendants does not establish personal jurisdiction

A California federal district court has dismissed a case for lack of personal jurisdiction because the plaintiff did not sufficiently prove that the unknown user of a specific IP address was located in California. Celestial Inc. v. Swarm Sharing Hash, 2012 U.S. Dist. LEXIS 61559 (C.D. Cal. 2012). The plaintiff, a producer of adult pornography, had filed suit against multiple John Doe defendants who had used peer-to-peer networking software to download copyrighted videos. To satisfy personal jurisdiction, the plaintiffs asserted that research...

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Federal court holds that 15-month delay in reviewing electronic evidence was an unlawful seizure

In what I would call a very significant case, a New York federal court has held that failure to examine a defendant's imaged hard drive within 15-months after it was obtained was an unlawful seizure in violation of the Fourth Amendment. In United States v. Metter, 2011 U.S. Dist. LEXIS 155130 (E.D.N.Y. 2012) the government imaged over 60 hard drives as part of a criminal investigation into securities fraud, yet held on to the images and failed to actually do anything with them for over 15 months. The defendant argued that "the government's...

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Cable guy did not act as agent of law enforcement when he discovered child pornography on a service stop

In United States v. Jurek, 2012 U.S. Dist. LEXIS 70242 (N.D. Ohio 2012), the court held that an AT&T cable guy did not act as a governmental agent when he searched a customer's computer and found child pornography. The defendant called AT&T to report that his U-verse service was not working correctly, and a technician was dispatched. The technician went to the defendant's home, and was assisted by the defendant's son who called his father when the technician arrived. While working in the web browser (I assume to connect to...

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Plaintiff alleges the FBI used his voice to create rap music, FBI should be charged with identity theft

A federal district court has dismissed an inmate's suit against Verizon and others for failure to state a claim for relief, finding the allegations were "obviously 'fantastic' and clearly 'delusional.'" The plaintiff suggested that Verizon wiretapped his phone and gave the recordings to the FBI. The FBI then used his voice to create rap music and used his image to publicize it. "I want the FBI to be charged with identity theft," added the plaintiff. The case is T.I. v. Verizon Mobile Phones, 2012 U.S. Dist. LEXIS 69505 (W.D.N.C. 201...

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Military appeals court reverses conviction because four of six alleged images of CP did not meet definition

In United States v. Barberi, 2012 CAAF LEXIS 594, the Court of Appeals for the Armed Forces reversed and remanded a conviction for child pornography possession because four of the six images did not fit the required definition. The investigation had revealed six images of a child that were introduced at trial in support of the allegation. The Army Court of Criminal Appeals had found that four of those images "were legally and factually insufficient to support a conviction" as they did not contain the necessary elements to be child...

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Tool released to download all iCloud data, recover iPhone password for $199

ElcomSoft, a developer of computer forensics products, has released a tool that has the ability to download a user's iPhone data from iCloud. Here's the product description: ElcomSoft Co. Ltd. discovers yet another way to access information stored in Apple iOS devices by retrieving online backups from Apple iCloud storage. The company updates Elcomsoft Phone Password Breaker, a tool to retrieve user content from password-protected backups created by Apple iOS devices and BlackBerry smartphones, with the ability to retrieve iPhones’ user data from...

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More analysis of the NY decision in People v. Kent

In the aftermath of the recent decision from the Court of Appeals of New York in People v. Kent (summary here), there's been a large amount of interesting commentary - both legal and popular. Here are a few of the best: Law.com's article, "Judicial Misunderstanding of Technology and Child Pornography," criticizes the decision which has "potentially given a 'free pass' to those who 'merely view' child pornography on the internet." The New York Criminal Defense blog's post on Kent has an interesting section discussing what defendants...

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6th Circuit reverses 60-year sentence for CP crimes

In United States v. Aleo, 2012 FED App. 0134P (6th Cir. 2012), the Sixth Circuit reversed a total sentence of 720 months (60 years) for one count each of production, possession, and transportation of child pornography - each to run consecutively. The government had recommended 300 months. The defendant, a 66-year-old Michigan man, had subscribed to multiple child pornography websites in addition to producing his own. The sentencing judge noted: I think this is perhaps one of the most despicable cases that I have ever been involved in, in 28...

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What type of process is required for a cell tower dump?

I was recently in a discussion concerning the type of process needed for law enforcement to obtain a tower dump from a service provider. A tower dump allows police to request the phone numbers of all phones that connected to a specific tower within a given period of time. Beyond this list, law enforcement could also request customer information, allowing them to match the cell numbers with a specific customer's name, address, and other account...

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NY state senator proposes altering child porn bill to include viewing

In response to the recent New York high court ruling (discussed here) that viewing online child pornography is not alone possession, a New York state senator has introduced legislation to modify the state statute. In the senator's press release titled "New York Must Close Loophole That Protects Perverts," he noted: Senator [Martin] Golden’s legislation seeks to amend the law, that currently makes it a crime to possess an obscene sexual performance by a child, to also include knowingly accessing such material with intent to view. The bill,...

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Georgia court holds that "My Pictures" folder falls within the scope of warrant for drug records

In Henson v. State, 723 S.E.2d 456 (Ga. Ct. App. 2012) a Georgia appellate court held that an officer did not exceed the scope of a warrant issued to find evidence of drug distribution when the officer looked in the defendant's "My Pictures" folder. The officer was searching the defendant's residence lawfully when he came upon the defendant's computer which was in his room and turned on. It appears from the facts of the case that the only thing...

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D.C. Circuit denies EPIC's request for information from NSA concerning Google cyberattack

The D.C. Circuit has denied the appeal of the Electronic Privacy Information Center (EPIC) as it attempted to seek communications between Google and the National Security Agency (NSA) concerning a January 2010 cyber attack on Google. Elec. Privacy Info. Ctr. v. NSA, 2012 U.S. App. LEXIS 9571 (D.C. Cir. 2012). The attack targeted the e-mail accounts of Chinese human rights activists. It was reported that Google contacted the NSA immediately after the attack, and "former NSA director Mike McConnell commented in the Washington Post that collaboration...

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NCJRL/NAAG mobile devices conference presentation

I'll be speaking on smartphone data security and privacy this Wednesday at a conference for attorneys from AG's offices around the country, sponsored by the National Center for Justice and the Rule of Law and the National Association of Attorneys General. If any of you will be attending, please come introduce yourse...

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What Bitcoins can buy you in the criminal underground

Jeffrey's previous post noted that the FBI was concerned about Bitcoins and their potential to be used to procure illegal items or facilitate agreements that otherwise would have drawn attention if done in regular currency.  It is actually pretty startling to see what exactly Bitcoins can be used to purchase in the criminal underground. Because I would prefer not to draw the ire of those who run these sites by sharing screenshots of all of them, I will merely describe a few of the interesting things I have seen. 1. Quite handy to criminals,...

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FBI report released on illicit use of Bitcoin currency

Threat Level has released a copy of an FBI report on the Bitcoin virtual currency and its potential for use in illicit activity. Bitcoin uses peer-to-peer networking, cryptographic proof, and digital signatures to allow users to make currency transactions online. There is no centralized authority for the currency, and the total market for Bitcoins is currently around $45 million. Earlier this year, over $228,000 in Bitcoin currency...

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New York high court finds that cache of CP alone is insufficient to support possession charge

In People v. Kent, 2012 NY Slip Op 3572 (N.Y. 2012), the Court of Appeals of New York held that possession of files in a browser's cache is not sufficiently proven when it is not also shown that the defendant was aware that the files were being cached. Additionally, "merely viewing Web images of child pornography does not, absent other proof, constitute either possession or procurement." During a virus scan of the defendant's work computer,...

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Cybercrime Review seeks new student author, welcomes guest bloggers

Cybercrime Review is seeking a student author to cover developments in child pornography and identity theft law. Click here (or click on the graphic to the right) for more information. Please feel free to forward this to upcoming 3L students you think may be interested. Additionally, we welcome guest posts from our readers. Cybercrime Review seeks to be a hub for all things cybercrime, and we welcome your take on recent...

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7th Circuit suggests Illinois eavesdropping statute may violate the First Amendment

In ACLU of Illinois v. Alvarez, 2012 U.S. App. LEXIS 9303 (7th Cir. 2012), the Seventh Circuit suggested that an Illinois statute banning the recording of police conversations without consent is likely to violate the First Amendment. Though it's not directly a cybercrime issue, the case could certainly have effects on privacy issues and technology use. The law makes "it a crime to use 'an eavesdropping device to hear or record all or part of any oral conversation without the consent of any party thereto.'" If a person records communications involving...

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8th Circuit affirms supervised release condition banning legal child nudity

In United States v. Kelly, 2012 U.S. App. LEXIS 9225 (8th Cir. 2012), the Eight Circuit held that a special condition of supervised release prohibiting the defendant from possessing photographic depictions of nude children was not unconstitutionally overbroad. The defendant had been convicted of being a felon in possession of a firearm. The sentencing court found that he was a "sexual predator" based on his criminal history and ordered the following condition: The Defendant shall neither possess nor have under his control any material, legal...

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Defendant argues he has expectation of privacy in SHA-1 values. Wait, what?

In State v. Daigle, 2012 La. App. LEXIS 573 (2012), the defendant appealed the denial of a motion to suppress evidence of child pornography obtained through the use of the Gnutella network. His argument began with an assertion of privacy already foreclosed by both United States v. Stults, 575 F.3d 834 (8th Cir. 2009) and United States v. Ganoe, 538 F.3d 1117 (9th Cir. 2008) - namely that an individual does not have a reasonable expectation of privacy...

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Should it be illegal to put a nude photo of your ex on the Internet?

Though I spend a lot of time on the Internet, there is still a lot I haven't seen. I read recently about "Is Anyone Up?" (which recently decided to shutdown), a website that allowed users to submit nude photographs of others, many of which were referred to as "pornographic souvenirs from relationships gone sour." Most posts also began with a screenshot of the person's Facebook profile. Of course, there are several civil remedies that could be used to stop such postings, but is the act criminal? Congress tried to act on this most recently in...

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Magistrate orders individual suits in mass copyright violation case, evaluates use of IP address as evidence

A federal magistrate has determined that lawsuits for downloading copyrighted adult pornography on peer-to-peer networks against unknown defendants must be brought individually. In re Bittorrent Adult Film Copyright Infringement Cases, 2012 U.S. Dist. LEXIS 61447 (E.D.N.Y. 2012). Many recent cases involved thousands of IP addresses being given to the court with no further evidence, prompting the judge to evaluate whether an IP address alone is sufficient to state a claim. Because there is no other remedy, the plaintiffs should be allowed to proceed. The...

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3rd Circuit denies admission of testimony related to hostage victim's computer contents

In United States v. Santiago, 2012 U.S. App. LEXIS 8686 (3d Cir. 2012), the Third Circuit examined a conviction related to hostage taking. The defense argued the kidnapping was staged by the victim to get ransom money to pay for his gambling and/or sex addictions, but the trial and appellate courts held that testimony related to those arguments should be excluded. A forensics expert for the defense investigated the victim's computer and "found various files indicative of child pornography and emails suggesting that Correa had solicited...

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