Forget the theoretical - what hacking back looks like in the real world

There have been many posts and links on Cybercrime Review discussing the legal implications of hacking back - see my collection of those posts, here: Hacking Back - are you authorized?  A discussion of whether it's an invitation to federal prison or a justified reaction/strategy?. What is lost in these discussions is a strong foothold in real world examples. Well, now we have a recent, real life "hack back" to look upon - the Republic of Georgia's counter-espionage hack of a supposed Russian perpetrator who was propagating malware...

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Ohio state court forbids use of GPS evidence obtained without warrant; Florida district court holds otherwise

In State v. Henry, 2012 Ohio 4748 (Ohio Ct. App.), the court of appeals reversed and remanded the case because the GPS device had been installed without a search warrant. Ohio had no binding precedent on the issue, preventing a successful good faith argument by the government. In a recent Florida case, the district court upheld the use of the GPS evidence, finding that the Eleventh Circuit had binding precedent on the issue. United States v. Lewis, No. 12-60011-CR (S.D. Fla. 2012). In Henry, the defendant had recently been released from prison...

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When in doubt, try mosaic theory?

In United States v. Mohamud, 2012 U.S. Dist. LEXIS 151430 (Or. Oct. 22, 2012) the defendant was charged with attempt to use a weapon of mass destruction. He argued two things: (1) that evidence from an alleged date rape investigation by Oregon State Police (OSP) should be suppressed because the consent was not voluntary and the police exceeded the scope of consent, and (2) that because the OSP evidence was poisoned, the FBI's use of that evidence (since they were participating with OSP) was fruit of the poisoned tree. The case has a number...

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When does one start to have a legitimate privacy interest in one’s phone records?

In McGreal v. AT & T Corp., 2012 WL 4356683 (N.D. Ill. Sept. 24, 2012), a federal district court held that a phone owner did not have standing to bring a Fourth Amendment unreasonable search and seizure violation as she did not have a legitimate expectation of privacy in the previous owner’s usage records of the phone. The plaintiff alleged a Fourth Amendment unreasonable search and seizure violation against the Village of Orland Park and some of its employees (The Village defendants). In October 2010, the Village of Orlando Park...

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Cybercrime Review welcomes Emil Ovbiagele as guest writer

I am excited to welcome Emil Ovbiagele as a guest writer for Cybercrime Review. Emil, a 2L at Marquette University Law School, will post (as his busy schedule permits) as a guest writer between now and the end of the year. Emil's first post on the blog with appear tomorrow morning. He plans to formally join Cybercrime Review as a permanent author at the beginning of 2013. See below for a description of Emil's impressive credentials. Emil is currently a 2L at Marquette University Law School pursuing a a joint J.D./M.A. in Law and International...

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Oregon appeals court reverses CP possession convictions as state failed to prove possession or control of cached images

In State v. Tilden, No. A146914 (Or. Ct. App. 2012), the Oregon Court of Appeals reversed a conviction on 101 counts related to child pornography possession as the state had not proven that the images found in the defendant's cache were ever possessed or controlled by the defendant. The defendant was charged and convicted of 101 counts of encouraging child sexual abuse under an Oregon statute, one count for each image of child pornography found on his computer. A forensic analysis of the computer revealed that the images appeared on the defendant's...

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Nevada district court applies good faith to GPS evidence, denies standing to one-time driver

In United States v. Smith, No. 2:11-cr-00058-GMN-CWH (D. Nev. 2012), the district court found that the defendants were not entitled to suppression of GPS evidence and that one of the defendants did not have a legitimate expectation of privacy in the car which he had driven on at least one occasion. Law enforcement had placed a GPS device on defendant Smith's vehicle in May 2010, and Smith sought to suppress the evidence obtained from the device under the 2012 Supreme Court decision in Jones. Defendant Merritte sought similar protection...

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Kansas magistrate adopts Warshak, strikes down warrant applications for not meeting particularity requirements

In In re Applications for Search Warrants, No. 12-MJ-8119-DJW (D. Kan. 2012), a magistrate judge adopted the Sixth Circuit's Warshak view that electronic communications are subject to a reasonable expectation of privacy and held that search warrants for such information should be sufficiently limited to the relevant crime(s) and should address limits for reviewing the data. The government had applied for two search warrants to obtain electronic communications from Yahoo! and UnityFax. In the application, they alleged that the account...

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Fifth Circuit shows forensic acumen in CP case; defendant preserves important question for appeal

In United States v. Pelland, __ F.3d __ (5th Cir. 2012), the Fifth Circuit held that circumstantial evidence could be used to prove the interstate commerce requirement of the federal CP statute. The case is noteworthy for two reasons: (1) the court, in holding as it did, discussed the forensic details accurately and succinctly (which often does note happen) and (2) the defendant preserved an interesting statutory interpretation problem which the court punted on for good reason. This case is relatively run of the mill in terms of facts - the defendant...

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Arkansas Supreme Court upholds murder conviction over argument that text messages were improperly obtained by a prosecutor's subpoena

In Gulley v. State, 2012 Ark. 368 (Ark. 2012), the Supreme Court of Arkansas held that the defendant's argument that text messages obtained by a prosecutor's subpoena violated the federal Stored Communications Act and Fourth Amendment would not be considered because the objection was not made at trial, and the defendant did not argue on appeal that the prosecutor had abused the subpoena power. The defendant had been convicted and sentenced for capital murder and attempted capital murder, and three text messages were presented at trial which had...

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Wyoming Supreme Court reverses sexual abuse convictions due to improper CP website testimony and court instruction

The Supreme Court of Wyoming recently reversed and remanded convictions of sexual abuse because of the admission of certain testimony concerning child pornography websites the defendant had allegedly visited and an improper comment by the district court upon evidence. Mersereau v. State, 2012 WY 125 (Wyo. 2012) At trial, the state sought to admit images of child pornography found on websites that had allegedly been visited by the defendant in order to show a sexual attraction to children. The court found the images to be overly prejudicial, but...

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Third Circuit rules that district courts must view CP videos prior to ruling on their admissibility at trial

In United States v. Cunningham, No. 10-4021 (3rd Cir. 2012), the Third Circuit held that it is substantive error for a district court to rule on a Federal Rules of Evidence 403 motion concerning the showing of child pornography videos at trial without the court first viewing the videos to determine their probative value. Pennsylvania police had discovered child pornography being shared on Limewire and tracked it to the defendant's home where a search revealed those same files on the defendant's computer. Before trial, the defendant argued that...

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Hacking Back - are you authorized? A discussion of whether it's an invitation to federal prison or a justified reaction/strategy?

The concept of hacking back has continued to gain attention as cyber-attacks continue. I'd be remiss if I didn't point readers to the Volokh Conspiracy and its latest coverage on the issue. The contenders in this argument, which has gone back and forth for 4 days so far, are Stewart Baker, a Partner at Steptoe & Johnson, with experience working for DHS, and Orin Kerr, Fred C. Stevenson Research Professor of Law at The George Washington University. As an initial matter, Jeffrey and I did a back and forth on this in June. Our posts can...

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South Carolina Supreme Court finds no SCA protection for read e-mails left in user's account

In Jennings v. Jennings, No. 27177 (S.C. 2012), the South Carolina Supreme Court held that e-mails simply left in a user's account after being read are not in "electronic storage" and thus not protected by the federal Stored Communications Act (SCA). The statute, enacted in 1986, addresses unlawful access to stored communications and prescribes criminal and civil penalties for such access. The alleged SCA violation arose after Mrs. Jennings discovered that her husband had been having an affair. A friend obtained access to Mr. Jennings's personal...

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Eleventh Circuit finds multiple images of CP in single photography session allow for multiple production counts

In United States v. Fee, No. 11-15356 (11th Cir. 2012), the Eleventh Circuit held that the production of multiple images of child pornography during a single photography session allows for multiple counts of production. The defendant was convicted on eight counts of production of child pornography, and she argued on appeal that the multiple counts were multiplicitous. However, the Eleventh Circuit held that the convictions were not multiplicitous as each involved an act "of sexually explicit conduct to produce separate visual depictions...

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If I read your emails, change your password, and use your emails against you in a divorce proceeding, am I cyberstalking you?

If you said "yes" to the question posed in the title of this post, you may have some difficulties in Florida. In Young v. Young, 2012 Fla. App. LEXIS 15112 (Sept. 28, 2012), a Florida appellate court said "no" to that question, holding that cyberstalking, per Florida statute, requires "electronic communications by [a person] of "words, images, or language . . . directed at" another individual (the person allegedly getting stalked). In Young, the husband allowed his wife to use his computer password to install a multi-user licensed anti-virus...

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Ninth Circuit holds that storing CP in shared folder is distribution, FBI must disclose EP2P software to defendants

In United States v. Budziak, No. 11-10223 (9th Cir. 2012), the Ninth Circuit held that storing child pornography in a shared folder for peer-to-peer networking without proof of distribution can, nonetheless, be considered distribution. The decision echoes that of three other circuits' opinions - United States v. Chiaradio, 684 F.3d 265, 281-82 (1st Cir. 2012); United States v. Shaffer, 472 F.3d 1219, 1223 (10th Cir. 2007); and United States v. Collins, 642 F.3d 654, 656-57 (8th Cir. 2011). The Ninth held "that the...

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En banc Fifth Circuit continues circuit split with CP restitution, holds proximate cause not required for loss calculation

The Fifth Circuit recently decided en banc to continue a circuit split concerning restitution to child victims of images of child pornography. In re Amy Unknown, No. 09-41238 (5th Circuit 2012) (en banc). As discussed previously on this blog, the Fifth Circuit was the odd man out on the issue, with a panel having held that the statute's allowance for losses is not limited to those proximately caused by the defendant. In light of conflicting opinions in other circuits, the Fifth took up the case en banc. Other circuits have held that 18...

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Wiretap Act and sniffing Wi-Fi - new Michigan Law Review note

The newest issue of the Michigan Law Review has arrived, and within it is a very interesting note on the intersection of the federal wiretap act and wi-fi sniffing. It's a topic we have touched upon here a few times, and I think the article does a good job of highlighting the uncertainty in the area. Indeed, that word is used in the abstract. The article, by Mani Potnuru, can be reached here: Limits of the Federal Wiretap Act’s Ability to Protect Against Wi-Fi Sniffing, and the abstract is below: Adoption of Wi-Fi wireless technology continues...

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FTC decision puts spy software manufacturers on notice

The Federal Trade Commission recently settled with several companies regarding software that allowed the companies to spy on the computer's users by capturing screenshots, logging keystrokes, and taking pictures through the computer's webcam. The software was used by rent-to-own companies to track buyers when they became delinquent on payments. In addition to the rent-to-own companies, the FTC complaint also included the software manufacturer,...

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Analysis of Fifth Circuit CSLI oral argument: Government likely to win on Fourth Amendment issue

The Fifth Circuit heard oral argument yesterday on the oft-discussed cell site data case. The Fives are the second federal court of appeals to consider this issue; the Third Circuit addressed cell site data in relation to the Fourth Amendment in 2010. The issues presented in this case are two-fold: first, whether the Constitution requires a warrant based on probable cause (rather than a court order issued under a lesser standard provided by § 2703(d) of the Stored Communications Act) when the Government wants cell phone providers to turn over...

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Cybercrime Review welcomes Marielle Dirkx as guest writer

I am proud to welcome Mariëlle Dirkx as a guest writer for Cybercrime Review. Mariëlle, a former Fifth Circuit clerk, will join us from time to time to write about cybercrime issues including her post today on the Fifth Circuit's CSLI case. Mariëlle graduated valedictorian of her class at the University of Mississippi School of Law and received a certificate in criminal law. During law school, she served on the Mississippi Law Journal and the Journal of Space Law and published on subjects as diverse as space-law contracts...

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Oral argument posted in Fifth Circuit cell site case

Below is a link to the oral arguments in the Fifth Circuit cell site location information case I blogged about on Monday. Arguments were presented by Nathan Judish from the DOJ, Professor Susan Freiwald, and Hanni Fakhoury of the EFF. We'll have analysis of the arguments soon. http://www.ca5.uscourts.gov/OralArgRecordings/11/11-20884_10-2-2012....

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Map shows cyber attacks in real-time

Be sure to check out this real-time map that shows cyber attacks throughout the world. Red dots represent the location of attackers, and a ticker at the bottom lets you see their location and IP address. The data is collected by The Honeynet Project whose mission is "[t]o learn the tools, tactics and motives involved in computer and network attacks, and share the lessons learne...

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Fifth Circuit to hear cell site data case Tuesday

Tomorrow, the Fifth Circuit will hold oral arguments for its much anticipated case on cell site location information. A magistrate judge denied the government's 2703(d) request for 60 days of location data, holding that a search warrant was needed. The district court judge agreed, and the government appealed. The predominant issue in the case is whether CLSI is protected by the Stored Communications Act alone or also by the Fourth Amendment. If it's only the former, law enforcement need only show "specific and articulable facts," rather than the...

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