Seventh Circuit develops rules for CP restitution cases, requires classification of offenders for calculation

In United States v. Laraneta, No. 12-1302 (7th Cir. 2012), the Seventh Circuit held that child pornography defendants who simply possessed images are only liable for restitution based on the limited amount of damage they caused. Distributors, however, are liable for the entire damages. Further, defendants may not seek contribution from others. The defendant had pled guilty to seven counts related to child pornography. The defendant was sentenced to thirty years in prison and ordered to pay over $4 million in restitution to two victims. The Seventh...

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Highlighted Paper: Orin Kerr, The Mosaic Theory of the Fourth Amendment

This week I would like to draw attention to Orin Kerr's new article on Mosaic Theory, a theory which gained notoriety after the GPS tracking case United States v. Maynard and was later implicitly accepted by some justices of the Supreme Court in United States v. Jones. I have a personal interest in this topic, since my law review article, Car-ving out the Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction, focused on Maynard and Mosaic Theory as well. This blog has also discussed...

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Principal caught with CP when FBI agent returns son's school laptop with spyware still on it; court denies suppression

This case will be discussed in two posts. In United States v. Weindl, __ F.Supp __ (D. N.M.I. Nov. 20, 2012), a Northern Mariana Islands federal district court denied suppression of evidence obtained when spyware installed on school-owned laptop (assigned to an FBI agent's son and later used by the principal) sent child pornography (CP) reports (alerts) to the FBI agent - evidence that led to charges against the school principal (two counts of receiving CP and two counts of possession of CP). There are three relevant issues in the case: (1) whether...

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Government appeals GPS case to Third Circuit; groups file amicus arguing that warrant is required

As frequent readers of this blog have become well-aware, an interesting fight occurring throughout American courtrooms concerns the interpretation of the Supreme Court's Jones decision and the application of the good faith doctrine to that opinion. Some patterns have appeared, but there are many exceptions to each of them. One decision, United States v. Katzin, followed a pattern. Typically, if the jurisdiction of the search did not have binding precedent, the good faith exception does not save the search, and the evidence is suppressed. In...

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Fifth Circuit reissues en banc CP restitution opinion, retains substance of the opinion

In October, the Fifth Circuit, in an en banc opinion, held that a victim of child pornography is not limited to recovery for losses proximately caused by the defendant. In re Amy Unknown, No. 09-41238 (5th Cir. 2012) (en banc). Under the opinion, victims can be awarded the full amount of damages from any individual defendant - even if he only came into possession over the Internet. The decision, which I discussed in a previous post, vacated and remanded the combined cases for the district court to reconsider damages. Each had been heard...

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District court case provides road-map for what not to do under the Fourth Amendment

In Hatfield v. McDaniel, 2012 U.S. Dist. LEXIS (M.D. Ala. October 19, 2012), the court allowed the plaintiff's case alleging violations of section 1983 resulting from two illegal searches to proceed. The defendants were law enforcement officers and state/local entities that were party to the alleged Fourth Amendment violations. This is the closest case I've ever seen of what not to do under the Fourth Amendment: 1.  Facially invalid searchwarrant - check 2.  Search of computer (pursuant to facially invalid search warrant), which...

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First Circuit holds that use of Yahoo!'s CP reports at trial requires author testimony under the Confrontation Clause

In United States v. Cameron, No. 11-1275 (1st Cir. 2012), the First Circuit held that certain reports prepared by Yahoo! and NCMEC as part of a child pornography investigation were testimonial, requiring the defendant to have the opportunity to confront the authors of those reports under the Sixth Amendment's Confrontation Clause. The court also held that Yahoo!'s investigation after an anonymous tip did not make it a government agent under Fourth Amendment law. The defendant was charged with multiple child pornography crimes after law enforcement...

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Thanks!

Just wanted to write a quick note to thank all of you for reading Cybercrime Review. Justin and I are very appreciative for you continuing to read and for your encouragement, and we hope you'll continue to come back as we have some great things planned for Cybercrime Review's future. Happy Thanksgiving to all of you, and be sure to be extra careful deep frying your turk...

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Congratulations to Jeffrey - he won 2nd place (and $2500) in the Shannon Bybee Scholarship Award

Please join me in congratulating Jeffrey on his latest achievement. He was informed yesterday that he was awarded runner-up in the International Association of Gaming Advisors (IAGA) competition for the Shannon Bybee Scholarship Award. His paper entitled "Cyber Thieves in Online Casinos" was determined by a committee of IAGA member attorneys to be of "outstanding merit," a fitting description which brings with it the honor of publication on the IAGA's website. Along with the publication, Jeffrey will receive a check for $2500. Congrats Jeffr...

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"Egregious spoliation conduct" of plaintiff, who used various pieces of software to scrub his computer, results in claim forfeiture

Update: I've placed a link to the case in the write-up In Taylor v. Mitre Corp., 2012 U.S. Dist. LEXIS 162854 (E.D. Va. September 10, 2012), the plaintiff in an employment related suit (FMLA and ADA claims), through "egregious spoliation conduct" - use of CCleaner, Evidence Eliminator, and a sledge hammer - had his suit tossed out and forfeited his claims. The action was brought before the court on a Motion for Sanctions, filed by the defendant, after Mitre Corp. discovered (through a court ordered forensic examination of the plaintiff's computer)...

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Kansas appellate court okays warrantless cell phone search during search incident to arrest

In State v. James, No. 106,083 (Kan. Ct. App. 2012), as a matter of first impression in the state, the Court of Appeals of Kansas held that officers may read an arrestee's text messages in a cell phone found on his person as part of a search incident to arrest. The defendant had been pulled over for having a headlight out. The officer smelled alcohol and soon learned the defendant and his passenger had been making drinks and consuming alcohol while in the vehicle. A search of the car revealed marijuana, and the defendant suggested it may...

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New Mexico district court denies exclusionary rule for unconstitutional GPS use despite lack of precedent

In United States v. Aispuro-Haros, No. 11-2293 (D. N.M. 2012), the court ruled that pre-Jones use of a GPS device without a warrant was an unconstitutional search under Jones. However, despite a lack of precedent in the Tenth Circuit for the relevant time, the court held that the exclusionary rule does not apply. The defendant is charged with crimes related to drug trafficking and filed to a motion to suppress due to law enforcement having tracked him with a GPS device without first obtaining a search warrant. The government conceded...

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Mass. trial court finds obtaining one day of CSLI without cause to violate the Mass. Constitution

In Commonwealth v. Wyatt, 30 Mass. L. Rep. 270 (Mass. Sup. Ct. 2012), the Superior Court of Massachusetts held that obtaining cell site location information (CSLI) without a showing of cause (the court did not specify if probable cause was a requirement) was a violation of the Massachusetts Constitution. As a result of this finding, the defendants' motions to suppress were granted. As part of a murder investigation, law enforcement acquired nine 2703(d) orders covering five different cell phone companies and eighteen phone numbers seeking...

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Highlighted Paper: "The Case Against Combating BitTorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits"

This month I'd like to highlight another Michigan Law Review article that is germane to this blog's focus. The article is: Sean B. Karunaratne, The Case Against Combating BitTorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits, 111 Mich. L. Rev. 283 (2012).  I have seen much in the technology blog-o-sphere about this topic, typically highlighting some of the less than ethical tactics that these mass lawsuits engage in, but I can't remember seeing much in scholarly work on the subject. That defendants may likely be...

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Sixth Circuit affirms restitution award against expert witness who morphed stock images into CP for jury exhibit

In Doe v. Boland, No. 11-4237 (6th Cir. 2012), the Sixth Circuit held that an expert witness who morphed images of children into child pornography in order to show the ease of such editing to a jury was guilty of possession of child pornography. As such, he was ordered to pay restitution of $300,000 to the victims. The defendant had downloaded images of two children from a stock photo website and edited the images "to make it look like the children were engaged in sex acts" as part of his preparation for testimony at a child pornography...

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Hushmail provides unencrypted e-mails to feds; practice raises interesting legal questions

In a Second Circuit case (United States v. Gonzalez, 686 F.3d 122 (2d Cir. 2012)) released earlier this year, evidence was presented at trial that had been e-mailed through Hushmail, a secure e-mail service used by "millions of people and thousands of businesses." Hushmail's website claims that they "encrypt your message automatically before it is sent, and then restore it back to its original form when the recipient reads it." The issue that immediately came to my mind was the fact that Hushmail provided not only the communications...

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District court holds reasonable suspicion satisfies Jones, good faith exception requires binding precedent

In United States v. Robinson, No. S2-4:11CR00361 (E.D. Mo. 2012), the district court held that the good faith exception should not apply to GPS evidence where there was no binding precedent but also held that reasonable suspicion - rather than probable cause - is sufficient to satisfy the Supreme Court's decision in United States v. Jones. Law enforcement had conducted surveillance on the defendant over a month and a half period. That, along with interviews they had conducted, gave them "reasonable suspicion," according to the district court...

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Federal court holds police exceed scope of warrant by intentionally searching for child porn during ID theft case

In United States v. Schlingloff, 2012 U.S. Dist. LEXIS 157272 (C.D. Ill. Oct. 24, 2012), Judge Shadid held that use of Forensic Toolkit's (FTK) Known File Filter (KFF) to alert on child pornography files was outside the scope of a warrant issued to look for evidence of identity theft. The defendant in this case lived at a location that was searched pursuant to a valid warrant; the warrant was issued to find evidence of identity theft. During the search of the residence, multiple media devices and computers were retrieved, including a computer...

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Recent articles related to technology and the law

Here are some recently published (or posted) articles I found on SSRN that you might enjoy reading. Feel free to e-mail me if you have suggestions for an upcoming list. GPS / Jones The Missed Opportunity of United States v. Jones - Commercial Erosion of Fourth Amendment Protection in a Post - Google Earth World - Mary Leary (Catholic University) United States v. Jones: Fourth Amendment Applicability in the 21st Century - Thomas K. Clancy (University of Mississippi / West Virginia University) Privacy 'eyePhones': A Fourth Amendment...

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GAO produces report on cell location data protection

The Government Accountability Office recently released a report entitled "Mobile Device Location Data: Additional Federal Actions Could Help Protect Consumer Privacy." It covers: (1) how mobile industry companies collect location data, why they use and share these data, and how this affects consumers; (2) the types of actions private sector entities have taken to protect consumers’ privacy and ensure security of location data; and (3)...

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