Canadian Supreme Court holds that general warrant cannot be used to obtain prospective text messages

If you're interested, be sure to check out a recent Canadian case holding that a general warrant for prospective text messages was improper because the messages were being intercepted, requiring an interception order. The Crown was arguing that obtaining the messages from the phone company was not an interception of real-time communications because they were in a database and could therefore be acquired under the general warrant power. By an American law comparison, the court was essentially holding that interception of future text messages required...

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Maryland appeals court reverses conviction due to lay witness testimony connecting defendant to crime scene with CSLI

In a recent Maryland case, the Court of Special Appeals found that it was improper for the trial court to use lay testimony from a detective to suggest that the defendant's cell phone was in close proximity to the location of the crime. Because the detective was not presented as an expert witness on the technology, the testimony was improper, and the conviction was reversed and remanded. Payne v. State, No. 2156 (Md. Ct. Spec. App. 2013). The defendant had been charged and convicted of first-degree felony murder. At trial, the detective testified...

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Good faith exception saves location data obtained after failure to request GPS data in wiretap request

In United States v. Barajas, No. 12-3003 (10th Cir. 2013), the Tenth Circuit refused to suppress evidence over a claim that the failure to request GPS data in a wiretap request prevented its use. The DEA was investigating alleged drug trafficking and obtained a wiretap order for the defendant's cell phone after showing the court that other methods of surveillance had been unsuccessful. The affidavit, however, did not request GPS or cell site location data, though the actual order of the court did allow law enforcement to acquire it. At trial,...

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Featured Paper: Democratic Values in a Digitized World: Regulating Internet Speech in Schools to Further the Educational Mission

From the Marquette Law Review - the article can be found here (by Maureen Sullivan): Democratic Values in a Digitized World: Regulating Internet Speech in Schools to Further the Educational Mission Here's the abstract: The Internet is a remarkable tool—so remarkable that using the word “tool” to describe it is painfully inadequate. With a click of a mouse, a few strokes on a keyboard, or a swipe on a screen, the Internet allows instant communication and transaction at any time by anyone in the world. Young people, especially, have embraced...

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Ohio Court of Appeals: No Katz argument for GPS use where defendant was "several times removed" from the renter

In State v. Rich, 2013 Ohio 857 (Ohio Ct. App. 2013), the Ohio Court of Appeals held that because the defendant was "'several times removed' from the person who rented the vehicle," he could not make a Katz argument to show that the use of a GPS device violated the Fourth Amendment. Police were investigating a drug operation. The detective rented a vehicle, attached a GPS device, and gave the vehicle to a confidential informant. The informant picked up the suspects, and one of them later took over as the driver of the vehicle. Police later...

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CP conviction reversed after improper search of probationer's computers for images depicting cruelty to animals

In State v. Purtell, No. 2012AP1307-CR (Wis. Ct. App. 2013), the Wisconsin Court of Appeals reversed a child pornography conviction because the state did not have reasonable grounds to search the probationer's computers. The defendant was on probation for two counts of cruelty to animals. As a result of his conviction, he was forbidden from possessing a computer. Upon telling his probation agent that he had two computers and a MySpace account and giving up his password, it was discovered that he had posted images of "animals that were partially...

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Updated: GPS Tracking Case (Katzin) Oral Argument Posted

The Oral Argument audio for United States v. Katzin can be found below:...

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House holds hearing on ECPA revisions, new Senate bill seeks to require probable cause for content

If you missed yesterday's House hearing on the Electronic Communications Privacy Act, the testimony is available here by video and here by written testimony. Witnesses included Elana Tyrangiel (DOJ), Orin Kerr (GW Law), Richard Littlehale (Tenn. Bureau of Investigation), and Richard P. Salgado (Google). Here's a brief summary of each witness's testimony: Tyrangiel - The 180-day rule under the ECPA should be abolished, and opened emails should not be treated differently from those which are unopened. Also, addressing information in e-mails should...

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Case Prep (all briefs & materials): US v. Katzin - GPS case before Third Circuit on Tuesday 3/19/13

Tomorrow (3/19/13), the Third Circuit is set to hear oral arguments in US v. Katzin, No. 12-2548,  a GPS tracking case the government appealed after a federal district court ruled (post-Jones) that the good faith exception did not apply to the conduct in this case because, inter alia, there was no Third Circuit precedent allowing warrantless GPS tracking to begin with but merely a disagreement between other circuits. First, for some background, Jeffrey has mentioned this case more than once. His relevant posts can be found here: Government...

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Latest stories about cybercrime/cyberlaw

From our Twitter feed @cybercrimerev #CFAA the @TheMatthewKeys Indictment can be found here. LA Times/Fox hacking case - he provided CMS l/p Wiretapping Firm Says Telecom Providers Could Be Handing Over More Data Than Authorized Belden Research Shows that Patching for Industrial Cyber Security is a Broken Model Cyber criminals offer black market peers bug discovery service Hackers play Space Invaders on Belgrade billboard, get rewarded with iPads, from @cfarivar Hacker group plans massive online attack against Israel next month (Anonymous) Companies...

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Video from House Judiciary Committee’s Subcommittee on Crime, Terrorism, Homeland Security and Investigations re: CFAA

The video of the hearing today can be seen here. It includes commentary from Orin Kerr regarding the Nosal holding of the 9th Circuit and his recommendation that Congress act to amend the CFAA to clarify the ambiguity in the statute regarding "unauthorized access" and "exceeds authorized access" which has led to a circuit split on the statute's reach. There is also an interesting discussion about hacking back. Here is a link to the House Judiciary Committee's page with materials about the hearing: "Investigating and Prosecuting 21st Century Cyber...

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Nosal on remand - another reading of CFAA's "exceeds authorized access"; court denies motion to dismiss

Update 3 - 12:19pm: I re-read Nosal (en banc), and I believe the court, here, failed to contemplate the following words from the en banc opinion: Similarly, Facebook makes it a violation of the terms of service to let anyone log into your account. See Facebook Statement of Rights and Responsibilities § 4.8 http://www.facebook.com/legal/terms (“You will not share your password, . . . let anyone else access your account, or do anything else that might jeopardize the security of your account.”) (last visited Mar. 4, 2012). Yet it’s very common for...

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Second Circuit denies en banc review in CP case; Chief Judge dissents with six arguments for review

Early last month, the Second Circuit denied en banc review in United States v. Broxmeyer (original case, en banc denial). Second Circuit Chief Judge Jacobs had dissented in the original (re-)appeal and also now dissented in the denial of en banc review. The case involved a high school coach convicted of possessing, producing, and attempting to produce child pornography, and transporting a minor across state lines with the intent to engage in criminal sexual activity. For some time, he harassed one of the students on his hockey team asking...

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Breaking: 9th Circuit holds reasonable suspicion needed for forensic search of laptop at US border

The decision is United States v. Cotterman, __ F.3d __ (9th Cir. 2013), and the case summary is below: The en banc court reversed the district court’s order suppressing evidence of child pornography obtained from a forensic examination of the defendant’s laptop, which was seized by agents at the U.S.-Mexico border in response to an alert based in part on a prior conviction for child molestation.  The en banc court explained that a border search of a computer is not transformed into an “extended border search” requiring particularized...

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What the Stored Communications Act would look like after Rep. Lofgren's ECPA reform bill (H.R. 983)

I wrote previously about Rep. Lofgren (and others) proposing a modification to the Stored Communications Act (SCA) as well as an addition to the ECPA regarding disclosure of geolocation information; that post can be found, here: Quick details on H.R. 983, the ECPA reform bill announced today. I decided to update the relevant portions of the SCA (18 U.S.C. 2701-2705) with the modifications in H.R. 983. You can see the bill and my markup, below (original from Cornell's LII): 18 USC § 2701 - Unlawful access to stored communications (a) Offense.— Except...

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