Wisconsin federal magistrate reverses on forced production of decrypted data after government presents new evidence

Late last month, a federal magistrate judge denied the forced production of decrypted data from a defendant's hard drives. Last week, the judge changed his mind after the government presented new evidence. In the initial order, the court made the "close call" to deny the production because the government did not have enough evidence concerning the defendant's access and control, nor did they actually know what was on the hard drives, though some file names indicated the presence of child pornography. Since that time, the FBI was able to decrypt...

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A deeper look at United States v. Vargas, the case concerning the NYPD detective accused of violating the CFAA

The recent allegations against New York Police Department detective Edwin Vargas have been making headlines recently, and were the subject of a recent press release by the U.S. Attorney's Office for the Southern District of New York. The press release announced that on May 20, 2013, a complaint was filed in the Southern District of New York alleging that Vargas had committed two offenses under the Computer Fraud and Abuse Act, 18 U.S.C §1030.  Below, I take a look at the two counts and offer some thoughts on the "Unlawful Access of Law Enforcement...

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9th Circuit orders hard drive reformatting just in case hard drives contained encrypted files

The Ninth Circuit recently upheld an order allowing the government to reformat the hard drives on a computer before returning them because the drives might have contained encrypted files, and those encrypted files might have violated the defendant's supervised release. (United States v. Spink, No. 12-30068 (9th Cir. 2013)). The defendant had been accused of violating the terms of his supervised release by use of his computer by possessing images of bestiality or zoophilia (he had previously owned at least 52 such websites). However,...

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1st Circuit holds that cell phone searches incident to arrest violate the 4th Amendment

In United States v. Wurie, No. 11-1792 (1st Cir. 2013), the First Circuit held that the search of a cell phone incident to arrest categorically violates the Fourth Amendment. As a result, the court reversed the defendant's motion to suppress, vacated the conviction, and remanded the case. While performing routine surveillance, a Boston police officer observed a man conducting what appeared to be a drug sale. The man was then stopped, and crack cocaine was found in his pocket. He was arrested, and upon arriving at the police station, two cell phones...

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Featured Paper: Hacking Speech: Informational Speech And The First Amendment (Update)

The Northwestern University Law Review's newest issue (a special edition recognizing Northwestern Law faculty member Martin Redish) offers an interesting piece by Andrea M. Matwyshyn titled "Hacking Speech: Informational Speech And The First Amendment." Dr. Matwyshyn is an assistant professor of legal studies and business ethics at the University of Pennsylvania’s Wharton School, a faculty affiliate of the Center for Technology, Innovation and Competition at the University of Pennsylvania School of Law, and an affiliate Scholar of the Center for...

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7th Circuit dismisses CFAA civil claim for failure to satisfy $5,000 loss requirement

This case focuses a bit more on the civil side of the Computer Fraud and Abuse Act (CFAA). In Modrowski v. Pogatto, the Seventh Circuit Court of Appeals demonstrates the importance of the value requirement of a civil suit under the CFAA. 18 U.S.C. § 1030(g) states, in relevant part, that [a]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator . . . . A civil action for a violation of this section may be brought only if the conduct involves 1 of the factors set forth in...

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DOJ obtained Associated Press phone records; AP demands return and destruction of data

The Associated Press announced today that the Justice Department obtained two months of telephone records from more than twenty AP office telephones just over a year ago. The DOJ notified the AP of the investigation on Friday. AP's President and CEO has "demanded the return of the phone records and destruction of all copies." According to the AP, the process for obtaining records from news organizations is "strict." A subpoena can be considered only after "all reasonable attempts" have been made to get the same information from other...

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Former Romney/Ryan intern charged with cyberstalking and internet extortion denied bail

In United States v. Savader, 13-MJ-359 (E.D.N.Y. May 7, 2013), Magistrate Judge Gary R. Brown denied bail to Adam Savader because of the nature of his crimes (cyberstalking and internet extortion) and due to the "weaponized" nature of the cache of compromising pictures the defendant possesses. The court's reference to weaponization derived from the fact that the images of the 15 victims were in cloud storage, and thus "the cache of compromising photos, [could] be accessed from any Internet- enabled device on the planet," allowing Savader to perpetrate...

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NSA releases 642-page Internet research guide

The National Security Agency recently released a 642-page guide titled "Untangling The Web: A Guide To Internet Research" under a Freedom of Information Act request. As the major purpose of the guide is to "help you understand how to use the Internet more efficiently," there isn't much in the document worth noting - perhaps made clear by the fact that the 642 pages are almost entirely unredacted. There are sections about "Uncovering the 'Invisible'...

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Breaking: Fed. judge denies motions to suppress in Rigmaiden; 4th Amendment, SCA case with Stingray use by FBI (Updated)

In United States v. Rigmaiden, No. 2:08-cr-00814-DGC (D. Ariz. May 8, 2013), a federal district judge in Arizona denied all of the defendant's motions to suppress. The motions were related to searches, the FBI's use of Stingray, access to stored communications and IP addresses, etc. It is long, but worth the read. An excerpt (relating to the Fourth Amendment argument): Given the unique circumstances of this case and the case law discussed above, the Court concludes that Defendant did not have a legitimate expectation of privacy in the aircard,...

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Featured Paper: Jonesing for a Privacy Mandate, Getting a Technology Fix--Doctrine to Follow

Stephanie K. Pell has posted a new paper on SSRN entitled: "Jonesing for a Privacy Mandate, Getting a Technology Fix--Doctrine to Follow." Hat-tip to Chris Soghoian for mentioning it on Twitter. The article abstract is below: While the Jones Court held unanimously that the government’s use of a GPS device to track Antoine Jones’ vehicle for 28 days was a Fourth Amendment search, the Justices disagreed on the facts and rationale supporting the holding. Beyond the very narrow trespassed-based search theory regulating the government’s attachment...

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"Revenge porn" website owner offers to close site if he raises $200,000

There was a time when people ended a relationship and moved on with their lives. Nowadays, with digital cameras and the Internet, it is much easier to seek revenge for all of the wrongs you experienced. For those of you unaware, "revenge porn" is the term applied when a person posts nude images of someone they know on the Internet - often doing so after the end of a relationship.  Several revenge porn websites have come and gone, but one website owner has recently made headlines by offering to shut down his websites after he raises $200,000....

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Defendant argues WI child porn law unconstitutional; if you're texted CP and open it, are you guilty of possessing CP?

Could someone texting you child porn, a text you unwittingly open, get you charged with a felony? Also, is it fair to charge adult males with child porn possession but not the underage females that texted the images to them, if they both technically possess child pornography? The case below raises both issues. In State v. Perino, No.'s 2012-CF-0217, 2012-CM-0116 (Wis. Cir. Ct. filed Jan. 18 & Feb. 23, 2012) the defendant is charged with two counts of possessing child pornography (2012-CF-0217 - link has case history) and two counts of...

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Part 1 (The Facts): CFAA case to test the EFF's proposed reform language

In this first post I will outline the relevant facts of the Fidlar case and how the facts present an interesting issue for the proposed CFAA reform language of the EFF (and Rep. Lofgren). At the end of this post, I note EFF Attorney Hanni Fakhoury's initial take on the case.  In the second post I will offer my own take. I will then propose some changes to the reform language that would clarify the issue. I will conclude by taking a step back and opining on whether the CFAA should even apply to this kind of contractual dispute, and...

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Court overlooks "sloppiness" in GPS expert testimony; Others also address GPS and Jones issues

Many courts continue to deal with GPS and Jones in interesting ways. Here are some summaries from recent cases: In United States v. Khan, No. CR-S-10-175 (E.D. Cal. 2013), the defendant argued that inconsistencies between a GPS log and a report of active surveillance from law enforcement created doubts about the accuracy of the evidence. The court found that the "drafting is incredibly sloppy but its sloppiness is not material." Even if the GPS tracking data had not been used, probable cause would have still existed. In Pina v. Morris, No....

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Forensic Fraud: Now Available on Daytime TV - A frank discussion about the admissibility of photo and video enhancement testimony

For years, Hollywood has perpetuated the myth of photo and video enhancement.  According to Hollywood and its all-too-convenient plot points, a mere click of a computer’s “enhance button” transforms any grainy image into a clear, focused picture with perfect resolution (there also has to be a serious woman in glasses looking over the person operating the computer’s shoulder shouting “enhance. . . enhance . . . enhance” in order for this to...

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