Video of Wisconsin Legislature (Committee on Judiciary and Labor) public hearing on AB462/SB367 criminalizing "revenge porn"

Skip to 4:06:50 to hear the short, non-controversial "public hearing" on the Wisconsin "revenge porn" bill. Notably, the representatives noted that the bill was drafted with input with Mary Ann Franks. I find that interesting, given that I called the bill overbroad and noted that it does not in fact follow the model statute proposed by Professor Franks. My post criticizing the bill is here: Wisconsin's "revenge porn" bill goes too far. Hypos to ponder and why the legislature should look to Professor Franks Video: 11.20.13 | Senate Committee...

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Must Read: Andrew Tutt, The New Speech; thought provoking article about government's restriction of online speech, 1st Amendment implications

Andrew Tutt has an article up on SSRN about online speech entitled The New Speech, forthcoming in the Hastings Constitutional Law Quarterly. The abstract is below: Could the government prevent Facebook from deleting an individual’s Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria...

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Second Circuit finds sentencing enhancement only applicable with proof defendant knowingly placed CP in shared folder

The Second Circuit recently held that a two-level enhancement for distribution of child pornography can only be applied if the defendant "knowingly plac[ed] child pornography files in a peer-to-peer sharing folder." United States v. Reed, No. 11-4820 (2d Cir. 2013). Under Section 2G2.2(b)(3), the Sentencing Guidelines allow a five-level enhancement for distribution "for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain." Otherwise, a two-level enhancement applies. Under Second Circuit law, however, a...

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Pa. Supreme Court justice suggests in concurrence that mandatory minimum for repeat offenders should be evaluated

In Commonwealth v. Baker, No. 1 MAP 2012 (Pa. 2013), the Pennsylvania Supreme Court analyzed whether a 25-year minimum prison sentence is unconstitutional when applied to a defendant's second conviction for possession child pornography. Finding it not to be grossly disproportionate, the court affirmed the conviction. The defendant was first convicted for possession in 2001, and later in 2007, police received a tip from NCMEC that he had received images of child pornography. In a concurring opinion, three justices agreed that the sentence is not...

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Featured Paper: Siri, Can You Keep a Secret? A Balanced Approach to Fourth Amendment Principles and Location Data

Frank Lin, a 3L at the University of Oregon, has a new law review article out entitled "Siri, Can You Keep a Secret? A Balanced Approach to Fourth Amendment Principles and Location Data." I asked him to comment on his motivation for the article and he responded as follows: I was drawn to this topic because privacy is one of the most important issues facing the American public today and it is one that has recently come to the forefront of public policy discourse. The rapid development and accessibility of technology has allowed Americans to reach...

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D.C.'s "ShotSpotter" gunshot detection system captures 39,000 gunshots in 8-year period

The District of Columbia installed "300 acoustic sensors across 20 square miles of the city" nearly a decade ago in a project called "ShotSpotter". The system has detected 39,000 gunshots in the system's eight-year history. According to the Washington Post, ShotSpotter is also linked to a system of closed-circuit cameras, which police hope will capture the aftermath of shootings in real time. To guard against vandalism, officials do not publicize...

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Fed Ct: A cell phone is not a container (i.e. conventional wardrobe), but Narnia (the magical wardrobe); police need a warrant to enter the portal

[[  The case is United States v. Mayo, No. 2:13-CR-48 (D. Vt. Nov. 6, 2013). (the link here is to the order denying suppression - more on that below). Defendant's Motion to Suppress Government's Opposition to MTS Def. Response to Gov't Opposition to MTS Def. Post-Suppression Hearing Memo Gov't Post- Suppression Hearing Memo Def.'s Supplemental Filing re: the Katzin decision ]] **** A Vermont Federal District Court, by rejecting the idea that cell phones are "containers" under the Fourth Amendment,...

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District Court: NCMEC violated 4th Amendment by opening image obtained after AOL matched hash values

In United States v. Keith, No. 11-10294 (D. Mass. 2013), the court held that after AOL submitted to the National Center for Missing and Exploited Children (NCMEC) an image possibly containing child pornography, NCMEC violated the Fourth Amendment by opening the image. AOL maintains a database of hash values of images that have been classified by AOL employees as child pornography. When employees are alerted that an image matches hash values in the database, a report is filed with NCMEC. No AOL employee opens the image to verify it contains child...

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State Senator Jeff Brandes introduces bill to amend Florida's Computer Crimes Act

On November 5th, Florida State Senator Jeff Brandes (R- Dist. 22) introduced legislation that would amend Florida’s Computer Crimes Act (Fla. Stat. § 815.01–07) (the "FCCA"). While only just introduced and likely subject to further amendments, the Bill (SB 364) provides a few noteworthy changes to the state's current computer crimes statute. I was able to speak with Senator Brandes about the substance of his Bill and his decision to amend the FCCA. Senator Brandes started looking into the effectiveness of Florida’s computer crimes law after...

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Case files (briefs + argument) for two key cases before Mass. Sup. Ct.: forced decryption (5th Amendment) and cell site location

The Massachusetts Supreme Judicial Court has two cases before it to keep an eye on. Summaries from the court, briefs, and links to oral argument are below. SJC-11358 Commonwealth v. Gelfatt Criminal; Self-incrimination-- Whether the Commonwealth's request in a criminal case for a court order compelling the defendant to enter his encryption key to access information on a computer seized by the Commonwealth violates the defendant's rights against self-incrimination. Appellant Commonwealth Brief Appellee Gelfgatt Brief Appellant Commonwealth Reply...

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Wisconsin's "revenge porn" bill goes too far. Hypos to ponder and why the legislature should look to Professor Franks

The Wisconsin legislature recently proposed a "revenge porn" bill (Assembly Bill 462, full text here: https://docs.legis.wisconsin.gov/2013/related/proposals/ab462.pdf). While I applaud the Wisconsin legislature for addressing an issue that has garnered national attention, I interpret the current proposal (unless I am missing something, and I encourage you to prove me wrong), to criminalize a whole host of conduct having nothing to do with revenge porn. (Of course, if the proposed bill ends up becoming law, the text introduced here may vanish...

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EFF files amicus brief in Massachusetts forced decryption case

The Electronic Frontier Foundation recently filed an amicus brief in a Massachusetts case on appeal concerning whether a court can force a defendant to decrypt a computer. Here's an excerpt from the press release: Leon Gelfgatt was charged with forgery and the government, with a search warrant, seized a number of his electronic devices. Law enforcement couldn't break the encryption that protected the devices, so it went to court, asking a judge to order Gelfgatt to decrypt the devices for them. The Fifth Amendment protects a person from being...

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OH App Ct: Warrantless GPS tracking OK despite no precedent; My take on the "good" left in the good faith exception

In State v. Johnson, 2013-Ohio-4865 (App. Ct. Nov. 4, 2013), the Twelfth Appellate District of Ohio upheld the warrantless GPS tracking (pre-Jones) of a defendant's vehicle by construing the Davis good faith exception widely. The court held that the absence of binding appellate precedent in Ohio authorizing warrantless GPS tracking was not outcome determinative; cases construing Davis narrowly typically hold the exact opposite (under the theory that there is no rational basis for good faith without primary law backing up the actions of law...

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Court finds evidence obtained with GPS violates 4th Amend., does not fit good faith exception, but still not subject to suppression

In United States v. Taylor, 1:12-cr-00042 (S.D. Ind. 2013), the district court held that evidence obtained as a result of GPS tracking on a vehicle violated the Fourth Amendment and, while it is not subject to admission under the Davis good faith exception, the evidence may still be used because it was objectively reasonable for law enforcement to rely the judicial authorization. Police sought to put a GPS device on the defendant's vehicle after receiving a tip that the defendant was in possession of cocaine. The judicial authorization...

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Wired, ABA Journal publish articles on revenge porn

Wired and the ABA Journal have both recently published good articles on the subject of revenge porn. If those legal issues interest you at all, you should be sure to check these out: ABA Journal - "Victims are taking on ‘revenge porn’ websites for posting photos they didn’t consent to" [T]here’s no clear legal avenue to penalize posters of revenge porn. Only two states, California and New Jersey, make it illegal to post a sexual photo online without the subject’s consent. Though experts say revenge porn may violate other state statutes, it’s...

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Zurich can't dodge $1M+ liability for credit card hack of insured bank; Court finds fraud coverage impermissibly swallowed by exclusion

(I should note that I wouldn't normally post on a case like this. But, considering that "cyber insurance" is a hot topic, I thought it appropriate given the interesting facts) In First Bank of Delaware v. Fidelity & Deposit Co. of Maryland, No. N11C-08-221 MMJ (Del. Super. Ct. Oct. 30, 2013), a Delaware court held that Fidelity (now Zurich), could not avoid liability for a hack of its insured (First Bank) which resulted in monetary assessments against the bank (for fraudulent use of the credit cards), brought by Visa and Mastercard. The...

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Exiting CTO who copied source code and company files wins dismissal of CFAA claim; Thoughts on the CFAA post-Nosal

Viral Tolat, ex-CTO of Integral Development Company, is accused by his former company of copying gigabytes of source code and confidential files on his way out the door to a position with another company. He copied the source code to multiple places and uploaded some of the data to his personal Google Docs account. In Integral's First Amended Complaint, it alleged, inter alia, that Tolat violated the CFAA (and the analogous Cali statute) by misappropriating Integral data in derogation of the company's confidentiality policy and Tolat's...

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