Cybercrime Review post on tower dumps cited by North Dakota Sup. Ct.

Congrats go out to Jeffrey for a mention in In re D.O. __ N.W.2d __ (N.D. 2013).

The relevant excerpt:

The "totality-of-the-circumstances" regarding D.O. include a confidential informant's tip and an anonymous tip about his involvement, his cell phone activity around the sites at the times of the burglaries, his publicly available Facebook postings and pictures, information garnered from a probation search of his residence and matching shoe prints found at three burglary sites. Although the matching footprints were not successfully linked to D.O., probable cause deals with probabilities; a reasonable theory of probable cause is not retroactively disproved simply because hindsight reveals the theory was in error. State v. Driscoll, 2005 ND 105, ¶ 25, 697 N.W.2d 351. "A tower dump allows police to request the phone numbers of all phones that connected to a specific tower within a given period of time." The Honorable Brian L. Owsley, The Fourth Amendment Implications of the Government's Use of Cell Tower Dumps in its Electronic Surveillance, 16 U. Pa. J. Const. L. 1, 2 (2013) (quoting Jeffrey Brown, What Type of Process is Required for a Cell Tower Dump?, Cybercrime Rev. (May 16, 2012), http:// www.cybercrimereview.com/2012/05/what-type-of-process-is-required-for.html). The cell tower dump in this case showed D.O.'s cell phone was near three burglary sites at the same date and time the burglaries occurred. D.O.'s publicly available Facebook information intimated he was involved in burglary and criminal mischief because it referenced "robbing" and showed pictures of money piles. A confidential informant also linked D.O. to the crimes. Although D.O. challenges the information given by the confidential informant because the informant was a member of the criminal milieu, "[r]eliability of an informant can be established numerous ways, such as corroboration through independent investigation, by affiant's vouching or assertion that the information is reliable, or by the informant giving detailed information overcoming any doubt." State v. Stewart, 2006 ND 39, ¶ 8, 710 N.W.2d 403 (citations omitted). In this case, Fullerton vouched for the confidential informant, stating he has proven to be a reliable source. When a confidential informant is "known to the officer, a higher degree of reliability attaches." Roth, 2004 ND 23, ¶ 13, 674 N.W.2d 495. Considering the totality of the circumstances and all assertions Fullerton made in his Facebook search warrant affidavit, sufficient detail was presented to establish probable cause.

Read More

Featured Paper: The Good-Faith Exception and Unsettled Law: A Study of GPS Tracking Cases After United States v. Jones

David J. Twombly, The Good-Faith Exception and Unsettled Law: A Study of GPS Tracking Cases After United States v. Jones, 74 Ohio St. L.J. 807 (2013). (J.D. expected '14, Ohio State). 

A key quote (and, one I agree with):

Setting aside the policy question of whether the exclusionary rule ought to stand or fall, lower courts should not take it upon themselves to extend the good-faith exception to cases of police negligence....When the right case comes along, the Supreme Court can clarify whether everyday police negligence really deserves the benefit of the good-faith exception.

...the analysis suggested for the good-faith exception asks a different question: whether the law has clearly established the constitutionality of a particular police practice. Another way to ask the question is whether the law has clearly established a citizen’s lack of a constitutional right under certain circumstances. If the law puts the reasonable officer on notice that her action might be unconstitutional, she should refrain. Reasonable uncertainty in this analysis will not provide the officer with good-faith protection, and suppression
of illegally obtained evidence will result. This standard keeps the good-faith exception tethered to an officer’s compliance with clear legal authority, but it does so in a way that allows law enforcement to adopt new investigative techniques without unreasonable delay.  

With respect to nonbinding precedent, this makes the suggested analysis a version of the broad-view approach described above, though it is consistent with the fundamental concerns of many narrow-view courts. In keeping with qualified immunity doctrine, the suggested analysis would allow courts to consider at least some nonbinding precedent as well as binding precedents not directly on point.

The abstract (from SSRN) is below:

The federal exclusionary rule generally prohibits the admission at trial of evidence procured by means of an unconstitutional search. But the rule admits of many exceptions, including an officer’s good-faith reliance on what reasonably appeared at the time of the search to be binding legal authority. The Supreme Court has applied the good-faith exception when police rely on warrants that turn out to be invalid because of magistrates’ errors or database inaccuracies, statutes that turn out to be unconstitutional, and, in the 2011 case of Davis v. United States, to “binding appellate precedent” later overturned. The Court has not determined, however, whether officers may act in good-faith reliance on nonbinding legal precedent. This question has recently arisen in a number of cases affected by the retroactive application of the rule announced in United States v. Jones that installing a GPS device on a vehicle constitutes a Fourth Amendment search.  

This Note analyzes the emerging disagreement among district courts over the reach of the good-faith exception. Courts have largely gone in one of two directions. Some read Davis narrowly as extending the good-faith exception only to an officer’s reliance on precedent binding in the jurisdiction at the time of the search. Others read Davis as authorizing a broad good-faith exception that would allow reliance on nonbinding precedent. The disagreement reflects great uncertainty in the lower courts as to the scope of the good-faith exception. Is the exception confined to the handful of situations the Supreme Court has recognized, or does it authorize lower courts to analyze the culpability of officers on a case-by-case basis and extend the exception to new facts? This Note argues that courts should adopt a modified standard from the Court’s qualified immunity cases, focusing on whether the constitutionality of an officer’s action has been clearly established. Such an analysis respects the fundamental rationale of the Court’s good-faith cases while retaining a robust role for the exclusionary rule.

Read More

California Attorney General announces the arrest of alleged revenge porn website owner, charged with conspiracy, identity theft, and extortion

Yesterday, California Attorney General Kamala Harris announced the arrest of Kevin Bollaert, the “alleged owner and operator of a revenge porn website who facilitated the posting of more than 10,000 sexually explicit photos and extorted victims for as much as $350 each to remove the illicit content.”

Bollaert, a 27 year-old San Diego native, is allegedly behind the site “ugotposted.com.” According to allegations in the arrest warrant, the site allowed posters to upload nude images of victims with accompanying personal information, which in some cases provided the victim’s name, city, state, Facebook account, and other social media sites.

Additional statements in the arrest warrant allege that some of the victims paid money in order to have their images removed from the site

Doe # 1 and Doe #2 related that each of them sent an email to the website asking that their photos be removed and were instructed to go to the link at the bottom of UGOTPOSTED to have their photos removed. The link was to a website called changemyreputation@gmail.com. Both Jane Doe #1 and Jane Doe #2 stated that they paid $249.99 to have their photos removed from UGOTPOSTED.

(NOTE: the website described in the above quote is likely misstated, and is likely referring to "changemyreputation.com." According to the arrest warrant, Bollaert is allegedly linked to this site as well).

The accompanying complaint alleges 31 criminal counts, spanning 14 victims. Of particular note, however, is the explanation provide for in the conclusion of the arrest warrant:

The publishing of nude photographs, in conjunction with the victim's name, Facebook account or other [personally identifiable information] without the victim's permission is the crime of identity theft in violation of Penal Code section 530.5. To be guilty under section 530.5(a), the defendant must (1) willfully obtain personal identifying information of another person, and (2) use the identifying information for an unlawful purpose without the person's consent." (People v. Tillotson (2007) 157 Cal.App.4th 517, 533.) Here the unlawful purpose includes both a criminal offense under Penal Code section 653m (b) and a civil tort for the publication of private images. (In re Rolando S (2011) 197 Cal.App 936.)

Section 653m (b) states in pertinent part: "Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. 

In this case the investigation revealed that Kevin BOLLAERT is aiding and abetting the crime of PC 653m (b)-annoy or harass, by facilitating the publishing of nude photographs, in conjunction with the victim's name, Facebook page or other PII, without the victim's permission, which is the crime of identity theft in violation of Penal Code (PC) section 530.5. 

Furthermore, Kevin BOLLAERT, by demanding and accepting payments to remove victims unauthorized posted nude images from UGOTPOSTED via changemyreputation.com is the crime of extortion in violation of Penal Code section 518. The publication of the victims nude images exposed them to disgrace within their public lives. Kevin BOLLAERT continued to expose the victims private information and secrets to the public -unless paid.

Considering the large amount of attention "revenge porn" has been getting lately, and what seems to be a somewhat aggressive use of California's identity theft law, it will be interesting to see how this case progresses.

Read More

Law enforcement tracks child pornography distributor to hotel WiFi networks across the country using his GUID

Using public WiFi networks such as those in hotels can make it much more difficult to catch criminals in the act such as those downloading child pornography. As one defendant recently learned, however, police are capable of using old-fashioned investigative work when it comes to cyber cases.

In United States v. Pirosko, No. 5:12CR327 (N.D. Ohio 2013), an investigator tracked the sharing of child pornography to a hotel in Nebraska. The same computer (as determined by the GUID) connected to the Internet using the hotel's IP address five nights in a row. The defendant was the only person staying at the hotel for all five of those nights.

Over the next three months, the same GUID was found to be sharing or downloading child pornography in five other hotels around the country. After connecting the defendant's travel patterns to the GUID connections, a search warrant was obtained, and the defendant's computer was seized.

Prior to trial, the defendant argued that probable cause did not exist to obtain the search warrant, but the court held otherwise.

As pointed out by the Government, the affidavit established that Defendant, a registered sex offender from Mississippi, was a guest at hotels in Nebraska, Missouri, New Jersey, Utah and Ohio over a three-month period. During his stays, Defendant connected to the same peer-topeer network, used the same software, and downloaded images of child pornography from a computer at each of these hotels.

Further, even if probable cause did not exist, the court found that law enforcement had executed the warrant in good faith.

Read More

Appellate court: Forcing father to install home security cameras does not encourage him to disseminate child pornography

We do not often write about family law cases on this blog, but I recently ran across an interesting custody order from an Ohio case. I'm not sure if this is ever a standard provision for certain types of cases, but I figured it was worth sharing.

In O'Malley v. O'Malley, 2013 Ohio 5238 (Ohio Ct. App. 2013), the mother argued that it was a violation of the children's constitutional right to privacy for the court to order that the father install security cameras in his home. Here's the order:

6. For the purpose of assisting the children in making the transition to Father's home, Father shall do the following:

a. He shall provide security cameras in his home for the purpose of securing the safety of the children and others in the home and providing a record of the children's interaction with him and others.

While the opinion doesn't go into any detail on the allegations, the mother claimed that the father "was known to possess child pornography," and she feared that the installation of the security cameras would encourage him to "disseminat[e] naked pictures of the children."

The court, however, disagreed:

The use of security cameras to record the children in their Father's home is similar to the previously ordered videotaping of Father's visits under the shared parenting plan with the children. Indeed, the court stated that the purpose of the cameras was to secure "the safety of the children and others in the home and providing a record of the children's interaction with him and others."

The court also made clear that while the father certainly could disseminate any videos from the security cameras, it would be against the law if they were images of child pornography.

The court's order does not require Father to publish the videotapes to anyone. Father could decide to install security cameras in his home for his own protection if he so desired without a court order. Although the court's final order does not expressly prohibit Father from disseminating naked pictures of children, both Ohio and federal laws proscribe such conduct and impose strict penalties to prevent such actions.

Read More