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 subclauses (I), (II), (III), (IV), or (V) of subsection (c)(4)(A)(i). Damages for a violation involving only conduct described in subsection (c)(4)(A)(i)(I) are limited to economic damages . . .

Thus, a claimant who wishes to bring a civil suit under § 1030(c)(4)(A)(i)(I), as the plaintiff did in this case, must show that a CFAA violation resulted in the “loss to 1 or more persons during any 1-year period . . . aggregating at least $5,000 in value.” Now, under the CFAA, “loss . . . aggregating at least $5,000 in value” may seem quite easy. The CFAA broadly defines “loss,” 18 U.S.C. § 1030(e)(11), as

any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.

As Modrowski demonstrates, the $5,000 loss requirement is essential to a civil claim under the CFAA, specifically § 1030(c)(4)(A)(i)(I). Leon Modrowski was fired as the property manager for TAQ Properties and Capps Management in 2008. During his employment, Modrowski had merged his personal and business Yahoo! email accounts. When Modrowski was terminated, the employer “locked” Modrowski out of his account, thus preventing Modrowski from accessing his personal e-mails. When access was finally granted, “Modrowski discovered that several years’ worth of his personal correspondence had vanished.” As a result, Modrowski filed numerous claims, including a civil suit under the CFAA.

The district court granted the defendant’s motion for summary judgment after Modrowski failed to amend his complaint “to elaborate on the economic harm caused by the defendant’s actions.” The district court found that Modrowski failed “to offer ‘any evidence in response to defendant[‘s] motion, let alone evidence sufficient to raise a triable issue of fact.’”

On appeal Modrowski argued that “his obligation to point to evidence in his favor was never triggered, because the defendants failed to meet their initial burden of production.” The court notes that the defendants did not attempt to provide “affirmative evidence that negates an essential element of [Modrowski’s] claim,” but were attempting, successfully, to “following a ‘somewhat trickier’ path to summary judgment by asserting that the “[Modrowski’s] evidence [was] insufficient to establish an essential element of [Modrowski’s] claim.” The court’s focus on a “representative element of Modrowski's claims,” the $5,000 loss requirement, attempts to highlight the shortcomings of Modrowski’s argument

To prevail on his Computer Fraud and Abuse Act claim, Modrowski would have had the burden of proving that the defendants' actions “caused [a] loss . . . during any 1-year period . . . aggregating at least $5,000 in value.” 18 U.S.C. § 1030(c)(4)(A)(i)(I). Were the defendants aiming affirmatively to negate that element—say, by asserting that the evidence irrefutably showed Modrowski's injury totaled only $2,500—the absence of citations to the evidence on record would be problematic. But that was not the defendants' strategy. They asserted that, if the case went to trial, Modrowski would be unable to produce evidence sufficient to meet his burden of proving that his injury exceeded $5,000. Modrowski counters that he was under no obligation to conduct formal discovery, and this is certainly true. See Praxair, Inc. v. Hinshaw & Culbertson, 235 F.3d 1028, 1032 (7th Cir. 2000) (“Discovery is costly and in cases in which the stakes are small, or there is a clearly dispositive legal argument, forbearing to conduct discovery is not negligence.”). But once the defendants pointed out the gap that they believed existed in Modrowski's case, he was obliged to point to evidence that, if believed by the trier of fact, would be sufficient to show that his loss did in fact exceed $5,000. Modrowski could have come forward with affidavits from would-be business partners who were unable to contact him while he was locked out of his account; he could have submitted receipts reflecting the fees he paid to procure duplicates of lost financial and billing records; or perhaps he might have contented himself with a personal affidavit attesting to the number of hours he devoted to recovering his emails. See Butts v. Aurora Health Care, Inc., 387 F.3d 921, 925 (7th Cir. 2004) (court may consider self-serving affidavits at summary judgment if they are based on personal knowledge and set forth specific facts). Instead, he rested exclusively on his complaint, and this was plainly inadequate.

The $5,000 loss requirement for civil claims under the CFAA is a relatively broad requirement. However, as Modrowski highlights, a prospective claimant should be prepared to have some evidence that his or her loss can be valued at $5,000.

Interesting Note: Modrowski also brought a claim under the Stored Wire and Electronic Communications Act (18 U.S.C. § 2701) and the Federal Wire Tapping Act (18 U.S.C. § 2511). However, both were dismissed with prejudice by the district court because “Modrowski acknowledged that he voluntarily linked his personal account with the defendants' business account.”

Author's recommendation: Don't do that.

Read More

7th Circuit strikes down Indiana statute banning sex offenders from social networking sites

In Doe v. Prosecutor, No. 12-2512 (7th Cir. 2013), the Seventh Circuit held that an Indiana statute banning registered sex offenders from social networking sites violated the First Amendment because it was "not narrowly tailored ... [to] the evil of improper communications to minors." This opinion reverses a district court opinion from last June.

The statute, Indiana Code § 35-42-4-12, prohibited the use of social networking websites, chat room, instant messaging programs if the website allows minors to gain access or use.

In its decision, the Seventh Circuit found that the statute "targets substantially more activity than the evil it seeks to redress." As such and because "Indiana has other methods to combat unwanted and inappropriate communication between minors and sex offenders," the statute is not narrowly tailored. The court was, however, sure to note that this decision does not alter a court's ability to construct terms of supervised release for sex offenders - including limiting Internet access.

A similar statute, the Californians Against Sexual Exploitation Act, in California was also struck down earlier this year.

Read More

Judge Posner questions "superlong" 50-year sentence given to 46-year-old in CP production case

In United States v. Craig, No. 12-1262 (7th Cir. 2012), Judge Richard Posner of the Seventh Circuit offered a critique of lengthy sentences of elderly defendants.

The defendant had been found guilty of producing child pornography after repeated sexual assaults against a friend of his children. He had also obtained images of the child by threatening to kill her unless she e-mailed him sexually explicit pictures of herself. A 30-year sentence was ordered for one count, and three 20-year sentences were ordered to be severed concurrently but consecutively to the 30-year sentence. Thus, the 46-year-old defendant, was ordered to serve 50 years in prison.

In a concurring opinion, Judge Posner wrote "to remind the district judges of this circuit of the importance of careful consideration of the wisdom of imposing de facto life sentences." He also opined an argument that had the defendant known he might have faced fifty years in prison, he might have been deterred from committing it. "Probably he had no idea what his punishment was likely to be if he was caught, for the Justice Department does little to publicize punishment levels for the various federal crimes."

In conclusion, Posner offered:

I am merely suggesting that the cost of imprisonment of very elderly prisoners, the likelihood of recidivism by them, and the modest incremental deterrent effect of substituting a superlong sentence for a merely very long sentence, should figure in the judge's sentencing decision.

Judge Posner, who has served on the Seventh Circuit since 1981, turns 74 this Friday. Read about more of his opinions here.

Read More

FBI job applicant fails polygraph, admits to CP possession, and asks if it would slow his application. It did.

Working for the Federal Bureau of Investigation is a dream of many Americans. The famed agency has - rather understandably - a difficult hiring process including a polygraph. I'm assuming questions concern possible crimes the job candidate has committed as well as generally making sure they are not a threat to national security.

When Dominick Pelletier appeared for a job interview with the FBI, he was escorted to the polygraph room where the types of questions were explained to him. Pelletier became nervous about the potential for questions about sex crimes as he had done research on child pornography in a different country. He was assured that the questions would only concern whether he possessed or distributed child pornography, and the test was administered.

Much to his dismay, he failed the polygraph. Explaining the situation, he said that he had seen child pornography images as part of his research. The FBI agent remained calm, and Pelletier continued to think he was in consideration for the position. FBI agents continued to ask him questions, and he admitted to possession of "child erotica" at home.

After refusing to allow FBI to accompany him to his home, Pelletier ultimately signed a consent form after being told they would just get a search warrant anyway. He remained at the office, never asked to leave or to speak with an attorney, and apparently still thought he would be considered for the job. Unfortunately for him, he didn't get the job, and more than 600 images of child pornography were found on his computer.

Pelletier was ultimately convicted of possession, and he appealed, arguing that "he was entitled to Miranda warnings and did not receive them" and that his consent to search was involuntary.

The Seventh Circuit held that Miranda rights were not necessary as Pelletier was not in custody. The lengthy time at the office, encounters with armed agents, and security measures were all a part of the job application process - and were not a result of his suspected criminal activity. "Pelletier was friendly and talkative throughout the day ... and asked at the end of the interview whether his possession of child pornography would slow his job application process."

The court also did not address the consent issue as they determined probable cause allowed for a search warrant which protects the evidence under the inevitable discovery doctrine.

As a side note, it is always a pleasure to read a Seventh Circuit opinion. Judge Kanne began the opinion:

Federal investigative agents will tell you that some cases are hard to solve. Some cases require years of effort—chasing down false leads and reigning in flighty witnesses. Others require painstaking scientific analysis, or weeks of poring over financial records for a hidden clue. And some cases are never solved at all—the right witness never comes forward, the right lead never pans out, or the right clue never turns up.

This is not one of those cases.

I'm always a little appreciative of a judge (and a clerk, of course) willing to be a little creative with their legal writing.

The case is United States v. Pelletier, No. 12-1274 (7th Cir. 2012).

Read More

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 first examined whether child pornography victims can intervene in the criminal proceeding itself. Finding that it "would be a recipe for chaos," the court held that victim intervention is best left for an appeal.

In his appeal, the defendant argued that the district court's award of restitution to "Amy" and "Vicky" was erroneous. Amy and Vicky are two victims of child pornography, and the two have received restitution of varying amounts from cases around the country. Vicky's losses total nearly $1.25 million (and she's recovered just over $250,000), and Amy's losses are calculated at over $3 million (and she's recovered about half). The court ordered the defendant to pay the entire balance of those losses, and he argued that it's not his responsibility.

Courts have struggled with the federal statute that allows restitution for child pornography victims - 18 U.S.C. § 2259(c). Of all the circuits that have dealt with the issue, all but one (the Fifth) have determined that the defendant must have proximately caused the victim's losses in order to be required to pay restitution. Courts have further struggled with what exactly that means.

The Seventh Circuit, deciding to remand for a redetermination of restitution by the trial court, suggested that "it is beyond implausible that [Amy and Vicky] would have suffered the harm they did had [the defendant] been the only person in the world to view pornographic images of them." As such, on remand, the court must consider which portion can be allocated to the defendant. However, if the court labels the defendant a distributor, he should be liable for the entire amount of the damages.

Amy and Vicky suggested that imposing joint liability is fair because the defendant can seek contribution from other viewers. Posner opined such an approach to be "extraordinarily clumsy," considering the assets of most prisoners and "the bother of awarding contribution rights to hundreds of prison inmates. We have enough inmate suits as it is."

Thus, the Seventh's rules for restitution are:

1. Subtract restitution payments already received in other cases.
2. Determine the defendant's status. If he is simply a viewer, determine what of the damages are a result of his acts. If he is a distributor, the defendant is liable for the entire remaining loss.
3. The defendant is not entitled to contribution from other offenders.
4. Victims may not intervene in district court.

The defendant also appealed his 30-year sentence (including a 10-year consecutive possession charge), arguing that the length was inappropriate and it should not have been consecutive. These arguments were struck down, of course.

Read More

7th Circuit analyzes staleness in computer searches, holds the doctrine should apply "only in the exceptional case"

In United States v. Seiver, No. 11-3716 (7th Cir. 2012), in an opinion by Judge Posner, the Seventh Circuit analyzed the issue of staleness as it relates to a finding of probable cause to search a computer. Noting that "modern computer technology and the usual behavior of its users" support the position that the probable cause was not stale, the conviction was affirmed.

The case concerned a search warrant for child pornography on the defendant's computer. A 13-year-old girl had uploaded a pornographic video of herself to the Internet, and the defendant later discovered and downloaded that video. He then uploaded stills from the video to a photo-sharing site and sent an album link to the girl's stepmother who alerted police. Law enforcement tracked the IP address to the defendant, but there was a seven month gap between the upload and the search of his home.

On appeal, the defendant argued "that there was no reason to believe that seven months after he had uploaded child pornography there would still be evidence of the crime on his computer." Here's a summary of the points of Judge Posner's opinion (which in itself is a well-condensed opinion and difficult to summarize):

1. The traditional issue with staleness is whether the defendant was a collector of child pornography and was "likely to have 'retained' or 'maintained' rather than 'destroyed' the ... images." However, this concern alone "reflects a misunderstanding of computer technology."
2. Posner then goes into great detail in discussing deleted files, overwriting data, and file recovery.
3. "'Staleness' is highly relevant to the legality of a search for a perishable or consumable object, like cocaine, but rarely relevant when it is a computer file. Computers and computer equipment are 'not the type of evidence that  rapidly dissipates or degrades (internal citations omitted).'"
4. After a file has been deleted, "it is possible that the deleted file will no longer be recoverable" ... [or] the computer will have been sold or physically destroyed." Despite these possibilities and the time interval, however, "rarely will they be so probable as to destroy probable cause ... for probable cause is far short of certainty."
5. "[I]t appears that few consumers of child pornography ... understand well enough how their computer’s file system works to grasp the importance of wiping or overwriting their deleted pornographic files or encrypting them securely if they want to avoid leaving recoverable evidence ... after they've deleted it." Though software to perform these tasks is readily available, its use "is surprisingly rare."
6. "[A]fter a very long time, the likelihood drops to a level at which probable cause ... can no longer be established." However, "seven months is too short."
7. Possession requires knowing possession, and images being in slack space may prevent the knowledge element. However, that does not eliminate probable cause "unless the statute of limitations on possession ha[s] expired."
8. "Only in the exceptional case should" staleness be used to strike down a search of a computer for child pornography.
9. "[F]uture changes in computer technology may alter" the staleness inquiry, "and judges as well as law enforcers must be alert to that possibility as well.

Read More

Seventh Circuit holds warrantless search of digital storage devices after private "search" did not violate Fourth Amendment

In Rann v. Atchinson, __ F.3d __ (7th Cir. 2012), the Seventh Circuit held that a law enforcement search of two digital storage devices for child pornography which were handed over by the defendant/offender's wife and daughter, respectively, did not violate the Fourth Amendment. The defendant was arguing ineffective assistance of counsel (by way of federal habeas), based on his lawyer's failure to attempt to suppress the child pornography evidence obtained from the digital devices when the police searched them without a warrant.

After the victim (age 15) reported sexual assault by her biological father to the police and was interviewed, she returned home and obtained a digital camera memory card and returned it to the police. The card contained images of her own sexual assault. Subsequent to this, the mother of the victim turned in a zip disk with additional images of her daughter being sexually assaulted, along with images of her other daughter being assaulted as well. According to the police, neither individual was prompted to bring these digital devices to them, nor were any law enforcement offers present when each individual retrieved the devices.

The defendant's main contention was that:

when the police searched the digital storage devices and viewed the images on them, they exceeded the scope of the private search conducted by [the victim] and her mother. Since the subsequent search by the police exceeded the scope of the initial private search, so his argument runs, the police needed a warrant to “open” the digital storage devices and search them because the record contains no evidence that [the victim] or her mother knew the digital storage devices contained images of child pornography prior to the police viewing. Since the police did not obtain a warrant prior to opening the digital storage devices and viewing the images, he claims their doing so constituted an unconstitutional warrantless search in violation of the Fourth Amendment.

Now, I'm going to stop here for a second. The court states that the defendant and mother conducted a "private search."  By this, I would argue, one would assume that such a search would include viewing the files on the digital devices to determine if they did in fact contain child pornography. However, there is no indication anywhere in this case that such a search took place. Granted, there is an assumption made that they would not have turned in the devices if they did not know there was CP on the devices, but I just want to point out that nowhere is there evidence that either individual described to the police what exactly was on the devices (or described a single picture contained on them).

Back to the case - the court states that private searches are not subject to the Fourth Amendment, and police do not need to "avert their eyes" to the evidence obtained from such searches. However, police cannot exceed the scope of the original private search to obtain evidence. The standard from Jacobsen relating to private searches is "individuals retain a legitimate expectation of privacy even after a private individual conducts a search, and 'additional invasions of privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.'"

The question of how to handle police searches of digital devices searched privately, first, was one of first impression for the court. However, the court adopted the Fifth Circuit's approach in Runyan, a 2001 case with similar factual circumstances. Runyan held that "a search of any material on a computer disk is valid if the private party who conducted the initial search had viewed at least one file on the disk." The Fifth Circuit "analogiz[ed] digital media storage devices to containers" and "ruled that 'police exceed the scope of a prior private search when they examine a closed container that was not opened by the private searches unless the police are already substantially certain of what is inside that container based on the statements of the private searches, their replication of the private search, and their expertise.'" In Runyan, multiple digital devices were turned over to the police, not all of which had been looked at by the personal who was the "private searcher," so only those devices that the searcher had looked at one or more files on, were admitted.

Here, the court held that the victim and mother essentially had to know what was on the disks when they turned them in, and thus the police could be substantially certain what they contained. The court held this over the objection of the defendant that there was no direct evidence of this, and it was purely conjecture:

[The defendant] argues that the Illinois Appellate Court relied on conjecture when it found that [the victim] and her mother knew the contents of the devices they delivered to the police, pointing to the Illinois Appellate Court's finding that “[a]lthough no testimony exists regarding how the images on the zip drive came to be there, it seems highly likely that [the victim's] mother [compiled] the images on the zip drive herself, downloading them from the family computer.” Rann argues that this is conjecture, yet he offers nothing but conjecture and speculation in its place.

The court justified its holding by stating that "the contrary conclusion—that [the victim] and her mother brought digital media devices to the police that they knew had no relevance to [the victim's] allegations—defies logic."

The court went on to state that:

even if the police more thoroughly searched the digital media devices than S.R. and her mother did and viewed images that S.R. or her mother had not viewed, per the holding in Runyan, the police search did not exceed or expand the scope of the initial private searches. Because S.R. and her mother knew the contents of the digital media devices when they delivered them to the police, the police were “substantially certain” the devices contained child pornography.

I've seen some chatter on Twitter that this case is #Troubling. I agree and disagree. I disagree, in that Easterbrook wrote this opinion, in a typical judicially restrained manner - cabining it to the particular circumstances of this case, and especially to the fact that the victim and the mother only turned in two devices, both of which were assumed to have CP (whereas in Runyan, many devices were turned in, in a sort of "grab bag" of evidence.")

I agree that it is troubling because I can't see how you can use the analogy of a container with respect to digital devices. Sure, it is easy when it comes to camera memory cards, but how about hard drives? If the wife had turned in the entire computer hard drive, could the police have searched the entire thing, if she said she had opened a single picture and found CP?

Another very good point to be made in regards to this case is this - what would have been so challenging about getting a warrant to search these devices, based on the information provided by the mother and victim?

Lastly, I put "search" in the title in quotations, and had an aside above about the lack of explicit evidence of the mother or victim viewing the files on the digital device because I think a flaw in the case is the absence of any elaboration on how turning those devices in was the search.

Read More

Fourth Circuit adopts narrow reading of the CFAA

We have discussed previously the tension between a wide and narrow reading of the CFAA - see Jeffrey's original take on Nosal - Ninth Circuit en banc adopts narrow reading of CFAA, and my analysis of the dissent - Why Nosal’s dissent is surprisingly persuasive.

Well, the Fourth Circuit has sided with the "narrow" camp, in WEC Carolina Energy Solutions v. Miller. Not surprisingly, it is another case of employee disloyalty that has been dressed up to be a federal hacking violation.  Essentially, Miller (or his assistant) downloaded documents while he was still employed and was authorized to access such information and then twenty days after his resignation used allegedly proprietary information (from the downloaded documents) in a presentation to customers for his new employer (a competitor of WEC). WEC eventually lost the contract and sued under the CFAA, alleging that the downloading of the documents was a violation of the CFAA because "'[u]nder WEC's policies they were not permitted to download confidential and proprietary information to a personal computer.' Thus, by doing so, they 'breache[d] their fiduciary duties to WEC' and via that breach, they either (1) lost all authorization to access the confidential information or (2) exceeded their authorization."

The court reviewed the panel decision in Nosal (which was later overturned en banc), and candidly called its interpretation of the CFAA a "non sequitur." Recall that a reading of the CFAA under the Nosal panel's interpretation would essentially criminalize employee violations of acceptable use policies. And lets not forget what the fight is really over - it is the plain text of the CFAA, which defines in pertinent part "exceeds authorized access" as:

to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.

The key word, as I have highlighted, is "so." Nosal defined so as "in that matter." The Fourth Circuit's responded:

To us, defining "so" as "in that manner" only elucidates our earlier conclusion that "exceeds authorized access" refers to obtaining or altering information beyond the limits of the employee's authorized access. It does not address the use of information after access. Indeed, the Ninth Circuit indicated as much in its en banc reversal, when it declined to hold that the interpretation of "so" as "in that manner" necessarily means employees can be liable for use-policy violations.  

The Fourth Circuit thus rejected the wide interpretation of "so," and applying the rule of lenity, held that "Congress has not clearly criminalized obtaining or altering information 'in a manner' that is not authorized. Rather, it has simply criminalized obtaining or altering information that an individual lacked authorization to obtain or alter."

The court went on to clearly reject the Seventh Circuit's interpretation of the CFAA as a "cessation-of-agency theory," in Citrin.  Namely, that the Seventh Circuit's interpretation is deficient because:

Such a rule would mean that any employee who checked the latest Facebook posting or sporting event scores in contravention of his employer's use policy would be subject to the instantaneous cessation of his agency and, as a result, would be left without any authorization to access his employer's computer systems.

The Fourth Circuit stated that in drafting the CFAA, Congress did not intend to legislate on the agency relationship and did not intend "the imposition of criminal penalties for such a frolic."

As Orin Kerr reported on the Volokh Conspiracy, subsequent to this decision the DOJ asked for an extension of time to file the petition for certiorari for the Nosal decision. That seems like a no-brainer to me. The government will need to craft an argument to sidestep this landmine, and I'm not sure they'll be able to do it.

I am highly persuaded by Judge Floyd's reasoning, and I absolutely agree that Congress never intended any interaction between agency theory and the CFAA. I agree because any other interpretation is illogical.  Congress was legislating computer intrusions (a.k.a. hacking) in 1986 (26 years ago) -and its intent in legislating the act is borne out by the record; it is further clarified when one considers documents such as the Hacker Manifesto (published Jan. 1986) which was all about breaking into systems, not use violations. Recall 1986 technology:

1986 wasn't the land of the "internets," the Googlemaker, or the MyFaceTube - it was a completely different technological standpoint. Which just reinforces a point I keep making - that the CFAA is anachronistic and should be revised; however, until it is, it should not be used as the sword of enforcement for violations of every and any use policy an entity can dream up.  Such an interpretation is not borne out by the text, the history, the intent, nor does it comport with the real function that the law was enacted to serve.

Read More

7th Circuit suggests Illinois eavesdropping statute may violate the First Amendment

In ACLU of Illinois v. Alvarez, 2012 U.S. App. LEXIS 9303 (7th Cir. 2012), the Seventh Circuit suggested that an Illinois statute banning the recording of police conversations without consent is likely to violate the First Amendment. Though it's not directly a cybercrime issue, the case could certainly have effects on privacy issues and technology use.

The law makes "it a crime to use 'an eavesdropping device to hear or record all or part of any oral conversation without the consent of any party thereto.'" If a person records communications involving police activity, imprisonment of 15 years is possible. The ACLU argued that the statute violates the First Amendment as people should be able to record police activity. The state, however, argued "that openly recording what police officers say while performing their duties in traditional public fora—streets, sidewalks, plazas, and parks—is wholly unprotected by the First Amendment."

The Seventh Circuit, in an opinion by Judge Sykes, held that the statute "restricts a medium of expression ... and thus an integral step in the speech process. As applied here, it interferes with the gathering and dissemination of information about government officials performing their duties in public." Further, the statute is not subject to strict scrutiny, but "the statute does not serve the important governmental interest of protecting conversational privacy; applying the statute in the circumstances alleged here is likely unconstitutional."

As such, the denial of allowing the ACLU to amend their complaint is reversed, and a preliminary injuction was ordered, forbidding:

the State's Attorney from applying the Illinois eavesdropping statute against the ACLU and its employees or agents who openly audio record the audible communications of law-enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places; and conduct such further proceedings as are consistent with this opinion.

Judge Posner dissented.

Our ruling casts a shadow over electronic privacy statutes of other states as well, to the extent that they can be interpreted to require the consent of at least one party to a conversation to record it even though the conversation takes place that in a public place, if the conversation could nevertheless reasonably be thought private by the parties.... The constitutional right that the majority creates is likely to impair the ability of police both to extract information relevant to police duties and to communicate effectively with persons whom they speak with in the line of duty.

In January, an article from Slate discussed the effects of the Illinois eavesdropping statute.

Read More

District court modifies sentence after 11th Cir. remand on CP distribution enhancement

Last year, the Eleventh Circuit held that the government must prove that a recipient of child pornography is actually a child (as opposed to a belief it is a child) in order for the court to apply a five-level enhancement for distributing child pornography to a minor. United States v. Fulford, 662 F.3d 1174, 1181 (11th Cir. 2011). The recipient who Fulford thought was a child was actually an adult man, but the district court had applied the enhancement for the belief alone.

On remand, the parties agreed that the government did not prove that the recipient was a minor, and the court modified the sentence on that count from 210 months to 121 months. United States v. Fulford, 2012 U.S. Dist. LEXIS 46736 (S.D. Ala. 2012).

Read More

7th Circuit finds six day delay reasonable though not "perfect diligence"

If you quickly read the first couple sentences in United States v. Burgard, you would think that the Seventh Circuit was about to reverse the case (2012 U.S. App. LEXIS 6555 (7th Cir.)):

Expecting to find evidence of child pornography, police officers seized Joshua Burgard's cell phone without a warrant. At that point, however, they seemed to have lost their sense of urgency: they did nothing with the phone right away...

Your impression would be wrong, however. Law enforcement waited six days to obtain a search warrant for the phone. Once they did, child pornography was found, and the defendant was later convicted. On appeal, Burgard argued for suppression of the evidence, arguing that the six-day delay made the search unreasonable.

The Seventh Circuit acknowledged that "at some point the delay becomes unreasonable", but "[t]here is unfortunately no bright line" to determine when that may be. Here, however, the search was not unreasonable. The court noted that "the officers did not act with perfect diligence," [b]ut police imperfection is not enough to warrant reversal.

Read More

7th Cir. reverses conviction for receiving CP, requires knowledge requirement in jury instructions

In United States v. Rogers, 2012 U.S. App. Lexis 6382 (7th Cir. 2012), the Seventh Circuit reversed a conviction for receiving child pornography because the jury instructions omitted the requirement of knowledge. Rogers had been convicted on several counts after engaging in chat room conversations with a 14-year-old where nude photographs of the child were sent to Rogers. Additionally, in a conversation with a second child, Rogers sent an obscene image of himself to the 13-year-old.

On appeal, Rogers argued that requirements of knowledge were omitted from jury instructions on two of the counts. The appellate court found that in Count 4 (enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct), it was not necessary for him to have knowledge that the minor was actually a minor.

However, with Count 3 (knowingly receiving child pornography), the omission of a knowledge requirement was in error. The review was done for plain error as the defense did not object to the instruction. The court held that in order "to convict an individual for receiving child pornography, the Government must prove that the defendant knew the age of the performer." This error "affected Rogers' substantial rights," requiring reversal.

Another issue the court addressed was whether a picture of an erect penis with a hand holding it should be considered obscene. Rogers argued that it "was anatomical" and "not sexual in nature." However, the court found it to be one of masturbation and sexual conduct and following the standard set in Miller v. California (413 U.S. 15, 24 (1973)), it should be classified as obscene.

Read More

7th Cir. affirms 32-year CP sentence; judge expresses sentencing guidelines concern

The Seventh Circuit has upheld a sentence of 32 years for production and possession of child pornography (United States v. Klug, 670 F.3d 797 (7th Cir. 2012)). The defendant had videoed children showering and changing clothes on church trips while he was serving as a chaperone. An investigation revealed 59,000 still images and 12,000 videos of child pornography. Noting a related case with a reasonable 80-year sentence (United States v. Noel, 581 F.3d 490, 500 (7th Cir. 2009)), the court affirmed.

In a concurring opinion, Judge Cudahy agreed to affirming the sentence because it fell within the sentencing guidelines but expressed that "the sentencing process need[s] to focus on a better provision of reasonable standards." Cudahy suggested too much speculation goes into these decisions with the result being that "uniformity cannot be achieved and justice is elusive."

Read More

7th Cir. addresses CP double jeopardy claim, remands sentence due to consideration of improper fact

In United States v. Halliday, 672 F.3d 462 (7th Cir. 2012), the Seventh Circuit addressed whether possession of child pornography is a lesser-included offense of receipt and remanded the sentence because the sentencing judge considered an improper fact.

Law enforcement downloaded child pornography from the defendant's computer using Limewire, and search of defendant's computer revealed 15 videos which had been downloaded on 8 dates. He was convicted on two counts of receipt and one count of possession - the receipt charges for the first and last download date and possession for the intervening time.

On appeal, Halliday argued that the separate convictions for receipt and possession violated double jeopardy because possession is a lesser-included offense. The court discussed circuit precedent which held that receipt and possession do not violate double jeopardy, but suggested that "the reasoning of these cases is now in question, both because of our more recent views of the scienter requirement in possession cases, and because of how our sister circuits have viewed possession and receipt in the child pornography context." However, there was no need to make such a decision here as "where separate images form the bases for separate receipt and possession counts, there can be no double jeopardy violation." The court did issue a note for attorneys in future cases:

While we do not today overturn Myers, Malik, or Watzman, we note that in future cases, the government would be wise to clearly indicate in the indictment which images are included in each count of the indictment. Additionally, where both receipt and possession are charged, we would also think it wise for the court to instruct the jury that any images and videos relied on for a receipt count cannot form the basis of a conviction for a possession count. The absence of such an instruction in this case, however, does not alter our analysis.

Halliday also argued that the sentencing judge relied on an improper fact at sentencing. The judge suggested that the defendant thought the crime was victimless and not criminal, but the defendant never asserted either idea. Thus, this speculation may have improperly influenced the sentence, and the sentence was vacated and remanded.

Read More

7th Cir. denies that CP images were "grandfathered in"

Quick rule: An image of child pornography is child pornography despite when it was created. In United States v. Peel, 668 F.3d 506 (7th Cir. 2012), the defendant argued that because child pornography was defined as images of children under the age of 16 at the time he took the photos, the images were grandfathered in under current law that would make those images illegal. Not so, said the Seventh Circuit in an opinion by Judge Posner:

If accepted the argument would have the ridiculous consequence of allowing a person who happened to possess pornographic photographs of 16- and 17-year-olds taken before 1984 to market them, giving him a market that being shielded from new competition would offer substantial profit opportunities because after 1984 there could be no further legal production or possession of such pornography.

Read More

Seventh Circuit sets rules for CP evidence

An Indiana man was found guilty of distribution of child pornography. The problem? There was no evidence to demonstrate that he distributed any child pornography.

He was a second-level administrator of a website that was used to share child pornography, and he admitted to viewing images on the site. He thanked users for posting, promoted and deleted users, and other administrative tasks. Nearly 100 of the 450 or so users posted images, but no evidence was admitted to show that he was one of them.

The prosecution sought to admit photos of hardcore child pornography found in the defendant's home in order to demonstrate "'intent and motive' to join the conspiracy to distribute child pornography." The problem, as the Seventh Circuit found, was that these images were not posted on the site and only demonstrated possession. Further, the government had less prejudicial images that could have been introduced instead of the hardcore images.

On appeal, the Seventh Circuit reversed, finding that the court (1) did not exercise its FRE 403 discretion because it did not review the images before presenting them to the jury, (2) "its probative value was not substantially outweighed by the risk of unfair prejudice," and (3) the admission was not harmless error. With regard to 403 discretion, the court noted, "One cannot evaluate in a Rule 403 context what one has not seen or read."

The case is United States v. Loughry, 660 F.3d 965 (7th Cir. 2011).

Read More