Jury: School principal Weindl not guilty of CP charges; case arose after FBI agent left spyware on son's school laptop

From the Saipan Tribune (2/13/13): Weindl found not guilty:

A federal jury yesterday found former Whispering Palms School principal Thomas Weindl not guilty of charges of accessing child pornography websites using a Public School System-issued laptop.

For those unfamiliar with the case, here is my description from a previous post:

In United States v. Weindl, __ F.Supp __ (D. N.M.I. Nov. 20, 2012), a Northern Mariana Islands federal district court denied suppression of evidence obtained when spyware installed on school-owned laptop (assigned to an FBI agent's son and later used by the principal) sent child pornography (CP) reports (alerts) to the FBI agent - evidence that led to charges against the school principal (two counts of receiving CP and two counts of possession of CP). There are three relevant issues in the case: (1) whether the act of "accidental" failure to remove the spyware resulted in an "inadvertent search" or an intentional one, (2) whether the FBI agent was acting under the color of law when he opened and later investigated the reports he received from the spyware, and (3) whether Weindl had standing to assert a reasonable expectation of privacy in the spyware reports. 

I had a chance to speak via email with Weindl's attorney, David Banes, last night; Banes indicated that he believed the turning point in the case was the testimony of his computer expert. He also mentioned that "we were able to show that the alleged porn sites constantly changed content" making it hard for the prosecution to prove that what Weindl allegedly browsed and viewed (at time A) was the same content when the page was accessed (assumedly by prosecutors) to serve as a basis for the charges (and evidence at the trial) (at time B). Finally, Banes noted that the defense was able to put on convincing evidence that eBlaster reports are not designed to be used as forensic evidence.

My previous posts on the case can be found below:

11/28/2012 - Principal caught with CP when FBI agent returns son's school laptop with spyware still on it; court denies suppression

12/3/2012 - Weindl - FBI agent spyware v. principal attracts attention and misinformation

12/5/2012 - Weindl (FBI agent's spyware vs. principal) - Why the court got it wrong

Jeffrey's differing take can be found here:

12/7/2012 - Weindl: Why the court got it right, and the FBI agent/father shouldn't be viewed as a government agent

Kashmir Hill at Forbes also wrote it up, here:

11/30/12 - An FBI Dad's Misadventures With Spyware Exposed School Principal's Child Porn Searches

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Weindl - FBI agent spyware v. principal attracts attention and misinformation

Since I wrote about United States v. Weindl on November 28th, Principal caught with CP when FBI agent returns son's school laptop with spyware still on it; court denies suppression, the story was picked up by Kashmir Hill at Forbes (by way of Eric Goldman), An FBI Dad's Misadventures With Spyware Exposed School Principal's Child Porn Searches, and from there spread like wildfire to various other sites.

Today, Robert X. Cringely, on his Infoworld blog "Notes from the field" highlighted the story as well - School for scandal: FBI spyware nabs pervy principal. In the story, he states:

When spooks spy on their kids -- and happen to ensnare adults doing things they shouldn't -- isn't that illegal spying? I asked cyber lawyer Jonathan Ezor, Director of the Touro Law Center Institute for Business, Law and Technology in Islip, New York. 

Though Ezor cautioned that he is not a criminal attorney, he says Auther's discovery of Weindl's dark deeds probably falls under the "in plain sight" exception for evidence. If you open the door for the cops and they see a big pile of cocaine sitting on your coffee table, they have every right to break down the door, then seize you and the drugs, no warrant required. 

The more important issue, says Ezor, was what the feds told Weindl when they sat down with him in his office and whether they read him his rights. That might have a greater bearing on whether his Fourth Amendment rights were violated. 

On the other hand, Justin P. Webb of the CyberCrime Review blog says the court was wrong across the board (though he's saving his reasons why for a future blog post).

Two things:

(1) With all due respect to Jonathan Ezor, he clearly did not read the case. As I stated in my write-up, the court expressly dismissed the plain view exception to the warrant requirement. You cannot argue for plain view when you are somewhere you weren't authorized to be. Further, and as the case states specifically, Weindl was not read his rights" when [the the two FBI agents] sat down with him in his office." Most importantly: the significant implications of the case, which Weindl's attorney assured me will reach the the 9th Circuit, do not revolve around the interrogation, but the search.

(2) Cringely is correct to note that I believe the Weindl opinion was wrong across the board. While my post on that issue is not up yet, it will be within 48 hours.

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