Spring Edition of CCR's Massive Round-Up of New Law Articles on the CFAA, Cybercrime, Privacy, 4th Amendment, Surveillance, and more

Some impressive articles have been published since the last round-up I did in February; if you missed that post, see: Massive round-up of new law articles, covering privacy, Fourth Amendment, GPS, cell site, cybercrime, big data, revenge porn, drones, and more. 

New Legal Scholarship (with abstracts where available)

Orin S. Kerr, The Next Generation Communications Privacy Act, 162 U. Pa. L. Rev. 373 (2014)

In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to Internet communications and records. ECPA is widely regarded as outdated, and ECPA reform is now on the Congressional agenda. At the same time, existing reform proposals retain the structure of the 1986 Act and merely tinker with a few small aspects of the statute. This Article offers a thought experiment about what might happen if Congress were to repeal ECPA and enact a new privacy statute to replace it. 

The new statute would look quite different from ECPA because overlooked changes in Internet technology have dramatically altered the assumptions on which the 1986 Act was based. ECPA was designed for a network world with high storage costs and only local network access. Its design reflects the privacy threats of such a network, including high privacy protection for real-time wiretapping, little protection for noncontent records, and no attention to particularity or jurisdiction. Today’s Internet reverses all of these assumptions. Storage costs have plummeted, leading to a reality of almost total storage. Even U.S.-based services now serve a predominantly foreign customer base. A new statute would need to account for these changes. 

This Article contends that a next generation privacy act should contain four features. First, it should impose the same requirement on access to all contents. Second, it should impose particularity requirements on the scope of disclosed metadata. Third, it should impose minimization rules on all accessed content. And fourth, it should impose a two-part territoriality regime with a mandatory rule structure for U.S.-based users and a permissive regime for users located abroad.

**And a Response to Kerr's article: Ryan Calo, Communications Privacy for and by Whom?, 162 U. Pa. L. Rev. Online 231 (2014) **

Andrea M. Matwyshyn, Privacy, the Hacker Way, 87 S. Cal. L. Rev. 1 (2014)

This Article seeks to clarify the relationship between contract law and promises of privacy and information security. It challenges three commonly held misconceptions in privacy literature regarding the relationship between contract and data protection—the propertization fatalism, the economic value fatalism, and the displacement fatalism—and argues in favor of embracing contract law as a way to enhance consumer privacy. Using analysis from Sorrell v. IMS Health Inc., marketing theory, and the work of Pierre Bourdieu, it argues that the value in information contracts is inherently relational: consumers provide “things of value”—rights of access to valuable informational constructs of identity and context—in exchange for access to certain services provided by the data aggregator. This Article presents a contract-based consumer protection approach to privacy and information security. Modeled on trade secret law and landlord-tenant law, it advocates for courts and legislatures to adopt a “reasonable data stewardship” approach that relies on a set of implied promises—nonwaivable contract warranties and remedies—to maintain contextual integrity of information and improve consumer privacy. 

Matthew F. Meyers, GPS “Bullets” and the Fourth Amendment, 4 Wake Forest L. Rev. Online 18 (2014) (No Abstract)

From the Fordham Law Review, April 2014 | Vol. 82, No. 5:

Peter Margulies, The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism (No Abstract)

Casey J. McGowan, The Relevance of Relevance: Section 215 of the USA PATRIOT Act and the NSA Metadata Collection Program

In June 2013, a National Security Agency (NSA) contractor, Edward Snowden, leaked classified documents exposing a number of secret government programs. Among these programs was the “telephony metadata” collection program under which the government collects records from phone companies containing call record data for nearly every American. News of this program created considerable controversy and led to a wave of litigation contesting the validity of the program. 

The legality of the metadata collection program has been challenged on both constitutional and statutory grounds. The program derives its authority from Section 215 of the USA PATRIOT Act, codified as 50 U.S.C. § 1861. The statute requires that there be reasonable grounds to believe the data collected is “relevant to an authorized investigation.” The government deems all these records “relevant” based on the fact that they are used to find patterns and connections in preventing terrorist activity. Critics of the program, however, assert that billions of records cannot possibly be relevant when a negligible portion of those records are actually linked to terrorist activity. This Note examines the conflicting interpretations of “relevant,” and concludes that while the current state of the law permits bulk data collection, the power of the NSA to collect records on such a large scale must be reined in.

Thomas Rosso, Unlimited Data?: Placing Limits on Searching Cell Phone Data Incident to a Lawful Arrest 

The “search incident to arrest exception” is one of several exceptions to the general requirement that police must obtain a warrant supported by probable cause before conducting a search. Under the exception, an officer may lawfully search an arrestee’s person and the area within the arrestee’s immediate control without a warrant or probable cause, so long as the search is conducted contemporaneously with the lawful arrest. The U.S. Supreme Court has justified the exception based on the need for officers to discover and remove any weapons or destructible evidence that may be within the arrestee’s reach. Additionally, the Court has held that, under the exception, police may search any containers found on the arrestee’s person without examining the likelihood of uncovering weapons or evidence related to the arrestee’s offense. In light of these principles, should the exception permit officers to search the data of a cell phone found on an arrestee’s person? 

In January 2014, the Supreme Court granted certiorari to review two appellate rulings and resolve a split among the circuits and state courts on this question. This Note examines three approaches courts have taken to resolve the issue: a broad approach, a middle approach, and a narrow approach. This Note argues that the Supreme Court should adopt the narrow approach and prohibit warrantless searches of cell phone data under the exception.

Stephen Moor, Cyber Attacks and the Beginnings of an International Cyber Treaty, North Carolina Journal of International Law and Commercial Regulation (Fall 2013) (No Abstract)

Katherine Booth Wellington, Cyberattacks on Medical Devices and Hospital Networks: Legal Gaps and Regulatory Solutions, 30 Santa Clara High Tech. L.J. 139 (2014)

Cyberattacks on medical devices and hospital networks are a real and growing threat. Malicious actors have the capability to hack pacemakers and insulin pumps, shut down hospital networks, and steal personal health information. This Article analyzes the laws and regulations that apply to cyberattacks on medical devices and hospital networks and argues that the existing legal structure is insufficient to prevent these attacks. While the Computer Fraud and Abuse Act and the Federal Anti-Tampering Act impose stiff penalties for cyberattacks, it is often impossible to identify the actor behind a cyberattack—greatly decreasing the deterrent power of these laws. Few laws address the role of medical device manufacturers and healthcare providers in protecting against cyberattacks. While HIPAA incentivizes covered entities to protect personal health information, HIPAA does not apply to most medical device manufacturers or cover situations where malicious actors cause harm without accessing personal health information. Recent FDA draft guidance suggests that the agency has begun to impose cybersecurity requirements on medical device manufacturers. However, this guidance does not provide a detailed roadmap for medical device cybersecurity and does not apply to healthcare providers. Tort law may fill in the gaps, although it is unclear if traditional tort principles apply to cyberattacks. New legal and regulatory approaches are needed. One approach is industry self-regulation, which could lead to the adoption of industry-wide cybersecurity standards and lay the groundwork for future legal and regulatory reform. A second approach is to develop a more forward-looking and flexible FDA focus on evolving cybersecurity threats. A third approach is a legislative solution. Expanding HIPAA to apply to medical device manufacturers and to any cyberattack that causes patient harm is one way to incentivize medical device manufactures and healthcare providers to adopt cybersecurity measures. All three approaches provide a starting point for considering solutions to twenty-first century cybersecurity threats.

Merritt Baer, Who is the Witness to an Internet Crime: The Confrontation Clause, Digital Forensics, and Child Pornography, 30 Santa Clara High Tech. L.J. 31 (2014)

The Sixth Amendment’s Confrontation Clause guarantees the accused the right to confront witnesses against him. In this article I examine child pornography prosecution, in which we must apply this constitutional standard to digital forensic evidence. I ask, “Who is the witness to an Internet crime?” 

The Confrontation Clause proscribes the admission of hearsay. In Ohio v. Roberts, the Supreme Court stated that the primary concern was reliability and that hearsay might be admissible if the reliability concerns were assuaged. Twenty-four years later, in Crawford v. Washington, the Supreme Court repositioned the Confrontation Clause of the Sixth Amendment as a procedural right. Even given assurances of reliability, “testimonial” evidence requires a physical witness. 

This witness production requirement could have been sensible in an era when actions were physically tied to humans. But in an Internet age, actions may take place at degrees removed from any physical person. 

The hunt for a witness to digital forensic evidence involved in child pornography prosecution winds through a series of law enforcement protocols, on an architecture owned and operated by private companies. Sentencing frameworks associated with child pornography similarly fail to reflect awareness of the way that actions occur online, even while they reinforce what is at stake. 

The tensions I point to in this article are emblematic of emerging questions in Internet law. I show that failing to link the application of law and its undergirding principles to a digital world does not escape the issue, but distorts it. This failure increases the risk that our efforts to preserve Constitutional rights are perverted or made impotent.

Yana Welinder, Facing Real-Time Identification in Mobile Apps & Wearable Computers, 30 Santa Clara High Tech. L.J. 89 (2014)

The use of face recognition technology in mobile apps and wearable computers challenges individuals’ ability to remain anonymous in public places. These apps can also link individuals’ offline activities to their online profiles, generating a digital paper trail of their every move. The ability to go off the radar allows for quiet reflection and daring experimentation—processes that are essential to a productive and democratic society. Given what we stand to lose, we ought to be cautious with groundbreaking technological progress. It does not mean that we have to move any slower, but we should think about potential consequences of the steps that we take. 

This article maps out the recently launched face recognition apps and some emerging regulatory responses to offer initial policy considerations. With respect to current apps, app developers should consider how the relevant individuals could be put on notice given that the apps will not only be using information about their users, but also about the persons being identified. They should also consider how the apps could minimize their data collection and retention and keep the data secure. Today’s face recognition apps mostly use photos from social networks. They therefore call for regulatory responses that consider the context in which users originally shared the photos. Most importantly, the article highlights that the Federal Trade Commission’s first policy response to consumer applications that use face recognition did not follow the well-established principle of technology neutrality. The article argues that any regulation with respect to identification in real time should be technology neutral and narrowly address harmful uses of computer vision without hampering the development of useful applications. 

Valerie Redmond, Note, I Spy with My Not So Little Eye: A Comparison of Surveillance Law in the United States and New Zealand, 37 Fordham Int’l L.J. 733 (2014) (No Abstract)

Lawrence Rosenthal, Binary Searches and the Central Meaning of the Fourth Amendment, 22 Wm. & Mary Bill Rts. J. 881 (2014) (No Abstract)

Jason P. Nance, School Surveillance and the Fourth Amendment, 2014 Wisc. L. Rev. 79 (2014)

In the aftermath of several highly publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their schools than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline.    

Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students’ rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students’ constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students’ educational interests. This Article maintains that in these circumstances, students’ Fourth Amendment rights should not be abridged but strengthened.

Meredith Mays Espino, Sometimes I Feel Like Somebody’s Watching Me . . . Read?: A Comment On The Need For Heightened Privacy Rights For Consumers Of Ebooks, 30 J. Marshall J. Info. Tech. & Privacy L. 281 (2013)

Emily Katherine Poole, Hey Girls, Did You Know? Slut-Shaming on the Internet Needs to Stop, 48 USF L. Rev. 221 (2013)

When it comes to sexual expression, females are denied the freedoms enjoyed by males. Even though sexual acts often take both a male and a female, it is the girl that faces society’s judgment when her behavior is made public. The Internet has created a forum for such "slut shaming" to occur on a whole new level. Now when a girl is attacked for her sexuality, her attackers can be spread across the U.S., or even the world. The Internet is an incredible resource for sharing and gaining information, but it is also allowing attacks on female sexuality to flourish.  

While slut shaming can and does occur to females of all ages, this Articles focuses on its prevalence among teen and preteen girls, falling under the umbrella of cyberbullying. Because actions and legislation that address cyber slut-shaming can also remedy other types of cyberbullying, the problems and proposed solutions elaborated in this Article can be expanded to include all types of cyberbullying. I chose to focus on one specific and pervasive harm — that caused by sexual shaming — to help bring attention to both the repercussions of cyberbullying and to the broader problem of gender inequality that persists in forums and social networking sites across the Internet. 

Sprague, Robert, No Surfing Allowed: A Review and Analysis of Legislation Prohibiting Employers from Demanding Access to Employees’ and Job Applicants’ Social Media Accounts (January 31, 2014). Albany Law Journal of Science and Technology, Vol. 24, 2014

This article examines recent state legislation prohibiting employers from requesting username and password information from employees and job applicants in order to access restricted portions of those employees’ and job applicants’ personal social media accounts. This article raises the issue of whether this legislation is even needed, from both practical and legal perspectives, focusing on: (a) how prevalent the practice is of requesting employees’ and job applicants’ social media access information; (b) whether alternative laws already exist which prohibit employers from requesting employees’ and job applicants’ social media access information; and (c) whether any benefits can be derived from this legislative output. After analyzing the potential impact of this legislation on employees, job applicants, and employers, this article concludes that such legislation is but an answer seeking a problem and raises more questions than it answers.

From the Washington University Law Review, Volume 89| Number 1| March 2014

Danielle Keats Citron & Frank Pasquale, The Scored Society: Due Process for Automated Predictions, 89 Wash. L. Rev. 1 

Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data.  

Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform basic safeguards. Regulators should be able to test scoring systems to ensure their fairness and accuracy. Individuals should be granted meaningful opportunities to challenge adverse decisions based on scores miscategorizing them. Without such protections in place, systems could launder biased and arbitrary data into powerfully stigmatizing scores. 

Elizabeth E. Joh, Policing by Numbers: Big Data and the Fourth Amendment, 89 Wash. L. Rev. 35 

The age of “big data” has come to policing. In Chicago, police officers are paying particular attention to members of a “heat list”: those identified by a risk analysis as most likely to be involved in future violence. In Charlotte, North Carolina, the police have compiled foreclosure data to generate a map of high-risk areas that are likely to be hit by crime. In New York City, the N.Y.P.D. has partnered with Microsoft to employ a “Domain Awareness System” that collects and links information from sources like CCTVs, license plate readers, radiation sensors, and informational databases. In Santa Cruz, California, the police have reported a dramatic reduction in burglaries after relying upon computer algorithms that predict where new burglaries are likely to occur. Unlike the data crunching performed by Target, Walmart, or Amazon, the introduction of big data to police work raises new and significant challenges to the regulatory framework that governs conventional policing. This article identifies three uses of big data and the questions that these tools raise about conventional Fourth Amendment analysis. Two of these examples, predictive policing and mass surveillance systems, have already been adopted by a small number of police departments around the country. A third example — the potential use of DNA databank samples — presents an untapped source of big data analysis. While seemingly quite distinct, these three examples of big data policing suggest the need to draw new Fourth Amendment lines now that the government has the capability and desire to collect and manipulate large amounts of digitized information. 

Lawrence B. Solum, Artificial Meaning, 89 Wash. L. Rev. 69  (No Abstract)

Harry Surden, Machine Learning and the Law, 89 Wash. L. Rev. 87 (No Abstract)

David C. Vladeck, Machines Without Principals: Liability Rules and Artificial Intelligence, 89 Wash. L. Rev. 117 (No Abstract)

All of Volume 40, Issue 2 of the William Mitchell Law Review: Legal Issues in a World of Electronic Data, which includes the following articles:

Roland L. Trope and Stephen J. Humes, Before Rolling Blackouts Begin: Briefing Boards on Cyber Attacks That Target and Degrade the Grid 

Damien Riehl and Jumi Kassim, Is “Buying” Digital Content Just “Renting” for Life? Contemplating a Digital First-Sale Doctrine 

Stephen T. Middlebrook and Sarah Jane Hughes, Regulating Cryptocurrencies in the United States: Current Issues and Future Directions 

Nathan Newman, The Costs of Lost Privacy: Consumer Harm and Rising Economic Inequality in the Age of Google

Slobogin, Christopher, Panvasive Surveillance, Political Process Theory and the Nondelegation Doctrine (April 23, 2014). Georgetown Law Journal, Vol. 102, 2014; Vanderbilt Public Law Research Paper No. 14-13 (SSRN)

Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforcement should be bound by the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely’s political process theory and principles derived from the closely associated nondelegation doctrine. Part I introduces the notion of panvasive law enforcement — large-scale police actions that are not based on individualized suspicion — and exposes the incoherence of the Supreme Court’s “special needs” treatment of panvasive investigative techniques under the Fourth Amendment. It then contrasts the Court’s jurisprudence, and the variations of it proposed by scholars, to the representation-reinforcing alternative suggested by Ely’s work, which would require that panvasive searches and seizures be approved by a body that is representative of the affected group and be applied evenly. Part II explores the impact of political process theory on panvasive surveillance that is not currently considered a search or seizure under the Fourth Amendment, using fusion centers, camera surveillance, drone flights and the NSA’s metadata program as examples. Part III mines administrative law principles to show how the rationale underlying the nondelegation doctrine — if not the (supposedly moribund) doctrine itself — can help ensure that the values of representative democracy and transparency are maintained even once control over panvasive surveillance is largely ceded to the Executive Branch.

Kerr, Orin S., The Fourth Amendment and the Global Internet (April 23, 2014). Stanford Law Review, Vol. 65, 2015, Forthcoming (SSRN)

This article considers how Fourth Amendment law should adapt to the increasingly worldwide nature of Internet surveillance. It focuses on two types of problems not yet addressed by courts. First, the Supreme Court’s decision in United States v. Verdugo-Urquidez prompts several puzzles about how the Fourth Amendment treats monitoring on a global network where many lack Fourth Amendment rights. For example, can online contacts help create those rights? What if the government mistakenly believes that a target lacks Fourth Amendment rights? How does the law apply to monitoring of communications between those who have and those who lack Fourth Amendment rights? The second category of problems follows from different standards of reasonableness that apply outside the United States and at the international border. Does the border search exception apply to purely electronic transmission? And if reasonableness varies by location, is the relevant location the search, the seizure, or the physical person?  

The article explores and answers each of these questions through the lens of equilibrium-adjustment. Today’s Fourth Amendment doctrine is heavily territorial. The article aims to adapt existing principles for the transition from a domestic physical environment to a global networked world in ways that maintain the preexisting balance of Fourth Amendment protection. On the first question, it rejects online contacts as a basis for Fourth Amendment protection; allows monitoring when the government wrongly but reasonably believes that a target lacks Fourth Amendment rights; and limits monitoring between those who have and those who lack Fourth Amendment rights. On the second question, it contends that the border search exception should not apply to electronic transmission and that reasonableness should follow the location of data seizure. The Internet requires search and seizure law to account for the new facts of international investigations. The solutions offered in this article offer a set of Fourth Amendment rules tailored to the reality of global computer networks.

Marthews, Alex and Tucker, Catherine, Government Surveillance and Internet Search Behavior (March 24, 2014) (SSRN) 

This paper uses data from Google Trends on search terms from before and after the surveillance revelations of June 2013 to analyze whether Google users' search behavior shifted as a result of an exogenous shock in information about how closely their internet searches were being monitored by the U. S. government. We use data from Google Trends on search volume for 282 search terms across eleven different countries. These search terms were independently rated for their degree of privacy-sensitivity along multiple dimensions. Using panel data, our result suggest that cross-nationally, users were less likely to search using search terms that they believed might get them in trouble with the U. S. government. In the U. S., this was the main subset of search terms that were affected. However, internationally there was also a drop in traffic for search terms that were rated as personally sensitive. These results have implications for policy makers in terms of understanding the actual effects on search behavior of disclosures relating to the scale of government surveillance on the Internet and their potential effects on international competitiveness. 

Hollis, Duncan B., Re-Thinking the Boundaries of Law in Cyberspace: A Duty to Hack? (April 12, 2014). in Cyberwar: Law & Ethics for Virtual Conflicts (J. Ohlin et al., eds., Oxford University Press, 2014 Forthcoming) (SSRN)

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.  

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.  

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

Stopczynski, Arkadiusz and Greenwood, Dazza and Hansen, Lars Kai and Pentland, Alex, Privacy for Personal Neuroinformatics (April 21, 2014) (SSRN)

Human brain activity collected in the form of Electroencephalography (EEG), even with low number of sensors, is an extremely rich signal raising legal and policy issues. Traces collected from multiple channels and with high sampling rates capture many important aspects of participants' brain activity and can be used as a unique personal identifier. The motivation for sharing EEG signals is significant, as a mean to understand the relation between brain activity and well-being, or for communication with medical services. As the equipment for such data collection becomes more available and widely used, the opportunities for using the data are growing; at the same time however inherent privacy risks are mounting. The same raw EEG signal can be used for example to diagnose mental diseases, find traces of epilepsy, and decode personality traits. The current practice of the informed consent of the participants for the use of the data either prevents reuse of the raw signal or does not truly respect participants' right to privacy by reusing the same raw data for purposes much different than originally consented to. Here we propose an integration of a personal neuroinformatics system, Smartphone Brain Scanner, with a general privacy framework openPDS. We show how raw high-dimensionality data can be collected on a mobile device, uploaded to a server, and subsequently operated on and accessed by applications or researchers, without disclosing the raw signal. Those extracted features of the raw signal, called answers, are of significantly lower-dimensionality, and provide the full utility of the data in given context, without the risk of disclosing sensitive raw signal. Such architecture significantly mitigates a very serious privacy risk related to raw EEG recordings floating around and being used and reused for various purposes.

Reeves, Shane R. and Johnson, William J., Autonomous Weapons: Are You Sure These are Killer Robots? Can We Talk About It? (April 30, 2014). The Army Lawyer 1 (April 2014) (SSRN)

The rise of autonomous weapons is creating understandable concern for the international community as it is impossible to predict exactly what will happen with the technology. This uncertainty has led some to advocate for a preemptive ban on the technology. Yet the emergence of a new means of warfare is not a unique phenomenon and is assumed within the Law of Armed Conflict. Past attempts at prohibiting emerging technologies use as weapons — such as aerial balloons in Declaration IV of the 1899 Hague Convention — have failed as a prohibitive regime denies the realities of warfare. Further, those exploring the idea of autonomous weapons are sensitive not only to their legal obligations, but also to the various ethical and moral questions surrounding the technology. Rather than attempting to preemptively ban autonomous weapons before understanding the technology’s potential, efforts should be made to pool the collective intellectual resources of scholars and practitioners to develop a road forward. Perhaps this would be the first step to a more comprehensive and assertive approach to addressing the other pressing issues of modern warfare.

Timothy C. MacDonnell, Justice Scalia’s Fourth Amendment: Text, Context, Clarity, And Occasional Faint-Hearted Originalism (SelectedWorks) (2014)

Since joining the United States Supreme Court in 1986, Justice Scalia has been one of the most prominent voices on the Fourth Amendment, having written twenty majority opinions, twelve concurrences and eight dissents on the topic. Justice Scalia’s Fourth Amendment opinions have had a significant effect on the Court’s jurisprudence relative to the Fourth Amendment. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision for how technology’s encroachment on privacy should be addressed; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed the originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from these commitments; particularly in the areas of the special needs doctrine and qualified immunity. The article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the Fourth Amendment in favor of law enforcement interests.

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Wis. Sup. Ct. 4th Amendment case: if a probation condition bans possessing a PC (i.e. contraband), you can seize it, but can you search it?

The Wisconsin Supreme Court heard oral arguments today in State v. Purtell, 2012AP001307 - CR (Wis. Sup. Ct. 2014) (link to PDF of docket). A summary from the Wisconsin Public Defender's "On Point site" gives a good synopsis:

Purtell was on probation for animal cruelty convictions, and as a condition of probation was allowed access to computers only for school or work. After Purtell admitted having a laptop at home, his agent went to his home and removed the laptop. She found files showing females, some appearing to be very young, engaged in sexual acts with animals; after a warrant to search the computer was obtained based on that information, police found child pornography. The sole issue on appeal was whether the agent had reasonable suspicion to search Purtell’s computer for “contraband,” which the state argued included images of animal cruelty. The court of appeals held there was no reasonable suspicion, first because Purtell’s conditions of probation didn’t expressly prohibit him from possessing such images, and, second, because the state pointed to no reasonable grounds to believe there was some other kind of contraband on the laptop, but relied only on “generally suspicious” behavior. 

The oral argument can be found in Wisconsin Supreme Court oral argument archive, or click here for a directly link to the streaming wma file.

The Supreme Court's summary of the case can be found in its February oral argument preview. The State (Petitioner), frames the issue in this manner:

The content of Purtell’s computer, like the computer itself, was contraband regardless of whether Purtell’s probation included a rule or condition prohibiting the possession of images depicting cruelty to animals.

Purtell (Respondent), frames it like this:

The Images Retrieved from Mr. Purtell’s Computer Were Inadmissible Because the Probation Agent Did Not Have Reasonable Grounds to Believe the Computer Contained Contraband. 

... 

Courts must separately analyze the reasonableness of a search for a computer and a search of the contents of a computer.

The State's Reply Brief can be found here.

The appellate court, which reversed and remanded the trial court, gives the following background synopsis:

Purtell was convicted of two counts of cruelty to animals, one resulting in the death of the animal, and he was placed on probation.  One condition of Purtell’s probation was that he not own or possess a computer and that he could only use a computer “at his place of business or school.”  The purpose of this prohibition may have been to limit Purtell’s access to certain types of images, but the conditions of his probation did not actually impose a limitation on the types of images or written materials Purtell could possess. 

At a meeting with his probation agent, Purtell complained about the no-computer condition.  Purtell told the agent that he had a working laptop and a desktop computer that did not work, both at his residence.  Purtell also told the agent that he had a Myspace account and gave the agent his Myspace password. 

For reasons that do not matter for purposes of this appeal, Purtell’s agent subsequently went to Purtell’s residence and removed his laptop and desktop computers.  The seizure of Purtell’s computers is not challenged.  Later, at her office, the agent looked at the contents of one of Purtell’s computers. The agent “clicked on files” and observed that titles of the files did not always match the images that were in the files.  The agent located files showing females engaged in sexual acts with animals.  The agent later testified:  “[A] number of the files, when we opened them, had names of like very young females.  [And there was] concern at some point that this was sex involving underage females.” 

Based on information that Purtell’s agent gained from looking at the contents of Purtell’s computers, law enforcement subsequently obtained a warrant to search the computers. The resulting further search revealed a large volume of still images and “videos” depicting young children engaged in sex acts.   

Purtell was charged with eight counts of possession of child pornography.  He moved to suppress the evidence resulting from the search of his computers, arguing that his probation agent performed an illegal warrantless search.  At a hearing on this suppression motion, Purtell’s probation agent testified that, prior to searching the contents of one of Purtell’s computers at her office, she looked at Purtell’s Myspace account.  On that account, she saw pictures of “animals that were partially human,” such as a “woman that was half woman and half a cow.”  The agent testified that, based on what she saw on Purtell’s Myspace account, she thought Purtell’s computers might have “files regarding cruelty to animals or death and mutilation of animals.”  She was concerned about Purtell’s mental health issues. 

After hearing testimony and viewing evidence, the circuit court denied Purtell’s suppression motion.  The court concluded that the agent had “legitimate reasons of probation supervision to view the [contents of the] computers.”  The court stated that the images the agent saw on Purtell’s Myspace account gave the agent reason to believe that there was contraband on Purtell’s computers.

The substance of the appellate court's decision:

As Purtell makes clear, he does not challenge the search of his residence or the seizure of his computers.  Rather, he challenges the search of the contents of his computers.  Indeed, the State and Purtell agree that the issue here is whether Purtell’s probation agent had “reasonable grounds” to believe that Purtell’s computers contained “contraband.”  The parties further agree that “contraband,” for purposes of this case, means any item that Purtell was not allowed to possess under the conditions of his supervision or any item whose possession is forbidden by law. 

So far as we can tell, the State’s sole argument on appeal is that, based on several pieces of information, Purtell’s probation agent had reasonable grounds to believe that Purtell’s computers contained images depicting cruelty to animals or the mutilation of animals, and that such images were “contraband.” However, even if we were persuaded that there were reasonable grounds to believe that Purtell’s computers contained images depicting cruelty to animals or the mutilation of animals, the State fails to demonstrate that such images are “contraband.”
…
…before this court and the circuit court, the State simply pointed to behavior that was generally suspicious, such as the fact that Purtell possessed the computers at home in violation of the conditions of his probation and Purtell’s failure to attend a scheduled mental health treatment appointment.  These and other factors may have justified the probation agent taking some action, but they do not supply “reasonable grounds” to believe that Purtell’s computers contained contraband.  As we have explained, the State’s argument in this regard appears to be based on the faulty assumption that Purtell’s probation conditions prohibited him from possessing images depicting cruelty to animals or the mutilation of animals.  Having rejected that assumption, the State’s arguments leave us with no basis to affirm the circuit court’s denial of Purtell’s suppression motion.  

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Fifth Circuit reverses acquittal in child pornography possession case

In United States v. Smith, the Fifth Circuit reversed the acquittal of a man convicted of possession of child pornography. (No. 12-60988 (5th Cir. 2014).) The district could had determined that "the evidence was insufficient to sustain the verdict," but the appeals court found that the conviction should stand.

Twenty-six videos of child pornography had been found on the defendant's computer, and the three suspects were roommates. The prosecution showed that one roommate could not have download the files because she was not using the computer at the time of the download. A second roommate testified at the defendant's trial and denied having downloaded the images. The defendant did not testify. The Fifth Circuit found that "these facts appear to implicate [him]."

However, it was shown that the second roommate did use the computer often. He also had no alibi for the download dates. The defendant had, however, offered an alibi through the testimony of three witnesses, and documents were presented to support the alibi. There were some discrepancies in this testimony, and the documentation was not fully supportive of the testimony.

The district court had acquitted the defendant on the basis that "it is just as likely that [the second roommate] downloaded the child pornography onto the computer as [the defendant] did." That, the Fifth Circuit held, is not the proper inquiry.

But the question is not whether, in terms of metaphysical probability, it is "equally likely" that [the second roommate] downloaded the files. The question is whether this evidence, taken in the light most favorable to the verdict, offers "nearly equal circumstantial support" for competing explanations.

The appeals court found that it did not and reversed the acquittal, holding that the jury simply chose to believe the roommate's testimony, and "[i]t is well within their discretion to do so."

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Miss. Supreme Court reverses CP conviction after trial court denied indigent defendant money for expert witness

In Lowe v. State, 2011-CT-00762-SCT (Miss. 2013), the Mississippi Supreme Court reversed and remanded for a new trial the conviction of a man for child pornography crimes because the trial court had denied the defendant's request for funds to hire an expert to help refute the testimony of the state's expert.

The defendant was convicted of five counts of exploitation of a child after child pornography was discovered on his computer. He had been found to be indigent, and the trial court appointed him counsel.

At trial, the state planned to use a computer forensics expert to testify as to his examination of the defendant's computer. The defendant sought funding for his own expert to also examine the computer, suggesting that testimony about the computers user accounts would help in his defense. The trial court ultimately denied his request.

Trial testimony indicated that there were other users on the computer, but the government expert concluded that it was not likely that anyone other than the defendant had downloaded the images.

The state Supreme Court reversed, finding that "the circuit court deprived Lowe of a fundamentally fair trial by denying him the assistance of a computer forensics expert when the State relied exclusively on its own expert to identify Lowe as the perpetrator of the offenses charged."

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Federal judge expresses frustration over CP defendant's motions

I recently found a case where a federal district court judge decided to express his frustration over a defendant's series of motions and appeals in his written decision. The defendant had been convicted of possession of child pornography and sentenced to 44 months in prison.

Judge Charles Kornmann from the District of South Dakota divided into four parts his decision to deny the motion to vacate over an ineffective assistance of counsel argument, concluding:

IV. Observation.
As one of my Irish uncles told me long ago in jest: "he would complain if he were hung with a new rope."

 What are your thoughts on judges including commentary like this in decisions?

#sassyjudges

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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.

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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.

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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 knowledge requirement exists:

[T]he defendant must know that depositing files into the folder will make the files available to others. Indeed, we observed that the record in Reingold made "plain that [defendant] . . . knew from the start that distribution was a necessary condition of receipt . . . and, with that knowledge, took deliberate and purposeful actions to effect that distribution."

Because the district court did not determine if the defendant shared files knowingly, they vacated the sentence and remanded it for further proceedings.

We acknowledge that there is evidence in the record that Reed was a sophisticated and long-time computer user. While these facts arguably could support an inference that Reed knew he was placing files in a peer-to-peer sharing folder, the district court did not make such a finding, as Reingold requires.

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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 unconstitutional, but they suggested that the state should apply a different standard than the one used to apply the Eighth Amendment. Instead, the "comparative punishment scheme" should apply.

In short, the overall legislative framework logically recognizes differences in levels of gravity as between sexually assaulting a child (most serious), the filming of such crimes (next most serious), and distributing or possessing the resulting child pornography (third most serious). The recidivist provision, however, draws no such distinctions, and treats the third most serious offense the same as the most serious one. An individual such as appellant, who is convicted of possessing child pornography for the second time, is mandated to serve a least five more years of prison time than the maximum term allowable for a first time child rapist.

By way of further comparison, second time violent offenses such as third degree murder, voluntary manslaughter, manslaughter of a law enforcement officer, third degree murder involving an unborn child, aggravated assault, terrorism, human trafficking, burglary, robbery, drug delivery resulting in death, arson and criminal solicitation to commit murder each carry mandatory minimum sentences of only ten years. 42 Pa.C.S. § 9714(a), (g). Under the legislative scheme, an individual such as appellant, who is convicted of possessing child pornography for the second time, but through no act of violence, is mandated to serve at least fifteen more years of prison time than the minimum term required for a second time violent offender. 

There appears to be a rational and carefully calibrated legislative scheme of offense gradation and punishment for first time sex offenders, which disappears when it comes to recidivist offenders. Even aside from potential constitutional concerns, I would invite the General Assembly to examine the issue.

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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 pornography before the report is filed. A NCMEC employee then opens the image, verifies that it meets the federal definition of child pornography, and gets in touch with local law enforcement to pass on the evidence.

Here, a suspect image was sent through AOL, a report was filed, and NCMEC contacted Massachusetts police. Several months later, the defendant took his computer to Staples for repair, and employees notified New Hampshire police that child pornography was found on the laptop. The New Hampshire police shared the information with Massachusetts police, and relying on the NCMEC evidence and police report from New Hampshire police, a search warrant was obtained and executed. Now charged with distribution and possession of child pornography, the defendant seeks to suppress the evidence.

The district court first decided that the hash value matching conducted by AOL did not make AOL a government agent because they were conducting the search for their own purposes. Then, NCMEC did act as a government agent through its "partnership ... with the government," and in examining the contents of the image, they violated the Fourth Amendment. AOL's matching the hash values did "not convey any information about the contents of the file." The viewing of the file by NCMEC "was not authorized by a duly issued warrant."

However, the court continued, holding that probable cause existed for the search purely as a result of the New Hampshire police report regarding the child pornography found by Staples. The court also held that NCMEC and law enforcement were acting in good faith, and as such, "the exclusionary rule should not be applied to suppress the fruits of the search."

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Illinois App. Ct.: Defendant not guilty on two counts of CP possession for storing same image twice in the same medium

In State v. Sedelsky, No. 2-1-1042 (Ill. App. Ct. 2013), an Illinois appellate court held that the conviction for two counts of possession of child pornography cannot stand when the counts are "based on possession of an identical image stored in the same digital medium." The two images were saved under two different file names - yngbigirl1_0_50465483.jpg and yngbigirl1_0_50577108.jpg.

The appellate court found that the statute was "unclear" on this issue, requiring the court to "adopt a construction that favors defendant."

We agree with the logic in Carter and Liberty that possession of "any *** depiction by computer" is ambiguous as to whether a defendant may be charged separately with possessing a duplicate image in the same medium. Here, the facts demonstrated only that the image was saved twice to the same medium and at nearly the same point in time. We disagree with the State's assertion that defendant separately uploaded the image from his cell phone. It is not clear from the facts whether the image was uploaded more than once, from more than one website, or from more than one source. The facts lead only to the inference that the image was saved twice, as the Mbuzzy records show only that 25 "media_upload" files were sent from defendant's phone to his Mbuzzy account within a 4-minute timespan. The State did not present any evidence that defendant uploaded the image from his phone on separate occasions. It is not clear whether defendant affirmatively uploaded the image twice and saved it twice, or merely saved the image twice. The State also did not present evidence that the image was saved anywhere other than in defendant's Mbuzzy account.

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On remand, federal judge increases young CP offender sentence, notes guidelines 'unnecessarily crush the lives of our young'

More than two years ago, then 89-year-old U.S. District Judge Jack Weinstein ruled in a 401-page opinion that imposing the statutory minimum five-year sentence to a 19-year-old offender was "cruel and unusual" punishment, and Judge Weinstein chose to ignore the law on constitutional grounds. The Second Circuit recently reversed his decision, and he reluctantly changed the sentence.

Upon resentencing the defendant in the remand, Judge Weinstein did not issue a similarly lengthy opinion, but he chose to restate some of his main arguments.

The effect of harsh minimum sentences in cases such as C.R.'s is, effectively, to destroy young lives unnecessarily. The ancient analog of our modern destruction of youngsters by cruel, unnecessarily destructive and self-defeating, long minimum prison sentences, was physically sacrificing them to ancient gods for the supposed benefit of society. Leviticus 18:21 (King James ed.) warns, "[T]hou shalt not let any of thy [children] pass through the fire to Molech." See W. Gunther Plaut et al., The Torah: A Modern Commentary, 149 n.1, 883 (1981) (ancient human sacrifice of children); Maimonedes Mishneh Torah, 116 (Rabbi Eliyahu trans. with commentaries and notes, Moznaim Publ'g. Corp. 2001) ("[A] person who gives his descendants to Molech" is executed by stoning.). And a pillar of major religions is the banning of the sacrifice of children. Genesis 22:12-13; see Plaut et al., at 149 ("[R]eligion . . . rejects the sacrifice of a [mortal] son . . . ."). Yet we continue using the criminal law to unnecessarily crush the lives of our young.

Judge Weinstein also issued a plea for the guidelines to be changed.

Where, as here, in the opinion of a ruling appellate court, the trial court has exceeded its power, at least the matter has been brought to the government's and public's attention, so that in due course, in our caring democracy, future injustices of this kind will be avoided.

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2nd Cir. vacates CP producer's penis measurement sentencing condition imposed for failing to give notice of move

In 2001, Alabama resident David McLaurin was convicted of producing child pornography and sentenced to ten years in prison. Most of the time was suspended, but he later served more time for failing to notify the state when he moved to a different county. He moved to Vermont in 2011, notified the authorities of the move, but he did not fill out the proper paperwork which violated the Sex Offender Registration and Notification Act.

McLaurin was found "unlikely to reoffend again" but was sentenced to prison and supervised release for the paperwork issue. A part of his supervised release included "plethysmograph examinations." The procedure "involves placing a pressure-sensitive device around a man’s penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses." It may or may not first require the subject to masturbate in order to get a baseline. Even better - the test was designed by the Czechoslovakian government "to identify and 'cure' homosexuals."

Before the Second Circuit, McLaurin argued that the test was "unnecessary, invasive, and unrelated to the sentencing factors." The government argued that "the size of the erection is ... of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images."

The appeals court, noting that "[a] person, even if convicted of a crime, retains his humanity," held that the procedure violates McLaurin's rights, vacated the condition, and remanded the case to district court. Here's an excerpted outline of their reasoning:

• The condition of supervised release at issue is a sufficiently serious invasion of liberty such that it could be justified only if it is narrowly tailored to serve a compelling government interest.... “[[T]]here is a line at which the government must stop. Penile plethysmography testing crosses it."
• In other words, the Government has made no showing that this exceedingly intrusive procedure has any therapeutic benefit, and none is apparent to us.
• The procedure inflicts the obviously substantial humiliation of having the size and rigidity of one’s penis measured and monitored by the government under the threat of reincarceration for a failure to fully cooperate.
• The goal of correctional treatment during supervised release is properly directed at conduct, not at daydreaming.
• The testing could not help to protect the public unless the results were used to justify further detention or more restrictive conditions of release. But that could not occur because McLaurin had already received a fixed term of incarceration followed by a fixed term of supervised release, neither of which could be altered by 2 a poor test score. 
• [W]e also find it odd that, to deter a person from committing sexual crimes, the Government would use a procedure designed to arouse and excite a person with depictions of sexual conduct closely related to the sexual crime of conviction.
• We fail to see any reasonable connection between this defendant, his conviction more than a decade ago, his failure to fill out paperwork, and the government-mandated measurement of his penis.

The case is United States v. McLaurin, No. 12-3514 (2d Cir. 2013).

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2nd Circuit reverses decision to hold defendant jointly and severally liable for child pornography victim's losses

In United States v. Lundquist, No. 11-5379 (2d Cir. 2013), the Second Circuit held that a child pornography possessor could not be held jointly and severally liable for harm to the victim.

Lundquist was convicted of receipt and possession of child pornography. Among the images in his possession was one of the "Amy" series. Amy was victimized by her uncle and has sought for years to obtain restitution from those who continue to download images of her. Her total damages have been calculated at $3,381,159.

Courts have debated many issues regarding restitution under the federal child pornography statutory scheme, including whether proximate cause is required and how the restitution is calculated. Some jurisdictions hold possessors jointly and severally liable (in this case, meaning they can be held liable for the entire amount of damages) while others assess damages at only a fraction of the total (such as dividing it by the total number of defendants convicted for possessing images of the same victim).

In Lundquist, the district court held that the defendant should be ordered to pay the full amount of Amy's losses. The Second Circuit, however, found that the defendant was not the cause of "all of [Amy's] losses" as the $3 million is so high "primarily because there are so many people viewing her images."

The appeals court, however, acknowledged the benefits of joint and several liability, but suggested instead bringing a civil suit rather than seeking mandatory restitution.

We understand, as a policy matter, why joint and several liability is an appealing option in this type of case. Joint and several liability would permit the victims of child pornography to collect their full losses from any well-heeled defendant, rather than require them to pursue defendants who may be, or later become, insolvent. Such an approach would also place the onus on guilty defendants to seek contribution from each other, rather than require the innocent victims to request restitution from each defendant.

We sympathize with these policy arguments and acknowledge that joint and several liability might be appropriate if Amy had brought a civil tort action against those who downloaded images of her abuse.

The Second Circuit also held that several types of losses could not be included in the total calculation. First, "Lundquist cannot be ordered to make restitution for harm that Amy's uncle's conduct proximately caused." Also, because the defendant obtained the images of Amy in 2010, he could not be held liable for therapy costs "incurred in 2009 or earlier."

Read more about restitution for Amy in previous Cybercrime Review posts.

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State courts evaluate sexually violent predator status for convicted child pornographers

In two recent cases, state appellate courts in Pennsylvania and Texas have analyzed the application of sexually violent predator (SVP) status to convicted child pornographers. The result of the status varies by state but can include mandatory lifetime registration and civil commitment if it is determined that the defendant is "likely to engage in a predatory act of sexual violence" due to a "behavior abnormality." Nearly half of states and the federal government have SVP laws.

The Superior Court of Pennsylvania concluded in Commonwealth v. Goshow, No. 3206 EDA 2012 (Pa. Sup. Ct. 2013), that the defendant's viewing of child pornography resulted in the "continuous exploitation and victimization of the children depicted therein." Trial testimony argued that the defendant was "likely to engage in predatory sexually violent offenses" in the future because his pedophilia was "a chronic lifetime condition." The defendant had attempted to argue that there was no actual victim.

In Goshow, a dissenting opinion argued:

Here, there is no indication that Appellant directed any act at another person, but that he, in solitude, downloaded, viewed, and masturbated to images of child pornography. Therefore, he did not direct any act at another person. Although the children depicted in the pornography were victims in the production and distribution aspects of an insidious industry, the legal conclusion of the trial court that Appellant victimized the children is not sustainable in light of the statutory definition that requires acts directed at another, or the record established in this case.

In In Re Commitment of Chapman, No. 09-11-00561-CV (Tex. Ct. App. 2013), the Court of Appeals of Texas considered eight issues on appeal arguing that the defendant was wrongfully classified as an SVP. The defendant, convicted for multiple child pornography related crimes and involuntarily committed under the SVP statute, made arguments including improper admission of evidence, bias, insufficiency of evidence, and that the SVP statute was unconstitutional. The court disagreed on all issues and affirmed the defendant's civil commitment.

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Wis. man used fake teen personas on Skype to entice (and capture on video) underage sex acts [including Complaint]

Bruce Vielmetti at the Milwaukee Journal Sentinel reported this story a couple of days ago - Child porn case against Ozaukee County man moves to federal court. The back story is that David A. Weaver of Cedarburg, WI was originally charged in state court with possessing child pornography; authorities found, however, after further forensic analysis of his computer, that his transgressions were not so limited. Weaver had also produced child pornography by using fake Skype personas purporting to be children/teens to entice other minors to preform sex acts; Weaver used video capture software to record the chats. 

I obtained a copy of the federal complaint, which is 50 pages long and at times quite graphic and disturbing; the details of Weaver's acts serve as a stark reminder of how technology has made preying on minors almost too easy. 

Vielmetti's story has the quick synopsis:

An Ozaukee County man accused of using Skype to persuade hundreds of teenagers to perform live sex acts alone and with other children now faces federal prosecution.
...
After months of analyzing Weaver's computer, agents found thousands of videos and Skype chat logs. The complaint includes some logs that accompanied videos of the victims. 

Generally, boys would contact "Sara," who would "chat" with text messages and would never show live video but always would demand that the boys at the other end of the conversation show themselves on video. "Sara" would claim her mother had the camera or the microphone wasn't working and would ask the boys to send naked or sexual still photos instead. 

If the victims were girls, Weaver would adopt the same tactics posing as "Josh." 

Weaver also had special software that allowed him to display video captured from elsewhere — a teenage girl masturbating — when he was on Skype as "Sara," or a young male similarly engaged when he was posing as "Josh." 

One chat transcript in the federal complaint shows "Josh" talking with three girls purported to be 10 and 11 years old. He desperately pleads for the girls to engage in sex acts. One texts, "Are you gonna take a picture of us?" The girl says she's scared. "Josh" replies, "well i wasnt scared camming for you cuz i trust u guys. cmon itll be fun." 

As either "Sara" or "Josh," Weaver makes rapid, short requests for teens at the other end of the connection to disrobe, move a certain way, angle the camera just so, and engage in specific sex acts, while complimenting the victims' appearances and expressing how excited they are making him.
...
In some transcribed chats, Weaver tries repeatedly to get one boy to involve his dog in live video sex acts, but the boy repeatedly refuses.

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Website Banner Defeats Numerous Fourth Amendment Objections in CP Case

A federal district judge recently held in a child pornography (CP) case that the website's banner doubly defeated any Fourth Amendment objection to an investigator's use of the site to collect evidence of possession and distribution of CP. The case, United States v. Bode, No. 1:12-cr-00158-ELH (D. Md. Aug. 21, 2013), rests on evidence developed by a government investigator (Burdick) who was granted administrator-level access to a website where the defendant (Bode) was allegedly posting CP. The website in question (which has since been shut down) offered users a real-time chat service, including the ability to send messages and images to public chat rooms, as well as "privately" to individual users. The site logged timestamps, IP addresses, message contents, images, and public chat room history for review by its administrators, though individual users could not see or review their own usage history after a chat session was over. The website also required acceptance of its terms of service before allowing users to post or receive messages. Its terms read:

CHILD PORNOGRAPHY...
BEHIND EVERY PICTURE THERE IS PAIN!
HELP US REPORT IT! 

Posting photos, graphics or cartoons showing persons under 18 years of age is not allowed. Child pornography or other illegal material will immediately be reported to the posters [sic] local authorities. Requesting images of the above nature is not allowed. All posted pictures and conversations, public and private, are logged and supervised. [The website] may disclose these communications to the authorities at its discretion.

The final sentence (emphasis added) was appended at Burdick's request during his investigation, before the CP images at issue in the case were allegedly posted.

But first, the backstory: Burdick, an agent with the Department of Homeland Security's Immigration and Customs Enforcement (Child Exploitation Investigations Group), heard that users of this website were trading. Without getting a warrant or a court order, he began looking into the site and observed users posting CP using the chat service. Burdick checked with the website's domain name registrar to try to identify its operator and found that its administrator was located in Sweden. Since it is more complicated to serve process on a foreign entity (and it is unclear whether Burdick would have had the authority to do so), he emailed the site operator to ask for cooperation in his CP investigation. The site operator enthusiastically complied, giving Burdick an administrator-level account on the website so he could directly review the site's logs. Burdick used his administrative access to identify users who had been reported by others for (potentially) trading CP, and then began checking the logs generated by those particular users more carefully.

Eventually Burdick checked with an Assistant United States Attorney, who recommended that he ask for changes to the website's terms of service, italicized above. (The US Attorney's office also declined to use any evidence developed before the language was appended.) After the terms of service were changed, Burdick used the administrator function to save logs and images users sent to public chat rooms and as private messages to other users. Burdick collected evidence that a user had posted CP from what turned out to be defendant Bode's IP address. This eventually served as probable cause for a warrant to search his home and computers for CP, which revealed additional CP on Bode's computer.

Suppression Analysis

Bode moved to suppress all of the evidence against him as fruit of the poisonous tree, on grounds that Burdick's initial investigation violated the Fourth Amendment, the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., and the Wiretap Act, 18 U.S.C. § 2510 et seq. The court dealt with the Wiretap Act and SCA claims easily: neither statute includes a suppression remedy for information obtained from "electronic communications" like those here, while the Wiretap Act does include a suppression remedy for information obtained intercepted in real time from "wire or oral communication," at 18 U.S.C. § 2515. This made it easy for the court to conclude that when Congress did not include a suppression remedy for electronic communications, it did so with a specific intent not to create such a remedy. The court therefore declined to find an implied statutory right of suppression.

The constitutional claim, violation of the Fourth Amendment, is more interesting, since it could give rise to a suppression remedy (though somewhat ironically, constitutional suppression is a court-created remedy, see Weeks v. United States, 232 U.S. 383 (1914)). As a preliminary matter, the parties had conceded (for the purposes of the Fourth Amendment analysis in the motion at issue here) that the website had become the government's agent, by granting Burdick administrator-level access and changing the language of its banner at his request. Nevertheless, the court held that the banner to which Bode agreed in order to use the chat service constituted two separate grounds for eliminating any Fourth Amendment objections to Burdick's collection of evidence:

First, the banner defeated any reasonable expectation of privacy, which is a prerequisite for any protectable Fourth Amendment interest under Katz v. United States, 389 U.S. 347 (1967). The Bode court compared the banner's language to other cases in which a reasonable expectation of privacy had been at issue, finding that the added text ("[The website] may disclose these communications to the authorities at its discretion.") put the issue beyond doubt, as the AUSA had hoped: users had given up their expectations of privacy. Under this theory, no protectable privacy interest existed, and no constitutional "search" ever occurred, so there was no Fourth Amendment violation and no reason to suppress the resultant evidence.

Second, the court found that even if a search had occurred, the banner indicated consent to that search. Bode tried to argue that his consent had been limited in scope to investigation by the website operator, not the government, but the court was having none of it, instead finding that there was "no meaningful distinction" between the consent Bode had given (for the website operator to turn over information to the authorities) and what actually happened (the operator creating an administrator account for the investigator). This consent was therefore sufficient to allow Burdick's collection of evidence even if it was a Fourth Amendment search.

The government also argued that the website operator had "common authority" to consent to searches of its logs, but the court did not address this argument, having already found two grounds for denying Bode's motion to suppress. Had the court addressed the issue, it probably would have been able to find the site administrator, which had the right to examine its logs, also had the right to authorize their search under the common authority doctrine of United States v. Matlock, 415 U.S. 164 (1974) (finding common authority over shared room sufficient) and Frazier v. Cupp, 394 U.S. 731 (1969) (finding shared use of a duffel bag sufficient). In fact, since the operator could view the logs while ordinary users could not, I found this to be the government's strongest argument, and I am not sure why the court did not even address it.

Conclusion

In any event, this one banner did quite a bit of work: the court's denial of suppression almost certainly means Bode is out of arguments and will be convicted. And it likely means other users of the site will be (or already have been) prosecuted for similar crimes: one of Burdick's emails thanking the website operator for cooperating with the investigation mentioned that he had found "roughly 25 users" in the United States violating CP laws. So, while the website might be gone, the text of its banner may have even more work to do in the courts.

A Footnote

The Bode court also notes that the website operator who was willing to help with the investigation -- seemingly a decent character -- was later tried, convicted, and imprisoned in the Philippines for sex trafficking.

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District court finds government "failed to meet its burden through and through" in child pornography restitution case

In United States v. Loreng, No. 12-132 (D.D.C. 2013), the district court denied an award of restitution to child pornography victims "Amy" and "Cindy" after strongly criticizing the prosecution.

The way in which restitution is awarded in child pornography cases has been addressed by most circuits, including the D.C. Circuit. The predominant issues are whether a defendant is required to have proximately caused harm to the victim and whether the defendant is liable for the entire damages or only a fraction. See my previous posts on the issue for more background.

In Loreng, the court addressed the many issues at length and found issue with many issues, most notably how both parties wanted to calculate restitution.

• Prosecution: "[D]ivide the total loss (past, present, and future) resulting from the continued viewing of the images by the number of individuals (apprehended or not) who engaged or will engage in the act of viewing an image... [and] deviate upward [as necessary]."
• Defense: "Loreng would require in each case a victim statement reflecting knowledge of the particular defendant, a psychological report evaluating a victim's response to each defendant, an economic report produced after the defendant's acts, and an expert report from a statistician that takes into account a multitude of factors, including each defendant's offender characteristics.... [T]he court doubts that anything this costly and unworkable is required."

Ultimately, the court denied restitution and concluded:

Regardless of what a perfect record would reveal in this case, the fact remains that the record here is anything but perfect. The government has failed to make a showing as to critical questions. It has failed to establish that Loreng viewed or even possessed an image of either Amy or Cindy; it has failed to support the total economic loss figure for Amy; and it has failed to establish the number of defendants convicted for possessing or distributing Amy's images. For both Amy and Cindy, the government has provided evidence that falls far short of "reasonable certainty" as to the amount of their losses from Loreng's conduct. The government failed to meet its burden through and through—and not for lack of warning by the Court. Accordingly, the Court must award no restitution in this case.

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Feds decrypt two hard drives in Wisconsin case, defendant arrested on CP charges

Over the past several months, I've written a few times about the ongoing Wisconsin encryption case. Here are the posts for background.

• Defense suggests improprieties in Wisconsin encryption case
• Wisconsin federal magistrate reverses on forced production of decrypted data after government presents new evidence
• Wisconsin federal court forbids forced production of decrypted data on Fifth Amendment grounds

The feds had been unable to break the encryption on the defendant's hard drives, but a major breakthrough last week resulted in the defendant's arrest for child pornography.

According to the Journal Sentinel, the Assistant U.S. Attorney on the case announced that two of the nine hard drives had been decrypted. Those two drives contained "preteen children in images of sexual assault, bondage and bestiality."

The court has yet to decide whether the defendant will be ordered to decrypt the remaining hard drives.

The criminal complaint is available here.

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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 sex with a minor over age 16 (2012-CM-0116). In March of 2013, the defendant filed three motions to dismiss based on the following: (1) that the charged statute (Wis. Stats. § 948.12, see infra) is unconstitutionally vague and overbroad, as applied; (2) that the images are not "lewd" as required by the statute; and, (3) that the prosecutor is selectively prosecuting the case.

Copies of the Wisconsin Circuit Court documents:

1. Defendant's Motions
2. Prosecutor's Responses

The defendant was later indicted in federal court, as well, where he was "charged . . . with one count of producing child pornography and [the indictment] refers to two victims A and B. Four other counts appear to refer to the same former student in the state charges, and a sixth count seeks forfeiture of Perino's computers and cellphone." (Vielmetti, infra). You can find the indictment, here: E.D. Wisconsin Perino Indictment

State of Wisconsin Case

Wis. Stat. § 948.12 states:

948.12  Possession of child pornography.
(1m) Whoever possesses, or accesses in any way with the intent to view, any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances may be penalized under sub. (3):
     (a) The person knows that he or she possesses or has accessed the material.
     (b) The person knows, or reasonably should know, that the material that is possessed or accessed contains depictions of sexually explicit conduct.
     (c) The person knows or reasonably should know that the child depicted in the material who is engaged in sexually explicit conduct has not attained the age of 18 years.

Bruce Vielmetti has a good synopsis of the case in his Journal-Sentinel article - Lawyer wants girl charged for nude photos she sent to teacher:

The attorney for a former Hales Corners teacher facing charges he had sex with a female student has asked a judge to charge the girl with distributing child pornography - for sending nude photos of herself to the teacher.
...
Craig Perino was charged in Racine County in January 2012 with two counts of sex with child 16 or older, both misdemeanors. According to the complaint, he and the girl had encounters last year at his home in Waterford that involved drinking and intercourse.
A month later, prosecutors added two counts of possession of child pornography, both felony offenses, after nude photos of the girl were found on Perino's phone and computer. He has pleaded not guilty to all the charges.
…
Perino's attorney, John Birdsall, has moved to dismiss the child pornography charges on several grounds. He argues the statute is unconstitutionally vague and overbroad because it makes anyone who might open and view an unsolicited texted or emailed image of child pornography subject to criminal prosecution. 

Birdsall also argues that the texted photos, while nude, are not "lewd" under the statute. 

Finally, Birdsall asks that the charges be dismissed because they represent selective prosecution. His motion notes that the girl was 17 when she reported her sexual encounters with Perino and is 18 now. If the prosecutors believe the images amount to child pornography, the girl should be charged as an adult with producing, distributing and possessing them, the motion states.
…
Refusing to charge the girl, Birdsall argues, amounts to an admission by prosecutors that the images are not in fact lewd under the Wisconsin statute and therefore don't support the child porn charges against Perino.
…
In his responses to Birdsall's motions, Assistant District Attorney Robert Repischak argued that the issues were raised too late, that the question of whether the photos are lewd is one a jury should decide, and that Perino's constitutional challenge relies on hypothetical situations that differ from his own. 

"The defendant seemingly forgets" that he told an investigator he had stored images on his employer's computer and deleted them once he learned of the investigation and that he "clearly . . . was not an unwitting recipient of the images at issue," Repischak said in his written response to the motions.

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