Kentucky district court grants suppression of CP evidence

In United States v. Kinison, No. 12-57-JBC (E.D. Ky. 2012), the district court granted a motion to suppress evidence in a child pornography case due to lack of probable cause at the time of the warrant.

The defendant's girlfriend told police that the defendant had sent text messages to her phone describing child pornography and sexual activity with children. Police reviewed the text messages and used them to obtain a search warrant to search defendant's home. The girlfriend told police that his home computer had been used to view the child pornography. Using Kentucky's property valuation system, police determined that the defendant owned the home they were to search.

In a motion to suppress, the defendant argued that the warrant was not supported by probable cause. The district court agreed as the officer "performed no investigation to corroborate his informant's suggestion that the other party to the text messages in the affidavit was actually [defendant]." Also, the officer did not seek to verify that the defendant was the sender of the messages, taking the girlfriend's "assertions at face value." Law enforcement could, of course, have verified this easily by subpoena.

Thus, the affidavit failed "to supply any justification ... for the investigators' unquestioning reliance on [the girlfriend's] statements" and "to establish a nexus between the alleged evidence and the property to be searched."

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Fifth Circuit reverses lifetime term of supervised release in CP case

In United States v. Alvarado, the Fifth Circuit vacated and remanded a lifetime term of supervised release as part of a sentence for receipt of child pornography because the trial judge "never considered the possibility of anything less than lifetime supervision." No. 11-40771 (5th Cir. 2012).

The defendant appealed the sentence, arguing that it was procedurally and substantively unreasonable. The Fifth Circuit found the 170-month prison sentence to be reasonable but held otherwise for the lifetime term of supervised release under a plain error standard of review.

At trial, the judge noted, "I've never given, never not given, since it was authorized, a lifetime, a lifetime supervision in child pornography." Thus, as the Fifth Circuit understood it, she "never considered the possibility of anything less than lifetime supervision.... And where a judge admits to the automatic imposition of a sentence, without regard for the specific facts and circumstances of the case or the range provided for in the statute, then it seriously affects the fairness, integrity, and public reputation of judicial proceedings."

The sentencing guidelines allow for a range of three years to a lifetime term of supervised release for sex offenses.

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8th Circuit judge writes of concern with CP guidelines

An Eighth Circuit judge has joined the group of members of the judiciary opposed to the federal child pornography guidelines. In a recent opinion before the court, Judge Bright wrote a concurrence to suggest that the sentence was "excessive." United States v. Zauner, No. 12-1007 (8th Cir. 2012).

The defendant had been charged with production of child pornography after she took sexually explicit photos of her children at the urging of a man she met online. The two met on a ridesharing website. She was sentenced to 18 years in prison and 15 years of supervised release, and restitution of $20,000 was ordered. On appeal, she argued that the sentence was substantively unreasonable, but the Eighth Circuit affirmed.

Judge Bright, concurring, noted that the court owes a substantial deference to the district court, but wrote:

In this area, the guidelines routinely place defendants near or over the statutory-maximum sentence, eliminating any meaningful distinction between the least and most culpable offenders. This case is a great example.... Yet looking at Zauner's offense conduct alone, she does not rank among the worst child pornography offenders deserving of the statutory-maximum sentence. She was a first-time offender and her conduct did not trigger several of the possible enhancements under U.S.S.G. § 2G2.1. There is also nothing in the record to indicate the pictures were distributed beyond those people directly involved in the offense conduct. On the facts of this case, I do not believe any reasonable judge would have sentenced Zauner to the recommended sentence under the guidelines. The district court apparently agreed, exercising its prerogative to depart downward to sentence Zauner to eighteen years in prison—three years above the mandatory minimum. And where the guidelines are out of line and increasingly disregarded by sentencing judges, the mere fact of a downward departure should not insulate the district court's sentence from any type of meaningful review. In addition, in cases such as this, where the guidelines obviously do not fit, a sentencing judge should give careful assessment to the sentencing requirements of § 3553(a) and state the judge's reasons and conclusions on the record. 

I also write separately because I personally believe the sentence was excessive.

Several other judges have had similar disagreements as discussed earlier on this blog - here, here, here, and here.

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Kentucky Court of Appeals criticizes attorneys' lack of knowledge on technological issues

In Crabtree v. Commonwealth, the Kentucky Court of Appeals criticized trial counsel's failure to properly understand the technology involved in a child pornography case. No. 2011-CA-000452-MR (Ky. Ct. App 2012). The defendant had used a peer-to-peer networking service to download the files. On appeal, the conviction was affirmed.

The case concerned a college student who took his computer to be repaired, and while there, the technician discovered file names identifying them as child pornography. The computer was turned over to the police. When the defendant went to the police station to get his computer, he acknowledged in writing that he had  viewed child pornography on the computer but that it "sickened him." The files had been downloaded using Limewire, and their filenames clearly expressed their content as child pornography. The defendant was convicted on 65 counts of possession.

On appeal, the defendant argued that the evidence was insufficient to support the conviction, but the court readily concluded that the computer files and the confession were all that was needed. The court carefully explained how the technology works and did so in clarity rarely seen by any court. The court of appeals also wrote:

We note that this case demonstrates a need for technical training among legal professionals.  There were several instances during the trial when it appeared that counsel for each party attempted to elicit testimony from the experts but failed because of confusion of technical terms.  In this particular case, the evidence of guilt was overwhelming, but we anticipate that this communication gap could be damaging in cases with weaker evidence.

The court's suggestion is one to which few people would object. Technology issues are becoming so common in the courtroom today, yet many practicing attorneys are not properly trained to deal with them. Many organizations exist to train prosecutors how to deal with such cases, but many of them and nearly all defense attorneys are not exposed to such assistance.

The defendant also argued that the defense of "temporary innocent possession" should have been put in the jury instructions. The defense 'is available when a person has taken “possession of a controlled substance without any unlawful intent.'" The court, however, held that the defense was not available here as the filenames, confession, and images show that the possession was not, in fact, innocent.

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Reminder: Register for Wednesday's webinar on encryption

Don't forget to sign up for our webinar on encryption, taking place this Wednesday, August 22 at 1:00 Eastern. Justin will cover encryption technology and software as well as forensics issues, and I will address the relevant case law on forced disclosure of passwords for encrypted files.

Click here to register. The webinar will be approximately thirty minutes, and we will stick around afterward for any questions you may have. Feel free to share this information as this webinar is open to anyone with an interest in the subject. CLE credit is not available for this webinar.

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Hotels present concerns for guests' security, technology

For many of us, hotels often become a second home. And relying on technology like we do, we carry all of our important devices with us. However, it's not always feasible to take your laptop with you to dinner or your cell phone to the pool. But to what extent should you worry about it?

Spying on the staff
Several months ago, I met Canadian privacy scholar Christopher Parsons at the Privacy Law Scholars Conference in D.C. He does a lot of interesting work in the privacy and surveillance area and also writes a blog on those interests.

I've never been a terribly paranoid person - that is until I met Christopher. I wouldn't define him as being paranoid, either. Rather, he is just smart and inquisitive. He travels a great deal and stays in many hotels. Over time, he has developed a survey of sorts concerning hotel security, testing the housekeeping staff. By carefully placing cell phones, laptops, and other items around the room, he is able to see where the staff checks for such things and what they do with them. One interesting bit of information he has learned is that a do not disturb sign often acts as an invitation to search the room.

"Most hotel staff are, of course, excellent and trustworthy. This said, having heard stories from family members who have worked in hotels - such as how their colleagues would routinely violate room occupants' privacy when rooms were unattended - and others who are well versed in contemporary fraud techniques, I try to take precautions to ensure that my data, and the data of others, is as safe and secure as it can be," said Christopher. "Just one of those precautions involves testing staff in hotels to ascertain - typically with 'dummy' or wiped equipment - whether they are activating devices, trying to log in to them, and so forth."

Since Christopher and I met, I have only stayed in one hotel, but I had no luck with his methods unfortunately. Do not disturb signs were honored, and none of my personal belongings were touched. Do any of you have similar approaches? Have you learned anything interesting? Please share in the comments.

Hotel employees not the only fear
Certainly one fear is that hotel employees will take our items or for some reason attempt to get our data. They can easily get key card access to our rooms. Another concern, as recently demonstrated by a hacker, is the ease in which others can obtain access to your room.

At the recent Black Hat conference, a software developer demonstrated how $50 of materials and a little programming make it possible to obtain access to over four million hotel rooms. He has since released how the hack works.

Unfortunately, the only way to fix the problem is to change each lock, and Onity, the developer, insists that the hotels foot the bill for the replacement.

Creating a workaround
The fact that your home-away-from-home is not quite as secure as you'd like can be terrifying. And certainly there are many issues beyond securing your technology at issue here. However, since this is a technology blog, let's address that issue. What ways do you use to secure your technology when traveling? Share your tips for our other readers.

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DarkComet RAT Update: Pro-Syrian regime use continues

The EFF is reporting that DarkComet has been seen in a new malware campaign targeted at Syrian dissidents - the article can be found here: Pro-Syrian Government Hackers Target Activists With Fake Anti-Hacking Tool.

Our multi-part series on the hacking tool and its legal and moral implications can be found here.

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

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

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

The defendant's main contention was that:

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

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

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

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

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

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

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

The court went on to state that:

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

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

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

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

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

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Facebook friends may give government access to view other's page, use doesn't violate Fourth Amendment

Though it is not likely to be news to readers of this blog, a federal trial court in New York has ruled that the government obtaining access to a defendant's Facebook page through one of his Facebook friend's cooperation does not violate the Fourth Amendment. United States v. Meregildo, No. 11 Cr. 576 (S.D.N.Y. 2012).

The defendant sought to suppress evidence, arguing against the method the government used to collect evidence to support a determination of probable cause. The government had gotten one of his Facebook friends to give them access to his Facebook profile.

"When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment," held the court. "Where Facebook privacy settings allow viewership of postings by 'friends,' the Government may access them through a cooperating witness who is a 'friend' without violating the Fourth Amendment."

The case has gotten a bit of attention, including stories from NY Post, Gigoam, Gizmodo.

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Sixth Circuit holds that "pinging" cell phone to obtain GPS location is not a search; opinion confuses everyone

In United States v. Skinner, a Sixth Circuit panel held that repeatedly pinging a cell phone in order to obtain its GPS coordinates (or something like that) was not a Fourth Amendment search and thus does not necessitate evidence suppression. No. 09-6497 (6th Cir., Aug. 14, 2012). In a concurring opinion, one judge argued that obtaining the data was a search, but the good faith rule saves the evidence from suppression.

The defendant was suspected of being involved in drug trafficking, and participants in the exchange were known to use pay-as-you-go cell phones equipped with GPS technology. Agents obtained the defendant's phone number and  "pinged" it in order to discover its location as the defendant traveled. They tracked him to his motorhome, and a K-9 dog alerted officers to the presence of narcotics. Over 1,100 pounds of marijuana were found.

Before trial, the defendant sought to suppress the search, arguing that the "use of GPS location information emitted from his cell phone was a warrantless search that violated the Fourth Amendment." The evidence was not suppressed, and he was found guilty on multiple counts.

On appeal, the Sixth Circuit concluded that no reasonable expectation of privacy existed "in the data given off by [the] voluntarily procured pay-as-you-go cell phone." The court continued:

If a tool used to transport contraband gives off a signal that can be tracked for location,  certainly the police can track the signal.  The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.... It follows that Skinner had no expectation of privacy
in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

The court considered this situation simply an advancement of the Supreme Court's 1983 decision in Knotts as it is law enforcement adapting to technological change. They also distinguished the case from Jones because no physical intrusion occurred in Skinner. "Skinner himself obtained the cell phone for the purpose of communication, and that phone included the GPS technology used to track the phone’s whereabouts." Further, the court noted that Justice Alito's concurrence also does not apply. Alito suggested that "relatively short-term monitoring" of movements may not violate the Fourth Amendment, and Skinner was only tracked for three days (opposed to 28 days in Jones).

In a concurring opinion, Judge Donald argued that Skinner did have a reasonable expectation of privacy in the GPS data, making the act by law enforcement here a search. However, she also noted that the Leon good faith exception would prevent the need for suppression "because the officers had probable cause to effect the search in this case and because the purposes of the exclusionary rule would not be served by
suppression."

If my analysis of the technology doesn't make sense, it's because the facts in the opinion leave a lot to be desired. This might be about cell site location data. The fact that Skinner was tracked to his home would make you think it was GPS data due to the accuracy, and the court called it GPS throughout. The court also referenced agents pinging the phone. No one - including the court, apparently - is really sure what was happening here. Check out Professor Kerr's discussion of this issue here (and the reader comments).

UPDATE: Professor Kerr dug into the case a little more. Be sure to read what he came up with on Volokh Conspiracy.

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EFF files amicus in D.C. Circuit Court against use of CSLI in remanded Jones case

Back in April, Jeffrey wrote that Antoine Jones wasn't off the hook for his crimes because of the ruling in United States v. Jones, 132 S. Ct. 945 (2012). Rather, instead of using the GPS tracking data they had collected (illegally), the police decided to use Cell Site Location Information (CSLI). Jeffrey's previous article can be found here - Jones II: This time, the government seeks to use cell site location information.  If you're looking to read more on the subject, we have additional content that can be found, here.

On Monday, the Electronic Frontier Foundation filed an amicus brief in favor of Antoine Jones, arguing that six months worth of CSLI should not be obtainable without a warrant. The EFF drew parallels between this situation and the GPS tracking that occurred in the original instance. Additionally, the EFF forwards an argument in the brief that could not be used in the context of GPS tracking - that CSLI could actually provide information about occurrences inside the home. This is important because courts have tended to give the most Fourth Amendment protection to the confines of a private home - see, for example, Karo or Kyllo.

The EFF's brief also addresses third-party doctrine, the Stored Communications Act, and even CALEA.

The brief can be found here: BRIEF AMICI CURIAE OF THE ELECTRONIC FRONTIER FOUNDATION AND CENTER FOR DEMOCRACY & TECHNOLOGY IN SUPPORT OF DEFENDANT ANTOINE JONES’ MOTION TO SUPPRESS CELL SITE DATA


The EFF also has a story, here: Government Faces New Warrantless Surveillance Battle After Losing Landmark GPS Tracking Case

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Ninth Circuit takes second look at Pineda-Moreno, denies suppression of evidence

The Ninth Circuit has revisited United States v. Pineda-Moreno, No. 08-30385 (9th Cir., Aug. 6, 2012) after remand from the Supreme Court and has upheld the use of GPS evidence in the case due to the Davis good faith rule.

Pineda-Moreno was one of the three leading circuit cases prior to Jones to hold that a GPS device could be used by law enforcement without a search warrant - the Ninth's reasoning was that the installation and use was not a search. After the Supreme Court held the use to be a search in Jones, Pineda-Moreno appealed to the Supreme Court where the conviction was vacated and remanded.

Following the general pattern of such cases, the exclusionary rule does not apply because law enforcement acted on then-binding circuit precedent. The Ninth Circuit had held prior to Pineda-Moreno that "placing an electronic tracking device on the undercarriage of a car was neither a search nor a seizure under the Fourth Amendment." United States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999).

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