Academic

Admissibility of MySpace Photos

Posted on April 20, 2010
In an earlier post, I analyzed the evidentiary issues that arise when a defendant or the prosecution wants to introduce postings from someone?s MySpace pages. This post is about a different, but related issue: the admissibility of photos posted on someone?s MySpace page...

Yahoo! Chat as Confidential Communication

Posted on April 19, 2010
This post is about a case in which a defendant who'd been convicted of a crime argued, on appeal, that the trial court ?erred by not excluding? a ?Yahoo! chat dialogue . . . because it was a confidential communication.? People v. Karampal Singh Nakal, 2010 WL 1254836 (California Court of Appeals 2010)...

Contempt and "Virtual Presence"

Posted on April 16, 2010
Perhaps you saw one of the news stories about the federal judge who held a civil litigant in contempt after the litigant allegedly ?urged his radio and web followers to deluge U.S. District Judge Robert Gettleman with e-mail so he would side with him in a civil lawsuit pending before the Chicago judge...

"Viewing" as "Possessing"

Posted on April 14, 2010
As I explained in a post I did last year, state and federal courts struggled ? at least for a while ? with the issue of whether someone who simply viewed child pornography online without downloading it could be prosecuted for possession of child pornography...

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Seditious Conspiracy

Posted on April 12, 2010
This post is primarily about a case that isn?t a cybercrime case. It?s about one of the federal statutes that were used to charge members of Hutaree, ?a Christian militia group based in Adrian, Michigan.? It's also about what didn't happen here but might happen in another case...

Identity Theft and the Alford Plea

Posted on April 09, 2010
As Wikipedia explains, an Alford plea is a guilty plea in criminal court where the defendant does not admit the act and asserts innocence. Under the Alford plea the defendant admits that sufficient evidence exists with which the prosecution could likely convince a judge or jury to find the defendant guilty beyond a reasonable doubt...

Fabricated Evidence and Post-Conviction Relief

Posted on April 07, 2010
This post is about an interesting decision that came down last year. The case is State v. Stewart, 321 Wis.2d 475, 774 N.W.2d 475 (Wisconsin Court of Appeals 2009), and this is all I know about how it arose: In 2001, [Christopher] Stewart was charged with one count of attempted child enticement...

Identity: The Living and the Dead

Posted on April 05, 2010
A recent case from the U.S. Court of Appeals for the 9th As Wikipedia explains, an issue of first impression is one on ?which there is no binding authority?, which means it ?set[s] forth a completely original issue of law for decision by the courts...

Forensics and Plea Bargains

Posted on April 02, 2010
As Wikipedia explains, a plea bargain is ?an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty . . . to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence...

Restitution and Proximate Cause

Posted on March 31, 2010
As Wikipedia explains, in law ?proximate cause? is ?an event sufficiently related to a legally recognizable injury to be held the cause of that injury.? The Wikipedia entry is really dealing with proximate cause in civil law, especially tort law...

"Fantasy Alone"

Posted on March 29, 2010
This post is about a federal prosecution that was brought under 18 U.S. Code § 2422(b). Section 2422(b) provides as follows: Whoever, using the mail or any facility or means of interstate or foreign commerce, . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life...

The Councilman, Spyware and the Computer Fraud and Abuse Act

Posted on March 26, 2010
This post is about a federal prosecution that was brought in South Carolina in the fall of 2009. The defendant ? Harold Anthony "Tony" Trout ? was elected to the Greenville County Council in 2004 and held that office until he was indicted on the charges we?re going to examine in this post...

Cyber-Extortion

Posted on March 23, 2010
I keep looking for good cyber-extortion cases, but I rarely find one. This post is about a man who was recently charged with cyber-extortion, but not under the general federal cybercrime statute: 18 U.S. Code § 1030. I?m writing about this case because it illustrates the very specific types of conduct the general federal cybercrime statutes addresses in its provision on extortion...

Borders, Laptops and Exigencies

Posted on March 21, 2010
As I?ve noted in several earlier posts, the border search exception is one of the exception to the 4th Amendment?s default requirement that officers get a warrant before they search and/or seize someone?s property. Wikipedia has a post that does a good job of explaining what the border search exception is and what it authorizes...

Murder, Text Message and the 6th Amendment

Posted on March 19, 2010
This post is about a recent decision from the Court of Appeals of Arizona: State v. Damper, 2010 WL 711802 (2010). Marcus Damper was convicted of second-degree murder in the death of his girlfriend, nineteen-year-old Cartina Vega. You can read a brief summary of the facts in the case and see photos of Damper and Vega here...

Friending the FBI

Posted on March 17, 2010
You probably saw the stories that came out yesterday, reporting that law enforcement officers are, as this Yahoo! News story puts it, ?following the rest of the Internet world into popular social-networking services, going undercover with false online profiles to communicate with suspects and gather private information?...

Consent Search Issues

Posted on March 15, 2010
As I?ve noted in earlier posts, consent is one of the exceptions to the 4th Amendment?s default requirement that officers obtain a warrant before conducting a search of someone?s property. While search warrants are usually for property, they can, on occasion, be for a person; as I noted in a recent post, officers can get search warrants to have evidence surgically removed from someone?s body...

"Pretext Communications" and the Right to Remain Silent

Posted on March 12, 2010
A recent decision from the Oregon Court of Appeals raises what I think is an interesting issue about the interaction between online communication and a suspect?s invocation of the ?right to remain silent.? The case is State v. Davis, 2010 WL 715487 (Oregon Court of Appeals 2010), and this is how the issue arose: [John Richard Davis] retained counsel after a police detective launched an investigation into allegations that [he] had sexually abused his stepdaughter...

Hyperbole or "True Threat"?

Posted on March 10, 2010
As I explained in an earlier post, U.S. courts use the concept of ?true threat? to distinguish speech that is protected by the 1st Amendment from threats, which aren?t constitutionally protected. (I also explained why we criminalize threats and what constitutes a ?true threat,? if you?re interested...

"Unauthorized Access" Strictly Construed

Posted on March 08, 2010
As I?ve explained in earlier posts, there are two different kinds of computer trespass (or hacking) crimes: Accessing a computer without being authorized to do so (outsider attack) and exceeding the scope of one?s authorized access to a computer (insider attack)...

4th Amendment, Flash Drives and Surgery

Posted on March 05, 2010
As you may have seen, earlier this week The Smoking Gun [TSG] posted a story about a suspect who swallowed a flash drive. According to the TSG story, Florin Necula ingested the Kingston flash drive shortly after his January 21 arrest outside a bank in Queens...

Unauthorized Access and the Statute of Limitations

Posted on March 03, 2010
I recently received this email, and decided to make it the focus of a blog post: I noticed that the federal statue for unauthorized access into an electronic system has a statue of limitations of 2 years. Couldn't law enforcement break into electronic systems illegally and if they discover something illegal, just wait 2 years before bringing an indictment...

New Book

Posted on March 01, 2010
Praeger has just published (or is supposed to have just published -- the listed publication date was February 28, 2010 but it's not yet available on Amazon) my latest book.Entitled "Cybercrime: Criminal Threats from Cyberspace", it is, as the book jacket explains, "intended to explain two things: what cybercrime is and why the average citizen should care about it...

Jurors, "Experimentation" and Misconduct

Posted on March 01, 2010
As I?ve noted in earlier posts, courts are struggling to deal with jurors who use computer technology ? particularly the Internet ? in their deliberations. Most of the cases seem to deal with jurors using technology ? again, particularly the Internet ? to conduct their own research into matters at issue in the case they?re going to decide...

Entrapment by Estoppel

Posted on February 26, 2010
As Wikipedia notes, entrapment is usually a defense to a criminal charge. As Wikipedia also notes, entrapment occurs when a law enforcement officer induces one who was not otherwise predisposed to commit a particular crime to commit that crime...

Text Messages: Authentication and Hearsay Issues

Posted on February 24, 2010
As Wikipedia notes, the law of evidence ?governs the use of testimony (e.g., oral or written statements, such as an affidavit) and exhibits and (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the (trier of fact, such as jury) in a judicial ...

Kyllo and "A Forensic Software Program"

Posted on February 22, 2010
In a 2008 post, I talked about the U.S. Supreme Court?s decision in Kyllo v. U.S., 533 U.S. 27 (2001). I reviewed the holding in the case ? which involved law enforcement?s using a thermal imager to detect heat radiating from Danny Kyllo?s home...

Evidence Eliminator and Daubert

Posted on February 19, 2010
As Wikipedia notes, the Daubert standard governs ?the admissibility of expert witnesses? testimony during United States federal legal proceedings.? The standard comes from the U.S. Supreme Court?s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U...

Wi-fi Privacy, Dogs and Apartments

Posted on February 17, 2010
This is a follow-up to my last post, which, of course, was a follow-up to the earlier post I did on U.S. v. Ahrndt. (And I anticipate that this will be my last wi-fi privacy post for a bit.) In this post, I?m going to extrapolate a bit on the 4th Amendment...

Wi-fi Privacy and Trespassing

Posted on February 15, 2010
You may or may not have noticed that in a comment to my last post, Lokkju said he found the decision [in U.S. v. Ahrndt] troubling, mainly because it was illegal under Oregon law for the woman to access the network in the first place - unsecured or not...

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