Cyber Crime Lawyer Blog

In a recent news article delivered to me by a friend of mine, Mark Mulroney, the technology used to search a suspect’s computer has taken a giant leap forward. No longer are police and investigators required to track cables, label machines, and photograph the exact location of every device. With this new device from Microsoft, the Computer Online Forensic Evidence Extractor, commonly referred to as COFFEE, law enforcement can literally have your information at their fingertips.

COFFEE is a USB thumb drive that contains 150 commands that can dramatically cut the time it takes to gather digital evidence, and decrypt passwords and analyze a computer's Internet activity, as well as data stored in the computer. What could have taken days, weeks, and months, to crack can now be done in a fraction of the time. What does this mean? Well let’s look at it from a law enforcement point of view.

For law enforcement, it means less time on scene taking down computers, and quicker analysis’ of machines (possibly depending on the purpose of the investigation), to name a few benefits. Therefore, faster turn-around time on pending investigations and prosecutions, and ultimately, it could lead to saving law enforcement a lot of time and money, which we all know they can use with budget cuts all over the country, especially in Florida.

What does this mean for the non-law enforcement individuals? Well, for now until the entire scope of what this device is capable of, not much will change. I am certain that this device will be challenged as to authenticity of the material recovered. I have yet to see how exactly is can re-create a clone or image of a hard drive, which is what is needed to preserve the integrity of a computer’s hard drive. It looks like all this does is a quick search of the drive for whatever the investigation calls for. Some interesting discussions that may follow as a result of this are whether or not inserting a thumb drive into a computer can trigger a virus, or alter any computer data, or trigger a program, which all can compromise data. I am sure Microsoft has explored all those possibilities, but as the world goes, so do technological advances and someone will figure out a way to trip this device up. It is inevitable. Food for thought, what happens if this gets in non-law enforcements hand, then what…?

For the more information on COFFEE, check out:

Microsoft device helps police pluck evidence from cyberscene of crime

Microsoft Calls on Global Public-Private Partnerships to Help in the Fight Against Cybercrime

Microsoft COFEE (Computer Online Forensic Evidence Extractor) for law enforcement

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So my clients had their hearings, which were supposedly impartial. There is good news and bad news, but I am still unclear about the bad news. If you recall from the WSVN Channel 7 story the young lady who was victimized and sucker punched in the altercation, she was suspended for the remainder of the semester and kicked off campus. She now has no where to live and no money, and of course, the University will not return the money she paid for housing and tuition. She is however, allowed to come back to school next semester, so long as she pays her tuition and expenses. Go figure...This is not the end of her story...

As for the budding cameraman, he was allowed back into school and into housing, with certain restrictions. The question is, due to the amount of time he missed because of the University's suspension, he may not be able to complete the semester, which again will require him to pay more money to the University to make up the classes. All for videoing an incident on school property and posting it on YouTube.com. But again, his future has been affected and this may not be the end of this situation for him either.

The University showed their true colors here for what clearly appears to be financial gain. As I said in my interview with Channel 7 WSVN Fox, the University was not happy for the "black eye" this incident gave the University. Over 500 people saw the video on YouTube.com and god forbid that affects the Universities enrollment as there was a physical altercation on campus.

I have learned that last year a student broke down a door on campus and pulled a knife on another student in the dorms. End result, that student was not expelled and continues to be a student at Barry University. Another incident involving a female and a fight on campus, still has that female student enrolled at Barry University. So why has my client, who is CLEARLY the victim in this incident, and solely protecting herself and her safety, no longer a student this semester at Barry University? My client was a good student, involved in student leadership, and would give tours of the campus to prospective students. I am at a loss for the way the University is handling this situation, but then again, the saga continues...

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Is your information safe? People take a lot for granted when it comes to the internet and their financial information. For example, the simplest thing that most people forget to do when using a public computer is making sure they are logged off and thus, the person after you doesn't access your information. Internet security is an issue that it is at the forefront of countries security all over the world. Internet hacking is the crime de jour, and the new target for organized crime. No longer do people walk into banks and rob them like Bonnie & Clyde, they do it from the comfort of their living room. What are you doing to make sure that your information is secure?

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So when did we lose the right to freedom of speech? The law doesn't allow private institutions to thwart the law, so why does Barry University think they have the right to bully around two young students? Kids will be kids, and I am the first one to state that all parties may not have clean hands in this situation, but as far as Barry University is concerned, while on SCHOOL PROPERTY, my clients did nothing wrong.

If you haven't already heard, Barry University has initiated expulsion proceedings against two students, both of which have 3.0+ grades, and one of whom is a student leader. Both students have aspirations of higher education and distinguished professional careers. Now the only thing that stands in their way is private politics.

A video of the incident which occurred on Barry University's campus April 4, 2008, was posted on YouTube. What the video shows, is a loud discussion among some students that drew a crowd. My client, the budding camera man decided to film the altercation and include his own play-by-play commentary. My other client was involved in the debate, but as the video clearly shows, she WAS NOT the aggressor, rather the victim when she was sucker punched by another female. Present during this altercation was the resident adviser as well as numerous campus security. Kudos to the student RA, who was the only one from the school who attempted to stop the incident.

50 States security, one of Barry University's rent-a-guard patrols, is seen on video and asked if he was going to stop this incident, to which there was no response. Also, in violation of school policy, the security guards hired to protect the students failed to file incident reports.

Some great filming if you ask me. Lots of different camera angles, shots of the crowd, the interested parties, the school officials. Barry has taken the position at this time that only my two clients, and the girl who threw the punches are being expelled. Of course that position changed once Fox News Miami got involved. The University was planning on identifying every student who stood idly by and watched the altercation and expelled them in accordance with some obscure school policy. But of course, as the media got involved they backed off that course of action.

So what makes my clients any different, why are they being railroaded here? In an attempt to resolve this matter today, I contacted both the Dean of Students Office and the Legal Department. End result nothing was done. When asked if I can attend a meeting with my clients earlier today, answer no, the public is not allowed to attend hearings and meetings. Ok, so my clients then met with Jeff Edwards of the University who asked them to sign a document admitting the charges against them. Why would they sign a document admitting something that didn't happen, just to allow the school to expel them...Barry clearly has shown no interest in doing what is best for their students, rather, they are simply concerned with their image. My clients didn't break any laws. My clients are the victims here.

Here we have two students from out of state, with no money and no place to sleep. The University has informed them that if they return to their dorm rooms, which they are continuing to pay for, or to the cafeteria, to eat meals they are continuing to pay for, then they will be arrested for trespassing and charged criminally. So now I have to clients, which I will gladly continue to feed and make sure that they have housing, but what is Barry doing to protect these young students who they have made homeless? Are they going to give them back their money, voluntarily? Of course not, but then again that is why we have courts.

Below is the piece that aired on WSVN 7 Miami today. I am working of putting the entire video up, so check back soon so you can be the judge as to what is really going on here. This is a travesty of justice and the University is trying to sweep it under the rug. Well, I won't let them.

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It is with great pleasure that I announce the launch of www.davidsseltzer.com.

Please check it out and let us know how the Law Offices of David S. Seltzer, PA can help protect your freedom and rights. Don't delay, let a former Miami-Dade County Prosecutor help protect your good name and reputation. Contact us today.

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So I was watching a television program and there was an interesting storyline. The program addressed a plethora of child pornography issues, which are clearly becoming an increasing concern for law enforcement as technology quickly advances. Without going into the entire show, the two interesting issues were: Youth Enhancement Software (Image Manipulation) and Steganography .

The program focused on the landmark case of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), possession of virtual child pornography is not illegal, rather free speech. And what has developed as a result of that is a world that law enforcement and the Supreme Court cannot control. Technology that is used for “good,” age progression software; is now being used in reverse – age regression. So essentially, legal aged girls are being photoshopped back into their youth, and the child pornography is legal. According to the Supreme Court, that’s legal. Virtual child pornography or manipulated images are going to make prosecution of child pornography a whole new world. As these images start popping up around the world, prosecutors will no longer be able to stand up there and state that the images are actual real children. Expert testimony is going to drive the cost of prosecution on these cases through the roof, and with cutbacks all over the country in law enforcement, it will be interesting to see what gives, the trial tactics, or the Constitutional right to “free speech…”? If anyone image in the defendant’s control is not “authentic,” the entire prosecution is compromised.

Another interesting issue addressed in the program was Steganography . Basically, it’s a secret image or text hidden behind another image. This is interesting because it is becoming more prevalent on the web and easily available to anyone who can download the necessary software. It’s not used solely for child pornography, but it’s been its most recent adaptation. To the naked eye, without the appropriate software, looking at a picture of the Statue of Liberty can really be pornography. When you decrypt the code, you will not see any lost pixels or portions of the image. So sending it over the internet can often allow the image to travel undetected through internet photo scanner programs (a discussion for another day).

It makes you wonder about technology today and its effects on the investigation and prosecution of child pornography, what does tomorrow hold? Technology is going to continue to be an uphill battle for all involved in protecting our youth. So again, what has to give to protect our children, whose rights, free speech?

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The law is in place to protect all of us, including police, so what makes them feel that they can (a) toe the line, or (b) break the law? First, before I continue on this topic, let me stress that the case I am referring to is not being prosecuted in South Florida, but it is being prosecuted in the State somewhere.

I was recently retained to work on a matter pertaining to cyber crime. Upon my review of the facts, I was shocked and appalled that the prosecuting agency was acting in this manner - not willing to discuss the case or the lack of the case they have. Instead, what it appears as though they are willing to do is create law, which as the current state of the case law stands would be great for the defense bar!

I am referring to an online solicitation case with chat logs, not closely, but CLEARLY entrap the defendant. The undercover is the aggressor in each chat, brings up all the sexual conversations, even after the defendant continually says he is not interested in that, and even goes so far on one occasion as to initiate the chat session. Do you want more? The undercover, after she continually invited the defendant to come and visit, asked him of course to bring protection, to which the defendant again said, do not want to have any sexual contact/relations. Undercover, then offered to book a hotel room for them! It went on...

Now if this case ever came across my desk when I was a prosecutor, I would have slapped the detective upside the head and then explained to them why I was not filing the case.

If that isn't enough, there are other issues. Did I mention to you that they are missing NUMEROUS portions of the chat logs as they had computer issues and could not save them. What they do have are excerpts that were cut-and-pasted from the chats, but they are INCOMPLETE. Oh, and they only chose to use the logging feature provided to law enforcement at certain times to record the chats, when it suited them. And of course, there is no mention in the chat logs by the undercover of her age, being a minor, there are references but no direct mention. Also, they said it was common practice for their department to wipe the undercover computer's hard drive, thus making it impossible for any recovery by the defense. This case is a mess for the State, yet there is no telling them that.

On the issue of the chat logs, there is a case on point that addresses this situation. In United States v. Jackson, 488 F.Supp.2d 866 (8th Cir.(Neb.) May 08, 2007), the Court held that cut and paste chat logs failed to meet the foundational requirements of authentication, and thus not admissible at trial. The Court stated that the State has the burden of proof to show that the transcripts are authentic and trustworthy. Id., at 871; see also United States v. Black, 767 F.2d 1334, 1342 (9th Cir.1985); Fed.R.Evid. 901(a); United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000); United States v. Webster, 84 F.3d 1056, 1064 (8th Cir.1996).

In Jackson, the State sought to introduce “editorialized” transcripts, as portions of the conversations were not available as they were omitted in the copy and paste process, not saved, or destroyed. Jackson, at 870. When the time came to use the actual chats, the computer had been wiped, there was no logging feature used, and the editorialized versions were all that was available. Id. “The cut-and-paste document offered by the State is not an accurate original or duplicate, because it does not accurately reflect the entire conversations between the defendant and [undercover]. Id. At 872.

A computer forensic expert testified that there were numerous alternatives to the cut-and-paste method that would have been far more accurate, and would not have allowed data to be lost. Furthermore, that had the computer not been erased, the chat logs may have been recoverable. The Court went on to state that the missing data “creates doubt as to the trustworthiness of the document…[as] deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.” Id. It is clear that the proposed document does not accurately reflect the contents of the original. Id. At 872.

Two additional cases that also address the admissibility of chat logs and transcripts are United States v. Tank, 200 F.3d 627 (9th Cir.2000) and United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir.1998). However, these cases are distinguishable as the actual computer files were offered as evidence, not cut-and-paste versions.

The Court in Jackson, went on to exclude the chat logs in lieu of allowing the officer to refresh his recollection as to the missing portions, as doing so would have allowed the government to indirectly present the chat logs to the jury, and create an unfair situation for the defendant. Jackson, at 872; see also Hall v. American Bakeries Co., 873 F.2d 1133, 1136 (8th Cir.1989).

So is it worth it to hold your ground and start creating law that probably won't conform what's right, or should the prosecutor here realized that you can't win them all?

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Sorry for the absence to all my loyal readers, been a busy month moving to our new digs. But I am back and today showing support for a near and dear friend of mine running for Judge. Here is a letter that I received that I wanted to share.
___________________________________________________________________________
Dear Neighbor:

Jorge E. Cueto, a resident of Country Walk, has filed as a candidate for Circuit Court Judge, in Group 11 of the Eleventh Judicial Circuit of Florida. Jorge has over thirty years of professional experience in both the private and public sectors. He was admitted to the Florida Bar in October 1992. As an Assistant State Attorney in the Eleventh Judicial Circuit, he prosecuted defendants in the County, Juvenile and Felony divisions of the Miami-Dade courts. His last assignment with the State Attorney’s Office has been in the elite Public Corruption Unit.

Prior to joining the State Attorney’s Office, Jorge was legal counsel and vice president for a mid-western corporation. In that capacity, he practiced general commercial and corporate law, and executed a number of mergers and acquisitions. Jorge also served honorably as a member of the Miami-Dade Police Department for sixteen years. His last assignment was Commander of General Investigations for the Cutler Ridge District. Jorge was assigned to the County Board of Commissioners where he was named Staff Counsel to the Public Safety Committee of the Board. Jorge is conversant in Spanish, French, Portuguese, and Italian and has a working knowledge of Russian. He has taught several topics as adjunct professor in the College of Urban and Public Affairs of Florida International University. Among these courses were Comparative Legal Systems, Criminal Law, Organized Crime, Origins of Terrorism and Public Personnel Management.

Jorge graduated from Immaculata-LaSalle High School in Miami, Florida. He attended Boston University and received his Bachelor of Science in Chemistry/Biochemistry from the University of Miami. He earned a Juris Doctor from the School of Law of the University of Miami. He also attained an ISO 2000 Quality Auditor Certification through DePaul University and has designed quality control systems conforming to this international standard. Jorge Cueto successfully completed the required CPA curriculum for the State of Illinois CPA at the College of DuPage. He has been admitted to the Forensic Accounting Master Program at Florida Atlantic University.

Jorge’s personal and professional affiliations include membership in The Florida Bar, The Cuban American Bar Association, The American Chemical Society, The League of Prosecutors, Phi Delta Phi Legal Honor Society, University of Miami Law School Alumni Association, The Historical Museum of South Florida and the International Police Association. He currently serves as a board member of the Miami-Dade Citizens’ Independent Transportation Trust.

Jorge Cueto has been married to Ana Maria Cardin Cueto for over thirty years and they are blessed with three adult daughters: Elizabeth, AnaMari and Lauren.

Because of his extensive public service to this community, intellect and commitment to the law and justice, Jorge would be a fair, impartial and well-balanced judge, equipped with a varied technical legal background and the richness of the life he has led. That is why I am asking you to endorse and support his candidacy and contributing in any way you can. Enclosed you will find a self-addressed envelope. Please join me in voting for my husband, Jorge, for Circuit Court Judge on August 26th, 2008.

Sincerely,

Ana Maria Cardin-Cueto

Jorge Cueto for Judge!

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Not sure what I find more amusing, the fact that government agencies can get electronic text messages without a search warrant, or that fact that they think this behavior is legal. The right to be free from government intrusion has been a staple our constitution since the beginning of time. So tell me what the difference between an email and a text message is? Answer, for an email you need a search warrant which articulates probable cause, for a text message you need a government agent who believes they have reasonable doubt. But they both contain content, which under the current state of the law in this country REQUIRES a search warrant signed by a neutral judge.

Now as technology changes so does the law, so why haven’t the courts bought into this? In the past, the cellular phone providers didn’t log text messages. Some still don’t. So I can understand why subpoenas were sufficient for text message logs in the past, because there was no content. But today, with content being logged, why the courts having such a hard time grasping that content is content, and an email is no different than a text message.

Verizon Order to Turn Over Text Messages

What Right to Privacy?

Eventually this matter will resolve, but again, it will take time for it to filter through the courts. There is a judge out there who will be able to clearly see that content is content. Until then, we will continue to battle this issue in the courts.

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It is with great pleasure that I announce my practice has moved to Brickell. The new address for David S. Seltzer, PA is:

Mellon Financial Center
1111 Brickell Avenue, Suite 2050
Miami, Florida 33131
Tel: 305.444.1565
Toll Free: 866.685.3421
Fax: 305.444.1665
www.cybercrimesdefense.com
www.davidsseltzer.com

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Take it from someone who has been there, this article rings true - Technology Complicates Prosecution. Prosecution has become a cost benefit analysis, more so than one might realize. Cost - budgets are getting slashed, to the point where the courts, the state, and all other agencies involved are looking at ways to cut costs. Benefit – the defendants. Defendants are not getting charged with the maximum counts they may be exposed to, since the State cannot afford to prove the charges. Experts cost money, and the State has none. Trials for child pornography based on the Supreme Court’s ruling regarding manipulated images and computer generated images, have turned a child pornography case into a battle of experts. Whose expert is more believable? Whose is more qualified? To the naked eye, a computer generated image is indistinguishable.

Check out this article by Dr. Hany Farid. He is one of the foremost experts in computer generated graphics. Creating and Detecing Doctored and Virtual Images.

As a defendant in a case involving computer images, you’re given the slight advantage if you can get the jury to believe the images are not real. However, when a jury sees a child pornographic image, it is hard for them to believe that someone actually used a computer to generate the image. There are a lot of factors that people often overlook when looking at an image. The person or individual in the image is not generally the best way to tell whether the image is real or fake. Experts will look at lights and shadows, human interaction with other humans, or objects. Other things to look at are the creases in pillows, sheets, indentations on couches, beds, clothing, the list goes on. Creating the perfect computer generated image will take an inordinate amount of time. But here is the kicker. If, and I stress if, a defendant can prove that one image on their computer is computer generated, as it relates to child pornography, a jury will probably have a really hard time believing a State expert that the rest are real and not computer generated. Battle of the experts…

Continue reading "Miami is no different in Prosecuting Child Pornography" »

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Let’s give credit where credit is due, Miami boasts some of the best computer forensic experts I have ever seen. What do you think happens when you delete something on your computer? Well before I learned about computers, I like you, thought it was erased and gone forever. But for some people, sadly that is not the case. When you delete a file or an image, and then take the next step to clear the recycling bin, the files are still on your computer. Sometimes for years to come…

There is software out there that you can use to wipe your computer clean in hopes to erase files, but there have been situations where machines have been wiped 5 plus times and files can still be recovered. So what is on your machine that is so secretive…? Once you learn how a file structure works on a computer you might better understand how the files are recovered. But generally, any forensic examiner worth their salt will find what they are looking for or at least remnants of a file. The stars have to align for all properties of a file to be completely erased, or you have to have some proven wiping software.

For more information on files structures and deleted files check out:

Slack Space
Window Washing Slack Space
Cyber Scrub, What you erased is not really gone

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