Cyber Crime Lawyer Blog

Hollywood is getting into the act. The new so-called technological thriller is Hollywood’s take on cyber crime. The movie’s premise is a cyber-crime FBI agent who investigates killings, where the weapon of choice is the internet. The movie title “Untraceable,” attempts to give people a sense of what is actually capable of happening when using the World Wide Web. The possibilities seem to be endless, but are they? Maybe to a point…

But in the end, possible, reasonable, or Hollywood? Cyber crime is here to stay. The question is how are the agencies that investigate the crimes going to deal with them.

Media Credit: Photo courtesy of Sony Pictures

Online cyber crime is a tricky thing to crack, not only for Miami government agencies, but nationwide. Often time’s government agencies run into barriers when attempting to locate a subject. One might think that the barrier is technology not being able to track the subject’s location, but in reality the barrier is simply jurisdiction. For what I would classify as the “everyday” crime (crimes involving few victims, no minors, etc), jurisdiction can hamper an investigation. When local agencies track IP address’ and other identifying information to a subject, if the information leads them outside the United States, that is where the investigation will slow down, almost to a stand-still, if not die.

Once you involve multiple countries and jurisdictions, each country has different legal requirements and sometimes the delay due to the bureaucracy can spell the end to an investigation. Speaking from experience, when you go International, depending on the crime, it may become a cost-benefit analysis as to the time and expense involved. Of course, agencies will always notify the local jurisdiction, but don’t count on anything by way of results.

With Internet crime on the rise, people are receiving solicitations from overseas for all types of things that will ultimately lead to an individual’s identity being stolen. Identity theft rings are trying to lure in victims from the other side of the world, knowing that local agencies are helpless in their pursuits. Technology has changed the way the world operates, not only for businesses, but for criminals. As much as technology may help the police and government agencies that investigate them, it may also hamper them.

Under Florida law and most States, a search by a private person does not implicate the Fourth Amendment unless he acts as an instrument or agent of the government. United States v. Steiger, 318 F.3d 1039 (11th Cir. 2003)(citing United States v. Ford, 765 F.2d 1088, 1090 (11th Cir.1985)). For a private person to be considered an agent of the government, we look to two critical factors: (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the private actor's purpose was to assist law enforcement efforts rather than to further his own ends. See United States v. Simpson, 904 F.2d 607, 610 (11th Cir.1990).

In United States v. Scarfo, 180 F.Supp.2d 572 (D.N.J. 2001), and United States v. Ropp, 347 F.Supp.2d 831 (C.D. CA 2004), the Courts held that a keystroke logger, did not fall under the purview of a violation of the Wiretap Act as there no transmission .

A hacker who accesses another’s computer and discovers evidence of a crime, is not in violation of the Fourth Amendment, or the Wiretap Act. Steiger, at 1045. In Steiger, the defendant’s computer was compromised by a Trojan horse program, which allowed an anonymous hacker to access Steiger’s computer via the Internet. Id. at 1044. The Court found there was no interception of electronic material in contemporaneous with acquisition as the anonymous user was simply viewing what was already on Steiger’s computer.

Continue reading " Florida Law, Does a Keystroke Logger Violate the 4th Amendment " »

Under Florida law, and State laws across the country, an individual (student) has no expectation of privacy in a University computer. US v. Butler, 151 F.Supp.2d.82 (D.ME 2001)(a defendant has no expectation of privacy in session logs and hard drives belonging to a University); US v. Bunnell, 2002 WL 981457 (D.Me. 2002)(defendant never downloaded the images, simply viewed and deleted, but has no expectation of privacy; thus, no standing to challenge evidence found on University computers).

The Wiretap Act applies to private conduct as well as to governmental agents. The Wiretap Act does not provide for suppression as a remedy to a violation pertaining to electronic communications, rather allows for civil sanctions. Wiretap Act, 18 U.S.C. §§ 2511(1), (4), (5), 2520. Suppression under the Wiretap Act is only with respect to unlawful interceptions of oral or wire communications. Wiretap Act, 18 U.S.C. §2515, 2518(10)(a). The Electronic Communications Privacy Act mirrors the Wiretap Act and Stored Communication Act (SCA), in that it does not provide for suppression of electronic communications either. E.C.P.A. § 101(e).

Additionally, the SCA creates criminal and civil penalties, but no exclusionary remedy, for unauthorized access to wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701 (emphasis added); see also 18 U.S.C. §§ 2707, 2708.

The language of the child pornography (hereinafter “CP”) statute is clear when interpreted in its plain meaning as it pertains to possession. To be in possession of CP one must “know” (intend) that the images (CP) would be saved on the computer. Commonwealth v. Diodoro, WL 3095476 (Pa.Super.). Mere viewing of CP, absent a showing of knowledge that the images are on the computer, does not constitute possession under the statute. United States v. Perez, 247 F. Supp.2d 459, 484 n. 12 (S.D.N.Y. 2003). The defendant must do some act in furtherance of viewing the images of CP to indicate knowledge that the image is on the computer’s hard drive.

In Diodoro, the defendant viewed child pornography on the Internet, and admitted as such. However, the State presented no evidence that the defendant intentionally downloaded or saved the images, nor that he was aware they were being automatically saved to an Internet cache file. Thus, the Court held, without knowledge, the defendant could not be convicted of knowing possession of child pornography.

The Ninth Circuit upheld a conviction in United States v. Romm, 455 F.3d 990 (9th Cir.2006), finding that the defendant’s admission that he knew the images were automatically saved to a cache drive and consciously erased them was sufficient to uphold a conviction for possession of CP under the statute, as some act in furtherance of viewing the images. The Court went on to say that “because the defendant knew the images were saved [albeit temporarily]…[the defendant] had the ability to copy, print, or email the images to others. Id. at 1000-01. Thus, the key difference in a case where the defendant has no knowledge that the files are being temporarily saved, as in Diodoro, is the knowledge, the act in furtherance to remove the images that the defendant knew where temporarily saved.

Additionally, in United States v. Tucker, 305 F.3d 1193 (10th Cir.2002), the Court upheld the defendant’s conviction for possession of CP, where the defendant intentionally sought out and viewed CP, later went into his cache file (temporary files), and intentionally deleted the files after each online session where he viewed CP. The Court found those actions to be knowing and voluntary possession; thus some act in furtherance of viewing the images.

Furthermore, in United States v. Bass, 411 F.3d 1198 (10th Cir. 2005), the Court held that the defendant’s knowledge of child pornography being saved to his temporary internet files, was reasonably established by the defendant’s actions whereby he attempted to erase the images using two (2) software programs; thus, sufficient for possession charges.
     Thus, the case law seems to be counterintuitive in the sense that they say there was knowing possession because the images were intentionally deleted.

An “electronic communication” is defined as “any transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature transmitted in whole or part by a wire, radio, electromagnetic, photoelectronic or photooptical system.” Wiretap Act, 18 U.S.C. §2510(12).

Statutory language must be given its plain and ordinary meaning, unless words are defined in statute or by clear intent of legislature. Green v. State, 604 So.2d 471 (Fla. 1992). Plain and ordinary meaning of word in statute can be ascertained by reference to dictionary if necessary. Id.

According to www.dictionary.com, transmit is defined as:

1) to send or forward, as to a recipient or destination…
2) to send a signal by wire, radio, or television waves…
3) to cause (light, heat, sound, etc.) to pass through a medium…
4) to convey or pass along (an impulse, force, motion, etc.)…
5) to emit…

A website transmits electronic documents to servers, where the documents are stored. If a user wishes to view a website, the user requests that the server transmit a copy of the document to the user's computer. When the server sends the document to the user's computer for viewing, a transfer of information from the website to the user has occurred. Although a website document does not go directly or immediately to the user, once a user accesses a website, information is transferred from the website to the user via one of the specified mediums. Therefore, a website fits the definition of “electronic communication.” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (C.A. 9th Cir 2002); see generally Preston Gralla, How the Internet Works (1999).

In Konop, a website was created and maintained by Konop where he posted information relating to his job, mostly criticisms. Konop gave access to the website to users by requiring a username and password, and disseminated that information to people he wanted to have access. Two (2) unauthorized people gained access to Konop’s website by using the username and password from authorized users. Konop filed suit alleging a violation of the Wiretap Act and Stored Communications Act. The Court found that even though a website qualifies as transmission of electronic communication, the Wiretap Act was not violated because it was acquired from electronic storage. Konop, at 878.

Therefore, under Konop accessing a website, is transmitting a website, as a copy of the website is being transmitted to the user’s computer for viewing/storage. Therefore, under Florida law, one may be charged for simply viewing child pornography, without actually possessing the image.

Unsecured wireless computer networks are everywhere and allow individuals to surf the web at will. The question is, whether or not accessing another’s wireless network without authorization is a crime under current Florida statute 815.06 (and similar statutes around the country)?

YES – accessing a wireless network without authorization is a crime under current State laws.

However, sometimes public policy will prevail and the State my not file charges. Last year in Michigan, an individual accessed an open wireless network to check his email outside a coffee shop. The individual was arrested, but the case was later dismissed, largely due to public outcry. However, when the intentions of the individual accessing the open wireless network are criminal and vindictive, the law isn’t so kind. When an intentional course of conduct is set out upon, whereby an individual looks to cause physical, emotional and/or mental harm to another, the State uses the unauthorized access statute, which some say debatable as to whether or not the statute itself is constitutional.

Over the last year, a woman has been dealing with the ordeal of being cyber stalked. The defendant posted 26 advertisements for sexual services on the website www.craigslist.com. The woman received over 700 calls soliciting her services for sex. After a lengthy investigation, the defendant was discovered, arrested, charged, and has subsequently plead guilty. See articles:

Realtor Pleads Guilty in Escort Ads Case

Rivalry between realtors lands one in court

There are those within the legal community that believe the law is unconstitutional, as it is vague and overbroad; therefore, if challenged, it would fall. But interpretation of the law is fungible and always open for debate. But even today, I firmly believe that access to another’s network, when done in furtherance of a crime, is a felony and should be charged as such.

In the future, I predict a change in this law to clearly delineate what is and is not a crime. If it is the intention of the legislature to criminalize activity such as accessing a wireless network, the legislature needs to be clear that there must be an underlying criminal intent. The law should be such that when a wireless network is accessed in furtherance of a crime – be it a misdemeanor or a felony – a crime is committed. But as the law is written today, it is not that simple, the legislature needs to make a change.

As a general rule, similar fact evidence is admissible if it casts light on a material fact in issue other than the defendant’s bad character or propensity. Bryan v. State, 533 So.2d 744, 746 (Fla. 1988). Evidence of other crimes, whether factually similar or dissimilar to the charged crime, is admissible if the evidence is relevant to prove a matter of consequence other than bad character or propensity. Williams v. State, 621 So.2d 413, 414 (Fla. 1993); Bryan v. State, 533 So.2d 744, 746 (Fla. 1988). “It is clear that other crime evidence that is probative of a material fact in issue is not inadmissible simply because it has a tendency to suggest the commission of another crime and thus necessarily is prejudicial to the defendant.” Williams v. State, 621 So.2d 413, 414 (Fla. 1993).

The appellate court ruled that the defendant’s possession of stolen property not charged in the information was relevant and admissible in a possession of stolen property case. Perez v. State, 220 So.2d 397 (Fla. 3rd DCA 1969). The court rejected the defendant’s argument that the trial court erred in allowing evidence of the defendant having stolen property in his possession, which was in addition to that alleged in the information. The court noted that one of the necessary elements of proof in the charge was that the defendant knew that the goods in his possession were stolen and that his possession of the uncharged stolen goods was relevant to that issue.

In an online solicitation case, the government sought to introduce evidence of uncharged images of child pornography found on the defendant’s computer. The defense objected to the introduction of the uncharged images on the grounds that they were irrelevant, and unfairly prejudicial. The Government argued that the defendant’s viewing and possession of child pornography and erotica images demonstrated his sexual interest in children and such conduct was probative of his intent to fulfill that interest online.

The Court finds that the Government offers the images for a permissible purpose other than to show a propensity to commit the crimes charged. Moreover, the Court concludes that such images are relevant to the crimes charged. Indeed, evidence that [the defendant] exhibited an interest in child erotica and child pornography on the internet in the period leading up to the charged conduct is pertinent to whether he used the internet in an attempt to engage in sexual conduct with [a minor.] Defendant's argument that the images are irrelevant because the Government has not established a causal link between viewing child pornography and soliciting children for sex is unavailing because it overstates the Government's burden.

United States v. Brand, 2005 WL 77055 (S.D.N.Y. 2005).

Therefore, when there is a causal link and intent is an element of the crime, evidence of additional uncharged crimes is admissible against a defendant in a criminal case.

Fantasy, anonymity, it's what people think they are doing when they chat on the Internet. When your child chats online with an individual who claims to be their friend, shares in their problems, understands their fears and their dreams, basically placating to their every whim, chances are they are not who they seem to be. The Internet has become a breeding ground for pedophiles, and the new online playground allows them to pursue their targets within the confines of their home.

Technology has evolved to the point where within a short period of time, law enforcement can pin point a location of an individual whom they are chatting with online. Police departments are growing with technology, in order to stay one step ahead of the criminals they are chasing. Police departments and other government agencies have made child solicitation and cyber crime a top priority in order to protect our Nation’s children.

Check out http://www.netsmartz.org/ to learn more about protecting your children online and how to educate your kids about the Internet and Parent's Guide to Children's Online Safety http://www.usdoj.gov/criminal/ceos/onlinesafety.html.

DAVID S. SELTZER, PA., is a Miami based law firm that represents the rights of individuals throughout the Nation, both in State and Federal Court. The firm handles matters including but not limited to: cyber crime and general criminal defense, real estate, divorce/family, immigration, corporate, complex computer litigation, and traffic matters.

The firm is located on Miami Beach, at:

1680 Michigan Avenue, Suite 919
Miami Beach, Florida 33139
Tel: 305.444.1565
Fax: 305.674.3805
Email: david@seltzer.ca
www.cybercrimesdefense.com (UNDER CONSTRUCTION)
www.seltzer.ca (UNDER CONSTRUCTION)

David S. Seltzer, PA