Cyber Crime Lawyer Blog

A Philadelphia-area school district made news last week when a student accused it of spying on him through an undisclosed software package in his loaner computer. As a Fort Lauderdale cyber crime criminal defense attorney, I was very interested in the story of the Robbins family’s lawsuit against the Lower Merion School District. The Philadelphia Inquirer reported Feb. 20 that federal and local prosecutors are investigating the school district for possible violations of wiretap and privacy laws, as well as students’ constitutional right to be free of unreasonable search and seizures. The district is accused of spying on students through webcams built into school-issued laptops the students were allowed to take home.

The district loans laptops to most of its 2,300 high school students, who are free to take them home, the article said. However, it never told them or their parents that it was able to use a software package to remotely take snapshots of laptop users. The school district says this is used only when the computer is reported missing or stolen, and that it’s recovered only 18 out of 42 missing laptops this way. However, the practice came to light after someone from the district took a picture of student Blake Robbins, 15, who says his laptop was never reported missing before officials took a picture of him working on the computer at home. In the picture, he says he is eating Mike & Ike candies, which resemble large pills. On that basis, Harriton High School’s assistant principal accused Robbins of using drugs. The Robbins family is now suing the district.

This has turned into a major public relations mess for the school district, with the FBI joining the criminal investigation and the software maker issuing an update that disables the remote picture-taking feature. As a Miami-Dade cyber crime criminal defense lawyer, I think Robbins would have had a very strong defense if he had been prosecuted or penalized for the alleged drug-taking. The Fourth Amendment gives us the right to be free of unreasonable searches and seizures. That right is somewhat limited for minors who are at school -- but not when they’re at home. That means simply telling students about the cameras is not enough. The school district should have a warrant to search students through the webcams, or at least a reasonable suspicion of wrongdoing. If the Robbins family is right, they had neither in at least one case. And that means the evidence they had, even if did show drugs, would be hopelessly tainted and inadmissible in court.

The concept of unreasonable search and seizure is as old as the Constitution -- which is to say, more than two centuries old and still going strong. School district attorneys and law enforcement know very well what constitutes an unreasonable search of a minor, or an adult, in the physical world. Very few people would assume that it’s legal to come to a student’s home and take pictures through a bedroom window -- but as this article shows, the school district had no problem doing the same thing with more sophisticated tools. Technology gives us new ways to interact socially, and sometimes, that new context makes authorities forget that the old rules still apply. When they do, it’s my job as a West Palm Beach cyber crime criminal defense attorney to fight back on behalf of individuals’ rights.

I am proud to announce that my firm, Balliro Seltzer LLC, is sponsoring radio station 93 Rock's Best Damn Brew Review event -- happening this Friday, Feb. 26 at 8 p.m. This is the station's outdoor beer garden and concert, featuring 200 beers and a concert stage with local South Florida bands Ghost of Gloria, Venejer and Streetkind. Along with First Class Transportation, we are sponsoring the Safe Ride Home program, which offers rides home to participants who don't feel safe to drive. Our Miami DUI defense attorneys know firsthand how costly a drunk driving charge can be, in lives and money, and we want everyone to have fun and arrive home safely.

Here's the radio promo for the event, which mentions us as a sponsor. For more information, you can check out the BDBR page at 93rock.com.

In 2006, the cycling world endured a small scandal when that year’s Tour de France winner, American Floyd Landis, was stripped of his title for doping. This week, that case is getting resurrected in a way that interests me as a West Palm Beach cyber crime criminal defense attorney. The Los Angeles Times reported Feb. 16 that French authorities now believe Landis or someone connected to him hacked into the computer system of the laboratory handling his doping test. A French judge has issued an arrest warrant for Landis, which would call him in for questioning about the September 2006 incident. The same judge also issued a warrant for Arnie Baker, a coach and advisor to Landis whose computer French authorities believe was used in the alleged hacking.

French authorities accuse Landis or his associate of breaking into computers for the Agence Francais de Lutte contre le Dopage, or AFLD. That laboratory was retained by the Tour de France to test participants and found synthetic testosterone in Landis during the 2006 race, leading authorities to take away his title and ban him from cycling for two years. Landis unsuccessfully appealed that decision, arguing that the lab made mistakes and was biased. The September 2006 hacking incident took place at the same time Landis was defending himself from the initial charges. Specifically, the newspaper said, French authorities have found evidence tying the hacking to an email address belonging to Baker. Neither Landis nor Baker can actually be arrested unless they travel to France.

A computer expert interviewed by the Times said it was unusual to see hacking against an organization with the extensive logs AFLD is apparently claiming. He suggested that a third party with authorization to enter the system may be responsible. This is just one of the avenues I would explore, as a Miami-Dade cyber crime defense lawyer. Expert hackers know how to cover their tracks, which is one reason why I’d want to verify that the email address connected to Baker was genuine and not “spoofed,” and that any connection to his computer is genuine. And like the expert above, I’d also want to look for an “insider” who could get the information in question without breaching the lab’s security.

Landis and his fight against the doping charges would have been in the news at the time of the breach. This could easily have made them a tempting target for hackers looking to misdirect investigators. As a Fort Lauderdale hacking criminal defense attorney, I would start my defense of a client like Landis with a thorough computer forensic investigation. Because technology has advanced so quickly in the past two decades, lawmakers and prosecutors can’t always tell when the electronic record of a crime has been “spoofed” or otherwise falsified. As a former cyber crime prosecutor, I handled multiple cases where details mattered -- sometimes details as small as the time on the computer’s internal clock. These details can make or break your case, determining your freedom and your reputation for years to come.

As a Fort Lauderdale child pornography possession defense attorney, I wrote last year about a Connecticut court’s decision to award financial restitution to a young woman who had been a child victim of child pornographers. This is an established practice in prosecutions of the people who make the child pornography. However, the Connecticut case was the first that I had heard of in which a court ordered restitution from a defendant who was accused of downloading and distributing the objectionable materials, and had no contact at all with the young woman. At the time, the Connecticut Law Tribune reported that the case may have set a precedent for similar restitution orders.

That may have come true, at least according to a Feb. 8 article from the Associated Press. That article noted the Connecticut ruling, but said hundreds more requests for restitution have been filed nationwide since then. Many, but not all, of them are from the same young woman involved in the Connecticut case, identified here as Amy. Amy was eight or nine when her uncle abused her and took pictures. He’s in prison now, but the pictures are widely available online. Amy and other victims claim in court papers that they’re re-victimized every time a new person downloads one of “their” pictures. They find out about the prosecutions through the National Crime Victim Rights Center, which was created by federal law to notify victims about criminal trials. Amy’s attorney said he requests $3.4 million in each case, but doesn’t expect to receive nearly that much.

According to the AP, courts have been mixed in their response to these requests. Some have denied restitution, but at least two courts in Florida have awarded restitution of more than $3.2 million. Several others have awarded much smaller amounts, as symbolic penalties or because defendants have a limited ability to pay. In one Minnesota case, the judge asked prosecutors why they didn’t request restitution for Amy. Restitution cases are on appeal, but the Fifth U.S. Circuit Court of Appeals, the federal appeals court for Texas, Louisiana and Mississippi, has already ruled on the practice. That court said restitution can be denied if the prosecution can’t show how much harm the defendant caused, but that ruling included a sharp dissent.

As a South Florida child pornography possession criminal defense attorney, I think the requests for restitution are understandable, but legally weak. Under the law, restitution can be ordered only for exploitation of a child. Victims claiming restitution say they are exploited with each new download, but they can mean it only in the abstract, because a download is an act that happens without harming them, and in fact without their involvement. Furthermore, the goal of restitution is to keep criminals from making a financial profit from wrongful acts. Profit is a clear part of the crime of making child pornography, but it’s hard to show a financial profit from mere possession. Thus, I believe the restitution requests are inappropriate in child pornography possession cases.

At least one expert in the article suggested that restitution requests for child pornography victims belong in the civil courts -- that is, victims should sue rather than request money through a criminal case. This may be a sensible compromise, because civil courts are better suited to work out the complicated question of when child pornography exploits a child. In a criminal case, the court’s job is to determine whether the defendant is guilty beyond a reasonable doubt -- not to determine financial payments. But whether such cases are moved to the civil courts is ultimately up to the federal appeals courts, and probably the U.S. Supreme Court. As a Miami-Dade child pornography possession defense attorney, I hope those courts think seriously about the purpose of the restitution law and the difficulties of clarifying it in criminal courts.

As a Miami cyber crime criminal defense attorney, I was paying attention in 2003 when Pete Townshend, guitarist for legendary rock band The Who and a British citizen, was detained in that country for looking at child pornography. Townshend told British police that he had paid for access to a child pornography site to research his own autobiography and a campaign against child pornography. He was never charged with a crime, but British law enforcement put him on their sex offender registry for five years. That five-year period is now over, but at least one Florida group that opposes child pornography isn’t satisfied. ABC News reported Jan. 29 that Protect Our Children, a nonprofit from Brevard County, has mailed hundreds of postcards in Miami Gardens and around SunLife Stadium, warning nearby families that Townshend will be in the area Feb. 7.

The postcards, in English and Spanish, say Townshend will be “at large” in Miami when his band performs at the halftime show of Super Bowl XLIV. They say only that he was registered as a sex offender at home “for an offense related to child pornography.” According to ABC, Protect Our Children and another group, Child AbuseWatch, protested the NFL’s choice of The Who as Super Bowl halftime performers because of Townshend’s past conviction. The NFL told ABC that Child AbuseWatch was the only protester to write to the network, and that it had no qualms about the appropriateness of The Who’s performance. Similarly, NBC Miami reported Jan. 28 that Protect Our Children was unsuccessful in its attempts to convince the federal government to keep Townshend out of the country.

Regardless of whether Townshend deserved to be on the sex offender list, it seems to me that the anti-child-abuse groups are focusing their attention on the wrong target. For one thing, as a West Palm Beach cyber crime criminal defense lawyer, I know Florida law does not consider Townshend a sex offender for registration or residency purposes, because his time on the sex offender registry has expired. For another, Townshend got in trouble for looking at child pornography, not for molesting children. While looking at child pornography is correctly condemned for creating demand for the materials, it’s not the same crime. And unfortunately, statistics show that the vast majority of adults who abuse children sexually are family members or other trusted adults -- not random strangers children meet on the street.

The stated motivation behind the Townshend postcards -- protecting children -- is worthy. But as a Fort Lauderdale cyber crime criminal defense attorney, I wonder whether the reaction is completely reasonable. Townshend has served his time on a sex offender registry and undergone an extensive investigation by Scotland Yard, which declined to charge him with a crime. His home country seems to believe he is no longer a threat, and the evidence that he ever was a threat is weak. It’s easy to target celebrities whose legal trouble has attracted lots of media attention, but much harder to find information on the everyday people who may commit far more serious crimes. Targeting people like Townshend may help anti-child-molestation groups drum up a lot of media coverage, but it punishes them further without doing much to actually protect children.