Cyber Crime Lawyer Blog

Because of my work as a Miami-Dade cyber crime criminal defense lawyer, I knew that many states are scrutinizing sex offenders’ use of social networking sites, or placing restrictions on their use. So I was interested to see a March 16 article from the Associated Press saying the FBI and other law enforcement agencies are using social networking sites to solve some crimes. The news comes from the Electronic Frontier Foundation, a nonprofit that tracks Internet privacy and freedom issues. The EFF and a UC Berkeley law clinic filed Freedom of Information Act requests to see how several federal law enforcement agencies are using social networking. Thus far, it has documents from the Department of Justice and the IRS, which are freely viewable online.

The EFF told the AP that it’s concerned about online overreaching by law enforcement officials. Investigators can and do already look at public social networking profiles -- for example, to see whether suspects have posted pictures of items bought with the profits from crime. They can also figure out who the target’s friends or relatives are. In fact, the FBI has already used Facebook to find at least one defendant, a bank fraud defendant who fled to Mexico. By going through his friends list, which cannot be hidden, agents found someone who helped them determine where he was.

However, the article raises the possibility that agents may also make false profiles and use them to befriend targets of their investigations. This is a violation of the terms of service at most sites, which is what MySpace “cyberbullying” defendant Lori Drew was accused of. The judge in that case eventually overturned the verdicts against Drew, saying the law was too vague, and it’s not clear whether this would be illegal for agents to do. A former prosecutor told the AP that agents should be able to go undercover online just as they would in person, but they shouldn’t do anything they wouldn’t be able to do in person, such as impersonate the target’s spouse.

As a West Palm Beach cyber crime criminal defense attorney, I believe this is another area where technology has outpaced the law. As the Lori Drew case shows, there are still some online behaviors that courts are genuinely not sure whether to criminalize. Older rulings give law enforcement agencies the right to impersonate children in chat rooms, but for the most part, agencies are making their own rules. In my experience as a defense lawyer and former prosecutor, I suspect that means that they’ll place as little restriction on their behavior as they must. The article didn’t mention the IRS documents, but the EFF praised the IRS for making clear, detailed rules about what behaviors are expected of investigators. Other agencies said nothing at all on the subject.

As a Fort Lauderdale cyber crime criminal defense lawyer, I suggest serious and immediate security measures for any of my clients who may be under surveillance. This applies to clients’ online lives just as much as it does the real world. On social networking sites, they should follow the same rules that anyone concerned about privacy might use, such as making their profiles as private as possible and not accepting friend requests from strangers. But as the story of the bank fraud defendant shows, agents don’t necessarily need to directly view a profile to get information about you from it. That’s why I hope the courts clarify these issues relatively soon.

An appeals court ruling from last week will have an importance influence on my work as a Miami-Dade cyber crime defense attorney. In a sexting case, the Third U.S. Circuit Court of Appeals ruled that a Pennsylvania district attorney may not compel teenagers to participate in his alternative sentencing program by threatening them with prosecution for child pornography if they didn’t participate. The New York Times reported March 17 that ruling came in a lawsuit filed by the teens’ parents, who said the program illegally compelled speech from the students, interfered with their parental rights and retaliated against the students for refusing to participate. The unanimous three-judge panel did not resolve the case, but did uphold an injunction barring the district attorney’s office from prosecuting the teens.

The three teens, all girls, appeared in photographs being traded between boys in Wyoming County, Pennsylvania. Two of the girls were 12 or 13 at the time and appeared in bathing suits or underwear; an older girl was photographed naked except for a towel around her waist. School officials discovered the pictures and turned them over to then-DA George Skumanick, who identified 16 students who had or were in the pictures. He told the three girls’ parents that he would file felony child pornography charges against them if they didn’t agree to probation, drug testing and a 10-hour education program about what they did wrong and “what it means to be a girl in today’s society.” The parents, believing the pictures did not constitute child pornography, sued Skumanick. He later lost an election to retain his seat as DA, but the lawsuit against his former office continued.

In its ruling, the Third Circuit declined to directly address the legal issue of whether the teenagers could be charged with making child pornography if they were taking the pictures themselves. Instead, it addressed only the civil rights claims the families made, and said they had a good chance of success on remand to the trial court. But in the ruling, the justices criticized the district attorney’s assertion that the girls were guilty of child pornography crimes because they were in the photos. Appearing in a photograph is not proof of having possessed or transmitted it, they said. They also disapproved of Skumanick’s alternative penalty, writing that he did not have the authority to “coerce parents into permitting him to impose on their children his ideas of morality and gender roles.”

As a West Palm Beach cyber crime criminal defense lawyer, I’m pleased that this ruling allows these families to resume their lives without threat of prosecution. However, I’m disappointed that the court missed an opportunity to make a stronger statement against the practice of criminal charges in teen sexting cases. Child pornography laws were written to penalize adults who prey on children. In most sexting cases, where the teens photograph themselves, the producer of the images is the same person as the “victim,” which makes prosecution nonsensical. It also has long-lasting, life-altering consequences. As the New York Times recently wrote, teenagers have been criminally prosecuted for sending their own photos to someone else, and some have ended up on sex offender registries for decades, which severely restricts their residency, movement and future options.

Some states have responded relatively fast to the problem, creating new laws that treat teens caught sexting differently from adult pornographers. Florida’s Legislature is currently considering a law that would decriminalize it on a first offense, requiring eight hours of community service for minors caught possessing or sending explicit pictures of themselves. Pictures sent in the same 24-hour period count as one offense. A second offense is a misdemeanor and a third offense is a felony equivalent to a single count of possession of child pornography. As a Fort Lauderdale cyber crime criminal defense attorney, I would also like to see the Legislature address penalties for kids who pass on someone else’s picture. But this bill would go a long way toward preventing adult child pornography laws from ruining the lives of kids involved in normal sexual experimentation.

The South Florida DUI defense attorneys at Balliro Seltzer are proud to announce that we are a sponsor of the annual Swamp Stomp Miami. Held on Virginia Key, the concert is an eclectic collection of some of South Florida's finest bands. Just like with our previous concert sponsorship, we believe it's important for concert-goers to have a great time -- but avoid drinking and driving.

A news story out of New Jersey caught the attention of Miami cyber crime criminal defense attorneys like me. Wired’s Threat Level blog reported March 1 that four people involved in a company called Wiseguy Tickets and Seats of San Francisco were charged with hacking, wire fraud and other federal crimes for running a large-scale scheme to scalp tickets. Federal prosecutors say the defendants made $25 million in profits between 2002 and 2009 by bypassing online security measures and buying hundreds of tickets to high-demand events like Miley Cyrus concerts and the Rose Bowl. They would then re-sell the tickets at higher prices. Prosecutors say they were so successful that they were the best source of the best tickets to some events.

Online ticketing companies have security measures in place to ensure that this sort of large-scale scalping cannot occur. In addition to limiting how many tickets any one person can buy for an event, they use programs called CAPTCHA or reCAPTCHA, which require users to prove they are human by entering deformed text shown in a picture. The Wiseguy defendants are accused of hiring an overseas programmer to write a program to read and retype the text. Then, they were able to write programs that connected to ticketing websites and bought tickets automatically the moment they went on sale -- depriving human fans of a chance to buy them. To make it look like the programs were thousands of individuals, they used thousands of IP addresses and email addresses, as well as credit card numbers of brokers who would later sell the tickets back to Wiseguy.

The actual charges against the defendants are conspiracy to commit fraud, wire fraud, accessing a protected computer with intent to defraud, obtaining information from a protected computer and transmitting a program that causes unauthorized damage. Interestingly, though, this case first came to my attention through a New Jersey Star-Ledger blog post suggesting that the defendants didn’t really break any laws. There is no federal law against scalping, and many states don’t outlaw it either. (In fact, Florida legalized it in 2006.) As a result, federal prosecutors had to use hacking and wire fraud charges in ways that Congress may not have originally envisioned.

It’s not at all clear to me, as a Fort Lauderdale cyber crime criminal defense lawyer, that the defendants’ behavior met the definitions of some of these laws. Many of them turn on the definition of “fraud,” which is so broad that lying to someone over the phone may be considered wire fraud. Obtaining information from a protected computer may apply if the defendants had to bypass security to get the source code for CAPTCHA, for example. But it seems likely that the charge wouldn’t stand if charged just for using the LiveNation website in an intended and publicly available way that LiveNation doesn’t happen to like. The indictment makes much of the measures Wiseguy took to avoid detection by ticket sellers, but while those sellers have every right to set their own rules, breaking them is not a federal crime.

Some of the commenters to the Wired post complained that the defendants were essentially charged with violating the terms of service at ticketing websites. As the Star-Ledger columnist pointed out, Wiseguy was in direct competition with a ticket reselling company run by LiveNation itself -- so this case could be considered an attempt to protect LiveNation’s monopoly. Nonetheless, as a West Palm Beach cyber crime criminal defense attorney, I think there are some novel legal issues at stake in this case -- for example, whether end-runs around a private company’s rules are considered fraud. I look forward to seeing how the court rules.

As a Miami sex offender registration defense attorney, I was extremely interested to read that the city is taking steps to destroy its most notorious homeless encampment. According to a March 6 article from the Miami Herald, city work crews destroyed the encampment next to the Intracoastal Waterway that had housed as many as 100 homeless registered sex offenders. Many ended up there after sex offender residency restrictions made it difficult for them to live with relatives. But the camp caused a public outcry after it was discovered that law enforcement was actually sending offenders there if they had no place to go after release.

Mario Vasquez says this happened to him. The 24-year-old says Miami-Dade police ordered him to move under the bridge after his release from prison four years ago. He served two years for having consensual sex with his 14-year-old girlfriend when he was 18. State lobbyist Ron Book, who has been fighting to break up the sex offender camp, said he would work with county authorities to find another place for Vasquez or send him back to his native Dominican Republic. Book heads the county’s Homeless Trust and has helped many of the offenders find other housing. He also helped pass the original sex offender residency laws, which he still supports, although he said he never intended to create police-ordered homeless encampments.

The Miami Herald had video of the camp’s dismantling:

A former resident of the camp named Patrick told the newspaper that there will be another such camp, even if it’s not under this particular bridge. As a Fort Lauderdale sex offender registration defense lawyer, I am concerned that Patrick may be right. Even when police don’t outright tell offenders to live under a bridge, the harsh restrictions keep them from living in almost any populated area. Without family or friends to fall back on, and with no job waiting when they get out of prison, they may have no way to avoid homelessness. This is bad for the offenders’ basic needs and rights, of course, and it makes it harder for them to get jobs and return to society. But it’s also a problem for law enforcement, because homeless offenders are harder to keep track of -- undermining the original purpose of the registration laws.

As a West Palm Beach sex offender residency criminal defense lawyer, I don’t know of any other crime that is treated as harshly as sex offenses. After other kinds of offenders have done their time and served probation, they only have limited restrictions on their rights and obligations to disclose their pasts. This includes people convicted of serious and violent, but non-sexual, crimes. As the article points out, Miami-Dade County has already taken steps to open more areas to residency by offenders, and other counties (or the Florida Legislature) may follow. But if legislators don’t have the courage to open up residency laws for offenders who merit lighter treatment -- or even distinguish between types of offenders -- Patrick’s prediction is likely to come true.

As a Miami sex offender registration defense attorney, I was extremely interested to read that the city is taking steps to destroy its most notorious homeless encampment. According to a March 6 article from the Miami Herald, city work crews destroyed the encampment next to the Intracoastal Waterway that had housed as many as 100 homeless registered sex offenders. Many ended up there after sex offender residency restrictions made it difficult for them to live with relatives. But the camp caused a public outcry after it was discovered that law enforcement was actually sending offenders there if they had no place to go after release.

Mario Vasquez says this happened to him. The 24-year-old says Miami-Dade police ordered him to move under the bridge after his release from prison four years ago. He served two years for having consensual sex with his 14-year-old girlfriend when he was 18. State lobbyist Ron Book, who has been fighting to break up the sex offender camp, said he would work with county authorities to find another place for Vasquez or send him back to his native Dominican Republic. Book heads the county’s Homeless Trust and has helped many of the offenders find other housing. He also helped pass the original sex offender residency laws, which he still supports, although he said he never intended to create police-ordered homeless encampments.

The Miami Herald had video of the camp’s dismantling:

A former resident of the camp named Patrick told the newspaper that there will be another such camp, even if it’s not under this particular bridge. As a Fort Lauderdale sex offender registration defense lawyer, I am concerned that Patrick may be right. Even when police don’t outright tell offenders to live under a bridge, the harsh restrictions keep them from living in almost any populated area. Without family or friends to fall back on, and with no job waiting when they get out of prison, they may have no way to avoid homelessness. This is bad for the offenders’ basic needs and rights, of course, and it makes it harder for them to get jobs and return to society. But it’s also a problem for law enforcement, because homeless offenders are harder to keep track of -- undermining the original purpose of the registration laws.

As a West Palm Beach sex offender residency criminal defense lawyer, I don’t know of any other crime that is treated as harshly as sex offenses. After other kinds of offenders have done their time and served probation, they only have limited restrictions on their rights and obligations to disclose their pasts. This includes people convicted of serious and violent, but non-sexual, crimes. As the article points out, Miami-Dade County has already taken steps to open more areas to residency by offenders, and other counties (or the Florida Legislature) may follow. But if legislators don’t have the courage to open up residency laws for offenders who merit lighter treatment -- or even distinguish between types of offenders -- Patrick’s prediction is likely to come true.

One federal law important in my work as a Fort Lauderdale cyber crime criminal defense attorney is the Communications Decency Act. As you might guess from the name, this is a federal law aimed at regulating online pornography, passed during the Clinton Administration. However, a provision not specifically aimed at pornography has become important for other reasons. Section 230 of the Act shields ISPs from lawsuits brought because of communications by users of their systems. That is, this law makes a provider like a cable company immune from a lawsuit over online speech by one of its users, as long as the provider didn’t provide or modify the speech. It does not apply to copyright violations, although the Digital Millennium Copyright Act also provides some immunity.

This law was on my mind last week when I read an article about an Italian court case against three executives at Google. According to a Feb. 25 article in the San Francisco Chronicle, the Googlers -- a chief legal officer, global privacy counsel and retired CFO -- were essentially accused of not removing an offensive video from their servers fast enough. The video in question shows an autistic boy being beaten and taunted by bullies at his school. It was on Google Video for two months before Italian police notified Google Italy about it; the company pulled it about two hours after notification. Nonetheless, the boy’s father and an advocacy group for people with Down syndrome complained, and the executives were prosecuted. They were convicted in Italy of violating that country’s privacy laws and given six-month suspended sentences.

The ruling was swiftly condemned in the United States, by private businesses and even nonprofits like the Electronic Frontier Foundation, which is often on the other side of privacy debates. The EFF’s Danny O’Brien said the ruling suggested that any business or individual with a global reach could be imprisoned overseas for other people’s acts. This gives Google and similar “intermediaries” an obligation to screen all of their content for speech that violates any country’s laws before putting it online, he said. And that essentially takes away everyone’s tools for speaking freely on the Internet. Others in the article pointed out that the convicted Google executives were not involved in any of the decisions made about the video, and that nothing Google did was illegal in the United States.

As a West Palm Beach cyber crime criminal defense lawyer, I agree that this is a troubling precedent for every Internet user. Different nations have widely different ideas about what’s acceptable online content. For example, China censors search engine results that make its government look bad; pornography is illegal in Saudi Arabia. Foreign laws like these are broken every minute in other countries. If the precedent set by the Italian ruling is adopted everywhere, that means ISPs and hosting sites are almost certainly liable for prosecution in other countries. And that could leave companies big and small with no choice but to filter their content very carefully, limiting what you and I can actually say in our own country.

Of course, the rulings would still have to be enforced. In this case, the Google executives’ sentences were suspended, so there’s no serious risk of jail time. But even if they were, Italy would need the executives to voluntarily come to Italy or a U.S. court to extradite them in order to put them in prison. And as a Miami cyber crime criminal defense attorney, I can promise that extradition would be an uphill battle in any American court, because the accusation must be a crime in both countries. However, this doesn’t mean the Italian ruling is harmless or a good idea, for businesses around the world or for Internet speech.