Cyber Crime Lawyer Blog

I have been called upon several times to speak as an Orlando cyber crime criminal defense attorney about the online dangers to kids and teenagers. This post introduces a series of posts on those subjects to help provide this information. The Internet is not necessarily a danger to children, but it can be -- and kids and their parents should have the tools they need to stay safe. Today, we talk about sexting -- the practice of sending text messages with sexually suggestive pictures, usually to peer group members.

Part of talking to your kids about sexting is talking to your kids about sexuality in general. This can be an uncomfortable subject, but it’s up to parents to teach appropriate sexual behavior and set expectations. Similarly, you can do a lot to prevent sexting simply by staying involved in your teens’ lives -- knowing who their friends are and who they’re texting, calling and emailing.

Experts also suggest that you explain the potential social repercussions of sexting to your kids. Teens should realize that once a photo is out of their hands, they cannot control where it goes or what others do with it. Ask them what they think might happen to their pictures if they break up with a boyfriend or girlfriend, or if their friends send the pictures along to others without permission. (You might also ask whether they would consider doing this to another person.) When photos get out, it can end friendships and lead to bullying or cyberbullying -- in one case, it led to an Ohio girl’s suicide. In rarer cases, the photos could even be traded as outright child pornography by adult predators, or make the teen a potential target for predators.

Even more importantly, you should explain to your teens that they could be swept up in the legal system if they are caught sexting. Teenagers may not believe that taking their own photos could be considered “producing child pornography,” but the laws of most states -- including Florida -- say otherwise. Because watching this issue is part of my job as a Miami-Dade cyber crime criminal defense lawyer, I have written here about multiple stories of teenagers caught in the legal system because of sexting. Sexting between classmates or age-mates is not the same as exploitation by a much older adult, but some prosecutors refuse to recognize this. As a result, kids can be, and have been, charged with producing child pornography for taking their own photos, or photos of others, and with distributing child pornography for passing the photos along.

The results of this kind of prosecution are not trivial or fun, even in juvenile court. Depending on the circumstances, minors convicted of child pornography crimes can face juvenile detention or adult prison. This will take them out of their schools and their lives and expose them to a population that has committed serious crimes. Those convicted will almost always become registered sex offenders as well -- even if convicted as minors. This means their names, crimes and photos will be on the online registry for the public to see, and they will face restrictions on their residency and future careers. In Florida, our residency restrictions are so severe that some blame them for large-scale homelessness, including the sex offender colony under the Julia Tuttle Bridge here in Miami. This will almost certainly stop them from living on campus in college, if they have the opportunity to go.

If you are concerned that your teens are already sending and receiving sexually suggestive photos, remember that you’re paying the bills. Some parents don’t feel comfortable investigating their children’s lives without permission -- but if your teens haven’t made good decisions or been trustworthy in the past, you should consider it. If you’re paying for their mobile phones, review your bill to see who your teens have been talking to. If necessary, many phone companies allow you to limit or take away Internet access, text messages, attachments to messages and other data charges. Even if your teens are paying for their own phones, you may still be able to check contact lists and recent calls and texts. And a few companies offer software that helps parents monitor how their kids are using their phones -- calls, texts, photos, even physical location through GPS.

Of course, not everyone caught sexting faces serious personal or legal consequences. As a West Palm Beach cyber crime criminal defense attorney, I see these cases rarely, compared to cases involving adults. Nonetheless, teens should know that sexting is not just trivial fun -- there are serious risks involved, including the risk of life-changing legal trouble. I work hard to protect juvenile clients caught up in adult hysteria over texting, but the best way to avoid it in the first place is to make good choices -- and that means giving your kids the tools they need to make good choices.

Continue reading " Protecting Your Kids Online Series: Sexting " »

As an Orlando cyber crime criminal defense attorney, I have been keeping an eye on the story of Steve Babik. Babik was a radio and television announcer for the Florida Gators for 23 years, making him well known to Gators fans across the state. He landed in serious legal trouble in January when authorities discovered child pornography being shared from his home computer. He was accused of sharing child pornography files from his computer more than 300 times between June of 2008 and November of 2009. In federal court on Sept. 17, he pleaded guilty to one count each of possessing and distributing child pornography, which the Gainesville Sun said was the result of a plea bargain. He was then sentenced to 12 years and seven months in prison, to be followed by a lifetime sentence of probation. Before the plea, he had been facing up to 20 years in federal prison.

Federal investigators searching Babik’s home found that his computer contained eight still images and 107 video clips showing children involved in sexual activities. According to testimony at Babik’s three-hour sentencing hearing, he immediately took responsibility for his actions when the images were discovered. He has already made a 60-second public service announcement discussing his crime and why it was wrong. His wife of 25 years, Betty Babik, said she had thought he showed symptoms of depression in 2009 and urged him to get help. Statements on Babik’s behalf also came from the Rev. Dan Johnson of the family’s church and from UF Athletic Director Jeremy Foley. In Babik’s statement on his own behalf, he said he didn’t realize at the time that he was doing damage to the children in the videos he watched, but recognizes it now. He also said he did not realize he was sharing the videos.

As a West Palm Beach cyber crime criminal defense lawyer, I am particularly interested in that last statement, because it shows where technology-related crimes can reach farther than even the perpetrators themselves recognize. If Babik truly did not know that he was sharing the images -- which is possible for people who are not technically minded and do not change default software settings -- he may not have met the definition of the crime of distributing child pornography. The federal codes for this crime, 18 U.S.C. sec. 2252 and sec. 2252A, forbids knowingly transporting, shipping or distributing child pornography. That means the perpetrator has to know the images are child pornography and know that they are being transported. Thus, a mail carrier could not be prosecuted for delivering a sealed letter with child pornography in it.

In my work as a Miami-Dade cyber crime criminal defense attorney, I seek out defenses like these whenever the circumstances suggest them. There truly are circumstances under which viruses and other technological problems can explain the crime. The article does not go into the details of the case, which could explain why Babik’s child pornography criminal defense lawyers couldn’t use a defense like this. But in general, people in Babik’s position should know that they should not be prosecuted for distribution when they simply failed to understand the software they were using. Such people would still face prosecution for possession of child pornography, and that is also a serious crime. But with sentences for distribution ranging from five to 20 years, no defendant cannot afford to allow prosecutors to tack on extra charges that do not fit the crime.

A recent article about Florida’s criminal justice system caught my eye as a West Palm Beach cyber crime criminal defense attorney. Published Sept. 12 in the Panama City News-Herald, the article discusses a Florida court rule that prevents prosecutors from introducing evidence about defendants’ previous convictions. People quoted in the article, including two assistant state’s attorneys, suggested that evidence of prior convictions makes it easier to get a conviction, but others pointed out that introducing a prior conviction unrelated to the current charge could unfairly imply that the previous conviction means the defendant is guilty of the current conviction as well. This conflict was illustrated by a recent real-life decision in a Panama City case in which a man was convicted of downloading child pornography.

The defendant in that case was Sean Bussell, 36, who was convicted on six of 22 charges of possession of child pornography in early September. He faces up to 30 years in prison at his sentencing in October. However, the jury didn’t know that Bussell had been arrested in 2005 of burglary. In that incident, he was reportedly drunk, with his pants around his ankles, and heading for a bedroom where a 7-year-old boy was sleeping. The boy’s father had to threaten Bussell with a knife before he would leave. In that case, Bussell’s conviction was not adjudicated, meaning that he technically had not been convicted. Nonetheless, said state’s attorney Patrick Faucheaux, not telling the jury was “almost a miscarriage of justice.” Faucheaux, an observer who did not prosecute the case, said he believed the jury would have taken fewer than seven hours to deliberate and convicted Bussell on more counts if they had known about the burglary charge. The prosecutor in the case agreed but chose not to question Bussell about it on the stand. Bussell’s criminal defense attorney said such a question could have been a legal error that could have overturned the conviction on appeal.

As an Orlando cyber crime criminal defense lawyer, I strongly disagree with the implication that this rule in Florida law is a mistake. In fact, Bussell might be a good example of why we need this rule. One principle of American criminal justice is that trials seeking to put someone in prison must be fair. One important way to keep trials fair is to exclude evidence that might prejudice the jury and does not help jurors decide whether the defendant committed the crime. The prior burglary arrest is just that kind of information. It’s clear that Bussell’s burglary arrest did not have an influence on his later decision to download child pornography.

Faucheaux seems to imply in the article that the two crimes are related because Bussell was trying to harm the little boy in the burglary incident. But Bussell was not charged with kidnapping, molestation or any similar crime, suggesting that there was no evidence to support such a charge. It’s possible that there are details about the incident that the article left out, but child molestation is far from the only reason for a drunk person to behave badly. The incident certainly reflects badly on Bussell, but it is not evidence that he is a child molester. Prosecutors should not -- and in most Florida cases, cannot -- use this type of guilt by implication to get convictions that the relevant evidence does not support.

Keeping this kind of bad prosecutorial behavior out of the courtroom is an important part of my job as a Fort Lauderdale cyber crime criminal defense attorney. As this article suggests, not all prosecutors are happy to play by the rules. Knowing that introducing unfair, excluded evidence will help them win the case, some prosecutors try to bend the rules. Defendants who are representing themselves may not even realize that this is a problem, and overworked public defenders may not be able to catch the problem in time. But as an experienced defense attorney, I watch for tricks like these and fight them vigorously whenever I find them. In the end, prosecutorial misconduct may lead to having the case reversed in an appeals court, as the article notes. But that only happens after the defendant has been in prison for some time -- and I prefer to keep my clients out of prison as much as possible.

Continue reading " Article Underscores Importance of Florida Law Barring Testimony on Prior Convictions " »

As an Orlando cyber crime criminal defense attorney, I have followed the public controversy over the “adult services” section of craigslist.org with interest. Craigslist is a website that offers free classified ads for low-key purposes such as yard sales, and charges for more professional kinds of advertisements. It has been under high-profile attack for years by certain prosecutors, who claim that Craigslist helps to facilitate prostitution and sex trafficking by allowing posts to an “adult services” section of its site. Craigslist has tried to address this issue by charging a fee for those ads and requiring a screening process involving a working telephone number, but opponents say this is not enough. This culminated in a decision Sept. 3 to shut down that part of its United States sites entirely and replace it with a black bar reading “CENSORED.”

The critics do not claim that Craigslist itself is responsible for the prostitution, but say the site profits from the ads and is not doing enough to sort out prostitution from other “adult services” advertised on the site. Craigslist officials have taken several steps to address this, starting in May of 2009 when they changed the name of “erotic services” to “adult services” and began charging $10 per post. In response to further criticism, they later started screening the advertisements using attorneys and donating their profits -- estimated at a third of their revenue -- to organizations that combat sex trafficking. Of course, it also cooperates with police and prosecutors when they need information from the site.

Nonetheless, 17 attorneys general, their states’ top prosecutors, sent a letter Aug. 24 (PDF) demanding that the Adult Services section be shut down because it does not adequately screen the ads to prevent the exploitation of women and children. Florida’s Bill McCollum was not among the prosecutors. The campaign is headed by Richard Blumenthal of Connecticut, who is involved in a heated campaign for that state’s governorship.

Not surprisingly, there is a lot of outrage on both sides of the issue, with Internet freedom advocates noting that Craigslist is just one of many places online and offline where prostitution ads can be found, including free weekly newspapers and even eBay. But as a West Palm Beach cyber crime criminal defense attorney, I would like to discuss this issue from a criminal defense perspective. As the New York Times noted, Craigslist is not legally at fault even if the advertisements do offer prostitution. Craigslist is not itself a “pimp” or accused of being one, and an attempt to prosecute it for allowing advertisements that later led to prostitution arrests was dismissed in South Carolina federal court. And under section 230 of the federal Communications Decency Act, websites cannot be sued for the information their users post, even if they fail to take action to correct problems with posts. Thus, Craigslist is not only not guilty of any crime, but also doing more than is legally required of it to stop prostitution.

Some observers have predicted that Craigslist will probably still have advertisements for prostitution -- they will simply move to other parts of the site. Thus far, no one is reporting that this has actually happened, but there is historical precedent for the idea: Craigslist originally established its Erotic Services section because it wanted to separate those advertisements from its free online personal ads. I suspect that if those advertisements do reappear, Craigslist will continue to be targeted by prosecutors who believe it is a more dangerous forum for prostitution ads than other print and online sources. But as a Miami cyber crime criminal defense attorney, I do not believe that Craigslist or its top officials actually have anything to fear from any future communications from prosecutors -- because it is well established that they are not committing any crime by merely providing a forum.

Continue reading " Craigslist Replaces Adult Services Ads With 'Censored' After Prosecutors Demand a Shutdown " »

About the show:
El 6 de Septiembre del 2010 a las 10:00 pm, El show de Cristina estara presentando un programa con el tópico de los horrores del internet (“Horror stories of the Internet”) En este episodio hay familias y individuales que comparten historias de las terribles experiencias del internet como historias de asesinatos, historias de robo y historias de fuera de contexto.

El internet ha traido muchos beneficios a nuestra cultura pero con esos beneficios también han habido tragedia la Licensiada Sasha Berdeguer y el Agente S. Santiago han presentado formas como evitar problemas ciberneticos.

Contacted for the show:
La licensiada Sasha Berdeguer fue contactada por el estudio de Cristina para hablar de su experiencia legal relacionada con los crimenes cibernéticos y crímenes. Como protegernos predatores del internet.

Experience in relation to internet crimes:
La experiencia de la licensiada Sasha Berdeguer es defendiendo victimas y acusados de crímenes cibernéticos.

http://www.cristinaonline.com/spanish/show/index.asp

Para comunicarse co la Licensiada Sasha Berdeguer, llame al 305-444-1565 begin_of_the_skype_highlighting              305-444-1565      end_of_the_skype_highlighting o 888-THE DEFENSE (888) 843-3333.