The Constitution protects criminal defendants from “double jeopardy” -- prosecution twice for the same crime, or for two different offenses that arise from the same action. In examining whether that protection is violated, courts use a U.S. Supreme Court ruling from the 1930s, Blockburger v. U.S., 284 U.S. 299 (1932), in which the court upheld a conviction for selling illegal drugs to the same person on two different occasions. James Faulds Jr., 39 and of central Illinois, was accused of possessing child pornography as well as distributing it to a federal law enforcement officer through a file server Faulds maintained. He was convicted in 2008 (after a trial in which he served as his own defense attorney) and sentenced to 20 years in federal prison for the distribution and 10 years for the possession.

Faulds appealed, still acting as his own defense lawyer, arguing that conviction on both counts was double jeopardy because the convictions were probably based on possession and distribution of the same materials. (The prosecution didn’t specify which materials were the basis of which counts.) Under the Blockburger ruling, defendants may not be charged for a crime that is a “lesser included” crime of another charge in the same case, which could include possessing an object as well as distributing it. As it turns out, the distribution count was based on downloading that happened more than a month before the possession count, so the court found that they were factually distinct. It also noted that the Blockburger test is based on the idea that contraband is a physical object. Unlike with sales of drugs or illegal weapons, Faulds was able to distribute an electronic copy of the child pornography, but retain the original for his own use. That means that possession of child pornography after distribution is not a lesser included crime of distributing it under Blockburger.

As a Miami-Dade child pornography criminal defense lawyer, I’m not surprised by this ruling. Courts have generally rejected double jeopardy arguments in child pornography cases, including, as noted above, arguments about multiple copies of the same image. And in this case in particular, the argument that possession was a lesser included offense of distribution was weak because of the timing of the possession and distribution charges. In fact, Professor Brenner blogged last year about another case in which a court rejected a double jeopardy argument based on separate counts for receiving and possessing child pornography, even though possession is clearly an element of receipt.

No doubt this court and others like it had solid legal footing. But as a West Palm Beach child pornography possession criminal defense attorney, I don’t believe courts are typically very sympathetic to arguments by child pornography defendants. Despite all of the protections offered by the Constitution and caselaw, child pornography crimes create strong feelings among judges, prosecutors and juries, which can make it difficult to succeed with an argument based on legal protections. Arguments based on double jeopardy and similar issues can be perceived as “technical” rather than factual, even though their outcomes are of course extremely personal and factual to the defendant. I believe there’s a strong double jeopardy argument to be made by defendants facing receipt and possession charges, and I will continue to look for cases examining that issue and related issues.

The ACLU represents Elizabeth Haskell of Oakland, Calif., who was arrested at an antiwar rally. The police originally suspected her of trying to free another person who was arrested, but the charges were dropped. She initially refused to give a DNA sample, which is taken through a cheek swab, after her arrest, but relented when she was told she would be arrested for another crime if she refused. California’s DNA law, which was passed by ballot proposition in 2006, allows people like Haskell to petition to be removed from the database, but only after three years. A judge or prosecutor may deny such requests. The ACLU argued that taking such samples from people without a conviction is an unreasonable search and seizure, a violation of the Fourth Amendment.

The state’s argument got a major boost earlier this month when Los Angeles police used the DNA database to find a suspected serial killer in that city. Lonnie Franklin Jr. is accused of killing at least 10 young women since 1985. He was identified through a family DNA match, after his adult son was convicted on a felony weapons charge. At oral arguments, the Ninth Circuit asked the ACLU whether this type of breakthrough was worth the “minor intrusion” of DNA testing. One judge compared the practice to fingerprinting, as Brown did. The ACLU argued that fingerprints carry far less personal information than DNA and don’t require allowing foreign objects in the mouth. Another judge asked the state of California why it keeps the DNA of people not convicted. The deputy attorney general on the case said the database helps solve crimes and has a deterrent effect for people who know the state already has their DNA.

I very much doubt the deterrent argument. People committing crimes out of strong emotion or for sexual reasons are unlikely to think about bureaucratic details before they act. The state may have a stronger argument about solving crimes, but as a Miami-Dade cyber crime criminal defense lawyer, I believe the privacy argument is also very strong. Our justice system is built around the concept of presuming innocence unless the suspect is proven guilty. People convicted of crimes lose privacy and freedom, but we almost never subject people who are merely accused of crimes to probation, sex offender registration, weapons restrictions or other invasive criminal penalties. When we do, the invasions are limited and controversial, as they should be.

As the ACLU noted, it’s true that the police will be able to solve more crimes if they have access to DNA samples of people who were never convicted. In fact, they could solve even more crimes if everyone in America had to give a DNA sample -- but the public wouldn’t stand for that, because it would violate some of our founding principles. I believe retaining DNA from people who were not ultimately convicted is a smaller-scale version of the same thing. After all, as many of my clients can tell you, the police don’t always arrest the right person. The Ninth Circuit does not have the power to invalidate Florida’s DNA sampling law, but its decision could set a precedent for other courts to follow, especially if this case ends up at the U.S. Supreme Court. As a West Palm Beach cyber crime criminal defense attorney, I hope the court’s decision does not trample privacy rights.

According to the Minneapolis Star-Tribune, Digital River and its subsidiaries sell software to other companies to help them run “affiliated marketing” programs. Data gathered by those programs is stored on Digital River’s servers, and it is some of that data that was breached. Investigators believe that someone using computers from a Digital River customer in India stole the data while the company’s security system was temporarily down for an upgrade. Rather, the SC Magazine article said, the Indian interloper used a “well-crafted search query” while Digital River’s guard was down, suggesting that there was not any illegal activity. From there, it’s not clear how the data got to Porat. He has acknowledged that it came from India but declined to say how or from whom. Once he had it, he is accused of trying to sell it to the highest bidder among Digital River’s competitors. One of them turned him in to the FBI.

Digital River filed a lawsuit and got a court order in late May blocking Porat from selling, distributing, destroying or altering the information. The company’s lawsuit was filed under seal and without notice to the defendants to protect evidence, the Star-Tribune said, but unsealed in early June. The suit seeks to understand how Porat and his company, Affiliads, got the data and what they did with it. Porat reportedly gave a deposition of about six hours, but invoked his Fifth Amendment rights about 26 times during that time.

As the SC Magazine article noted, Digital River has serious legal problems in this case. As a Miami cyber crime criminal defense lawyer, I agree with the author that this is “the single smartest thing a cybercrime defendant can do.” Normally, when someone invokes the Fifth Amendment, investigators can simply look for other sources of the information. But in this case, the other end of the transaction is in another country, which means they cannot subpoena the Indian company or any individuals who may have been involved. In fact, the article notes, Porat may not face criminal theft, hacking or identity theft charges at all, or face only the lesser charges investigators can prove. Meanwhile, it’s also unclear whether the Indian company or any individual there did anything illegal, since the company was a paying customer of Digital River and apparently did not exceed the access allowed to customers. In the end, the article says, Digital River should consider strengthening its security measures.

This is a great example of how the law has yet to catch up with the possibilities offered by technology. Even if the prosecution could reach into other countries, it’s unclear whether the Indian person or people involved actually broke a U.S. law by accessing this information. Selling the information to Porat could be a crime, but it will be difficult to determine whether that is indeed what happened. And of course, it will be hard to make charges stick to Porat without better information. Congress may be able to address part of the problem by passing a law on how information may be exchanged and sold internationally. But as a Fort Lauderdale cyber crime criminal defense attorney, I believe it’s vital for any such law to respect civil rights of individuals and businesses. In the meantime, cyber crime defendants like Porat may be able to count on the Fifth Amendment to protect them and their international compatriots.

According to the Salt Lake Tribune, Stark was caught on a surveillance camera May 24 placing some of the flyers in the girls’ bathroom at the school. She admitted to putting others in some lockers, and said she made 30 altogether. Only 18 have been recovered, and officials have requested that anyone who has a remaining flyer turn it in. Stark told the police that she did this as revenge for a “perceived wrong” by the girl, who is not being named. Prosecutors and defense attorneys have declined to explain this, citing embarrassment and privacy concerns, but one defense attorney said the relationship between the victim and Stark’s daughter “possibly” played a role. Comments reported in the Deseret News suggest the girls may have had a falling out or a fight. Stark faces up to 15 years in prison for each of the 18 felony charges, for a total of up to 270 years in prison. Her attorneys have said they plan to argue that her flyers are not child pornography.

As the Deseret News noted, virtual or manufactured child pornography like the flyers is a subject of legal debate. In 2002, the U.S. Supreme Court ruled in Ashcroft v. Free Speech Coalition that laws against virtual child pornography violate the First Amendment, restraining free speech without protecting children from exploitation. In response, the federal government and many states passed laws that explicitly include manipulated images, drawings and other depictions that are not straightforward photographs, as long as these are “obscene” and lack artistic value. Since then, at least one defendant accused of manipulating photographs to make virtual child pornography has been acquitted, while at least two defendants accused of possessing drawings of child pornography have been convicted. The Supreme Court has declined to revisit the issue, leaving states and federal appeals courts to decide on their own whether virtual child pornography should be penalized as child pornography.

As a Fort Lauderdale child pornography criminal defense lawyer, I don’t believe the flyer described in this case should be considered child pornography. The Supreme Court banned child pornography in 1982 for the very good reason that making child pornography inevitably requires exploiting an actual child. Other types of pornography remained legally protected free speech. Because virtual child pornography does not require the sexual exploitation of a child, I do not believe it should be exempted from the First Amendment -- no matter how much we dislike it.

This is all a separate issue from the question of whether Stark should be penalized, or whether our society should tolerate her behavior. Most observers agree that it’s inappropriate for an adult to be involved in teenagers’ fights at all, and extremely inappropriate to launch a sexually themed attack. If it’s proven that Stark did it, some penalty for bullying or obscenity may be appropriate. But as a West Palm Beach child pornography criminal defense attorney, I do not believe Stark is guilty of sexually exploiting a minor, which is the charge she faces. This is not an academic distinction; she faces more than two lifetimes in prison if convicted on all counts. With this much at stake, I believe prosecutors and jurors should carefully consider whether it’s fair or wise to apply laws meant for the worst kind of child molester to this case.

According to a June 26 report from PC World, Mijangos used the Internet chat program IRC and peer-to-peer file sharing networks to distribute a software program that allowed him to control the computer of anyone who downloaded it. Once he was inside a computer, he would reportedly use that access to send the malware to the victim’s friends and family over instant messaging, and put a “keylogger” program on the computer that would allow him to see and record everything the user did. More importantly, however, Mijangos used his access to look through the victims’ hard drives for explicit images and videos. If he didn’t find them, the report says, he would hack the email addresses belonging to the victims’ boyfriends and request some, or turn on a computer’s webcam and watch to see if he could catch them in an intimate moment. And once he had those images and videos, he is accused of contacting the victims directly and threatening to send the videos to everyone they knew unless they sent him more and stayed away from the police.

What interested me, as a Miami-Dade cyber crime criminal defense attorney, was that Mijangos faces only the extortion charge. As the Register article notes, extortion carries a maximum sentence of two years in federal prison. Two years in federal prison isn’t fun, but it’s a far cry from the penalty that Mijangos might face if he were also charged with aggravated identity theft or unauthorized access to a computer -- both of which could be charged, judging by the description in the article. It’s unclear why he isn’t charged, or isn’t yet charged, but from a defense attorney’s perspective, the most likely answer may be the simplest: there might not be enough evidence to prove either of those crimes. Prosecutors risk losing the case if they bring charges that aren’t supported by the evidence. Hacking crimes can be particularly difficult to prove because the accused are not physically present and can sometimes cover their tracks electronically. If they can connect those crimes to a specific computer, prosecutors still must prove that the accused was physically behind that computer when the crimes took place.

These are part of the difficulties that cyber crime presents for prosecutors and Fort Lauderdale cyber crime criminal defense lawyers like me. The Internet changes much faster than the law, and law enforcement and prosecutors don’t always have the resources to keep up. As a former cyber crime prosecutor for the Miami-Dade State’s Attorney’s office, I have the experience and skills to know where evidence that may clear my clients’ names may be hiding -- and when evidence may be misleading or false. I believe this gives my clients a major advantage, allowing them to build the fullest possible defense by putting the best range of information and evidence at their disposal. Unfortunately, not every attorney has these skills -- including some prosecutors. Mijangos would be well served to seek out such an attorney.

It’s not clear whether the picture showed anything that could be considered pornography. The picture, which came from an outside paparazzi photo agency, was blurred or pixellated in the area that might have shown whether Cyrus was wearing underwear, and Hilton has claimed that other pictures show underwear. Regardless, critics say Hilton could face child pornography charges for publishing the picture, because Cyrus is 17 and not legally an adult. Hilton later removed the photo from his Twitter feed, saying he likes to be controversial, but does not want to go to jail. Defending himself on a talk show, he said the picture does not show anything inappropriate and is definitely not child pornography. He claimed he posted the picture to criticize the “unladylike” and overly adult behavior he believes Cyrus has displayed lately.

This situation is interesting to me as a Fort Lauderdale child pornography criminal defense lawyer for several reasons. If the picture was indeed pixellated in the appropriate area, I do not believe that Hilton or any other publisher can be prosecuted for distributing child pornography. Federal law defines child pornography as any image showing a minor engaged in sexually explicit conduct. An up-skirt picture is certainly invasive and tasteless, but it’s hard to justify calling getting out of a car without panties as sexually explicit conduct. More importantly, blurring the picture clearly shows an intent to avoid showing anything that could be considered sexually explicit.

However, I do not believe other defenses raised by Hilton would help him if he were prosecuted. In the media, Hilton has repeatedly pointed out that Cyrus has been acting very sexual and adult for her age and has done “unladylike” things. He also pointed out that she’s 17, which is just a year short of legal adulthood. These things may be true, but under the law, they don’t matter at all. If a picture meets the definition of child pornography, it wouldn’t matter whether the child depicted is 17 or 7 -- both ages would meet the legal definition. A jury would undoubtedly see a picture of a 17-year-old as less shocking than a picture of a younger child, which could help Hilton in any hypothetical prosecution. But the bad or experimental behavior of the child in the picture would also not matter, and might even backfire if it’s perceived as blaming the victim.

This controversy underscores some of the issues important to my practice as a Miami child pornography criminal defense attorney. In real life, the difference between 18 and 17 is sometimes hard to see, especially when the person in question behaves in a sophisticated and adult way. But when it comes to criminal law, that distinction makes the difference between criminal charges and legal behavior. (Celebrity watchers may recall similar photos of Lindsay Lohan and Britney Spears that did not create rumors of criminal prosecution.) In cases where that line is blurred and the defendant made the wrong judgment, a lot depends on the sympathy of the jury. Unfortunately, some people will always react strongly to child pornography charges, regardless of the underlying situation -- which is why it’s essential to have an experienced defense lawyer by your side.

Switzerland agreed in August of 2009 to turn over 4,450 names, to settle a lawsuit brought by the U.S. Justice Department. But the Swiss high court ruled that parts of the settlement violated Swiss banking law, so the country’s legislature had to approve changes to the law in order to comply with the settlement agreement. The upper house of the Swiss Parliament has already approved the law but not a referendum; the lower house approved both. Now, the upper house must hold another vote, and if the two houses can’t agree, the settlement agreement could be broken. The referendum, if it passes, would take months, with no guarantee of a vote that would confirm the settlement agreement. That means there will certainly be some delay before the 4,450 names are turned over, keeping all of those U.S. taxpayers in further suspense despite nearly a year since the agreement was reached. If the Swiss government and people can’t meet their obligations, the Justice Department could take further legal action.

For taxpayers with UBS accounts who are not eager to see their names given to the IRS, this delay could be a relief. But it’s only a temporary relief, and as a Miami tax evasion criminal defense lawyer, I urge taxpayers who think they might be on that list not to ignore it. The IRS has already signaled that it intends to deal harshly with people who it thinks intentionally evaded their taxes, a crime that brings up to five years in prison and steep fines that can exceed the amount of income not declared. By contrast, the IRS was gentle last year with people who voluntarily disclosed undeclared income ahead of an Oct. 15 deadline, promising a low possibility of prison and fines of 5 to 60 percent of the undeclared income. The voluntary disclosure program was extremely popular -- so much that the IRS extended it an extra month -- and brought in accountholders at other overseas banks as well as UBS clients.

Presumably, all of those voluntary disclosers felt that staying silent wasn’t worth the risk of being identified and harshly prosecuted. Many people with overseas accounts rely on their accountants or the relatives who once owned the accounts for information on taxes. Some may not have realized they were doing anything illegal, especially since UBS admits that it actively helped clients hide their assets. The IRS may deal less harshly with those people -- but only if it believes they were acting in good faith. Voluntary disclosure is one way to show good faith and secure a promise of more lenient treatment.

However, it’s important to realize that voluntary disclosure can require more interactions with the IRS as it verifies your paperwork and evidence of good faith. That’s why many voluntary disclosers in 2009 hired Fort Lauderdale tax evasion criminal defense attorneys like me. An attorney can help clients determine which documents and information must be disclosed to the IRS. Clients may also want a defense lawyer by their sides as they sit through the in-person interviews with the IRS that were frequently required during last year’s voluntary disclosure program. And of course, an experienced tax evasion criminal defense lawyer can help clients confused by our Byzantine tax code decide whether they need to disclose in the first place. But to do this successfully, taxpayers must approach the IRS before it approaches them, because a voluntary disclosure won’t be honored if it comes after the taxpayers find out they’re under investigation. So it’s essential to get started as soon as possible -- before the Swiss government can approve its settlement.

In the underlying case, Freeman was defending Craig Aleo, a former school official who was convicted of manufacturing child pornography, for which he victimized a four-year-old girl. Aleo was sentenced to 60 years in prison in April. At the sentencing, the victim’s mother was permitted to give a statement, thanks to the federal Crime Victims’ Rights Act. Before Aleo was sentenced, Freeman filed a motion asking the court to order the prosecutors to give him advance notice of the content of the girl’s mother’s statement. He said this was required by the Crime Victims’ Rights Act, so he could respond appropriately. But the judge in the case said an advance notice requirement was not in the Act, and that the request was an attempt to intimidate the mother that was “unwarranted, baseless and worthy of contempt of court.” Freeman also broke a local court rule by not seeking agreement with prosecutors before he filed the motion, the judge said. Freeman was fined $2,000.

The Detroit News noted that the NACDL supported Freeman, with a spokesman for the group saying defense attorneys should be free to zealously and appropriately defend their clients without fear of sanctions. Not surprisingly, this Fort Lauderdale cyber crime criminal defense lawyer agrees. I am not familiar with the details of the case, but from a statement the judge made in an earlier article, I suspect that this judge’s reaction was an overreaction, possibly because of the terrible nature of the crime in the underlying case. In the earlier article, the judge is quoted saying that Freeman’s request “serves as yet another indication ... of the incredible lack of remorse for the victim in this matter.” That statement suggests that the judge has mixed up Freeman with Aleo, his client and the perpetrator of the crime at issue. It’s also worth noting that Aleo was sentenced to twice the amount of prison time the prosecutors had asked for, suggesting that the judge used his discretion to show how upsetting he found the crime.

If Freeman made a mistake in interpreting the Crime Victims’ Rights Act and broke local court rules, some penalty is appropriate. But as a South Florida cyber crime criminal defense attorney, I strongly agree with the NACDL that it is inappropriate and frightening to sanction a lawyer for doing his best to defend a client. Everyone in the United States criminal justice system is entitled to legal representation, and that includes people who are accused of serious and shocking crimes. No matter what Aleo did, part of Freeman’s job was to ensure that he got the due process he was entitled to under the law. Doing that job incorrectly is unfortunate, but there’s nothing in the information I have to suggest that it was an attempt to intimidate rather than a mistake. If we allow judges to sanction lawyers based on how they feel about the client’s actions, we will chill defense lawyers’ actions, denying their clients the full protection of the justice system. And as this case shows, that protection may be even more important when the underlying crime is shocking.

The article focuses on two separate sexting cases that came out of Susquenita High School outside Harrisburg, Pennsylvania. Ten people under the age of 18 have been charged with child pornography crimes in those cases in the past year, the article said. The teens were accused of using cell phones to take, send and receive inappropriate pictures of each other, plus one video. All of them were charged with one felony count of a child pornography crime. Some of the kids were able to avoid penalties by taking a five-week course on victimization and violence, performing community service and serving probation. However, one defendant is fighting the charge rather than pleading guilty. His attorney argues that penalizing teenagers is inappropriate for the situation and overzealous, and that the practice should not be a crime at all. Pennsylvania state legislator Seth Grove is claiming the middle ground with a recently introduced bill that would reduce sexting penalties for teenagers to a misdemeanor.

As a Fort Lauderdale cyber crimes criminal defense lawyer, I support any legislation that keeps teenagers from facing life-altering felony charges for sexting. But, like the defense attorney described in the CBS story, I question whether teen-to-teen sexting should be considered a crime at all. As numerous observers have pointed out, sexting is not a good idea. Pictures get out of the hands of their original owners quickly, which can embarrass the kids in the pictures. Even worse, the pictures can end up used as child pornography by total strangers who consume such images. But these are reasons to be honest with teenagers about the risks before sexting happens, and delete the images when they’re found. It is certainly not a reason to turn kids who are exploring their sexuality into criminals and, in some states, registered sex offenders. It’s worth noting that the same behavior between consenting adults is perfectly legal (though again, probably not a good idea).

The Supreme Court has made child pornography illegal, an exception to the First Amendment, because producing it means committing the disturbing crime of sexually exploiting a child. This logic does not hold when teenagers voluntarily take pictures of themselves and send them to other teenagers. In that situation, there is no exploitation and there is no imbalance of power between the people involved. As the Pennsylvania legislator argued, felony charges are too severe for such a situation. The teen would then graduate and start adulthood with a felony criminal charge on his or her record, which can limit opportunities for college financial aid, military service and jobs. But changing this “crime” to be charged as a misdemeanor in juvenile court misses the vital question: Why is this a crime? As a South Florida cyber crimes criminal defense attorney, I have not yet found a convincing answer to that question.

Larry Hull lived with his wife, Tracy Hull, on 19 acres in Treynor, Iowa. They built their own home and barn. In 2007, Larry Hull came to law enforcement’s attention when he got into a discussion with an agent posing as the Florida mother of two daughters, ages 12 and 9. Hull sent the agent child pornography, which he encouraged the older daughter to view, and said he’d like to perform sex acts with the older daughter. He had similar discussions with two other agents posing as mothers, but did not send them pornography. He was arrested in a raid in 2007, in which officers seized a total of 272 images of child pornography. Hull was indicted on one count of possession, four counts of distribution of child pornography and one count of attempting to entice a minor for sexual activity over state lines. The same indictment sought forfeiture of “[a]ny property, real or personal, used or intended to be used to commit or to promote the commission of the offenses alleged” -- including the Hulls’ home and land.

Hull eventually pleaded guilty to two counts of possession only. However, the forfeiture case went to a bench trial, where the district court ruled in favor of the government’s bid to take all 19 acres of the Hulls’ property. Hull appealed, arguing first that the district court should have required evidence that he used his real estate to commit the offenses. This is a requirement for forfeiture. He also argued that even if the home was used to commit the crimes, the outlying land was not and should be excluded. The Eighth Circuit disagreed. It first noted that the government “must show a substantial connection” between the property and the crimes, but concluded that this was satisfied. Hull’s home allowed him to get an Internet connection with enough privacy to commit the crimes, the court noted, unlike a library or coffee shop. And precedent says property is defined according to the legal deed or other document showing the defendant’s interest in the property, the court noted. For that reason, it declined to separate the home from the land.

Hull also argued that the seizure of the property violated the part of the Eighth Amendment that bans excessive fines. The district court had concluded otherwise, but Hull argued that it had made a mistake. Again, the Eighth Circuit sided with the trial court. Previous decisions on excessive fines have said a fine is not excessive unless it’s grossly disproportionate to the seriousness of the crime, the court wrote. Other caselaw says forfeiture can be presumed not excessive if it’s within the range of fines permitted by the sentencing guidelines. Hull’s equity in the property is within those guidelines, the Eighth Circuit wrote -- so the fine is presumptively not excessive. Furthermore, the court noted, child pornography is a serious offense.

Professor Brenner notes that Tracy Hull was allowed to keep the land in exchange for paying a $95,000 fine -- so she may not have been left homeless by the court’s decision. But as a Fort Lauderdale cyber crime criminal defense lawyer, I think this decision is a good example of why the sentencing guidelines for child pornography crimes must be changed. As I wrote last week, even some federal judges believe prison sentences for child pornography possession are too high. This decision says the maximum fine possible for Hull’s conviction -- two counts of possession of child pornography -- is $200,000. (The Hulls’ equity in their home and land was $192,632.) These sentencing guidelines set such high fines that most middle-class Americans would spend the rest of their lives attempting to pay the government. It’s also worth noting that 19 acres would be worth considerably more in more expensive real estate markets like Miami, which means wealthy urbanites are disproportionately protected from forfeiture.

But more importantly, I don’t believe the government has shown a “substantial connection” between the land and the crimes. If Hull had had a different home, a rented apartment, a hotel room or no home at all, he could still have possessed child pornography. Guaranteed privacy and a secure network collection certainly help, but as a West Palm Beach cyber crime criminal defense attorney, I feel confident in saying that defendants can and do commit child pornography crimes without those things. Professor Brenner noted a few other cases in which homes of child pornography defendants were forfeited, but all of these were in trial courts -- suggesting that more appeals in other circuits may be on the way. I hope other federal appeals courts come to a different conclusion from this one.

Weinstein stressed that he does not approve of child pornography, but said he doesn’t believe the five-year mandatory minimum for possession is appropriate for the crime. In fact, he said, the sentencing guidelines for child pornography defendants “destroy lives unnecessarily.” This belief is echoed by some other federal courts, including the Second U.S. Circuit Court of Appeals. That court recently threw out a 20-year sentence in a child pornography case, saying the guidelines can lead to unreasonable sentences “unless applied with great care.” In fact, the Second said, child pornography possession sentences can be longer than some sentences for actual sexual abuse of a child.

Weinstein has taken some risks to apply his beliefs to the case of Polizzi, who is accused of possessing more than 5,000 images. His recommended sentence in federal court was 11 to 14 years in prison, with a minimum of five; it would have been four years in New York state court. As is usual, the jury that convicted Polizzi was not told what a high sentence he faced. After they came back with the guilty verdict, Weinstein explained the sentencing and asked if the jurors would have changed their votes if they’d known. Two said they would and five criticized the sentence, so Weinstein threw out the conviction. The Second Circuit overturned that decision, but Weinstein threw it out again on different grounds. He also refused to order electronic monitoring for Polizzi while he awaits another trial, and said he would inform the jury about the sentencing guidelines in any future case.

As a Fort Lauderdale cyber crime criminal defense attorney, I’m delighted to read about judges like Weinstein, who are willing to arouse public anger in order to do what they see as the right thing. The public is against child pornography, of course, and advocating for the rights of child pornography defendants does not make a judge popular. However, high sentencing guidelines and high mandatory minimum sentences have serious problems. As the judge (and the Second Circuit) said, high sentencing guidelines can create unjust sentences. The mandatory aspect means judges can’t deviate from the guidelines, even if they feel justice requires it. And by doing this, high mandatory minimums essentially substitute the judgment of Congressmembers who don’t attend the trials (but do want to get re-elected) for the judgment of the judges who do.

Like Weinstein and our society as a whole, I don’t approve of child pornography. But there’s a big difference between approving of something and understanding that penalties can go too far. Defendants like Polizzi create a demand for child pornography, which in turn is always created by the exploitation of children (if it’s not computer-generated or animated). But they don’t directly exploit children, and that distinction has been obliterated by high mandatory minimums and the hysteria that created them. It’s a distinction that matters a lot to defendants like Polizzi, and like my own clients as a Miami cyber crime criminal defense lawyer. Sentences for these defendants should allow judges to use their own good judgment in cases where a high sentence could destroy a life.

Now, a federal district court judge has issued an order permanently barring the Lower Merion School District from using the webcams remotely, the Philadelphia Inquirer reported May 15. The permanent injunction, issued last week, will also bar other forms of remote monitoring. The district will be allowed to use a less intrusive theft-tracking system, but it must be disclosed to students and their parents, and families that wish to opt out will have an opportunity to do so. According to the article, the order confirms to the practices the district has already agreed to adopt. An attorney for the American Civil Liberties Union, which helped draft the order, said she hoped it would be a model for other school districts wrestling with the same issues.

The injunction comes as part of a lawsuit filed by the Robbins family. In fact, it may help resolve the family’s claims, since such an injunction was one of the requests the family made in its original claim. The family has recently dropped a bid for class-action status, reportedly because no other students are believed to have suffered an alleged invasion of privacy similar to his. Lower Merion students will soon find out, because the judge has also agreed to let students and their parents see pictures taken by the cameras, possibly before the pictures are destroyed.

The article notes that these orders have pleased almost all parties in the case, a rare situation. As a West Palm Beach cyber crime criminal defense attorney, I am pleased to see that the school district and the parents seem to have come to an understanding. I’m also pleased that the drug allegations against Blake Robbins have apparently been forgotten. The district is still under FBI investigation, reports say -- but as the Electronic Frontier Foundation notes, it’s difficult to say what crime the district would have committed. State and federal laws prohibit private citizens from spying on one another through non-computer technologies, including fairly recent technologies like recording of phone calls without permission. However, no federal law appears to prohibit video spying, which means it may be legal for organizations and individuals to tape-record one another without permission.

In my last post, I noted that video spying, like the alleged spying on Blake Robbins, would be unreasonable search and seizure when and if the government does it. Even without a law specifically forbidding such spying, I believe a reasonable court would come to that conclusion. But for the same reasons, I also support a federal bill like the one the EFF mentions in its post. It may seem odd for a Miami cyber crime criminal defense attorney to advocate yet another criminal law limiting what citizens may do on the Internet, and it’s true that laws can be abused by overzealous prosecutors. But by protecting us from spying by private parties, such a law would reinforce the protections against spying by government agencies -- including school districts -- as well.

Chen is not accused of stealing the prototype iPhone himself. Rather, it’s now widely reported that Gizmodo bought the iPhone from Brian Hogan, 21, who claimed to have found it left behind in a bar. It is not disputed that Gizmodo paid the finder $5,000 for it. In this way, Gizmodo got a “scoop.” However, it also brought a special technology law enforcement squad to Chen’s home, from which he works. They took computers and equipment, saying they had reason to believe the equipment was used to commit a felony related to the iPhone. It was not clear what felony was involved, although most reports have speculated that police believe the iPhone was stolen. Chen has not been arrested or charged with a crime, and the phone was returned to Apple after the story was published. Investigators are reportedly not examining the seized equipment until its legal status is resolved.

Lost in all of the talk about the search warrant is an issue that interests me as a West Palm Beach cyber crime criminal defense lawyer: What crime was committed? Reports suggest that the crime in question was theft, but any theft was probably not performed by Chen or Gizmodo. Rather, the alleged theft would likely be by Hogan, who found the phone. Reports differ about whether, and how hard, he tried to give the phone back to Apple. California law does actually obligate people who find lost objects to give those objects back, and to keep them safe until they can be returned. Failure to do so could be interpreted as theft. Gizmodo could then be guilty of the crime of receiving stolen property -- but only if the decision-makers for the blog knew it was stolen. Once Gizmodo found out it was stolen, the blog would have had to return it to the rightful owner or risk prosecution.

It’s extremely likely that all of these issues will be explored in detail as time goes on -- in the criminal case that prosecutors are apparently preparing, and in any civil case that Gizmodo, Chen or the news organizations may want to pursue. From what I currently understand, however, I do not believe that Chen can reasonably be charged with theft or receiving stolen goods. Depending on the circumstances, charges against Gizmodo for receiving stolen goods may also be inappropriate. This makes it difficult to support the apparent strong-arm invasion of Chen’s home. After all, if Chen is not implicated in the crime, why not just ask him for the equipment?

As a Fort Lauderdale cyber crime criminal defense attorney, I suspect law enforcement didn’t ask because they knew Chen would invoke journalist shield laws -- and they also knew he was entitled to do so. This would make the search of his home an abuse of power and an end-run around state and federal journalist shield laws. These laws don’t bar law enforcement from getting the information it needs; they simply require officers to subpoena the information, which allows journalists to separate out the relevant information or fight the request in court. It’s interesting and potentially important that the technology law enforcement squad involved chose not to follow that process.

Although media reports say Kernell was accused of “hacking,” he did not get into the account through hacking as it’s generally understood. Rather, he used the “lost password” feature used by Yahoo! mail and other websites and used publicly available information about the candidate, or educated guesses, to answer the site’s “security questions.” After getting into the email account, the Associated Press reported during the trial, Kernell bragged about it in “obscenity-laced” Internet postings, and posted screenshots including family photos and the phone number of Bristol Palin, Sarah Palin’s eldest daughter. Bristol Palin and a former Palin aide said they received harassing calls, texts and emails because their information was compromised by Kernell. He may also have had access to information related to Palin’s former job as governor of Alaska.

One of the things that interests me about this case is that the bulk of the prison time Kernell faces comes from the obstruction of justice charge. That charge stems from his decision to delete the evidence from his computer before authorities could find it. My experience as a Miami cyber crime criminal defense attorney has repeatedly shown that it’s hard to delete things from a hard drive in a way that data recovery professionals cannot undo. Thus, Kernell faces up to 20 years in prison for deleting the evidence, but only up to one year for the actual crime, a misdemeanor. Of course, he may not be sentenced to all of that time; the decision is up to a judge.

Another interesting issue was the fact that the jury was hung on the identity theft law. The federal statute on identity theft has eight subsections, but none are quite right to describe what Kernell did; for example, he did not intend to defraud the United States, or knowingly possess five or more identification documents. It’s even debatable whether he possessed an “authentication feature” within the meaning of the statute. Kendall may be retried on that count, but some observers doubt it. However, it’s clear that Kernell’s behavior did fit the federal definition of “unauthorized access,” even though it wasn’t technically hacking. To convict someone under the relevant federal law, prosecutors only have to show that he or she “intentionally accesse[d] a computer without authorization or exceeds authorized access, and thereby obtain[ed]... information from any protected computer.” Florida’s state-law version, “offenses against computer users,” also sets a low bar.

I’d like to be clear that I don’t believe Kernell should face no penalties at all. No matter what your politics, it’s an invasion of privacy, not a harmless “college prank,” to break into someone else’s email account and post their personal information online. The testimony at trial about the effects on the lives of the Palins and their associates reflects that, as does the conviction for misdemeanor unauthorized access. But as a Fort Lauderdale hacking criminal defense attorney, I hope the judge sticks to the low end of the sentencing for the obstruction of justice charge, keeping in mind that the underlying crime was a misdemeanor. And if authorities do try to bring another identity theft charge, I hope they can mount a stronger case than the facts available to the public suggest they have. Guessing a password isn’t appropriate behavior, but it is not the financial fraud that identity theft laws were meant to penalize.

The article quotes Matthew Van Dyke, investigator and group supervisor for U.S. Immigration and Customs Enforcement in the San Jose area. He says no statistics on the ages of child porn defendants are available, but his office started noticing minors and young adults consuming child pornography in 2005. Usually, these were teenagers using their parents’ email addresses. Van Dyke said it’s easy for teens to reach child porn simply by surfing for ordinary pornography, then following links until they find illegal child pornography. San Jose police detective Kendra Nunes added that some kids are making self-produced child porn by performing via webcam for an online audience. The officers said parents should pay close attention to what their kids are doing online.

I agree, but as a Miami-Dade cyber crime criminal defense lawyer, I very much hope that police agencies are treating these younger offenders in a way that takes their age into account. Here in Florida, we have laws that exclude teenagers from prosecution for statutory rape or inclusion on sex offender lists, if both partners consented and they were within a specific age range. In some cases of child pornography, I believe a similar approach is appropriate. In particular, I believe kids who make “self-produced child porn” shouldn’t be charged with making or distributing child pornography, because those laws are inappropriately harsh when there’s no exploitation and no real victim. I also wonder if it might not be age-appropriate for teenaged minors to look at naked pictures of other teenaged minors. And the use of a parent’s email address could get the parent into legal trouble, causing confusion and possibly a wrongful prosecution.

I don’t wish to play down the seriousness of child pornography crimes or the objectionable nature of some of the material mentioned in the article. No matter what your age, exploitation of young children is wrong. But some of the situations described by the law enforcement representatives in this article don’t exactly sound like exploitation. Kids looking at graphic images of kids their age may technically be illegal, but it doesn’t create the same power imbalance that adults exploiting children does. Nor do we usually give teenagers the same level of legal responsibility for their actions that we give adults. And as I have written here many times about “sexting,” it is logically and legally nonsensical to prosecute teenagers for taking sexual pictures of themselves. As a West Palm Beach cyber crime criminal defense attorney, I think doing that is a potentially dangerous mistake, but it’s a shame to ruin the lives of young people for making it.