Cyber Crime Lawyer Blog

First, I’m proud to announce that I’m now able to defend cyber crimes and other criminal charges in greater Chicago. My practice as a cyber crime criminal defense attorney has always been national, but I've made it a little more official with the new admission to practice law in the U.S. District Court for the Northern District of Illinois. This includes federal courts in greater Chicago as well as the federal courthouse in Rockford, Ill. This allows me to defend more criminal cases in Chicago, which sees a variety of cyber crime cases. In fact, just this month, greater Chicago saw a child pornography possession case ending in a plea deal with federal prosecutors.The bar admission is in addition to my admissions to practice law in the Northern, Middle and Southern Districts of Florida as well as the state of Florida and Washington, D.C.

Second, on the subject of Washington, D.C., an article about a cyber crime prosecution in that jurisdiction caught my eye. According to the National Law Journal, the D.C. federal courts have dismissed half the charges against a man accused of attempting to persuade another adult to make a child available for sex. A federal judge dismissed a charge of attempted persuasion and enticement of a minor against Ivan Nitschke, saying his actions did not constitute a crime. Left in place was a charge of traveling to engage in illicit sexual conduct. In dismissing the case, the judge said the evidence didn’t show that Nitschke ever spoke directly to the minor (who was fictitious) or attempted to indirectly persuade him to have sex through the adult he was speaking to, an undercover D.C. law enforcement officer.

Nitschke, a Canadian visiting Virginia, chatted with the detective on a website known as a dating forum for gay men. The detective was logged in under the screen name DC Perv and his profile expressly said he was into “twisted” things including young partners. He told Nitschke that he was having sex with a 12-year-old boy and would be open to a threesome after an initial one-on-one audition with just the adults. They arranged to meet inside the District of Columbia, where Nitschke was arrested as soon as he showed up. He was then indicted by a grand jury for attempted coercion and enticement of a minor — which carries a 10-year mandatory minimum prison sentence — and travel with intent to engage in illicit sex. Nitschke stipulated to all the facts alleged, but moved to dismiss the first count.

The judge ultimately agreed to dismiss the charge, finding that the undisputed facts showed no intent to persuade a minor directly or indirectly. Of course, no facts did or could prove that Nitschke attempted to persuade a minor directly, since there was no minor. The chat transcripts show that he talked only to the police detective, the court noted. Federal courts have found that a defendant may be convicted of indirectly persuading a minor when he attempts to cause the assent of the minor through an adult intermediary. A recent D.C. Circuit case had upheld a conviction in a similar case, but the judge said that majority opinion didn’t address the issue of whether the defendant had attempted to persuade an adult or a child. The judge in Nitschke’s case also found it important that he never offered money or anything else of value for the sex — he took up an invitation to join existing plans the detective supposedly had.

This is only a lower-court decision, but it’s heartening and educational for me as a solicitation of a minor defense lawyer. The judge’s order goes into some detail about previous cases involving the issue of what exactly it means to entice or persuade a minor. Only the Eleventh Circuit, our appeals court here in Florida, has ruled that persuasion of an adult is sufficient to break the law, and a subsequent panel suggested this was wrong; the other courts. At least four other courts identified in the order have required hat the communications with the adult contain some attempt to indirectly persuade the minor, such as asking the minor’s opinion or sending gifts. This fine distinction is easy to lose in child sex abuse cases, which often evoke strong feelings from juries and judges. If the D.C. Circuit gets this case, I hope as a cyber crime criminal defense attorney that it sides with the majority of its sister courts.

Continue reading "Federal Judge Throws Out Charges Against Man Accused of Online Solicitation of a Minor" »

As a child pornography criminal defense attorney, I know my clients frequently face very long prison sentences for child pornography crimes. This is not just because child pornography crimes are reviled in our society; many of the available sentence enhancements add considerable time and are common. As a result, it’s common to see an appeal of just the sentence for a child pornography case, even when the defendant does not contest the underlying criminal charge. In United States v. Olson, defendant Timothy James Olson of North Dakota challenged his sentence on the relatively new ground of Tapia v. United States, a U.S. Supreme Court ruling that courts may not extend prison sentences for the purpose of rehabilitation or any treatment program. The sentence was ultimately sent back to the district court for reconsideration.

Olson turned himself in to police and admitted molesting his stepdaughter for seven to eight years, starting when she was five years old. In the ensuing investigation, police discovered that Olson also had more than 2,000 digital images of child pornography. The child pornography case was prosecuted federally, with sentencing after Olson pleaded guilty in state court to continuous sexual abuse of a child and began serving 30 years in state prison. He also pleaded guilty in federal court to possession of child pornography, saying at a hearing that he had an addiction. The district court declined to apply a sentence enhancement because it would require Olson’s sentence to run concurrently with his state sentence, instead imposing a top-of-guidelines 108 months to run consecutively with the state sentence. The court expressly said it wanted Olson in the sex offender treatment available in the federal system, because he could not be trusted in the community without “meaningful treatment.”

After this sentencing, the U.S. Supreme Court decided Tapia, saying a sentencing court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation,” because federal law recognizes that prison is not an appropriate means of correction. Olson appealed his sentence.

On appeal, the Eighth U.S. Circuit Court of Appeals agreed that the district court may have considered rehabilitation inappropriately when it decided its sentence. Not only did the district court expressly say it wanted Olson to have access to federal-system treatment, but it expressly rejected a sentence enhancement in order to meet that goal. This would be a direct violation of Tapia, the court said, unlike when a district court merely discusses rehabilitation. And the Supreme Court did not indicate that its decision should be merely prospective. Thus, it remanded the case for resentencing. Judge Benton dissented, arguing that Olson waived the issue by not bringing it up in district court and there was no plain error.

This issue could be helpful for defendants in a wide variety of criminal matters, but as a child pornography possession lawyer, I believe it could be particularly useful to defendants facing child porn charges. Because child pornography cases can be emotional even for judges, those judges may be particularly at risk of handing down sentences that focus on rehabilitation in violation of Tapia. If other circuits follow the lead of the Eighth and apply the ruling retroactively, this could lead to a series of resentencings for defendants given high sentences to start with. Of those, many could be sentence reductions, because Tapia expressly forbade extra prison time intended to accommodate rehab or treatment. As a cyber crime criminal defense attorney, I applaud anything that helps reduce unfairly long sentences.

Continue reading "Eighth Circuit Sends Back Child Porn Case Because Court May Have Considered Rehabilitation – U.S. v. Olson" »

An important part of my job as a cyber crime criminal defense lawyer is protecting my clients from the consequences when the law hasn’t caught up with the way technology is used in real life. When laws are applied to situations they don’t quite fit, the defendants can face far more severe penalties than the situation warrants. For example, in United States v. Vadnais, defendant Marc Dennis Vadnais pleaded guilty to knowingly receiving child pornography. The problem was with the sentencing: the south Florida district court enhanced his sentence considerably, finding that because he used file-sharing software, his offense included distribution of child pornography for receipt, or expectation of receipt, of a thing of value.” His final sentence was 20 years in prison. On appeal, the Eleventh U.S. Circuit Court of Appeals held that mere use of file-sharing software did not justify the sentence enhancement.

Vadnais admitted at sentencing that he installed LimeWire, a file-sharing program, and used it to download child pornography. By default, the program was set to share everything he left in the downloads folder, and that’s how law enforcement found him. This made Vadnais eligible for a two-level sentence enhancement for distributing the material. He did not deny that he qualified for that sentence enhancement — but at sentencing, he argued that he did not qualify for the greater five-level sentence enhancement for distribution “for the receipt, or expectation of receipt, of a thing of value.” Caselaw has established that a thing of value can be other child pornography, and that was the allegation in the case of Vadnais. After receiving his sentence, he appealed.

The Eleventh Circuit sided with Vadnais, finding that “logic compels” a higher standard for finding distribution for value than that applied by the district court. In order to apply this enhancement, the court said, there must be direct or circumstantial evidence that the defendant reasonably believed he or she would receive something of value in exchange for sharing the files. The prosecution and the trial court did not deny this, the appeals court noted, but found evidence that Vadnais expected to receive additional child pornography because he did not turn off the file-sharing feature of the software. The Eleventh flatly rejected that argument, finding it didn’t follow from the evidence in the case or the structure of file-sharing software. Peer-to-peer file-sharing programs do not penalize users for failing to share; Vadnais would have had the same access to other people’s files regardless of whether he changed the default settings for his own. The Eleventh noted that facts may show this in other cases, but sent this case back for resentencing.

As a child pornography criminal defense attorney, I am pleased to see the Eleventh Circuit, which includes Florida, join at least two other circuits in requiring real evidence for this sentence enhancement. As the court noted, any user who shares files in a peer-to-peer program is already vulnerable to the same two-level sentence enhancement Vadnais did not dispute in this case, for mere distribution. If the Eleventh had applied the standard prosecutors requested in this case — whether the defendant turned off the default-enabled file-sharing — anyone who qualified for the lower sentence enhancement would also qualify for the higher one. This would make the distinction meaningless. As a child pornography possession defense lawyer, I do not believe that’s what the writers of the sentencing guidelines intended.

Continue reading "Eleventh Circuit Rules Use of File Sharing Software Does Not Qualify Alone for Sentence Enhancement – U.S. v. Vadnais" »

I’ve occasionally written here about my work as a cyber crime criminal defense attorney defending people accused of illegal file-sharing. As longtime observers of file-sharing and downloads know, the RIAA, the music industry organization, has been pursuing downloaders for some time by filing lawsuits hitting them with very steep fines for allegedly violating copyrights. The movie industry has more recently started doing the same thing, with a slew of lawsuits getting publicity last spring after judges agreed that multiple defendants can be joined in the same file-sharing lawsuit. Now, many clients are starting to come to Seltzer Law for help when they received subpoena notices from internet service providers (ISPs) like Comcast, AT&T or Verizon. These notices are often confusing because they say the ISP has not yet identified you — but it will if you don’t act.

A typical ISP notice like this one says the plaintiff — the company or organization filing the lawsuit, and its law firm — has filed a lawsuit. That lawsuit is usually in Washington, D.C., regardless of where you actually live. The notice goes on to say that you are a defendant in this lawsuit because the plaintiff has identified you as someone who illegally downloaded a movie or shared it with others. The identification is based on your IP address, a unique identification number attached to your computer or the modem you use to get online. Thus, the accusation is really saying that their records show someone using your IP address downloaded the material illegally. That IP address allowed them to trace it to the ISP, which knows which customer uses that IP address.

The ISP is a middleman that is legally required to pass on the information; it won’t defend you. However, you have the right to defend yourself in a few different ways. If you’d like to keep your name from being revealed, you can file to quash or vacate (stop) the subpoena by the date listed in the letter. This is best done with the help of an experienced cyber crime defense lawyer, because he or she is an expert and also to keep your identity secret. If you take no action — a common response to an upsetting letter, but not a good one in this case — your name will be released automatically. Waiting even longer could allow you to lose the lawsuit by default. However, you also have some defenses. In some cases, users are mis-identified by an administrative or technical mistake; in others, the computer or modem was used without permission. You may also be able to move the lawsuit if it was filed in a place where you don’t live or visit regularly.

At Seltzer Law, P.A., our cyber crime criminal defense attorneys have the technical as well as the legal skills to defend these types of cases, and we offer defense to clients across the U.S. as well as here in Miami. If you truly don’t believe you downloaded the material that’s the subject of the lawsuit, we can make sure even if the material may have been deleted or moved, then document the state of your hard drive for the court. These cases do happen. Sometimes, another person in the household used the computer; the modem may also have been used without permission by a neighbor or passer-by. Mistakes finding or recording the IP address can also cause mistakes, sometimes leading to accusations against people who don’t have the technical skills to download anything illegally. And if you would rather pay to settle the case, we negotiate aggressively to reach a reasonably sized settlement, rather than putting up with the high settlement offers that some have termed “shakedowns.”

Continue reading "Seltzer Law Defends Internet Users Slammed With Subpoenas for Alleged Illegal File Sharing" »

I’ve written on this blog several times about the growing movement to reconsider the harsh sentences handed down in federal child pornography cases. Sentences are set by the U.S. Sentencing Commission, and judges are given limited flexibility to change them, especially if they wish to depart downward and give the defendant a lower sentence than the guidelines warrant. Critics, including south Florida child pornography defense attorneys like me, say the Sentencing Commission’s decisions are overly influenced by politics, which is not well equipped for considering defendants’ rights because politicians know voters may punish them as “soft” on child molesters. That’s why I was pleased to see a passionate, though short, dissent in United States v. Overmyer, a Sixth U.S. Circuit Court of Appeals decision in which the majority upheld a relatively low sentence for transporting child pornography.

Leonard Overmyer originally got into trouble with the law when police traced child pornography downloads to his workplace, a Michigan auto parts manufacturer. No charges were filed, but he was fired. Less than a year later, an Internet service provider tipped off police that downloads were also coming from Overmyer’s home. A search turned up nothing on two computers, but when Overmyer asked to take his car to the mechanic, they grew suspicious and found a third laptop in the car. This one was loaded with about 90 images of child pornography. Overmyer eventually pleaded guilty to transporting child pornography, which has a statutory range of 60 to 240 months in prison. His guidelines range was 87 to 108 months. He moved for a downward variance, citing his remorse, the therapy he sought out alone and the effect of the case on his family. The federal district court declined and gave him the low end of the range, 87 months (seven years and three months).

On appeal, Overmyer argued that the sentence was both procedurally and substantively unreasonable. The Sixth Circuit first dismissed the procedural argument, finding no error in the review the court gave his requests. Indeed, it said, the trial court had taken the effects on Overmyer’s family and livelihood into account when sentencing at the low end of the guidelines. The court spent more time on the substantive reasonableness argument, whch was that the sentence was too long. Sentences within the sentencing guidelines are presumed to be reasonable, the Sixth noted. While Overmyer’s arguments against the sentence might support a lower sentence, the majority said it didn’t have license to consider anything that doesn’t compel a change. Furthermore, the majority said, recent Supreme Court decisions do not permit appeals courts to reverse just because they disagree; the disagreement must be based on unreasonableness. And it’s difficult to establish unreasonableness when the trial court and sentencing commission agree, the majority said.

The dissent by Judge Merritt focused on what the judge saw as the larger picture: “the continued sad dependence of federal judges on a harsh sentencing grid created by a distant bureaucracy.” The dissent heavily cited the Third Circuit’s decision in United States v. Grober, in which the Third upheld a downward departure for a child pornography defendant. The Third found that the sentencing guidelines are flawed and arbitrary, the dissent said. Sentence enhancements apply in nearly every case because they are “essentially inherent in the crime,” that court said, and the prosecutors’ choice of charge largely determines sentencing. As a result, that court found that anything more than the minimum would be unreasonable. The dissent found this compelling and instructive on the flaws of the “child pornography grid.” By rubber-stamping the result when the judge and Sentencing Commission agree, the dissent said, the majority has ignored several other issues and allowed the grid to become “a biblical command.”

As a Miami-Dade cyber crime defense lawyer, I’m pleased to see this kind of reasoning entered in the federal record — even if it did not determine the outcome of the case. As the dissent notes, there are other courts that have expressed dissatisfaction with the harshness and rigidity of the sentencing guidelines. By locking judges into specific sentences or sentence ranges, the guidelines take away in some sense their ability to be judges — to rule on the situation according not only to the letter of the law, but to the full situation. This has consequences for real people, who spend years and years in prison for what the dissent called addictive, nonviolent crimes. In my work an Orlando child pornography defense attorney, I try to eliminate or minimize any federal child pornography charges, because sentencing is a difficult place to seek mercy.

Continue reading "Sixth Circuit Dissent Takes on ‘Unconscionably Harsh’ Sentencing for Child Pornography Cases – U.S. v. Overmyer" »

As a cyber crime criminal defense attorney, I was interested but not surprised to see a recent case rejecting an appeal from a defendant who asked for leniency based on his status as a military veteran. In United States v. Riley, Patrick Michael Riley of Kentucky had pleaded guilty to distributing child pornography. He was turned in by a woman he had been flirting with online, who contacted police after he suggested having sex with her and a child at the same time. At sentencing, Riley argued that a brain injury suffered during his three combat tours in Iraq and Afghanistan, combined with pain medications for other serious injuries, let to his interest in child pornography. The court rejected his plea for a downward departure and sentenced him to the minimum available under the sentencing guidelines. The Sixth Circuit affirmed.

The woman who contacted the police told them in early 2008 that he had proposed sex with a child and sent her five videos of child pornography. The police began posing as the woman online and told Riley that a 14-year-old girl had moved in to “her” home. He sent instructions for “grooming her for sexual activity,” then more videos, which he saw as instructional. He planned to meet them for sex and videotape the acts. However, police raided his home instead and seized a computer with a lot of child pornography as well as an attempt to have sex with another woman’s three-year-old. Riley ultimately pleaded guilty to two counts of distributing child pornography. In a presentencing memo, he moved for a downward departure to his sentence based a decade of service with the Army, including three tours in Iraq and Afghanistan in which he suffered repeat concussions and a broken back. A psychologist testified that his brain injury and pain medications generated his interest in child pornography, but the court denied the motion and sentenced Riley to 151 months in prison.

Riley appealed, arguing that the sentence was substantively unreasonable, arguing that a departure was appropriate because of his lack of criminal history and “beautiful” military record. The Sixth Circuit was not persuaded. The U.S. Sentencing Guidelines exist to give some uniformity to criminal sentencing, though they don’t lock judges into specific ranges. Though the Guidelines do identify military service as a possible factor in a downward departure for sentencing, the Sixth said, Congress has expressly said that child crimes and sex crimes are not to be treated like other crimes. For those, the only acceptable departures are “expressly enumerated” in Sec. 5K of the guidelines, and that section does not mention military service or a clean criminal history, the court said. The commentary to the Guidelines notes this different standard and says judges should not use downward departures to make judgments on policy. Thus, Riley’s motion was legally inappropriate and the trial court’s decision was correct, the court said.

One thing that stuck out to me about this decision, as a child pornography possession defense lawyer, was the Guidelines’ statement that judges should not substitute their policy judgments for that of Congress. This principle is how child pornography sentences have become so long that they sometimes eclipse sentences for in-person abuse of a child. Riley’s sentence is just over 12 and a half years, and it’s the lowest end of the appropriate scale for someone with no criminal record. Congress undoubtedly means well, but it’s subject to political pressures from voters who don’t understand the justice system but know that they find child sex crimes abhorrent. Thus, it’s politically easy to increase the minimum sentence, but difficult for judges to justify a departure when they encounter a case that might justify it. As a solicitation of a minor defense attorney, I believe judges should retain the discretion to show mercy when the circumstances warrant.

Continue reading "Sixth Circuit Rules Child Porn Sentence Not Unreasonable Despite Defendant’s Military Service – U.S. v. Riley" »

Last summer, I blogged from my perspective as a child pornography possession defense attorney about double jeopardy. In a Sixth Circuit case, the court found a defendant could not be convicted of both possessing and receiving the same child pornography, because one offense necessarily includes the other. In that case, the court also found that the defendant cannot have waived his right to challenge the ruling by pleading guilty. That case turns out to contrast with a more recent Eighth U.S. Circuit Court of Appeals case, U.S. v. Dolehide. John Dolehide of Iowa pleaded guilty to two counts of child pornography possession, then appealed the sentence on double jeopardy grounds. The Eighth Circuit found the claim waived because it was never raised at trial.

Law enforcement identified Dolehide through his use of the file-sharing service Limewire to trade child pornography. He was ultimately charged with and pleaded guilty to two counts of possession of child pornography. After his presentencing report, Dolehide moved for a downward variance, based on factors other than double jeopardy. Rather, he argued that he had mitigating mental health problems including ADHD and Asperger’s syndrome, and would likely become a victim in the prison system. In a lengthy order, the court denied his request for a downward variance and granted the prosecution’s request for an upward variance based on evidence that Dolehide offered the pornography in expectation of a “thing of value” — other child porn. He was ultimately sentenced to 135 months in prison, and now appeals.

On appeal, Dolehide argued first that his conviction for two separate counts of child porn possession violates the Double Jeopardy Clause. The Eighth Circuit declined to consider this argument, saying it was waived because Dolehide never brought it up in lower court. The court also cited its own recent case in United States v. Stock, decided Nov. 11, in which it reasoned that Stock admitted to committing two separate crimes when he pleaded guilty to both counts. Dolehide also appealed his sentence enhancement for expectation of “a thing of value.” The commentary to the sentence enhancement expressly considers trading for more child porn a “thing of value,” the court said, and that using a file-sharing system to upload and download is evidence of expectation of a trade. Furthermore, it said, evidence shows Dolehide is too familiar with computers to claim ignorance of how file-sharing works. Thus, it affirmed the district court.

As a cyber crime criminal defense lawyer, I am very familiar with the legal principle that arguments not brought up at trial are waived on appeal. By making sure each avenue of defense is covered at trial, an experienced attorney can set clients up for a successful appeal, if necessary. As for the sentence enhancement, it appears to be written directly into the law that courts may presume defendants expect something of value from using file-sharing software to both upload and download files. You may be able to fight this with the right facts, which is why defendants facing serious criminal charges like child pornography should always get the help of an experienced child pornography criminal defense attorney. Even if you have a strong case, courts may penalize you for failing to meet statutory requirements.

Continue reading "Eighth Circuit Rules Child Porn Defendant Waived Double Jeopardy Claim When He Pleaded Guilty – U.S. v. Dolehide" »

As a Miami hacking criminal defense lawyer, I was interested to see an appeals court decision about an Internet crime that involved theft rather than sexual exploitation. In United States v. Lawrence, the Tenth U.S. Circuit Court of Appeals upheld a conviction for a man who took part in a scheme to defraud people who had trouble paying their bills. Wallace Laverne Lawrence III was convicted at a jury trial of seven counts of wire fraud, two counts of fraud in connection with devices and one count of aggravated identity theft, with sentence enhancements for being a leader of the scheme and for obstruction of justice. He challenged the sufficiency of the evidence for every count, but the Tenth Circuit saw no problems with the evidence and upheld the convictions.

Lawrence was part of a group of people who placed ads on Craigslist and on flyers to find people who had trouble paying their bills and faced threats like utility disconnection. The group promised to pay the bills in full in exchange for a cash payment of half the amount owed, payable only after verification from creditors that the bills had been paid. The group paid the bills with credit card numbers stolen from the medical offices where Lawrence’s girlfriend, Sandra Acuna, worked. Acuna and two other women would act as couriers for the cash, and the phone numbers used were prepaid cell phones. Once the true owners of the cards discovered and reversed the charges, Lawrence and his associates would disappear. Lawrence’s seven wire fraud charges referred to Craigslist posts; the aggravated identity theft count refers to the stolen credit card numbers. He was convicted on all counts and appealed.

Lawrence’s appeal argued that the evidence for the convictions was insufficient, but the Tenth Circuit found these arguments without merit. On the wire fraud charges, Lawrence argued that there was not enough evidence to show that he personally placed the online advertisements that formed the basis of the charges. However, the Tenth said, because the charges had an alternative “aiding and abetting” theory, it was not necessary for prosecutors to show that he personally placed the ads, as long as he or a co-conspirator placed the ads. Indeed, three of them were traced to his home computer. Because those convictions were valid, the court said, Lawrence’s challenge to his aggravated identity theft charge, which must be based on an underlying felony like wire fraud, must also fail. Finally, Lawrence challenged sentence enhancements for both being a leader of the scheme and obstruction of justice — based on a recorded phone call in which Lawrence urged Acuna to lie — but the Tenth rejected both challenges, finding clear evidence for both enhancements.

As a south Florida identity theft criminal defense attorney, I’m always interested to see a criminal appeal in this area. Lawrence faced federal charges in this case, of course. Most defendants in his situation would, since even a Craigslist posting intended to sell an item in the same city is likely to use out-of-state servers, and thus be involved in interstate commerce. This is all that’s needed to trigger federal jurisdiction. But Florida defendants can also face state charges for many of the same offenses. This could include credit card fraud, offenses against computer users and offenses against intellectual property. As in this case, there is often a question about whether the person charged actually took the offending online actions — police can trace an IP address, but can rarely show that a particular person was using the computer. As a Fort Lauderdale cyber crime defense lawyer, I use these and other defenses whenever appropriate to defend my clients.

Continue reading "Tenth Circuit Upholds Conviction for Identity Theft and Wire Fraud Using Craigslist Scam – U.S. v. Lawrence" »

As a south Florida child porn criminal defense lawyer, I was interested to see a recent decision that seems to create a small split among federal circuit courts on an issue related to child pornography. In United States v. Spence, the Fourth U.S. Circuit Court of Appeals ruled that a prior conviction for aggravated assault and battery was enough to justify a sentence enhancement in a child pornography possession case. The court upheld a 10-year mandatory minimum sentence with the enhancement for Troy Spence of South Carolina, who pleaded guilty to one count of possession of child pornography. Spence had a previous conviction for assault and battery of a high and aggravated nature, and argued at sentencing that this did not qualify for a sentence enhancement for a prior sexual abuse of a minor conviction. The district court disagreed and the Fourth Circuit confirmed.

Spence was indicted in 2009 for one count of child pornography possession; the opinion did not make the circumstances known. He struck a plea bargain on that charge, but challenged the sentence enhancement for having a prior conviction for sexual abuse of a minor. His prior conviction is from 2003. In that case, he was convicted of an unlawful violent act resulting in injury to a female much younger than him. During the course of the injury, court documents said, he touched the victim’s genitals. Spence argued that the sentence enhancement could not apply because the elements of the aggravated assault and battery did not require a sexual act. The district court agreed, but applied a modified categorical approach to determine that the enhancement should still apply because there was a sexual assault on the record. He was sentenced to 10 years in prison and now appeals.

He had no better luck with the Fourth Circuit, which upheld the use of the sentence enhancement. It started by adopting a Fifth Circuit decision determining that the phrase “of a minor” in the sentence enhancement applies only to the enhancement for an “abusive sexual conduct conviction, not to sexual abuse or aggravated sexual abuse. It next turned to the standard used by the district court. A modified categorical approach looks not only at the elements of the offense being used for the sentence enhancement, but the facts on record for that offense. This avoids a “mini-trial” for each prior, the court said, and the Sixth, Eighth and Ninth Circuits have all adopted the two approaches. The Fourth joined them, rejecting an opposing view from the Tenth Circuit. The categorical approach doesn’t definitely say whether the sentence enhancement applies to Spence, the court said, but the modified categorical approach does. Thus, it upheld the district court.

This conviction is bad news for Spence, who is serving a mandatory minimum equal to the maximum sentence for the un-enhanced base offense. Given that he got the mandatory minimum, I would be interested as a Miami child porn criminal defense attorney to know what kind of sentence he would have received without the sentence enhancement. As the opinion notes, the majority of circuits seem to agree that the categorical and modified categorical approaches are appropriate. However, this case struck me as similar to a case with a different outcome, the Sixth Circuit’s U.S. v. Gardner. The prior conviction in that case was for sexual battery, a crime that does not require a minor victim but in this case had one. Because Gardner did not plead guilty to any facts involving abuse of a minor, the sentence enhancement was ultimately reversed. As a Fort Lauderdale cyber crime defense lawyer, I expect to see more cases addressing this unfortunately common issue.

Continue reading "Fourth Circuit Rules Sentence Enhancement Proper for Child Porn Defendant With Prior Battery – U.S. v. Spence" »

Many of the cases I take as a south Florida cybercrime defense attorney stem from the defendant’s interactions with police officers online. Officers will commonly pretend to be minors, then lure defendants into sending explicit pictures of themselves, child pornography or other incriminating materials. Unfortunately for defendants, the courts have ruled that this is generally not entrapment; what matters is whether the defendant believed the officer to be a minor when the conduct took place. That idea was turned on its head in United States v. Fulford, a decision of the Eleventh U.S. Circuit Court of Appeals. That court found that an Alabama court was wrong to apply a sentence enhancement for sending child pornography to a minor in the case of David Fulford, who sent the material to an unidentified person.

Authorities prosecuted Fulford for distributing child pornography through online chat rooms. Investigators believed the recipients to be minors, but the only two recipients whose ages were known were adults not involved in law enforcement. He pleaded guilty to one count of possessing child pornography and two counts of knowingly receiving and distributing it. At a sentencing hearing, prosecutors argued for a five-level sentence enhancement for distributing the pornography to a minor, but Fulford objected that the recipient, someone claiming to be a 13-year-old named Dawn, was not provably a minor. Prosecutors argued that under Eleventh Circuit cases on different but related issues, the court could find that it was enough that Fulford believed it was a minor. The court did eventually find this over Fulford’s objections, and he appealed that decision only.

The Eleventh started with the text of the sentence enhancement, which requires the enhancement “If the offense involved… [d]istribution to a minor.” The issue was whether “Dawn,” the unknown person to whom Fulford sent the child pornography, was a minor. For the purposes of the statute, a minor is an actual minor, a law enforcement officer pretending to be a minor or a third real or fictional person represented by law enforcement as a minor. The Eleventh found that expanding this to cover unknown persons believed to be minors would impermissibly read too much into the guidelines. Even if expanding the definition would improve the guidelines, the majority said, caselaw requires it to avoid reading in any more meanings than the sentencing commission wrote into the guidelines. In its analysis, it disapproved its own decision in 2004’s United States v. Murrell for doing exactly that. Thus, it vacated Fulford’s sentence and sent the case back for further examination of whether Dawn was a minor.

This case is at the least interesting, and could even be important to my work as a Miami-Dade child pornography criminal defense lawyer. Of course, I agree that defendants should not receive sentence enhancements for offenses prosecutors cannot prove. Our system of justice requires prosecutors to prove their cases in order to avoid putting innocent people in prison; standards should not be any lower for sentence enhancements. It would be interesting to see whether other appeals courts have also taken up the issue. It’s uncommon to see a prosecution like this, because most people prosecuted for soliciting a child online actually did talk to law enforcement, and thus they fall right within the guidelines. As a Fort Lauderdale solicitation of a minor defense attorney, I suspect there would be far fewer prosecutions if officers were not permitted to entrap defendants by posing as children.

Continue reading "Eleventh Circuit Lowers Sentence for Defendant Caught Sending Child Porn to Unidentified Person – U.S. v. Fulford" »

I've recently found two blogs written by a mother about her son's child pornography possession case. The first blog, Oppose The Adam Walsh Act, focuses on the trial and investigation of her son. The second, Sugar for Salt, is about the family's experience with incarceration. The blogs are a chilling look at the experience from the family's point of view, and may offer some insights for other families going through similar cases.

I often hear from clients who felt compelled to answer questions or allow searches by law enforcement officers before they were legally required to. This is a common mistake for people accused of crimes, and it’s one the police love because they can exploit it to get an easy confession or conviction. It is basically never in your best interests to talk to the police; if they believe you committed a crime, they will use everything you say to bolster that theory. That’s why your best choice is always to stay quiet until you have a Fort Lauderdale cyber crime defense attorney by your side. That could have helped the defendant in United States v. Perrin, a recent Eighth U.S. Circuit Court of Appeals case involving a child pornography possession conviction for Walter Perrin of Sioux Falls, South Dakota.

Perrin, who is of below-average intelligence and had been in special education classes, shared a home with six other people, including his mother, and multiple computers. State authorities traced child pornography downloads to the home, and federal agents got a warrant to raid the home. They stopped one resident on the way to work and had him sit in the living room with Perrin and three other people, while officers “swept” the house. An agent told the residents they were free to leave, but must stay in the living room if they stayed in the house; and that he would ask questions but no one had to answer. During questioning, Perrin showed signs of nervousness, so the agent took him into his own bedroom for private questioning. The agent did not repeat the admonition that Perrin did not have to answer questions and was free to go. A detective searched the room while they talked. The Eighth said the agent’s gun was visible, but he did not raise his voice, threaten or make promises.

Nonetheless, Perrin confessed to possessing child pornography during this interview. At trial, he moved to suppress this confession, arguing that he was in custody at the time but had not been Mirandized, as required. The trial court denied this motion and Perrin pleaded guilty, but reserved his right to appeal the suppression issue. If Perrin is right, the Eighth said, the confession must be thrown out as tainted. However, the court found that Perrin was not in custody, legally speaking, at the time. When Perrin confessed, he had been advised about ten minutes earlier that he didn’t have to answer any questions and was free to leave the house. Perrin voluntarily agreed with the agent’s request go to the bedroom, the court said. Perrin’s bedroom door was not shut and no evidence suggests the officers were blocking him from leaving. Perrin emphasized that his intelligence was below average, but the court said this was undercut by his apparent lack of problems answering the questions. Thus, it upheld his conviction.

As a south Florida child pornography criminal defense lawyer, I wonder whether another court would have looked more deeply into the issue of Perrin’s intelligence. Knowing how to answer questions is a low threshold for mental competence. The opinion notes that Perrin had been in special education all through school and had held jobs as a dishwasher and fry cook at a restaurant. Both the jobs and the schooling would have given Perrin practice in answering questions — but it’s doubtful that they taught him much about interacting with the police. The test for whether defendants were in custody is whether reasonable people in their position would have felt free to leave. As a Miami child pornography criminal defense attorney, I’d be interested in a closer examination of Perrin’s circumstances.

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Much of my work as a south Florida child pornography criminal defense lawyer focuses on defending clients accused of possession of child pornography. This is the most common charge, in part because it’s genuinely more common than other child pornography crimes and in part because it’s easier for prosecutors to prove. However, federal law also defines separate crimes for distribution, advertising and other actions with child pornography, and advertising can be construed broadly. In United States v. Williams, the Ninth U.S. Circuit Court of Appeals more precisely defined the crime of advertising child pornography. John Williams of Nevada had argued that he could be convicted of advertising child pornography only if he had made the pornography in question, but the appeals court disagreed.

FBI agents found Williams online through his file-sharing activities, with which he had shared more than 5,000 illegal images. After a search of his mobile home, Williams admitted to viewing and sharing child porn online. He was indicted for possessing, distributing and advertising the distribution of child pornography. He objected only to the advertising charges, arguing that the statute only applies to people who advertise to create child pornography or advertise pornography they actually produced. The district court denied his motion, so he entered a conditional guilty plea that preserved his right to appeal the issue, and the prosecutors dropped the other charges in exchange. This appeal followed.

The sole issue the Ninth Circuit had to consider was whether the statute (18 USC § 2251(d)(1)(A)) requires defendants to personally produce the child pornography they are accused of advertising for distribution. The court decided that it does not. The plain language of the statute suggests otherwise, the court said. It requires only that the defendant “knowingly makes, prints or publishes... [any] advertisement seeking or offering to... distribute or reproduce any [child pornography].” While the statute does refer to the production of child pornography, nothing in its plain language requires a defendant to have personally produced the pornography. The issue has come up in other circuits, the appeals court noted, but all three to have considered it — the Second, Third and Eighth Circuits — have come to the same conclusion. Williams argues to the contrary based on the statute’s phrasing that the offer “involves” rather than “involved” the use of a minor, but construing the statutes this way would take away prosecutors’ ability to enforce the law in many situations. This could not be what Congress intended, the court said.

As a Miami-Dade child pornography criminal defense attorney, I am disappointed but not surprised. It’s not unusual for laws in the present tense to capture behavior that’s in the past; the statute could easily be read in the way prosecutors preferred. Furthermore, it’s the norm for courts to construe child pornography laws broadly, because our society just isn’t sympathetic to child pornography defendants. Even though child porn defendants now face some of the harshest laws in the federal criminal system, some juries and some judges make emotional decisions when confronted with upsetting cases involving child pornography. That’s why I strongly recommend that people accused of these crimes contact an experienced Fort Lauderdale child porn criminal defense lawyer as soon as they realize they will be charged.

Continue reading "Ninth Circuit Finds Child Pornography Need Not Be Self Produced to Merit Charges for Advertising – U.S. V. Williams" »

As a Miami-Dade child pornography defense attorney, part of my job is to make sure that juries are not unfairly prejudiced against my clients. This is a challenge in child pornography prosecutions, in which the crime is frequently enough to upset most jurors. However, it’s vital to distinguish between the actual charges and other conduct that he or she is not on trial for, but that may upset the jurors more. That distinction was vital in U.S. v. Loughry, a Seventh U.S. Circuit Court of Appeals decision overturning a conviction for child pornography charges. Roger Loughry was convicted of advertising and distributing child porn, and conspiracy, in his role as an administrator of a relatively soft-core child pornography website. The court said prosecutors should not have been permitted to show the jury harder-core pornography found on Loughry’s computer.

Loughry was a “co-administrator” on a website called The Cache, which specialized in pictures of the genitals of female minors. Pictures of sexual conduct or photos of males were not allowed. Loughry could control content and admit or promote users, and posted on several occasions to praise members who contributed new photos. Thus, he was charged with advertising and distributing child pornography, and conspiracy to do those things. Despite the fact that investigators found non-Cache pornography in his possession, Loughry was not charged with possession of child pornography. None of his charges were based on the non-Cache pornography. Nonetheless, prosecutors showed the non-Cache pornography at trial, over Loughry’s objection. These were harder-core videos involving the rape of prepubescent girls. The jury found him guilty on every count and sentenced him to 30 years in prison. He appealed.

The Seventh Circuit reversed, finding that the choice to show the at-home pornography was not a harmless error. Federal Rule of Civil Procedure 403 limits evidence that might unfairly prejudice the jury, Rule 414 relaxes this somewhat by allowing evidence in child molestation-related trials showing a propensity for such crimes. The Seventh clarified that Rule 414 does not require judges to routinely ignore Rule 403, but judge the risk of prejudice on a case-by-case basis. It went on to rule that because the court had an obligation to follow Rule 403, it should have reviewed the non-Cache pornography before allowing it to be shown to the jury. It further found that the court should have explained its reasoning in making its Rule 403 motion, but did not. Applying its own test, the Seventh found that the value of the evidence in this case did not outweigh the risk of prejudice. Loughry was never charged with possession, nor was the pornography similar to that on The Cache, the court said. The court accused prosecutors of “manufacturing” reasons to bring in hardcore pornography that had “a strong tendency to provoke intense disgust.” Because of this, and because the prosecution’s case was not a slam-dunk, the Seventh reversed and remanded the case.

This case is a good example of why I work hard, as a Fort Lauderdale cyber crime defense lawyer, to keep only the relevant evidence in front of juries. Loughry was on trial for conduct related to The Cache. The other pornography he had on his computer was not directly relevant to those charges, any more than it would be relevant to argue that he’s a bad driver or good at his job. However, the introduction of the irrelevant hard-core pornography evidence was likely to have affected the jury’s decisions — especially since it was apparently introduced right before jury deliberations. With a shocking, difficult-to-watch video still fresh in their memories, jurors were more likely to convict. This is why, as a south Florida child pornography defense attorney, I think at least as hard about evidence I’d prefer to exclude as I do about what to include.

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As a Miami cyber crime criminal defense lawyer, I am pleased to announce that Florida is now dealing reasonably and equitably with teenagers caught “sexting.” As CNN reported Oct. 1, a new state law went into effect that day that changed the law enforcement approach to the practice, in which kids send lewd cell phone photos to one another. Prior to the change, the only law to deal with the issue was the state’s child pornography law, which was designed for adults who exploit children. This led to harsh penalties for teens caught sexting, who would be penalized even if the “child pornography” was a self-portrait. Those convicted would generally face prison time, lifelong sex offender registration and life as a convicted felon.

The new law, authored by state Rep. Joseph Abruzzo (D-Wellington), reduces this significantly. On a first offense, teenagers caught sexting don’t face any criminal charge at all. Instead, they get the equivalent of a ticket, which carries eight hours of community service or a $60 fine. On a second offense, sexting becomes a misdemeanor of the first degree, which carries up to a year in jail and a fine of up to $1,000. (In my experience as a Ford Lauderdale cyber crime criminal defense attorney, I suspect that most kids will actually face much less time in practice.) A third offense is a felony, however, with a maximum of five years in prison and a maximum fine of $5,000. For the law to apply, the defendant must be under 18 and the person in the photo must also be under 18. Teens may not be charged at al if they took reasonable steps to tell an authority figure, did not solicit the images they received or did not send the images.

This is great news for Florida teens and south Florida child pornography defense lawyers like me. Abruzzo has said the law was expressly designed to avoid making teens face lifelong consequences for actions they took while immature. This is vital, because teens are at an age when they want to experiment sexually as well as experiment with adult freedoms. Combine this with child pornography laws written for a very different situation, and the situation can be unnecessarily disastrous. While this law was needed and will do good, however, I know that other states have added an education component to their own relatively new sexting laws. This may not be necessary in every case, but I suspect that many teens caught sexting don’t realize what serious consequences there would be if they faced true child porn laws. Such an educational component could be helpful in motivating kids to keep it clean in the future.

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One issue that comes up in my practice as a south Florida cyber crime criminal defense attorney is supervised release for people who have already been convicted of child sex crimes. For these defendants, supervised release frequently comes with strict limitations on what they may do online, including prohibitions on viewing or possessing any kind of pornography. In a few cases, the defendant may be barred from even using the Internet, or from specific uses of the Internet. Breaking these rules can land the defendant back in prison, as the defendant discovered in United States v. Olinger. In that case, the Tenth U.S. Circuit Court of Appeals declined to overturn the sentence given to Brian Charles Olinger for three violations of the terms of his supervised release. Oliger had argued that the sentence was unfairly inflated by allegations he was never charged with and the government could not prove, as well as exceeding three times the low end of the range.

Olinger was on supervised release after serving prison time for failure to register as a sex offender. He lived with his girlfriend at a hostel where another ex-offender, Andrew Wright, lived. Probation officers came to check on Wright and learned from a hostel staff member that Wright had been using a computer belonging to Olinger’s girlfriend. Wright admitted that he had used the computer with Olinger, but told probation officers that he was not responsible for “some things” on it that could get him in trouble. Officers found 1500 pornographic images, including 200 images of child pornography. Olinger ultimately faced and admitted to only three violations of his release: going online without the consent of the probation office, possession of alcohol and association with a known felon. Pornography charges were discarded because they could not be proven; five people in total had access to the computer, and some child pornography had been downloaded at times when Olinger was working. The sentencing range was 5 to 11 months; the court ultimately sentenced Olinger to 18, saying accessing a computer with child pornography on it was “very serious” even if he hadn’t viewed it. Olinger appealed.

He had no better luck with the Tenth U.S. Circuit Court of Appeals. Olinger argued on appeal that the sentence was unreasonable because it was more than triple the minimum part of the sentencing range, and because it reflects the court’s disapproval of the child pornography on the computer, which Olinger was not charged with possessing. However, because Olinger didn’t raise objections at the time, the court said, it reviewed those decisions only for plain error. Construing his argument as an argument against the factors the court considered, the Tenth said Olinger failed to show plain error. The language of the court’s decision did not show reliance on the wrong factors, it said. Furthermore, the appeals court said the court’s statement that “using a computer upon which there was child pornography… was a very serious violation” “clearly refers to the defendant’s breach of trust in admitting a particularly serious violation of his supervised release.” Thus, it found no procedural error. It also found no error in the length of the sentence, because the circumstances of the case included Olinger’s previous flight from justice, multiple violations of the supervised release and the child pornography. Thus, the Tenth upheld all of the sentence.

This decision disappoints me as a Miami-Dade sex offender registration defense lawyer. In a trial, prosecutors are restricted in what they may tell juries because irrelevant information about past crimes, for example, could unfairly hurt the defendant. In this case, the child pornography on the computer seems to have strongly influenced the decisions of both the district court and the Tenth Circuit, even though Olinger may not have actually possessed it or known it was there. Of course, he may be fully responsible for it, but there’s no way for prosecutors to show this. In criminal trials, the standard for convicting someone is high — beyond a reasonable doubt — in part to avoid putting an innocent person in prison in situations like this. People on supervised release and parole have fewer rights, and as this case shows, they can be convicted and sent back to prison easily, even for actions that are perfectly legal for you and me. That’s why, as a Fort Lauderdale child pornography defense attorney, I work hard to keep these kinds of convictions off my clients’ records.

Continue reading "Tenth Circuit Upholds Sentence for Supervised Release Violations Despite Lack of Child Porn Evidence – U.S. v. Olinger" »

I’ve written here many times before as a child pornography criminal defense lawyer about the series of child pornography restitution cases brought in federal courts by a young woman known only as “Amy.” She was the unwilling star of a series of child pornography photos taken by an uncle who molested her. Because the pictures are widely traded among child pornography fans, “Amy” is able to intervene in child pornography prosecutions that include her images, and request financial restitution for the harm the images have done to her. None of these defendants are accused of molesting Amy or making the images; the legal theory is that Amy is hurt emotionally every time someone views the images and needs restitution money to pay for therapy. Interestingly, however, the Second U.S. Circuit Court of Appeals rejected that reasoning in United States v. Aumais.

Gerald Aumais, a resident of northern New York, was caught with a large cache of child pornography in the trunk of his car while crossing the border from Canada into New York state. He pleaded guilty to transporting child pornography and possession of child pornography. The pre-sentencing report in the case identified Amy, who said she was unable to forget the sexual abuse she had suffered and lives in fear of being recognized from the pictures. She sought $3.3 million in restitution. After an evidentiary hearing, the judge awarded $48,483 for future therapy, finding that Aumais had exacerbated, not caused, Amy’s problems. Aumais appealed to the Second Circuit.

The issue of restitution in this circumstance was one of first impression in the Second Circuit. However, it found that the text of the law, which pays restitution for harm “suffered by the victim as a proximate result of the offense,” should be read as requiring a showing of proximate cause. The D.C., Third, Ninth and Eleventh Circuits have found this as well, a result that denies compensation to victims in Amy’s position; the Fifth Circuit found that “proximate result” applies only to “other losses” and awarded the restitution. In siding with the larger group of circuits, the Second rejected its district court’s reasoning that the crimes by Aumais are a substantial cause of the harm to Amy. The two had never met, and in fact, the mental health expert who evaluated Amy did so before Aumais was arrested. Thus, it was impossible for that testimony to speak to the harm this particular defendant did, the Second said. Furthermore, it noted, ordering restitution from the many viewers of Amy’s images would create joint and several liability issues requiring courts to keep track of restitution awards of different amounts and purposes.

As a cyber crime criminal defense attorney, I’m pleased that the Second joined the other circuit courts — including Florida’s home circuit, the Eleventh — in finding a requirement of proximate cause. As the opinion notes, this is a standard well-established in common law, intended to restrict defendants’ liability to liability for things they themselves have done. Amy has certainly suffered harm, but I agree with the court that the harm comes from the actions of her uncle, who created and distributed the pictures. It’s understandable that courts would like to help a victim who was too young to protect herself when an awful thing happened to her, but that should not undermine the text and meaning of the law. Restitution was intended to keep criminals from profiting from exploiting children; consumers of child pornography indirectly create demand, but they do not create supply. As a child porn possession defense lawyer, I suspect this issue will eventually make it to the Supreme Court.

Continue reading "Second Circuit Overturns Child Pornography Restitution Payment Order for ‘Amy’ – United States v. Aumais" »

As a Miami-Dade child pornography criminal defense attorney, I was interested to read an appeals court decision about suppressing a search of a defendant’s home. The search of Eric Wayne Kelley’s Arkansas home was found illegal by the Arkansas Supreme Court — but, applying federal law to a different criminal charge, the Eighth U.S. Circuit Court of Appeals found that the search evidence was admissible. In United States v. Kelley, the Eighth Circuit also found that Kelley’s 20-year prison sentence was not substantively unreasonable. Kelley was convicted in Arkansas state court of rape of a minor, only to have it reversed, and then convicted in federal court of possession of child pornography.

Kelley was living in Arkansas under an assumed name because he was wanted in Texas for sexual assault of a child. U.S. Marshals tipped off the local police to Kelley’s presence and said he was believed to be spending time with a boy. He was stopped outside his home by police; there was a boy in the car matching the description given by the Marshals. He admitted his identity and was arrested. At the police station, he repeatedly asked to call his sister about a prescription for his eyes; police had reason to believe he actually intended to tell the sister to remove evidence from his home. Meanwhile, the boy (with his mother present) told police Kelley had sexually abused him and taken photographs that were likely on Kelley’s computer. In response, officers sought and obtained a search warrant authorizing them to search for child pornography after midnight that day, because the pornography was in danger of removal.

Kelley was convicted in Arkansas state court of rape. However, the Arkansas Supreme Court reversed that conviction, ruling that the evidence must be excluded from consideration because it was illegally obtained using a warrant with no factual basis for a nighttime search. He was later retried and convicted on the same charge, and sentenced to 47 years in Arkansas state prison. Federal authorities then prosecuted Kelley for possession of child pornography. He appealed his conviction and 20-year prison sentence.

On appeal, the Eighth dismissed Kelley’s argument that the Arkansas Supreme Court’s ruling should serve to suppress the evidence in federal court as well. Under federal, not state, law, the Fourth Amendment controls whether the evidence should be suppressed, the court said. While nighttime searches were banned at our nation’s founding, current federal and Arkansas rules permit them when the requesting officers disclose their intent to search at night and give good cause. In this case, the court said, the officer requesting the warrant did exactly that. Thus, the motion to suppress the evidence was properly denied. The Eighth then turned to the issue of whether Kelley’s federal sentence was unreasonable. The judge departed upward from advisory guidelines to 240 months and ordered that this sentence run consecutively with the 47-year state sentence. Kelley argued that both the departure and the consecutive sentence were substantively unreasonable, noting that he would be 73 before eligible for parole from the state sentence. The Eighth disagreed, finding that the district court carefully considered the predatory nature of the crime, Kelley’s history of running from justice and the need to protect the public.

As a Fort Lauderdale cyber crime criminal defense lawyer, I am disappointed that the Eighth spent so little time on the issue of whether the sentence was unreasonable. Kelley’s age was not given, but even for a young adult of 20, a sentence of 67 years in prison means he has a good chance of dying in prison. The offenses in this case are serious, of course, but I cannot help but wonder whether the sentencing might not have been driven by a sense that Kelley nearly “got away with it” because his rape conviction was originally overturned. This could also have been the impetus behind the child pornography prosecution itself; the rape charge was the more serious charge and was brought well before the child porn charge. Popular sentiment is strongly against defendants like Kelley, and also drives the high mandatory minimum sentences for child pornography offenses. That’s why it pays to hire a south Florida child porn criminal defense attorney as soon as you even think you could be under investigation.

Continue reading "Appeals Court Upholds Search Evidence Despite Violation of Arkansas Law – U.S. v. Kelley" »

As a Miami-Dade child pornography defense lawyer, I have read decisions in the past that draw a fine line between the federal crime of possessing child pornography and that of receiving child pornography. Logically, a person cannot possess anything he or she has not received, so even though they are separate crimes, the defendant generally is convicted of only one. That was not the case in U.S. v. Johnson Jr., an Eighth U.S. Circuit Court of Appeals case in which the defendant challenged both his receipt conviction and the fact that he was convicted of both offenses. Randy Lee Johnson Jr. was sentenced to 135 months in prison (11 and one-quarter years) on convictions for both possessing and receiving the same prohibited images. Because the jury was erroneously instructed on the crimes, the Eighth Circuit sent it back to the district court for resentencing.

Johnson is a professional photographer who had an assistant helping him as he photographed a hockey game in Iowa in November 2008. The assistant, Dawn Gorelick, was downloading photos off camera memory cards onto Johnson’s laptop when she discovered child pornography among the photos. She found an off-duty police officer in the hockey arena and reported it. In a police interview at the arena, and after being Mirandized, Johnson told the police he had stumbled on child pornography while viewing adult pornography, but that he saves everything. Later investigation found 190 images believed to be child pornography, which Johnson said he had downloaded from the Internet. This was videotaped. However, at trial, Johnson recanted that confession, saying it was obtained under extreme stress and fear, and had no idea how the child pornography got onto his computer. He was convicted on both counts anyway.

On appeal, Johnson’s main argument was that there was insufficient evidence for his conviction for receiving child pornography, because of allegedly erroneous instructions given to the jury about federal jurisdiction. For federal jurisdiction to apply, the child pornography must have been shipped in interstate or foreign commerce or contained materials shipped in interstate or foreign commerce. Johnson denied this at trial and the government’s computer expert could not confirm it. Despite this, the jury was erroneously instructed to consider only whether the materials of the child pornography were shipped in interstate commerce — that is, the instructions left out the possibility that the pornography itself could have been shipped over state or international lines. And there was no evidence presented at trial that the components of Johnson’s computer were shipped over state lines. Under the Eighth Circuit’s own 2009 decision in U.S. v. Inman, a conviction from flawed jury instructions can still be upheld if a rational jury could still have found the defendant guilty. In this case, the Eight found that was not necessarily true; whether the child pornography came from interstate commerce was disputed at trial. Thus, it vacated the conviction for receiving child pornography and sent the possession conviction back for resentencing. Judge Smith dissented, arguing that the evidence for federal jurisdiction was overwhelming.

This decision applies to cases in the Eighth Circuit, to which Florida does not belong, so it does not apply directly to my work as a Fort Lauderdale child pornography criminal defense attorney. But because federal circuit courts usually follow one another, this decision may hold some influence with the Eleventh Circuit if a similar case arises there. Any given child pornography case may be a state case or a federal case, and the issue in Johnson’s prosecution is the main issue: whether the child pornography provably traveled over state or national borders. When it did not, it should be a state case. While the best outcome of all is having the prosecution dropped, defendants often prefer to be prosecuted at the state level because federal child pornography convictions carry harsh mandatory minimum sentences and judges have little flexibility to ignore them. This is just one of the tools I use as a south Florida cyber crime criminal defense lawyer to get clients the best possible outcome.

Continue reading "Eighth Circuit Overturns Conviction Because of Flawed Jury Instructions – U.S. v. Johnson Jr." »

As a south Florida cyber crime criminal defense attorney, I’ve written here before about the harsh standard sentences handed down to child pornography defendants. A past conviction for a related crime can make those mandatory minimums even longer — but as the Sixth U.S. Circuit Court of Appeals found recently, the past crime must be genuinely related. In United States v. Gardner, Daniel Roy Gardner was sentenced to less than the 15-year mandatory minimum sentence for child pornography possession, because the judge was not satisfied that a previous conviction for sexual battery on his daughter applied as a sentence enhancer. Gardner was instead sentenced to nine years, and the prosecution appealed. The Sixth Circuit upheld the sentence.

Gardner was convicted in Virginia of indecent liberties with a child for acts on his daughter, Pride, who was 15 to 17 at the time of the assaults and suffered from a rare form of cancer. She died in 1998. In 2005, computer security software found child pornography on the computer Gardner used at work, and a followup visit by the FBI found 650 images and videos of child porn at Gardner’s home. A background check turned up Gardner’s Virginia conviction. However, most files were destroyed, and the existing paperwork was unclear as to whether Gardner had been convicted of sexual battery or indecent liberties with a child. This mattered because only a prior conviction for a child sex crime can trigger the higher mandatory minimum. Gardner pleaded guilty to possession of child pornography but objected to the enhancement, and the judge in that case ultimately decided there was not enough evidence to apply the enhancement. The prosecution appealed to the Sixth Circuit.

The Sixth upheld the sentence, finding that Gardner’s prior conviction did not involve sexual abuse of a minor. Under Supreme Court and Sixth Circuit precedent, it said, it was required to consider only the facts in the judicial record that the defendant agreed to (when the defendant pleads guilty). In this case, Gardner pleaded guilty to sexual battery, a Virginia crime that does not require that the victim be a minor. The indictment in that case said the minor was a child under age 18, but caselaw required the court to look only at the facts in the indictment to which Gardner actually pleaded guilty, the Sixth said. It also dismissed prosecutors’ claims that Gardner agreed to the facts in a Virginia pre-sentencing report because he failed to contest those facts. The Sixth agreed with the district court that the validity of the PSR was questionable. The PSR was inconsistent with other case documents as to both the conviction and the date; bore no official stamp and was dated before a hearing on additional facts. Because this strongly suggested it was not the final PSR to which Gardner assented, the appeals court declined to weigh it in the sentencing. Thus, it upheld the district court.

In the cases the Sixth Circuit discussed, the question is whether defendants can be sentenced later according to crimes they were charged with, or only the crimes they were convicted of. Though this may not seem like a big difference to people not involved in criminal justice, it’s very important to a Miami-Dade child pornography lawyer like me. Just because you are arrested or indicted for a crime does not mean you will be convicted of that crime. Anytime along the way, law enforcement could drop the charges or reduce them to lesser charges. A judge could dismiss the charges. Defendants can choose to plea-bargain and plead guilty to a lesser crime. And of course, defendants can be found not guilty in a court of law. Helping my clients achieve one or more of these results is my job as a Fort Lauderdale child porn defense attorney.

Continue reading "Prior Conviction for Sexual Battery Should Not Enhance Sentence for Child Pornography Crime – U.S. v. Gardner" »

Search warrants are a major part of my work as a Miami child pornography possession criminal defense attorney. Of course, my clients cannot be convicted without evidence that they actually (and knowingly) possessed child pornography, so evidence that they did possess the material must be legally obtained — and that means any search warrant in the case must be legal. That was the problem in Dougherty et al. v. City of Covina et al., a case from the Ninth Circuit finding a southern California police department had no probable cause for a search of Bruce Dougherty’s home computer. Dougherty, a sixth-grade teacher, was accused of touching a student inappropriately. On the strength of that accusation, and the officers’ past experience, the police department initiated a search of Dougherty’s home computer and other electronics.

Dougherty was accused in 2006 of touching a student’s breasts and looking at her buttocks, and further investigation turned up more allegations of inappropriate touching. The investigating officer wrote out an affidavit for a search warrant, swearing that his experience in juvenile sex crimes investigation meant he “[knew] subjects involved in this type of criminal behavior have in their possession child pornography.” The warrant permitted police to search Dougherty’s home and seize his computer, cameras and electronic media. The search took place soon after the warrant was signed on Oct. 11, 2006. Doughterty permitted the search even though the officers said they forgot to bring the warrant. The seized computers and other items were not returned until December 27, 2007. No charges were ever filed against Dougherty. He sued the City of Covina, the lead officer, Robert Bobkiewicz, and police chief Kim Raney. The trial judge dismissed the claim with prejudice, finding the police had probable cause for a warrant and Bobkiewicz had qualified immunity as an officer.

Dougherty appealed, and the Ninth Circuit vindicated him — to some extent. The Ninth found that no probable cause existed for the search warrant leading to the search of his home. Bobkiewicz’s affidavit relied only on his training and experience; it did not contain any facts connecting him with child pornography, either directly or through his status as a suspected child molester. Nor were there any such facts, the court noted; Bobkiewicz apparently did not even verify that Dougherty owned a personal computer. The Ninth further noted a split in the circuits on probable cause for a child pornography search when the defendant is accused only of molestation. The Ninth ultimately sided with the Second and Sixth Circuits, finding no probable cause, and against the Eighth. However, it went on to find that Bobkiewicz was entitled to qualified immunity because the law was unclear until this ruling, so Dougherty’s case against him remained dismissed. The Ninth also ended Dougherty’s claim against the City of Covina, saying he had never stated his claim adequately. Judge Brewster concurred in the immunity ruling but preferred the Eighth Circuit’s position on probable cause.

As a south Florida child pornography defense lawyer, I am pleased with this ruling. I agree with the Second Circuit that molesting a child is a separate crime from possessing child pornography (unless the molestation is part of producing child pornography), and thus, it is insufficient evidence to support a search warrant. Remember, all Americans have a Fourth Amendment right against unlawful search and seizure, and that means the bar for a search is justifiably high. It is unlikely that courts would support a warrant to search for child pornography based on a different separate crime, such as a firearms violation, and the Ninth Circuit’s decision says molestation should be treated the same way. However, as a Fort Lauderdale cyber crime criminal defense lawyer, I know the split in the circuits means this issue will probably wind up in the Supreme Court.

Continue reading "Molestation Accusation Alone Cannot Support Search of Defendants Computer – Dougherty et al. v. City of Covina" »

As a cyber crime criminal defense attorney in Florida, I was very interested to see an appeals court decision on the sentence of a Florida hacker. United States v. Marcus Barrington grew out of the case of three Florida A&M University students who tried to hack into their school’s grading system in order to change grades, add credits and change residency status for themselves and several friends. Barrington and his co-conspirators used keylogger software, which tracks every key pressed on a keyboard, to discover username/password combinations for people in the school registrar’s office. Barrington was ultimately charged with conspiracy to commit wire fraud using a protected computer; accessing a protected computer with intention to defraud; and three counts of aggravated identity theft. He appealed those convictions as well as his sentence of seven years in prison.

Barrington was accused of conspiring with Christopher Jacquette and Lawrence Seacrease to change information in the registrar’s office computers. After it became clear that they were under investigation, they started changing grades for students they didn’t know, but continued to change their own as well. In all, they caused more than 650 grade changes for 90 students, and the cost of the grade and residency changes totaled $137,000. Eventually, investigators obtained search warrants and found evidence including usernames and passwords of registrar employees. Jacquette and Seacrease pleaded and became government witnesses; Barrington fought the charges in court, saying he was present but otherwise not involved in the conspiracy. This was rebutted by Barrington’s own Rule 11 proffer as well as testimony from a friend whose grades he had changed. He was convicted.

On appeal, Barrington argued that testimony on his prior offline grade-changing was inadmissible; that testimony of a pending burglary charge against Jacquette should have been admitted; and that the evidence was insufficient on the identity theft counts. None of these arguments held water with the Eleventh Circuit. The prior grade-changing was also done at Florida A&M, but with physical forms rather than online; indeed, the online grade-changing was undertaken after the conspirators ran out of forms. Thus, the court said, it was fair for prosecutors to use it to show Barrington’s intent. Nor did the trial court err when it barred testimony about Jacquette’s pending burglary case, the Eleventh said, since the case was unrelated to Barrington’s prosecution and Jacquette’s testimony would not affect the likelihood of his conviction for burglary. On the identity theft counts, Barrington argued that the usernames and passwords were university property and not personally identifying information, but the appeals court disagreed. Under the relevant law, it said, a username and password is “means of identification.” After dismissing with arguments relating to sentencing, the Eleventh Circuit upheld the trial court on all counts.

As an identity theft criminal defense lawyer, I’m always interested to see a federal appeals case on counts like wire fraud and accessing a protected computer. Most hacking cases are about money — stealing credit card numbers or other protected data to sell to identity thieves. In this case, it could be argued that the hacking was a fraternity prank gone way too far, although of course, changing grades is also a kind of profit-seeking. Notably, Barrington’s seven-year sentence is much longer than the 22-month sentences of his co-conspirators, both of whom cooperated with the government. Whether to take a plea deal is a very important decision with a lot of factors involved, including what you are offered in exchange and personal relationships. But as an hacking criminal defense attorney, I would advise any defendant as young as Barrington to seriously consider a fair deal that could shave so much time from the sentence.

Continue reading "Eleventh Circuit Upholds Sentence for Hacking Florida A&M University Online Grading System – U.S. v. Barrington" »

When people accused of online crimes come to cyber crime criminal defense attorneys like me, one of the most common crimes they face is solicitation of a minor. Here in Florida, solicitation of a minor is the crime of using a computer network to attempt a sexual act with someone under the age of 18. Other states might call it enticement or seduction, but in general, defendants can be charged with a crime even if no actual meeting takes place. In fact, court rulings and some legislative action have made it clear that the “minor” can actually be an adult law enforcement officer posing as a minor. That was the case in State of Missouri v. Kasim Faruqi, a Missouri Supreme Court ruling upholding the conviction of a St. Louis man accused of enticing a minor. The court ruled Faruqi was not entitled to suppress the evidence from either his statements to law enforcement or the search of his work computer.

Faruqi, of suburban St. Louis, struck up an online relationship with a police officer pretending to be a 14-year-old girl named Kaitlin. Over online chat and phone calls, he quickly made it clear that he’d like to have sex with Kaitlin, even though he knew it was illegal. He eventually agreed to meet her in a park, where he was arrested instead. Detectives told him they were investigating complaints from Kaitlin’s parents, and he admitted verbally and in writing that he had chatted with a 14-year-old girl about sex and arranged to meet. He also signed a form authorizing a search of his work computer, which turned up evidence of the chats. However, at trial, he told the jury he believed Kaitlin was really an adult playing out a fantasy; and that his written statement was coerced because the interviewing officer lied about Kaitlin’s parents and told him he could go home if he confessed. He also challenged the enticement law as unconstitutionally vague, a motion that failed. He was convicted and sentenced to five years in prison.

On appeal, Faruqi argued that his statements to police were involuntary. The Missouri Supreme Court concluded that they were not. Faruqi argued that the lie about Kaitlin’s parents was a threat to sue and that inquiries about his native country were a threat of deportation. The high court found nothing in the record to show that detectives asked about Faruqi’s immigration status; questions were about customs in his native Pakistan surrounding sex with children. Nor was a lawsuit ever mentioned. Finally, the court dismissed Faruqi’s argument that the computer search was unlawful because he signed a waiver permitting it, and had a diminished expectation of privacy on his work computer in any case. Thus, the high court upheld the trial court on every count.

As an online solicitation of a minor lawyer, I’m sorry to say that this is a familiar story. The evidence-suppression arguments are a common theme when someone is accused of a crime, but Faruqi’s arguments were just not strong enough. As a general rule, police officers can lie as much as they want as long as the lie does not “offend societal notions of fairness.” It’s basically up to a judge to decide whether a lie is fair, and judges are unlikely to decide in favor of competent adults who were properly Mirandized. This is why I always, always advise potential defendants never to say a word without a solicitation of a child online attorney by their side.

Continue reading "Missouri Supreme Court Declines to Suppress Evidence in Solicitation of a Minor Case – State v. Faruqi" »

The federal Department of Justice announced today that it has made 52 arrests of people it says were involved in an international ring of child pornography traders. In all, 72 people are charged, but 20 are known only by their online identities and have not yet been located. All were allegedly involved in a closed online community called "Dreamboard," which was a members-only bulletin board that required members to upload child pornography to join and to gain privileges. Fifteen of the 52 arrested are accused of making their own child pornography. The Orlando Sentinel's Aug. 3 story did not name newly arrested people, but noted that the operation had already arrested 32-year-old Michael Biggs of Orlando, who pleaded guilty and is now serving 20 years in prison.

This is a sobering reminder of how seriously our society takes online child pornography. At Seltzer Law, P.A., we focus our practice on defending people accused of all kinds of cyber crimes, including child pornography crimes. If you or someone you love is in trouble, in south Florida or anywhere else in the U.S., and you'd like to talk with an experienced child pornography defense attorney, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

A federal appeals ruling about a child pornography trafficking defendant caught my eye as a cyber crime criminal defense attorney. In United States v. Adams, the sole question was whether Carl Adams of central Illinois should receive a lower sentence than the range imposed by the sentencing guidelines for his crime. Adams contended that his sentence should have been even lower, but the judge was improperly influenced by a mistaken belief that child pornography defendants “suffer from an uncontrollable illness.” The government had argued for a sentence at the bottom of the sentencing guidelines, which was higher than the one Adams received. The Seventh U.S. Circuit Court of Appeals ruled that the judge did not make a mistake and let the sentence stand.

Adams was originally identified by Florida FBI agents searching for child pornography through LimeWire, an online file-sharing program. They alerted Illinois law enforcement officers, who got a search warrant and found ample child pornography on two computers belonging to Adams. He eventually pleaded guilty to using the Internet to traffic in child pornography. At his sentencing, he argued for a low sentence, citing his service in the Air Force, lack of a criminal record and steady employment, as well as studies concluding that viewing child pornography does not make the offender more likely to commit “hands-on” or “contact” offenses against minors. At the sentencing, the district judge opined that looking at child pornography is an uncontrollable illness beyond the viewer’s control, and thus he was not confident that Adams would not reoffend. He then sentenced Adams to 180 months (15 years) in prison, longer than the five years Adams requested but beneath the 210 months (18 years) requested by the government.

Adams appealed, arguing that the judge incorrectly relied on unsupported beliefs when sentencing him. The Seventh Circuit did not agree. There was no evidence in the record that the judge was making a finding of mental illness, the court said. In fact, it said, the trial judge went on to say that he was basing the sentence in large part on the need to deter other offenders who might think twice about looking at child pornography. Indeed, the Seventh noted, if the judge believed looking at child porn is an illness beyond control, it would make no sense to try deterring future offenders. And while the judge didn’t specifically address the studies Adams brought up, he was not required to do so; and he did acknowledge that Adams was unlikely to commit a “contact” offense in the future. Thus, the Seventh affirmed the 180-month sentence.

Although this decision did not go the defendant’s way, I still believe there are lessons here for child pornography criminal defense lawyers and their clients. For one thing, it’s unfortunately not unusual for prosecutors, judges and jurors to make the kinds of comments cited in this opinion. Some people are not able to separate their personal feelings from the jobs they have in the criminal justice system, and when they make comments that are judgmental or disgusted, they can subvert the trial. This would be an appropriate reason for appeal if it were the sole basis for imposing a high sentence. As a child porn criminal defense attorney, I sometimes make strategic decisions about juries especially to avoid this kind of situation.

Continue reading "Seventh Circuit Rules Downward Departure Acceptable for Child Porn Defendant – U.S. v. Adams" »

Determining whether a search was legal is an important part of my work as a cyber crime criminal defense lawyer. If a search was invalid, all of the evidence it uncovered must be thrown out — and in some cases, that’s enough to derail the prosecution. For that reason, I scrutinize my clients’ cases closely when I believe police may have violated the Fourth Amendment. This kind of violation was alleged in United States v. Schwarte, which was recently decided by the Eighth U.S. Circuit Court of Appeals. Steven Jerome Schwarte of Iowa was convicted of possessing child pornography, receiving child pornography and attempted sexual exploitation of children. He argued unsuccessfully to the Eighth Circuit that evidence from a search of his home should have been suppressed at trial.

For three months in 2007, Schwarte chatted online regularly with an NCIS agent posing as a teenaged girl. Schwarte turned the conversation to sex, repeatedly asked the girl to send sexually explicit pictures or videos of herself and sometimes a friend, and offered sexually explicit pictures of himself. As the conversations progressed, NCIS notified the Postal Service, which asked for a warrant to search Schwarte’s home. The plan was to control a delivery of a package from the NCIS agent to anyone who was at home at Schwarte’s address. An adult niece of Schwarte’s answered the door but told the postal worker no one by that name lived there. Nonetheless, she accepted the package. Law enforcement arrived at the home shortly after and found Schwarte, who confessed after being Mirandized. At a later trial, he moved to suppress evidence from the search n the grounds that the search warrant was invalid. That motion was denied and he was later convicted and sentenced to more than 16 years in prison.

On appeal, Schwarte argued that the search warrant was not valid because its triggering event — the proper delivery of the package — never occurred. He argued that no one in the house accepted delivery of the package, because his niece had testified that she said he didn’t live there and attempted to give the package back while the postal worker walked away. This contradicted testimony from the postal worker, who said the niece accepted the package without incident. Nonetheless, the Eighth said, even the undisputed parts of the package delivery testimony show that the niece accepted the package, thus showing that the condition was triggered for the search. It also rejected arguments that Schwarte could not have knowingly received or possessed the child pornography because he was asleep, saying it was enough that he took steps to receive it. Thus, it affirmed Schwarte’s conviction and sentence.

As a child pornography criminal defense attorney, I rarely encounter cases where possession of child pornography is “constructive,” as it is here — meaning that the defendant is said to possess something even though he or she may not actually have it in a pocket or hand. For the most part, child porn is found on a computer or some storage medium. But no matter where the materials are stored, defendants should know their rights when dealing with law enforcement. Officers must have a warrant to search homes and must have a reasonable basis for that warrant. If there is a trigger, as in this case, the triggering condition must be met. If you believe officers have not met those conditions or overstepped their authority in another way, you should tell an experienced child porn defense lawyer as soon as possible, because evidence from that search can make or break the case.

Continue reading "Eighth Circuit Rules Search That Led to Child Porn Conviction Was Valid – U.S. v. Schwarte" »

One of the most important pieces of advice I can give anyone, as a cyber crime criminal defense attorney, is to avoid speaking to the police without an attorney when you believe you may have committed a crime. Frequently, defendants and witnesses being questioned by police don’t realize they have the right to remain silent (sometimes even after a Miranda warning), and give the police confessions or other admissions that can hurt them down the road. Law enforcement also may promise defendants they won't be arrested, or that the officers will speak to prosecutors on their behalf, but these are empty promises. Their job is to make an arrest, and anything you voluntarily say may be held against you, no matter how innocent you believe the statement is. A spectacular version of this happened in United States v. Littledale, a Seventh U.S. Circuit Court of Appeals decision about a young man convicted of child pornography offenses. In this case, the defendant was being questioned about his uncle’s alleged criminal activities when he confessed to involvement with child porn.

Immigration and Customs Enforcement found out that someone living at a house in suburban Chicago was purchasing child pornography. ICE got a warrant to search the home, targeting Richard Ahrens as the resident most likely to be involved with the pornography. As a matter of routine, ICE agents asked to interview Daniel Littledale, a nephew of Ahrens, as soon as they realized he also lived there. After agents found him in a college class, Littledale agreed to be interviewed in private. They explained that he was not under arrest and not in trouble. Partway through the interview, Littledale confessed that he had been downloading the child pornography for five or six years. He was read his rights and then agreed to make a written statement and show which pieces of pornography were his. He was not arrested and left the office on his own. At trial, however, Littledale moved to suppress the statements he had made to agents. The district court denied this, finding that he was never in custody. Littledale appealed.

Under Miranda v. Arizona, the Seventh said, the question was whether a reasonable person would have felt free to leave. The court concluded that such a person in Littledale’s situation would have. Littledale voluntarily agreed to be interviewed, and officers did not use physical force or raise their voices. Though they did not tell him he was free to go, they did explicitly say he was not under arrest. And while the interview was in the campus police station, the court said this was not enough to make the interview compulsory. Thus, the court upheld the trial court’s decision not to suppress Littledale’s confession.

As a child pornography criminal defense lawyer, I cannot advise clients and potential clients strongly enough to avoid speaking to the police. The goal of any law enforcement officer in interrogating someone is to get information they can use to get a conviction. Everything that they hear will be evaluated in that light. Thus, even if you think you have evidence that could convince them you’re innocent, it’s best to stay quiet; they don’t want to hear it. In fact, the more you speak, the more likely it is that you’ll say something police (correctly or incorrectly) believe is incriminating. When being questioned in connection with something as serious as child pornography or online solicitation of a minor, it’s best to say nothing. You have a right to have a cyber crime defense attorney present at questioning, and if you’re nervous or need help making your case, it’s best to have such a person do the talking.

Continue reading "Seventh Circuit Rules Defendant Cannot Suppress Voluntary Confession to Police – U.S. v. Littledale" »

When I handle federal cases as a child pornography possession defense attorney, I sometimes have two competing charges to defend: knowingly possessing child pornography and knowingly receiving the same child pornography. As the Sixth U.S. Circuit Court of Appeals ruled recently in United States v. David Ehle, defendants cannot be sentenced for both: Because one offense includes the other, penalties for both would violate the constitutional prohibition of double jeopardy. Furthermore, the court found that Ehle’s choice to plead guilty and accept whatever penalties the Kentucky federal court imposed did not take away his right to challenge the ruling as double jeopardy.

Ehle was indicted for four charges, including the two at issue here. He made a plea agreement that read, in relevant part, that he “knowingly and voluntarily waives the right to contest or collaterally attack his conviction and the resulting sentence.” In the later hearing, however, the prosecutor in his case made clear that this waiver did not apply to any sentencing challenge he might bring. Ehle was sentenced to 20 years in prison on the charge of receiving child pornography and 10 years for the possession charge, to be served consecutively for a total of 30 years (on those two charges). He appealed on double jeopardy grounds.

The Sixth Circuit first dismissed the prosecutor’s claim that the appeal was barred, not by the waiver, but by Ehle’s intentional choice to plead guilty to both charges. The Sixth disagreed, saying the Supreme Court’s 1975 decision in Menna v. New York does not allow defendants to waive any claim based on unconstitutional prosecution. The Sixth then went on to consider whether Ehle’s conviction for both receipt and possession constitute double jeopardy. Under Supreme Court precedent, the court said, convictions on two charges can be double jeopardy only if each requires a proof of fact that the other does not. The two charges in Ehle’s case fail that test, the court said — in fact, the law says possession is a lesser included offense of receipt. Four other federal appeals courts, including the Eleventh, which covers Florida, have come to the same conclusion, the court noted. Thus, the Sixth sent Ehle’s case back to the district court, with orders to vacate on one charge and resentence on the other.

As a child porn possession defense lawyer, I’m pleased to see the Sixth Circuit join other federal appeals courts that have made similar decisions. As the court points out, it is logistically difficult to receive something without possessing it, even if only for a moment. That’s why possession is a lesser included offense of receipt. This decision does not necessarily go easy on Ehle and similar defendants. At best, his sentence will be cut down from 30 years in prison to 10, but the court is free to resentence him at a higher number within the guidelines for one of the crimes. Thus, he could still be in prison for 30 years. But as a cyber crime criminal defense attorney, I believe this is still better for my clients than rules that allow even longer sentences in violation of the right against double jeopardy.

Continue reading "Sixth Circuit Rules Defendant Cannot Be Sentenced Twice for Possession and Receipt of Child Porn – U.S. v. Ehle" »

I wrote recently about restitution orders for child pornography defendants, from my perspective as a child porn possession criminal defense attorney. Another restitution case caught my attention today, but this one involves people who were in the business of selling a child’s sexual services over the Internet. In United States v. Palmer and United States v. Baraku, defendants Debra Palmer and Todd Baraku were convicted of operating an illicit online sex business, for which they trained Palmer’s 12-year-old daughter as a dominatrix, then sold her services in person and over a webcam from ages 14 to 17. Baraku, who lived with Palmer and the girl, was also permitted to have BDSM sex with the girl. Both defendants pleaded guilty in 2009 to various charges and received restitution orders as well as prison sentences.

At Palmer’s sentencing, an expert witness testified that the girl would likely need $1 million in restitution for therapy and medication. Palmer’s defense disputed only the amount, saying the expert had no basis for the $1 million amount. The expert did not meet the girl, but relied on his past experience treating victims of child sexual crimes. Ultimately, the district court granted $200,000 in restitution from Palmer and Baraku, saying the evidence for the larger amount was speculative and $200,000 ought to cover counseling. Importantly, it set special conditions for their payments, ordering each to pay until $5,000 was in a fund for the victim, then make payments to keep it at a minimum of $5,000 and a maximum of $200,000. Both parties appealed, with the government objecting to the special conditions and defendants to the amount.

The Eighth Circuit agreed in part and reversed in part. The restitution law, 18 USC sec. 3664, allows courts to order “partial payments at specified intervals.” However, the court said, the requirement to meet or exceed $5,000 does not meet that test because it is not a “specified interval” as required. In effect, the court said, the original restitution order made restitution not mandatory and forced the victim to seek reimbursement for out-of-pocket costs rather than providing payment. However, it denied the cross-appeal seeking to nullify all restitution, saying the victim’s need for treatment was clear and pointing to her personal testimony that she was seeking it. It upheld the $200,000 restitution order but vacated the $5,000-minimum special condition for both defendants.

As a cyber crime criminal defense lawyer, I’m interested in the restitution order because it could have a direct effect on restitution payments for clients accused of online child sex crimes. The Eighth Circuit said here that restitution orders cannot depart from the “partial payments at specified intervals” language in the statute, even if the departure is a concession to what is realistic — in this case, the defendants’ inability to make money while imprisoned. As a solicitation of a child online defense attorney, I would encourage defendants to consider possible restitution orders before deciding whether to plead guilty.

Continue reading "Court Upholds Restitution Order for Child Victim of Sex Trafficking – U.S. v. Palmer and U.S. v. Baraku" »

A ruling from the Eighth U.S. Circuit Court of Appeal caught my eye as a child pornography criminal defense lawyer. In United States v. Collins, Matthew James Collins of Iowa argued that there wasn’t enough evidence to support his conviction for attempted distribution of child pornography. Collins was convicted of that offense as well as receipt of child pornography; he was originally also convicted of possession, but the court voided that conviction because it was already included in the receipt offense. Investigators found Collins through his use of peer-to-peer file-sharing to share child porn. Law enforcement seized two computers from Collins that he had gotten from a friend; his defense centered around arguments that the friend or another user had downloaded the pornography. He was convicted and sentenced to about 19 and a half years in federal prison.

On appeal, Collins argued that the proof of the knowing distribution offense was insufficient at trial, because the mere use of a file-sharing program does not establish beyond a reasonable doubt that the user intended to share those files. The Eighth Circuit did not agree. The court wrote that Collins acknowledged understanding computers well enough to download photos from his phone, and that he had downloaded and installed Limewire file-sharing software on both computers. Thus, a jury could reasonably infer that he intended to distribute the material, the court wrote. Furthermore, past Eighth Circuit decisions had upheld knowing distribution convictions, though only under sentencing enhancements, which use a different standard of proof. Finally, the Eighth wrote, the Tenth Circuit has upheld a conviction for distribution based on the use of a file-sharing program.

It’s difficult for anyone who wasn’t in court to judge whether the jury and appeals court made the right decision, since this opinion doesn’t contain a lot of background on the facts. But as a cyber crime criminal defense attorney, I’m disturbed by the implication that mere use of file-sharing software is enough to support a distribution conviction in some courts. This is not true everywhere; I wrote last year about a state-court acquittal for a South Dakota attorney who possessed files because they were relevant to his work as a defense lawyer. He also used Limewire, but apparently did not understand the program well enough to realize it was sharing his files by default. As a child porn defense lawyer, I believe it would be unjust for courts to simply assume that users intend to share files without examining whether they knew about or changed default file-sharing settings.

Continue reading "Appeals Court Upholds Conviction for ‘Knowing’ Distribution of Child Porn – U.S. v Collins" »

As a child pornography criminal defense attorney, I’ve written here several times, most recently in March, about the trend toward courts ordering financial restitution payments in child porn cases. In these cases, people convicted of possessing, sending or receiving the materials — but not creating it — are ordered to pay money to the children whose pictures appeared in the materials. One particularly active victim is a young woman who is named only as “Amy” in court papers, who was forced to participate in making child pornography when she was under 10. Amy shows up in a new court ruling by the Fifth U.S. Circuit Court of Appeals, which says a Louisiana man was correctly ordered to pay her restitution. But in United States v. Wright, the court sent the case back to trial court to determine the amount, saying the original amount had no basis in the record.

Michael Wright pleaded guilty to possession of child pornography, which waived his right to appeal but not his right to contest penalties in excess of the statutory maximum. The court later ordered Wright to pay $529,661 to Amy as restitution, to fund counseling and other financial needs stemming from her sexual abuse. Wright moved to oppose this, arguing that the restitution law requires victims to show defendants directly harmed them, which he said did not apply in his case. The district court denied the motion and Wright appealed.

The Fifth Circuit started by noting that it reviewed Wright’s appeal under the precedent of its March decision, which found against a similar defendant. After dismissing prosecutors’ arguments that Wright had waived the issue, the Fifth used the same logic used in the March decision to find against Wright. The relevant section of the law, 18 USC sec. 2259(b)(3)(F), defines the victim’s losses including “any other losses suffered by the victim as a proximate result of the offense.” Wright argued that Amy’s losses were not a proximate result of his possession of images created years before he possessed them and without her knowledge. However, the Fifth found in both cases that the language at issue did not apply to the entire sec. 2259 and was only a catchall provision for “other losses,” and that Amy was a victim because she was harmed by Wright’s possession. However, the court then went on to find an abuse of discretion in the amount of money awarded by the trial court. The trial court gave no reasoning whatsoever as to why Wright should pay some costs but not others, and did not discuss his liability as one of many people who downloaded the materials. Thus, it sent the case back to trial court for a clearer determination of what costs Wright should pay.

In March, I wrote that I disagreed with the earlier decision, and the same logic applies in this case. As a cyber crime criminal defense lawyer, I know restitution laws were originally created to keep criminals from profiting from lucrative crimes like fraud and drug trafficking. That logic doesn’t apply to downloading child pornography — something done for personal gratification. Even if Wright hadn’t been caught, he still wouldn’t have profited from his crime. And as a child porn possession defense attorney, I disagree with the court’s underlying logic that Amy was harmed by defendants’ possession of child pornography; the harm to her is real, but was done by her abuser. I look forward to hearing from other courts on this subject.

Continue reading "Federal Appeals Court Partially Reverses Restitution Order – United States v. Michael Wright" »

I’ve written here about several child pornography cases involving defendants who used Photoshop or other software to impose children’s heads onto the bodies in adult pornography. In particular, as a child pornography criminal defense attorney in Miami, I have followed the case of John Stelmack, a former elementary school principal from Bartow, who was convicted on child pornography charges stemming from imposing students’ heads onto naked adult bodies. Last December, Stelmack was freed by a Florida appeals court, which said the pictures did not meet Florida law’s definition of child pornography. In New York, a federal appeals court came to the opposite conclusion this year. Now, as the San Francisco Chronicle reported June 9, a California man has been freed on appeal after a conviction on similar charges.

Joseph Gerber of Milpitas, near San Jose, started to get to know his estranged 13-year-old daughter in 2008. Over the first few visits, he began offering her marijuana and cocaine. While the girl was high, Gerber allegedly asked her to pose for photos. She agreed, but when he asked her to take off her clothes, she reportedly burst into tears. After she told her mother what happened, her mother called the police, who searched Gerber’s home. There were no underwear photos, but investigators did find seven pictures in which the girl’s head had been superimposed on pornographic photos of adult women.

Gerber was tried and convicted of possession of child pornography as well as drug charges. However, the California law used to convict him specifically said it was illegal to possess pornography showing minors “personally engaging in or simulating sexual contact.” Because of that phrasing, the Sixth District Court of Appeal overturned Gerber’s conviction for possession of child pornography, saying interpreting the law more broadly would violate a 2002 Supreme Court ruling striking down laws against “virtual” child pornography that never involved actual children. The California court wrote that Gerber’s pictures were protected by the First Amendment, even though viewers might find them repugnant.

As a cyber crime criminal defense lawyer, I have to agree. It’s difficult to defend a man who allegedly came close to sexually exploiting his daughter, but the law is the law. Florida’s Second District Court of Appeal came to the same conclusion last year. Neither state has a law banning “composite” or otherwise computer-generated images, although the federal government does — passed explicitly to get around the 2002 Supreme Court decision. In my opinion as a cyber crime criminal defense attorney, legislatures should consider the purpose of laws against child pornography possession, which is to discourage people from exploiting children to make it in the first place. When the pornography is Photoshopped or otherwise digitally created, it might still be shocking and sad, but it doesn’t meet the standard to override the First Amendment.

Continue reading "California Court Overturns Conviction for Imposing Daughter’s Head Onto Pornography" »

As a cyber crime criminal defense attorney, I’ve written many times here about the legal problems posed by the practice the media has named “sexting.” When teenagers take naked or explicit photos and then send them via text message or Internet, they can be charged with making child pornography, even though the pictures are almost always of themselves or consensual. As a result, teens in some areas have been subjected to harsh penalties intended for adults who exploit children, or become test cases for alternative penalties. Now, the New York state legislature is moving to offer prosecutors an alternative to conventional child porn laws. As the Wall Street Journal reported June 6, the “Cyber Crime Youth Rescue Act” would give prosecutors the option of sending kids to an educational program instead of jail.

New York follows at least 12 other states, including Florida and New Jersey, that have considered laws intended to treat teen sexting differently from adult child pornography offenses. Under the bill, the state Office of Children and Family Services would offer a training program for first offenders ages 18 and younger caught distributing sexual photos of themselves online or via text message. The program would explain the potential legal consequences of being caught sexting; the possible consequences for their personal lives and future careers; and the possibility that the photos could end up traded as child pornography forever. To be eligible, teens would have to show prosecutors they didn’t intend to commit a crime. The measure has not been co-introduced in the New York state Senate, and Gov. Andrew Cuomo has taken no position on it.

I hope the state legislature joins its neighbor in New Jersey and passes this measure, because as a child pornography criminal defense lawyer, I believe it’s a better way to handle teen sexting. As things currently stand, there’s no clear guideline for how to handle kids caught sexting, which leaves the door open for prosecutors to treat kids just the same as adults caught harming children many years younger. As the bill’s sponsor noted, teens prosecuted for child pornography can live with the results for the rest of their lives: a felony conviction, sex offender registration and the possibility that the photos will fall into the wrong hands (as Rep. Anthony Weiner of Brooklyn can attest). As a child pornography defense attorney, I believe bills like this give prosecutors the tools to handle sexting without ruining young lives or giving kids permission to ruin their own.

Continue reading "New York State Proposes Education Instead of Prosecution for Teens Caught Sexting" »

As a child pornography criminal defense attorney, I was interested to see an article about a child porn defendant who asked the prosecution for his computer and other equipment to be returned. The man, Joseph Schesso of Portland, is accused of possessing, distributing and making child pornography. According to the Seattle Post-Intelligencer, Schesso was indicted in Washington last week after a tip from European investigators eventually led Washington police to his home and his collection of child pornography. Through his attorney, he has asked for the release of several laptops and what he calls a “super computer” seized in the raid, even though his ability to use computers is restricted while he waits for his trial. The newspaper did not report why Schesso wants the computers.

According to the article, German police contacted U.S. Immigration and Customs Enforcement in late 2008 to report Schesso as a distributor of child pornography. ICE agents eventually raided Schesso’s home while he was out and seized computer equipment containing more than 500 videos and 3,100 images of child pornography. His wife told investigators that Schisso had a long-term “problem” with child pornography. Schisso has denied ever molesting a child, but agents later found deleted photos on his digital camera suggesting that was not true. In later interviews, the girl said he had sexually assaulted her twice. If convicted of the current charges, he faces a mandatory minimum of 15 years in prison.

What interested me in this story, as a cyber crime criminal defense lawyer, was the request for the computers back. Most people don’t realize this, but federal law gives the government the right to permanently seize property related to child pornography offenses. Under the law, the government can keep the pornography itself; anything purchased with profits from the illegal activity; and any property “used or intended to be used” to commit the offense. Thus, Schesso’s computers are almost certainly subject to the forfeiture law because they were likely used to commit the child pornography offenses he’s accused of. It doesn’t matter whether the property was also used by Schesso and his wife for harmless activities like doing their taxes or taking pictures of family events; the government is free to take it. In fact, if Schesso happens to own his home, the government may also be able to take that. This can be defended in court, but it’s difficult to do — which is why it’s vital to have a cyber crime criminal defense attorney on your side as soon as possible.

Continue reading "Oregon Man Accused of Child Pornography Crimes Requests Computer Equipment Back" »

I’ve written here recently about the issue of legal searches in child pornography possession cases. These defendants, like all defendants, have a Fourth Amendment right to be free of “unreasonable search and seizure.” That’s a vital issue when the charge is possession of child pornography, because the illegal materials can usually only be found with a search. When police officers overstep their rights, child pornography criminal defense lawyers like me can argue for the evidence to be thrown out. That was what happened to Arizona defendant David L. Greenberg, 43, when a trial court threw out the evidence against him. Last week, the Arizona Daily Sun reported May 20, an Arizona state appeals court reversed that decision, clearing the way for Greenberg to be tried after all.

Greenberg was originally arrested for secretly videotaping adult women as they undressed, then breaking into one of the women’s homes. After that arrest, police searched his home and found hundreds of instances of child pornography. He was indicted in 2009 on charges of sexual exploitation of a minor, surreptitious videotaping, voyeurism, drug charges, weapons charges and trespassing. However, the judge in Coconino County ruled that the evidence from the search of his home should not be admitted, because the facts alleged on the search warrant were “so facially deficient that the executing officer could not reasonably assume they were valid.” The Arizona Court of Appeals disagreed, finding that the facts clearly supported the probable cause needed for the warrant. The decision means the county is free to prosecute Greenberg again, but an attorney for Greenberg said he planned to appeal the ruling to the Arizona Supreme Court, which could delay any trial.

As a cyber crime criminal defense attorney, I’d be interested to see what the facts alleged on the warrant were, since it’s hard to judge which side has a better argument. However, decisions like this are generally worth keeping in mind because they show that defendants do have civil rights — even when they’re accused of something very serious or unpopular. The Constitution grants Americans the right to be secure in their homes unless the police have a good reason to think a search is necessary. A warrant is supposed to show that good reason. In this case, it’s possible that police had good reason to think Greenberg had something illegal in his home. It’s also possible that they didn’t, but decided that because Greenberg was accused of a sex-related crime, it was worth a “fishing trip” to see what else he might have. As a cyber crime criminal defense lawyer, I work hard to protect my clients from the latter type of search, which is overturned fairly often in court.

Continue reading "Arizona Court Sends Child Pornography Case With Allegedly Tainted Evidence Back to Court" »

As a solicitation of a minor online attorney, I was interested to see reports of a recent series of arrests by the Polk County Sheriff’s Department in central Florida. According to the Ledger of Lakeland, the department arrested 22 defendants, all men, for traveling to Polk County for what they thought was sex with a child. The defendants were responding to false advertisements placed on craigslist, OKCupid and other websites from parents or guardians who wanted older men to teach their children how to have sex. The fictional “children” were as young as nine years old, and the defendants traveled from Texas, Virginia, Maryland and Missouri as well as cities across Florida. The Orlando Sentinel reported charges including traveling to attempt to seduce a child and use of a computer service to solicit a child. Reports suggested all defendants will face charges in Florida, not federal charges.

The effort was a collaboration between Florida counties including Polk, Lake, Osceola, Hernando and Hendry; the Orlando and Plant City police departments; the Florida Department of Law Enforcement; the Polk County State’s Attorney’s office and the Florida Attorney General. However, Polk County Sheriff Grady Judd took the lead in a press conference last week called in Winter Haven, where he held up gifts the arrestees had brought for the “children.” These included sex toys as well as stuffed animals, flowers and other more traditionally romantic gifts. Polk County has run seven such investigations totaling 122 arrests since 2006, the Ledger said, and as a result, potential targets are starting to resist coming to the area. The people arrested included people from all walks of life: students, a former CEO, a computer consultant to the federal government and others.

A casual observer might wonder if these defendants can use an “entrapment” defense to the charges, since of course they wouldn’t have come to Florida if the fictional parents and guardians hadn’t offered them sex with the fictional children. However, as an online solicitation of a minor defense lawyer, I’m afraid entrapment is not automatically available, even to people who were caught in a “sting.” In order to prove entrapment, you must be able to show that the government enticed you to do something you weren’t otherwise inclined to do. Prosecutors will try to show this inclination by demonstrating that you had child pornography depicting similar acts in your possession, or that your online communications with detectives showed you needed no prompting. However, if this kind of record doesn’t exist and detectives had to repeatedly encourage you, entrapment may be an option. If you’d like to pursue this defense, it’s important to speak to an experienced cyber crimes defense attorney as early as possible in your case.

Continue reading "22 Men Arrested for Soliciting a Minor Online in Interstate Sex Sting by Florida Police" »

The issue of when police may search suspects and defendants is important to me as a cyber crime criminal defense attorney. Under the Fourth Amendment, evidence from unreasonable searches and seizures is often thrown out of court as “tainted” by the police’s violation of the defendant’s civil rights. Particularly in cases of child pornography possession, where prosecutors have to prove nothing but knowing possession, this can make the difference between conviction and no conviction. So I was very interested to read about a man from upstate New York whose conviction for possession of child pornography was thrown out because of major mistakes on a search warrant. As the Ithaca Journal reported May 5, John Gavazzi, 47, may not have to serve the remainder of his sentence or register as a sex offender now.

Gavazzi was arrested in 2009, when he lived in the Village of Greene in Chenango County. The New York State Police approached a judge in the village to get a search warrant that found child pornography images in Gavazzi’s possession, although no details were provided. Gavazzi pleaded guilty to possessing a sexual performance by a child and promoting a sexual performance by a child. He served 90 days in jail and was serving 10 years’ probation, plus sex offender registration, when the appellate division of the New York trial court unanimously overturned his conviction. The problem: the judge in the Village of Greene signed a search warrant from “Local Criminal Court, Town of Broome, Broome County.” (There are such a town and county in New York, but the town is not within Broome County or Chenango County.) The justices objected to the fact that this court did not exist, and said the judge’s signature was illegible and not backed by other identification. That invalidated the search warrant, they said, which made evidence collected under it inadmissible in court. Prosecutors may still retry Gavazzi without the evidence, a long shot, or appeal the ruling to the New York Court of Appeals.

As a cyber crime criminal defense lawyer, I’m pleased to see that this court was willing to uphold the rule of law and defendants’ rights, even when it might not be popular with the community. The mistakes on the warrant were described in the article as “technical errors,” but in fact, they’re important safeguards. Search warrants exist so police have to demonstrate a good reason to search citizens; judges are supposed to exercise independent third-party judgment about this. If this judge was so addled as to add, or fail to correct, the names of a county and town where he did not preside, who’s to say the rest of the warrant was given the scrutiny it deserved? Throwing out this kind of warrant gives police and prosecutors an incentive to be fair and aboveboard. As a child pornography possession defense attorney, I know defendants sometimes need all the help they can get defending themselves from police overreaching.

Continue reading "NY Child Pornography Conviction Overturned Because of Flaws in Search Warrant" »

As a Miami-Dade child pornography defense attorney, I've written here many times before about the issue of sexting among teenagers. Sexting is the practice of sending and receiving sexually explicit pictures via text messages. Most parents and school administrators agree that this isn't desirable behavior among teens — but there's no existing law to address it. Unfortunately, prosecutors sometimes use child pornography laws to prosecute kids involved in sexting, even though the pictures aren't child pornography as it was originally envisioned by the authors of the laws. Worse, this kind of prosecution sets up kids for adult lives as convicted felony sex offenders. I'm happy to say that Florida started to address this last Friday, when the state House passed a law reducing sexting penalties substantially for minors.

Under the proposed law, authored by Rep. Joseph Abruzzo (D-Wellington), the penalties would change only for minors. Minors are guilty of sexting if they use a computer or other device to electronically transmit or distribute a photo or video "which depicts nudity and is harmful to minors." A first conviction would lead to community service and a $60 fine for defendants. The second offense would be a misdemeanor and the third would be a felony. Compare that with the offense of transmitting child pornography or transmitting material harmful to a minor, both of which are felonies in Florida. It is expected to come up for a vote in the state Legislature within a few weeks, and if passed, would take effect October 1. Abruzzo told WBPF last month that his goal is to teach kids that sexting is a bad idea, not penalize them with felony charges and sex offender registration obligations that last decades.

I couldn't agree more. As a south Florida cyber crime criminal defense lawyer, I have read about many cases of teenagers who were hit with felony charges and all of the associated penalties for one act of sexting. That includes at least one young adult in Florida, Philip Alpert, who ended up on the sex offender registration list after sending out a picture that his 16-year-old then-girlfriend had posed for voluntarily. As of 2009, he was on probation, having trouble finding work and kicked out of college. That's too much punishment for a mistake made out of immaturity. If the sexting bill passes, it will stop this kind of overreaction, while giving prosecutors the tool they need to address sexting in a way that shows that actions have consequences. As a Fort Lauderdale cyber crime criminal defense attorney, I think that's the best outcome for everyone.

Continue reading "Florida House Passes Bill Reducing Penalties for Sexting for Minors Under 18" »

As a cyber crime criminal defense attorney, I’ve written here before about the issue of whether and when police officers are permitted to search cell phones, iPods and other personal electronic devices that carry large amounts of data. Because the law on searches and seizures was written long before these devices were invented, settled law doesn’t address the issue of whether the devices are searchable without a warrant for people under arrest. However, the Fourth Amendment to the Constitution is very clear that police may not randomly search people who aren’t arrested or even accused of a crime. For that reason, I was very interested to see an April 21 article from the Detroit Free Press about a controversy involving the way the Michigan State Police search mobile phones.

Since 2006, the Michigan State Police have had and used a device that searches mobile phones, the article says. The CelleBrite device must be physically connected to a phone, but can then extract data from the phone itself and its SIM card, disable the SIM card (so the user can’t receive calls) and disable the password. Data extracted includes address books, text messages, photos and even deleted information. When the American Civil Liberties Union of Michigan originally found out about the devices, it filed a Freedom of Information Act request that confirmed the State Police had the devices. The ACLU then requested records about how the devices are used, saying it had been tipped off that they were not always used lawfully. It was also concerned that the CelleBrite devices were being disproportionately used with people of color.

The state agreed to supply the information but said it would cost $544,680 to provide it to the ACLU, and required a deposit of $272,340 before any documents would be released at all. The ACLU tried for nearly three years to narrow the request enough to lower costs, but the state always replied that there were no documents for the time period it specified, but refused to give dates for when there would be records available. The ACLU published a letter April 13 calling on the state to reveal the information, kicking off a national news story. The Michigan State Police released its own statement that day, saying it has never used the devices without a warrant or consent.

As a cyber crime criminal defense lawyer, I’m glad the ACLU won’t take their word for it. In the world of criminal defense, we know very well that police officers make mistakes or step over the line sometimes. When they are caught, they know they may be disciplined or the case against the defendant will be dropped, which can cause long court battles over basic violations of defendants’ civil rights. It’s not clear whether there’s been misconduct in Michigan, and it will remain unclear until and unless the state police are willing to release these public records at a reasonable price. However, the state police may be losing a PR battle by making themselves look like they have something to hide — even if they really have been following the law. As a cyber crime criminal defense attorney, I hope they have been, because wrongdoing could mean wrongful convictions that can and should be overturned.

Continue reading "Michigan State Police Under Fire for Potentially Unlawful Searches of Cell Phones" »

As a child pornography criminal defense attorney based in South Florida, I was very interested to read about a law enforcement investigation of one of its own — in fact, the head of the immigration and customs office in Miami. As the Miami Herald reported April 12, Anthony Mangione, the head of Immigration and Customs Enforcement in South Florida, has been placed on paid administrative leave while authorities from other agencies look into allegations that he received child pornography sent to his home computer. The images came through an AOL account, and AOL initially alerted authorities to the objectionable content. Mangione is not currently charged with a crime.

AOL and other Internet service providers are required by law to tell the Center for Missing and Exploited Children when they find evidence of online child pornography crimes. Based on that alert, the FBI subpoenaed AOL’s records to determine the owner of the email account, then got a search warrant for Mangione’s home in Parkland. Authorities also seized his computer at ICE’s offices. Mangione’s office has made child pornography investigations a priority at ICE, which also handles immigration crimes, terrorism and smuggling. He is suspended with pay pending the outcome of the investigation. One federal official said that could take a while because the computers need to be examined for evidence that Mangione sent, received or distributed illegal images.

The intersection between Mangione’s work and the crime he’s accused of interests me greatly as a child pornography defense lawyer. In December, I wrote about a lawyer in South Dakota who was prosecuted for possession of child pornography he said he was given as part of a criminal defense case. That lawyer was ultimately acquitted, but not before a trial, at which prosecutors did their best to convince jurors he was a fan of child pornography. If something similar happened to Mangione, he could be subjected to the same kind of public trial. This is terribly unfair to people who turn out to be not guilty, because accusations alone can be enough to destroy friendships and harm careers. That’s why, as a cyber crime criminal defense attorney, I hope the FBI and the Broward Sheriff’s office carefully consider any evidence that might exist suggesting Mangione had a legitimate reason for receiving the images.

Continue reading "South Florida ICE Chief Placed on Leave After Authorities Find Emailed Child Porn" »

As a child pornography defense attorney, I was extremely interested to see a news item about a rare reversal of a sentence for a defendant accused of child pornography possession. The Associated Press reported April 7 that the South Dakota Supreme Court has struck down a 100-year sentence for Troy Bruce of Pierre. Bruce was convicted of possessing 55 videos of child pornography in December of 2009 and sentenced to 100 years in prison. The high court found this in violation of the Constitution’s guarantee against cruel and unusual punishment, noting that people accused of more serious crimes have received shorter sentences. Bruce must still be resentenced by a lower court.

According to the article, Bruce was originally arrested in 2008, when his ex-girlfriend notified police that she’d seen child pornography on his computer. A search uncovered child pornography videos on DVD. All 55 counts against him stemmed from videos stored on one disc. The judge sentenced him to the maximum of 10 years for each of 10 counts, with sentencing suspended for the remaining 45 counts. Under that sentence, the 49-year-old Bruce would have been eligible for parole in 23 years at the earliest. However, the South Dakota Supreme Court found this overly harsh compared to sentences for people accused of more direct sexual crimes against children, including producing child pornography and sexual assault of a child. There was no evidence that Bruce had ever done those things or planned to, the court noted. A concurrence noted that differences in sentencing in South Dakota for child pornography possession are “shocking,” with one defendant serving just 45 days in jail.

Late last year, I wrote about a South Dakota defense attorney who was acquitted of child pornography charges stemming from his work defending someone accused of criminal child porn possession. It might be tempting to conclude that South Dakota has a particularly unforgiving attitude toward child pornography crimes, but as a child porn defense lawyer, I can tell you that federal law and many other states are also disproportionately harsh on child pornography defendants. At the federal level, the U.S. Sentencing Commission has heard from numerous federal judges who believe the guidelines for possession are too harsh, with the average sentence ballooning from 15 months to 102 months over 12 years. As a cyber crime criminal defense attorney, I understand that this kind of harsh punishment stems from society’s revulsion about the acts depicted in child pornography. But I believe it’s more just to consider what the defendants actually did, not what they might want to do.

Continue reading "South Dakota Supreme Court Rules 100-Year Child Porn Sentence Is Unconstitutional" »

Florida Gov. Rick Scott made the news this year when he announced plans to cut funding to the cyber crime unit of the state Attorney General’s office. While this doesn’t harm my private-sector work as a cyber crime attorney, it would reduce the number of staff members in that office from 34 to 15, and investigators from 15 to 6, reducing the number of cases the office was able to bring. Last week, supporters of the office and its work rallied in Tallahassee in protest of the proposed budget cuts, including two parents of children who were abducted and murdered by child molesters. Now, WJXT in Jacksonville reported April 4, the former head of the cyber crime unit has gone before the state Senate’s budget committee, which has indicated that it will work to avoid cuts to the law enforcement part of the workforce.

The Tallahassee rally, held March 29, included Diena Thompson and Mark Lunsford. Thompson is the mother of Somer Thompson, who was abducted, raped and killed at the age of nine by a neighbor in Orange Park. That man, Jared Harrell, came under suspicion after he was charged with 29 unrelated counts of child pornography possession. Lunsford is the father of Jessica Lunsford, who was also nine when she was abducted from her bedroom, raped and killed by a neighbor in 2005. Police later found child pornography on his computer. Both parents spoke about the importance of cyber crime investigators in preventing similar crimes and called on lawmakers to fight for the unit’s funding. WJXT said the Senate budget committee did not guarantee anything, and that the cyber crime unit was still likely to be transferred to the Florida Department of Law Enforcement — but said cuts to investigation staff were less likely.

As a child pornography criminal defense lawyer, I’m surprised the governor proposed these cuts. The public feels strongly about child sexual predators, which is why we have some very strong sex offender restrictions in Florida even though those restrictions are of questionable value to public safety. It’s not clear whether the cyber crime unit, which hunts down people sharing child pornography through the Internet, could stop senseless crimes like those against the Thompson and Lunsford families. After all, possessing child pornography is not the same offense as creating it, or molesting a child without cameras. As a child porn criminal defense attorney, I know that distinction is very important under the law, even if it’s not always important to the public. But even if it doesn’t increase the risk of crimes against children, cutting funding to the cyber crime unit is certainly a political risk.

Continue reading "Parents and Law Enforcement Fight Plan to Cut Staffing for Florida Cyber Crime Unit" »

I’ve written here several times before about the issue of financial restitution for children and young adults who were depicted in widely shared child pornography. In the past several years, numerous requests for financial restitution have come from these victims, who say they are victimized with each new download and should be fairly compensated. As a child pornography criminal defense attorney, I’ve written here before that I believe these claims are legally weak — but several appeals courts have allowed them, as long as the victim can show the harm caused by the defendant’s actions. The Fifth U.S. Circuit Court of Appeals raised an even more controversial issue last week when it ruled that victims do not need to show how the defendant’s actions harmed them in order to claim the restitution. This worsens a legal split that the article said will likely be resolved only with a ruling from the U.S. Supreme Court.

The Fifth Circuit’s case comes out of Texas, where Doyle Paroline served two years in prison for downloading child pornography. The images authorities found in his possession included two images of “Amy,” a pseudonym for a woman in her twenties who, when she was a child under 10, was the unwilling star of very widely shared child pornography pictures. “Amy” has also been at the forefront of the movement to compensate victims, filing hundreds of claims around the country. She requested $3.4 million in compensation from Paroline, for costs like therapy and loss of income. But a Texas federal judge denied it, saying she didn’t show that Paroline’s possession of the images was the proximate cause of her injuries. The Fifth Circuit reversed that ruling, and in doing so, also reversed a previous ruling from a different Fifth Circuit panel in a different case involving “Amy.” No clear consensus has emerged in federal courts on what compensation is appropriate, the article said, with some awarding no compensation or small amounts that are largely symbolic.

As a child porn criminal defense lawyer, I am sure this issue will eventually reach the U.S. Supreme Court. Child pornography is a highly emotional issue, which means that sometimes, juries and judges overreach what the law allows in their eagerness to penalize the perpetrators. However, federal law on restitution for victims was not intended for this use, and that means it wasn’t written with the looser standards the Fifth Circuit seems to have applied. Restitution laws are intended to keep criminals from profiting from their crimes. In the case of someone like Paroline, who is accused of viewing or downloading the material rather than making it, there’s no financial profit to take away. It’s also debatable whether the harm to “Amy” was direct enough to qualify, since she didn’t need to be present or even aware of Paroline for him to access the images. As a child porn criminal defense attorney, I think courts exist to exercise this kind of careful judgment, to avoid misuse of restitution laws — and ensure that justice is served, even for people society doesn’t like.

Continue reading "Federal Appeals Court Ruling Loosens Standard of Proof for Child Porn Compensation" »

I'm pleased to say that another television station asked me to contribute my opinion as an experienced cyber crime lawyer to a news report. The Big Picture, an English-language talk show on Russian television network RT America, had me on to discuss a proposed Oregon state law. This law, which has passed the Oregon state House, would require computer technicians to report images they believe are child pornography when they encounter them at work. I told host Thom Hartmann about my concerns that the law would overreach the Fourth Amendment by requiring technicians to perform a search and seizure of people who law enforcement would not otherwise have any reason to search. I also told him I believe it's dangerous to effectively deputize non-experts to decide what is and is not child pornography. You can see the entire segment here:

An article about an Oregon man facing steep charges for possessing, distributing and receiving child pornography caught my eye as a child porn attorney. The March 18 article on OregonLive.com said the tale of Kyle Scott Broadhurst should serve as a caution to the many Internet users who have not yet secured their wireless home networks. Broadhurst, 26, is accused of using the wireless networks of neighbors in Milwaukie, Ore. to access file-sharing sites specializing in child pornography. The goal was to avoid being identified by deceiving authorities into believing the neighbors were the ones downloading. Fortunately for his neighbors, Broadhurst was correctly identified and is now facing nine federal felony counts.

Broadhurst was discovered by an interagency team of investigators into child pornography swapping online. Rather than have human detectives do searches, they used an automated system to find sites and traced traffic back to individual home computers. That system led Clackamas County sheriff’s deputy Erin Schweitzer to Milwaukie, where she parked outside the homes with the unsecured wireless networks. Because they were all unsecured, she suspected they were being pirated by someone with a directional wifi antenna, which extends the range in which you can pick up wireless networks. By using a special device whose function was not described, the investigators were able to trace the activity back to Broadhurst and found him downloading child pornography in his bedroom in February of 2010. He confessed to downloading thousands of images, some only for trading purposes.

This piece reminds me of another I read and blogged about last month as a child pornography lawyer. In that case, a Sarasota man was wrongly accused of child pornography crimes after his network was hijacked. It wasn’t until a frightening search of his computer that the authorities considered a wireless pirate, and eventually found the real downloader. In Oregon, no such invasive searches were reported, fortunately — but they easily could have happened if investigators had been impatient to make an arrest or inexperienced with cyber crime. That’s one reason why, as the article implies, wireless home network users would be wise to password-protect their networks. As a child pornography attorney, I believe evidence would eventually get such innocent users released — but possibly not before they’re subjected to invasive searches, rough treatment and possibly even confiscation of their property.

Continue reading "Oregon Man Caught Using Neighbors’ Unsecured Wireless to Download Child Porn" »

Last week, I wrote a blog post about the different ways federal law and Florida state law handle cases of child pornography created by computers rather than in-person exploitation of children. So as a child porn attorney, I was very interested to see a New York Times article March 7 about a man in Michigan who is being prosecuted for a related offense that some say was not even a crime. According to the article, 21-year-old Evan Emory is charged with manufacturing and distributing child pornography because he digitally altered a video of himself giving a concert to schoolchildren, making it seem as if he was singing graphic sexual lyrics to the children even though in reality, he was singing age-appropriate songs. Emory was expected to plead no contest to a lesser charge March 14, to avoid a potential maximum sentence of 20 years in prison and 25 years of sex offender registration.

No actual sex was depicted in the video and no children heard the dirty song. After Emory finished the clean version of his performance at the school, he and a friend taped the dirty version. He showed the video at a performance in mid-February and also uploaded it to YouTube. Nonetheless, the Times reported that the case has divided neighbors in the town of Muskegon, where complaints from parents triggered Emory’s arrest. Parents are upset that their children are easily identifiable in the sexually themed video. Emory, meanwhile, has been treated like anyone else accused of a child pornography crime: he has been suspended from his job, was jailed, and had his computer and phone seized and searched. (No child pornography was found.) His father has left the state to look for work to pay legal bills, and his mother has avoided leaving the house except to work after she was chased and photographed by angry parents. A few parents have also experienced a backlash from Emory’s supporters.

As a child porn lawyer, I’m not at all surprised that this case has upset so many people in Muskegon. Child pornography charges trigger strong feelings, which means people who are accused typically face personal and social consequences long before they can be convicted or acquitted — often before they’re formally charged. The social backlash against Emory’s mother and the suspension from his job are both unfortunately common. However, I am surprised that prosecutors in Muskegon County felt that a dirty song was strong enough evidence to support a child pornography prosecution. Not only were no children harmed in the making of this video, but it would be difficult to argue that the video is any kind of pornography, as the term is generally understood. It’s understandable that Emory is choosing to plead no contest to a lesser charge, given the life-altering consequences he faces if convicted and the cost of defending himself. But as a child pornography attorney, I believe he’d have a strong case if he chose to fight the charges instead.

Continue reading "Michigan Man Faces Child Porn Prosecution for Digitally Altering Lewd Music Video" »

A recent federal appeals court ruling caught my eye as a child porn defense lawyer because it came to a conclusion opposite from that of Florida courts. The New York Law Journal reported March 2 that the Second U.S. Circuit Court of Appeals in New York ruled that superimposing the faces of minors onto the bodies of adults in pornography can be penalized as child pornography. The decision means 50-year-old John Hotaling of Sharon Springs, N.Y. will continue to serve a 6.5-year jail sentence on one count of possessing child pornography. The ruling comes down on the opposite side of a Florida state court decision in the case of former Lakeland school principal John Stelmack, who was freed in December after the Second District Court of Appeal ruled similar images are not child pornography.

Hotaling used a computer to create six photos in which the faces of teenage girls were pasted onto the bodies of women in adult pornography. The teens’ photos came from people he knew, including pictures his daughter and her friends had taken and one picture taken from a computer he was fixing for family friends. The court ruling said the photos were “encoded in [HTML]” and stored in “indexed folders that could be used to create a website,” although it’s not clear what that means. The court noted that there was no evidence that Hotaling uploaded or distributed the photos, and he argued that he created them only for himself and did not harm any of the minors. However, the Second Circuit said the pictures fit within the bounds of previous rulings excepting child pornography from the First Amendment because of the harm to children created from producing it. The court also expressed concern that the pictures were “primed for entry into the distribution chain.”

Thanks to our dual state-federal legal system, it’s not at all contradictory that this court came to a different conclusion from the appeals court here in Florida. Child pornography is illegal in both jurisdictions, but Florida does not specifically forbid making “virtual” child pornography with a computer program, the way Hotaling did. Federal law does — but interestingly, that’s been the case only since 2003, when Congress modified child pornography laws to explicitly include pornographic images that appear to be minors. It did that because the U.S. Supreme Court ruled in a 2002 case, Ashcroft v. Free Speech Coalition, that a previous law on the same topic unconstitutionally restricted “speech that records no crime and creates no victims by its production.” This is still the precedent

Since then, the high court has declined to revisit the issue — but Hotaling’s attorney has indicated that they may try again. In my opinion as a child pornography lawyer, Hotaling may be able to make a strong case, and not just because he because the harm to the victims was questionable in his case. As the article notes, he was convicted in part based on the court’s belief that he might have been planning to distribute the images — not because he actually did.

Continue reading "Court Upholds Child Porn Conviction for Pasting Minors’ Faces Onto Adult Bodies" »

Last fall, I wrote about Michael Reichert, a former University of Central Florida professor accused of possessing 138 images of child pornography. The case caught my eye as a child porn attorney in part because Reichert was the one who brought the images to the attention of UCF computer technicians. He brought his computer to the technicians, saying the machine had images of child pornography on it, possibly because of a virus, and he would like it to be gone. When technicians confirmed the images were child pornography, they reported the matter to police. Now, the Orlando Sentinel reported Feb. 21, prosecutors in Orange County have dropped all charges against Reichert, saying they cannot prove the images belonged only to him.

Reichert was an assistant professor of political science at UCF when the incident occurred. He spent about two weeks in jail before he could make bail and be released. At the time, authorities said they had discovered that 132 of the 138 images had been backed up to a handheld device of some kind, under the name “reicher.” As a result, Reichert was charged in 2007 with 138 counts of child pornography possession. Nonetheless, Reichert and his criminal defense attorney maintained that he didn’t know how the images got to his computer. It’s not clear whether the prosecution or the defense investigated Reichert’s statement that it may have been a virus, but the Sentinel quoted a spokesperson for the State’s Attorney’s office saying prosecutors couldn’t prove Reichert was the sole owner of the images. Reichert no longer works at the university.

As a child porn lawyer, I’d be interested to know the story behind the prosecution’s change of heart in a case now nearly four years old. The computer with the offending images was a laptop, so it’s not unreasonable to believe it may have been physically in someone else’s hands, with or without Reichert’s permission. There’s also the question of whether Reichert was hacked, which actually can happen; the child pornography community sometimes takes over computers remotely in order to store images in a safe — for them — place. Prosecutors must prove cases beyond a reasonable doubt in order to put someone in prison, so if they believed there was a serious question about whether Reichert owned the images or knew about them, dropping the case was the right thing to do. As a child porn attorney, I think it’s unfortunate that his name is now linked with child porn, something that will undoubtedly lead to trouble finding jobs and other social stigma problems even if he is ultimately cleared of suspicion.

Continue reading "Prosecutors Drop All Charges Against UCF Professor Accused of Possessing Child Porn" »

One of the many things that separate child pornography crimes from other crimes is the federal government’s ability to preemptively take down sites accused of involvement in child pornography. As with defendants in federal drug crimes, racketeering and certain other crimes, child pornography defendants may have their assets seized with no more authority than a search warrant they are not notified about or allowed to fight. Civil libertarians and child porn attorneys like me question the constitutionality of this practice — and more fuel was added to the debate earlier this month when the federal government wrongly seized 84,000 websites hosted on mooo.com.

The Department of Homeland Security apparently wrongly believed that mooo.com was involved with storing, displaying or selling child pornography, and seized it along with the nine other suspect domains. According to a Feb. 18 story in The Register, mooo.com is used by the registrar FreeDNS to direct Internet users to 84,000 domain names, most of which are websites owned by individuals and small businesses. Because of the DHS mistake, visitors to any of those sites on the night of Feb. 11 would have found not the sites they expected, but a redirect to a banner saying the site had been seized by DHS under the federal law that allows the government to seize property used in a crime. It then displayed this message:
“Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution.”

According to PC World, DHS didn’t reverse its incorrect seizure until the evening of Feb. 13 — about two days later. At that time, FreeDNS wrote that for technical reasons, it would likely take another three days for the change to be reflected all across the Internet. Thus, it was as many as five days before the incorrect child pornography accusations disappeared from the sites. A spokesperson for the Electronic Frontier Foundation told The Register the restraint on free speech was likely to be illegal under current court rulings.

As a child pornography lawyer, I think this case is a fine example of why secret search warrants are a terrible idea. By seizing first and double-checking later, DHS wrongly accused 84,000 people and small businesses of involvement in child pornography. Law enforcement officers make mistakes at work just like everyone else, of course. The civil forfeiture laws use judges to review search warrant requests as a safeguard — but those judges can only work with the information the mistaken officers provided. During the two to five days the DHS message was on their sites, all of the visitors — who could have been a handful or thousands of people — would have seen a message implying that they were involved in child pornography crimes. As a child pornography attorney, I know from experience that a mere accusation of this serious crime can quickly lead to a “conviction” in the court of public opinion, broken relationships and even firings. With that much at stake, I believe our system can and should do better.

Continue reading "Federal Government Wrongly Accuses 84,000 Sites of Trafficking in Child Pornography" »

I’ve written here several times in the past about the issue of sexting among teenagers. From my perspective as a child pornography criminal defense attorney, I don’t believe teens should be prosecuted under child pornography laws for sexting, since those laws are typically designed for hardened adult criminals, not kids who made a dumb mistake. I’m pleased to say that in the early part of this year, more and more state legislatures have proposed bills that would draw that distinction, removing penalties or lowering them for kids caught sexting other kids. Proposals in New Jersey and Texas have gathered a fair bit of media attention, but legislatures in Ohio and South Dakota are also considering sexting laws.

Sexting is taking nude or explicit pictures of yourself or someone else and sending them as text messages with a phone or computer. As a rule, state criminal codes don’t have a way to handle this, so when these cases make it into the legal system, teenagers can face charges for making and possessing child pornography – usually a felony with lifelong sex offender registration requirements. In New Jersey, the state Assembly has already passed a law that would allow judges to sentence first offenders to education on the criminal and social consequences of sexting, including the possibility that the picture could be traded in the online child pornography underworld. Assemblywoman Pamela Lampitt, D-Camden, has also introduced bills that would require education in schools and with each new cell phone contract.

In Texas, the bill is similar, but more controversial. Judges would be authorized to send minors to anti-sexting classes, but at least one parent would also be required to attend. The state Senate’s proposed legislation would also lower sexting from a felony to a misdemeanor, taking away the penalties of two to 10 years in prison and lifelong sex offender registration. Juveniles convicted could petition to have the crime expunged from their records. Texas Attorney General Greg Abbott has endorsed the legislation.

As a cyber crime criminal defense lawyer, I think these laws are a step in the right direction. What’s missing: proposals that would take the offenses out of the justice system’s hands entirely unless they truly need to be there. Most kids caught sexting aren’t exploiting each other or themselves, in the way an adult criminal making child pornography might do. They’re exploring their sexuality, but in a way that could be socially, legally or personally dangerous. It’s appropriate for our society to discourage this behavior, but in a way that doesn’t send teens to prison, saddle them with sex offender registration or hurt their chances for college, military service and good jobs in the future. As a child pornography defense attorney, I believe schools and parents should take the front lines on sexting, and leave prosecutions for cases where there is some genuine criminal intent.

Continue reading "More State Legislatures Take Up Issue of How to Penalize Teenagers for Sexting " »

A recent piece about a misdirected FBI investigation caught my eye as a child pornography lawyer. As the Sarasota Herald-Tribune reported Jan. 31, attorney Malcolm Riddell was temporarily wrongly accused of sending thousands of files’ worth of child pornography – because he hadn’t secured his wireless router very well. The real culprit turned out to be someone in a boat moored in the Sarasota marina 12 stories below Riddell’s condo, who was using Riddell’s network without authorization. Riddell said he knew he needed to password-protect his network, but incorrectly thought the wireless wasn’t available more than 400 feet from the router itself. He was eventually cleared of suspicion, and the FBI arrested 52-year-old Mark Brown, the boater, for possession of more than 10 million images and videos of child pornography.

Riddell found out about the investigation the hard way. One June morning in 2010, he and his wife were awoken at 6 a.m. by loud knocking and a voice announcing “FBI, open up!” When he did, a dozen armed agents entered his condo, held him against the wall and separated him from his wife for questioning. After searching his computer, the police finally told a confused Riddell what they were looking for: child pornography coming from someone using his router. Riddell, 58, said he didn’t bother password protecting his router because he didn’t believe the network reached very far and most of his neighbors were of retirement age, making it unlikely that they would steal his Internet access. But after the FBI put a tracer on the router, they discovered Brown using it from much further away to commit very serious child pornography crimes. Brown is now jailed, awaiting a trial that could put him in prison for decades if he’s convicted.

As a child pornography attorney, I’m very pleased to see that this FBI office knew enough to check whether Riddell was responsible for the traffic coming from Riddell’s router. Unfortunately, in my experience, this is not always the case. Just like everyone else, law enforcement officers can overlook or misinterpret things. To make matters worse, officers often won’t take defendants seriously if they say there must be a technical mistake, in part because people who are truly guilty will often say the same thing. In some cases, it takes an experienced cyber crime defense lawyer and a team of technical experts to prove to a jury that the defendant truly didn’t know what was going on. In the meantime, the defendants may be jailed, rudely and roughly searched as Riddell was, and spend thousands of dollars trying to exonerate themselves – not to mention the judgments they can face in the community.

Continue reading "Unsecured Wireless Network Wrongly Implicates Sarasota Man in Child Porn Case" »

An unusual decision to re-sentence a child pornography possession defendant caught my eye as a child pornography lawyer. According to a Jan. 28 article from the New York Times, the Second U.S. Circuit Court of Appeals has overturned a 6 1/2-year sentence for a man convicted of one count of child pornography possession. The decision does not mean that Gary Cossey will not go to prison, but he will be re-sentenced by a different federal judge after the appeals court found that the original judge’s fairness was in doubt. That judge, Gary L. Sharpe of the Albany federal district courts, reportedly gave Cossey a long sentence under the theory that he was likely to re-offend, “because of an as-yet undiscovered gene.”

Cossey pleaded guilty to one count of child pornography possession in late 2009. The circumstances of the case were not reported, but he was apparently caught looking at child pornography even after an FBI investigation. At his sentencing, Cossey said he was in therapy and finding it helpful, and his criminal defense attorney presented two psychological reports suggesting he was at low to moderate risk of offending again. Sharpe reportedly told Cossey at the sentencing that those opinions were “virtually worthless” because sexual desire for children is “a gene you were born with. And it’s not a gene you can get rid of.” Sharpe predicted the discovery of such a gene in the future. The Second Circuit sharply reprimanded the judge with a ruling saying “it would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics,” and that the decision cast doubt on the fairness of the entire system.

No decision has yet been made about how long the new sentence for Cossey might be, and it’s hard to speculate without knowing the details of the case. But as a child pornography attorney, I suspect Cossey fought the 6 1/2-year sentence in the first place because it was well over what he and his lawyer expected under the circumstances. Child pornography offenses are notorious for being harshly punished, thanks in part to a “tough on crime” Congress that has given judges little wiggle room. But as this case shows, judges don’t always use their discretion correctly. Regardless of what we think of any particular crime, it cannot be acceptable for judges to sentence defendants based on their opinions about what science might find in the future. Allowing this is tantamount to allowing sentences based purely on the judge’s personal prejudices. As a child porn lawyer, I know how important it is to hold judges to a higher standard than that -- because defendants charged with child pornography and online solicitation are rarely popular.

Continue reading "Appeals Court Overturns Sentence Based on Faulty Science in Child Pornography Case" »

Late last week, the Florida Supreme Court made a decision that could have an important effect on the work of child pornography defense attorneys like me. The court on Friday ordered a hearing within 60 days on whether Ronald Morel should be civilly committed for psychiatric treatment under Florida’s Jimmy Ryce Act. Morel was convicted in 1994 of kidnapping and raping a Boca Raton woman and served seven years in prison. Under the Ryce Act, the state could and did ask a court to commit him for psychiatric treatment. Defendants can fight this, and Morel has, but delays in his case have kept him in “temporary detention” for eight years in an Arcadia psychiatric facility. The high court ordered a hearing on Morel’s request for treatment as well as his contention that his rights have been violated, saying his case raises “serious concerns” about the legality and fairness of the system.

Detainees like Morel have already served their prison sentences. Once they finish, prosecutors can ask to commit them for psychiatric treatment until they are no longer a danger to society. The law requires a trial on civil commitment within 30 days, but defendants often waive that right in order to better prepare for the trial and enlist expert witnesses. The result, the Second District Court of Appeal said, is that many cases stay on hold for years. Morel’s case involves a civil commitment trial as well as a separate case arguing that his detention for eight years without a trial is unconstitutional. His defense attorney says he wants treatment -- which he can’t have until he’s formally committed -- but does not want a trial that could lock him up for the rest of his life. The prosecutor says Morel himself is responsible for many of the delays. The Sarasota Herald-Tribune added that the case was delayed by three years without action from prosecutors; a mistake by the clerk’s office; and possibly by a defense lawyer who has gotten complaints of neglect at the Florida bar.

The Jimmy Ryce Act, named for a nine-year-old boy who died at the hands of a sexual predator, allows commitment of anyone who was imprisoned for a sex offense and deemed a potential re-offender. That’s why this is important news for sex crimes defense lawyers and child solicitation lawyers. Under the Bill of Rights, everyone has a right to a speedy and fair trial. That includes people who committed very serious crimes that society reviles. Sex offenders are not popular, and locking them up indefinitely without trial may play well with voters -- but they have the same constitutional rights as everyone else. As a child pornography defense attorney, I’m pleased that the state Supreme Court is considering the rights of Morel and other detainees, who could number in the hundreds.

Continue reading "Florida High Court Orders Hearing for Sex Offender Detailed Eight Years Past Sentence" »

As a cyber crime criminal defense lawyer, I was interested to see an arrest of two teenagers here in Florida for alleged cyberbullying. The Naples News reported Jan. 13 on the arrests of 16-year-old Taylor Wynn and 15-year-old McKenzie Barker, both girls, on charges of aggravated stalking of a minor under 16. The two allegedly created a false Facebook page for the victim, who is not being named, showing her head “Photoshopped” onto a sexually explicit picture. This violates state cyberbullying laws, including the Jeffrey Johnston Stand Up for All Students Act, which strengthened criminal laws after the 2005 suicide of a Cape Coral teenager who was bullied. Wynn and Barker were sentenced to 21 days of home detention and will be arraigned Feb. 8.

The article quoted at length from a police interview with Taylor Wynn and her mother. Taylor said she used to be friends with the victim but was not anymore. She said she created the page because nobody liked the victim and she thought it would be funny. After the photo and comments about sex appeared on the fake Facebook page, the victim reportedly suffered ridicule and teasing. The page had 181 “friends” as of the article’s publication. The Lee County Sheriff’s Office said it got access to the page with help from other teenagers and traced it to an Internet addressed owned by Taylor Wynn’s mother. They also found text messages about the page sent between Wynn and Barker. A spokesperson for the school district said the felony arrests could cause the district to move the two girls into alternative schooling.

I hope the penalties are not so severe. As a cyber crime criminal defense attorney, I think this charge may be inappropriate for the situation. Like child pornography laws, Florida’s “cyberstalking of a minor” statute was likely written with adults offending against juveniles in mind -- not juveniles offending against each other. This is not to say that the girls shouldn’t be in any kind of trouble -- but the criminal charge they face is a third-degree felony, opening up the possibility that these girls will go to juvenile detention or even adult prison. In addition, the girls would also have a felony conviction hanging over their heads as they enter adult life, which can take away opportunities like student loans and military service. That’s why, as a cyberstalking criminal defense lawyer, I believe it’s best to handle student-on-student crimes through the schools whenever possible. When cases do enter the court system, I advocate for a response that takes into account the teen’s age and potential for rehabilitation.

Continue reading "Florida Teenagers Face Aggravated Stalking Charges for Alleged Facebook Bullying" »

A child pornography case out of Oregon caught my eye as a child pornography attorney, because it was a rare victory for someone accused of a child porn crime. The Oregonian reported Jan. 6 that the Oregon Supreme Court has ruled that computer users commit no crime by merely looking at images of child pornography, unless they download, pay for or print out the images. The 5-2 ruling overturns the conviction of Barry Lowell Barger on eight counts of encouraging child sexual abuse (an Oregon state crime). He will remain in prison on a separate 25-year sentence for sexually abusing two children under age 12. However, the ruling has wide implications for child pornography defendants in Oregon, and may also affect defendants in other states with statutes worded similarly to Oregon’s.

The case turns on Oregon’s state law against “encouraging child sexual abuse,” which forbids knowingly possessing or controlling child pornography, or knowingly paying to obtain or view such material. In Barger’s case, it’s not disputed that he didn’t pay for the pornography. Police officers investigating the child molestation case visited Barger’s home, where his wife told them Barger had “weird” material on his computer. They looked into his Web browsing history and found that he’d visited some websites with sexual pictures of girls in their early teens and younger. Some such pictures may have been stored automatically by the computer. That was the basis for the charges of encouraging child sexual abuse. The trial court in Barger’s case decided that he had “possession” because he could have printed, saved or otherwise controlled the images, and an appeals court agreed. The high court, however, said Web browsing was more like “walking into a museum to look at pictures -- the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them.”

This ruling applies only to Oregon, of course. It also won't affect Florida, where courts have ruled that merely viewing child pornography -- as established by the temporary files stored in the user's "cache," may be enough for a possession charge. An experienced child pornography possession lawyer may be able to argue that there's no possession if the user was genuinely unfamiliar with computers -- but any attempt to clear the cache or otherwise delete temporary files can be taken as evidence of knowing possession. Police officers and prosecutors who understand the difference between intentionally saving files and the temporary Internet file folders created by a Web browser may try to charge an individual with possession without actually proving knowledge of the user's actual possession. For example, prosecutors might argue that the user exerted dominion and/or control over the images/knew of their existence on the computer, albeit temporarily. That's why it's important to hire an experienced child pornography possession attorney in such a case, so that you can ensure your rights are not violated.

Continue reading "Oregon High Court Rules Viewing Child Pornography Online Is Not Possessing It" »

A recent ruling by a Florida court of appeal caught my attention because it’s relevant to my work as a south Florida cyber crime criminal defense lawyer. As the Associated Press reported, the First District Court of Appeal ruled Dec. 21 that evidence of child pornography possession could be used against James Linn Higerd, even though the evidence came from a search intended to find only things that might be dangerous on an airplane. The ruling (PDF) is the first of its kind in Florida and much of the nation, but courts in Hawaii and Ohio have found that such searches are unreasonable under the Constitution. Higerd pleaded no contest to 194 counts of possession of child pornography and is currently serving 2.5 years in prison, but reserved his right to file this appeal to the search.

Higerd was passing through Pensacola Regional Airport when his checked bag was selected for a physical search, although the X-ray scanner turned up nothing suspicious. The TSA agent searching it found physical photos that depicted child pornography, leading local law enforcement to search Higerd’s computer and find more. In his appeal, Higerd argued that the TSA’s physical search of the bag violated his Fourth Amendment right against unreasonable search and seizure. Because the TSA has the technology to look for contraband without opening bags, he argued, the search was not “minimally invasive” as required. The First District disagreed, saying the TSA agent was following TSA protocol for seeking out weapons and explosives. Unlike in the Ohio and Hawaii cases, the court said, the agent was not intentionally looking for evidence of any other type of crime.

The article quotes a travelers’ group that disagrees with this ruling, calling it “a continuing assault on the Fourth Amendment rights of travelers.” As a Miami cyber crime criminal defense attorney, I also have reservations about this ruling. The question is not whether the search of Higerd’s luggage violated TSA protocol; it’s better to ask whether TSA protocol violates the Fourth Amendment. I suspect the answer depends on whether explosives could reasonably be found in a sheaf of papers. The Fourth Amendment is not just window dressing; it provides the main bulwark against overreaching by law enforcement officers. In my work as a Fort Lauderdale cyber crime criminal defense lawyer, I’ve seen other cases where officers eager to find a crime overstep the bounds of privacy or reasonable suspicion. As more and more airport searches turn up evidence of crimes unrelated to terrorism, I hope most courts do not follow the First District’s example.

Continue reading "Florida Appeals Court Upholds Airport Search That Found Child Pornography" »

A report about the child pornography arrest of a Pembroke Pines man caught my eye as a Fort Lauderdale cyber crime criminal defense attorney. According to a Dec. 23 report from the Miami Herald, 66-year-old Warren Day was arrested for possession of child pornography after police followed up on a tip from the Center for Missing and Exploited Children. Day has a history of child sex offenses, having been arrested in Dade County in 1982 for lewd acts with a child. Because the offense was well before sex offender registration laws, he was never required to register as a sex offender.

According to the report, police found Day viewing child pornography when they entered his home. When they first searched his computer, they found hundreds of sexually explicit images of children, giving rise to 50 counts of child pornography possession. More may be coming once police do a more thorough search. He declined at the scene to answer questions from the police without an attorney present -- a very smart move, as any south Florida cyber crime criminal defense lawyer would agree -- but told the police he was “a piece of [excrement].” Day is a speech pathologist, which means he works with people who have trouble speaking. His most recent job was with senior citizens at the Hollywood Rehab Center, but he has worked with children of all ages in the past, including through the Miami-Dade school system.

As a Miami cyber crime criminal defense attorney, I’m afraid Day’s career working with children is likely over. Even if he is not imprisoned and his license is not revoked, school systems generally won’t consider hiring someone with this type of past arrest. In fact, Day would likely already be ineligible to work with children if he had completed probation for his offense after 1997. However, Day’s bigger problem at the moment is the possibility of prison. If no further charges are filed, he could still face many years in prison for the 50 counts of child pornography possession already filed. To minimize those penalties and the chance of further penalties, he should get a lawyer with cyber crime experience right away. Such an attorney should do everything possible to prevent unreasonable searches of his computer and storage media (like DVDs or flash drives), and ensure that officers performing searches don’t file incorrect charges due to lack of technical savvy.

Continue reading "Speech Therapist Arrested in Broward on 50 Counts of Child Pornography Possession" »

A criminal prosecution out of South Dakota caught my eye because it’s directly relevant to what I do as a Fort Lauderdale cyber crime criminal defense attorney. The Sioux Falls Argus-Leader reported Dec. 18 that attorney Leo Flynn was acquitted of child pornography charges that he said stemmed from his work defending clients. Flynn was charged with possession, distribution, receipt and access with intent to view child pornography after investigators found him sharing the material through the file-sharing software Limewire. Investigators later found more files in the “recycling bin” of his computer and evidence that he’d visited websites containing child pornography. Flynn maintained that he’d looked at the material as part of his cases and defended himself using a South Dakota state law shielding lawyers, police officers and other officials from prosecution for possessing and viewing child pornography as part of their work.

Flynn was reportedly known as the “perv attorney” locally because he defended a lot of sex cases. According to the newspaper, however, he is not computer-savvy and didn’t realize that Limewire was set to share his files by default. He maintained that he’d looked into child pornography in order to provide advice to his clients, and shared details of each request without sharing the name of the client, who would be protected by lawyer-client confidentiality. Prosecutors argued that the timing of some of his searches was off, and that he’d never asked his officemate, another attorney, for help with technical issues. They also pointed to a statement Flynn made when first confronted with the charges, that his life was over and he was going to prison. The prosecution said this was evidence of his guilt, but the jury apparently disagreed, acquitting Flynn on the basis that his actions were work-related.

As a Miami-Dade cyber crime criminal defense lawyer, I am sympathetic. Regardless of whether Flynn’s statement that he was going to prison was incriminating, it was accurate -- that’s by far the most common outcome to a child pornography case. Juries aren’t sympathetic to defendants they see as child molesters, so it’s difficult to successfully defend even those who are victims of bad circumstances, as Flynn appears to be. Unfortunately, his key mistake -- not realizing that Limewire was sharing files he thought were confidential -- is not uncommon. People who don’t understand the technology well may not even realize the software has that function, or realize it’s enabled by default, or know how to turn it off. When prosecutors and police don’t realize this, they can even bring innocent people up on serious cyber crime charges. Understanding technology is one of my most important jobs as a West Palm Beach cyber crime criminal defense attorney, because it can prove my clients’ innocence or guilt long before any trial takes place.

Continue reading "Defense Lawyer Found Not Guilty of Possessing Child Pornography He Had for Work" »

A newspaper article from over the weekend caught my eye as a Miami-Dade cyber crime criminal defense attorney. The Associated Press reported Dec. 10 that a South Florida man, 27-year-old Mitchell Hill, has been arrested for cyberstalking young women at Louisiana State University. The Florida Department of Law Enforcement says Hill, of Key West, is also a suspect in the stalking of female students at Florida State, the University of Florida and other schools. He is facing 12 counts of attempted video voyeurism, two counts of actual video voyeurism and two counts of extortion. The extortion counts alone could get him as many as 30 years in prison. An LSU campus police sergeant said he hoped the case would raise students’ awareness of how much they share online.

Hill is accused of contacting the victims online and pretending to be an alum of their sororities. He allegedly gathered information about the women’s lives through Facebook and other online sources, then used that information to “prove” he was really an older sorority sister. Using “her” status in the sorority to threaten the victims’ status, Hill would ask personal questions and demand nude pictures. A Florida State student who may be one of Hill’s victims told the newspaper the perpetrator said two girls outside her dorm would “handle” her, after she refused to send nude pictures. She developed insomnia and eventually left school temporarily. She plans to return in January and said she’s pleased that Hill is in jail. He will likely remain there for some time, because he cannot be extradited to Louisiana until a Florida drunk driving charge against him is resolved.

Fortunately for Hill, he already has an attorney defending him from that charge and on extradition. Someone facing charges this serious certainly needs a lawyer protecting their rights and interests from the start. However, in a situation like this, he’d be well served to hire a south Florida cyber crime criminal defense lawyer in addition or instead. The article notes that authorities have already taken Hill’s computer, which suggests a forensic data search. This kind of search should be monitored by a criminal defense attorney, both for potential Fourth Amendment violations and to protect clients from technically inexperienced officers. Not all police officers understand technology, and it’s possible for them to interpret benign or falsified information as evidence of a crime. As a Fort Lauderdale cyber crime criminal defense attorney, I will do my own forensic investigation whenever necessary to show how viruses or other computer users may have affected the evidence.

Continue reading "Key West Man Arrested for Cyberstalking College Students Suspected in Florida Cases" »

As part of my series of posts on protecting your children on the Internet, I wrote in October about cyberbullying. So I was interested to see a lengthy article on the same subject from the New York Times. Dated Dec. 4, the article outlined the problems many parents have when their children are involved in cyberbullying -- both as victims and as perpetrators. I’d like to discuss this from the perspective of a West Palm Beach cyber crime criminal defense attorney, because as the article shows, there are several ways for kids to land in serious legal trouble because of cyberbullying.

In one such case, three ninth-grade boys from Massachusetts made a Facebook page that appeared to belong to a fourth boy, D.C. D.C. didn’t know about the page until kids got upset with him for “saying” unkind things about them on “his” page, but he was quickly shunned by other students, isolated and miserable. After learning that the school could do nothing to help, his mother asked the police to intervene. When the perpetrators were caught, they went into a diversion program for nonviolent juvenile offenders. As with adult probation and diversion programs, this program allows them to avoid a conviction if they meet probation conditions including letters of apology to everyone they insulted; five-page papers on cyberbullying; attending classes on Internet safety; community service; and no Internet access except for schoolwork. Other parents attempted to resolve the issues by meeting with the other parents involved, which was sometimes successful but sometimes resulted in indifference or anger.

As this article shows, cyberbullying can have serious real-world consequences for everyone -- perpetrators as well as victims. As a Miami cyber crime criminal defense lawyer, I don’t believe the legal system is the best place to resolve cyberbullying. In the most extreme cases, the legal system can overreact to cyberbullying, charging teenagers with adult sex crimes or stalking for behaviors that grew out of inexperience and not thinking. The consequences of these convictions can follow teens around for years or even their entire lives, especially in cases involving sex charges. Whenever possible, I believe parents are best off resolving cyberbullying by meeting with other parents, carefully explaining and documenting the problem. When appropriate, school officials may also get involved. This may not be helpful if the other parents shrug off the behavior, as the article says some have, and authorities may have to get involved in severe cases. But as a Fort Lauderdale cyber crime criminal defense attorney, I want parents on all sides of this issue to be very careful about involving their kids in potentially life-altering criminal proceedings.

Continue reading "Cyberbullying Issues Present Legal and Parenting Problems for Families With Teens" »

As a Miami-Dade cyber crime criminal defense attorney, I was interested to see a recent article about a similar situation, in which the officer was posing not as a child but as a parent willing to sexually exploit a child. The South Florida Sun-Sentinel reported Nov. 23 on the arrest of Thomas Winters, a retired Cooper City police officer accused of using a computer to solicit a parent to engage a child in sexual activity, as well as obscene communication to a minor. Winters is being held in Volusia County Jail in Daytona Beach, because the “parent” came from that area.

According to the article, Winters, 64, thought he was chatting online with a parent of a 7-year-old girl. Law enforcement officers say Winters also thought the “girl” was watching through the webcam. They say he exposed himself over the webcam, thinking the girl could see, which gave rise to the charge of obscene communication to a minor. He then asked the “parent” to perform similar acts with the child on the webcam, violating Florida’s law against online solicitation of a minor. That law includes solicitation of someone believed to be an adult parent, guardian or custodian to allow a child to engage in sexual conduct. Law enforcement later searched Winters’s home and seized his computer equipment and digital media storage to look for evidence.

Unfortunately, much of this is old news for Fort Lauderdale cyber crime criminal defense lawyers like me. Florida law is written specifically to preclude defendants in this type of crime from arguing that there was no crime because the child or parent was really an undercover police officer. Thus, the fact that no child was ever in danger doesn’t matter -- all that matters is whether the prosecutors can prove that Winters’s behavior met the requirements of the law. From the article’s vague description, it’s possible that his request didn’t meet the legal definition of sexual conduct. But even if that’s true, this type of argument would be an uphill battle in any case involving child sex crimes, which is why it’s essential for defendants like Winters to hire a West Palm Beach cyber crime criminal defense attorney as early in their cases as possible.

Continue reading "Retired South Florida Police Officer Accused of Soliciting Child Sex Acts Online" »

As an Orlando child pornography criminal defense attorney, I was very interested in a recent article suggesting that a Florida man may face violations of his Fifth Amendment rights in a trial on child pornography charges. Florida Today reported Nov. 18 on the Orlando federal trial of a Brevard County man who was already convicted in state court of molesting his adoptive daughter and taking pornographic pictures of her. Robert Howard reached a plea bargain with Brevard County prosecutors in 2009 on one count of sexual battery to a child and one count of possession of child pornography. However, he could have faced more than ten times as much prison time if he had been tried, the article said, which upset the victim, her legal guardian and other observers. This may have been the basis for the federal government to bring charges for the same conduct.

Howard and his wife were foster parents for at least 36 children from 2000 to 2002, but their license was revoked in 2003 after allegations of locking children up were substantiated. Two months after the license was revoked, the biological mother of two former foster children dropped them off at the Howards’ home. Despite the revocation, the Howards got permission to foster and then adopt the children, both girls. In 2005, Howard’s adult stepson called DCF to report physical abuse and suspicions of sexual abuse of one of the daughters, then 12. The girl told investigators that Howard had showed her pornography and asked her to flash him. After an investigator found multiple pictures of the girl, partially undressed, on Howard’s computer, she told the police he had molested her many times. He was arrested on 70 counts of sexual battery on a child and several child pornography counts, with a maximum sentence of life in prison.

Nonetheless, the article said, the state’s case against Howard was weak. According to documents from the state case, the victim had alleged abuse by past foster parents, but investigations by DCF found that the allegations were not true. This would have weakened her credibility in court. The head of the Sex Crimes Division for the State’s Attorney’s office said the evidence did not support the life sentence the victim wanted. As a result, the state agreed to four years in prison and a lifetime of sex offender restrictions on Howard, who was labeled a sexual predator. The victim and her guardian are upset that they were not consulted on the plea, which one attorney said was required by Florida’s Constitution. Documents suggest that investigators felt the same. The U.S. Attorney’s office in Orlando specifically cited the state court’s failure to hand down a stronger sentence when it started the new child pornography case against Howard, which could get him up to 10 years in prison.

Howard’s attorney is reportedly objecting on the grounds that Howard should not be tried for the same crimes in both state and federal court -- indeed, he is arguing that he was told he would face no federal charges if he took the plea bargain, though the state denies it. As a West Palm Beach child pornography criminal defense lawyer, I am interested because the double prosecution may violate Howard’s Fifth Amendment right against double jeopardy. The Constitution says no person may be subjected to prosecution for the same penalty twice. Incredibly, courts have found that this does not always apply to dual prosecutions in state and federal courts. However, in making that decision, the courts have also said a dual prosecution violates defendants’ rights when it is “a sham on behalf of the sovereign first to prosecute.” That is, if the federal government is prosecuting on behalf of the state government, it is probably violating the Fifth Amendment right against double jeopardy.

Judging by the facts in the article, Howard can probably make that argument. After all, the U.S. Attorney’s office is quoted as saying “If the defendant had been convicted on that charge [capital sexual battery] and received the mandatory imprisonment sentence of life, Wilson would not have proceeded on the federal case for possession of child pornography.” As a Miami-Dade child pornography criminal defense attorney, I think that’s a clear indication that the federal government is prosecuting at the behest of the state government, which apparently is unhappy with the way it handled the case the first time around. If that’s the case, this prosecution may be nothing more than an end-run around Robert Howard’s Constitutional rights. We may not approve of Howard’s actions, but the rule of law and civil rights should not have exceptions, even -- or especially -- when the defendant is accused of especially heinous and widely reviled crimes.

Continue reading "Man Faces Federal Trial on Child Porn Charges Despite Conviction on State Charges" »

A recent item in the Palm Beach post caught my eye as a West Palm Beach cyber crime criminal defense lawyer, because it grew out of “sexting” at local schools. According to the Nov. 3 article, the Palm Beach County school board has settled a lawsuit from a former administrator for $1,500. The former administrator, Thomas Hawkins, accused the school board of retaliating against him for reporting student “sexting” at a middle school to law enforcement authorities. The school district had previously declined to report the sexting. The settlement was 10 percent of what Hawkins had originally requested in his lawsuit, suggesting that his case was not strong enough to net him the full amount requested in a trial. In fact, the article said the attorney for Hawkins couldn’t find the evidence to make a strong case, but it was unclear whose opinion that was.

Hawkins was an administrator at Gold Coast Community School in April of 2009 when he reported the alleged sexting. He wrote to the district that students at Lake Shore Middle School were taking pictures of themselves naked in school bathrooms, with captions offering sex for money. It was not reported how he knew this, but the article does note that he had worked at Lake Shore previously. In his lawsuit, he alleged that Lake Shore’s principal never reported the sexting to authorities, as required by Florida law. Hawkins responded by reporting the sexting himself. He claimed that after the reporting, the district retaliated against him by not renewing his contract and making him ineligible for more administrative work with the district, He has taken a lower-paying job as a teacher at Spady Elementary in Delray Beach, which is also part of the Palm Beach County school district.

Lawsuit settlements are not directly part of my work as an Orlando cyber crime criminal defense attorney. But I’m interested in this case because it’s strongly connected to criminal laws -- laws against child pornography, which are used in sexting cases, and penalties for school administrators who fail to report child abuse or juvenile sex offenses. We can’t say for sure, but let’s assume the article is correct that Hawkins didn’t have a strong case. It’s possible that the school administrators disagreed that there was anything to report to begin with. Sexting is not child abuse as it’s generally understood -- unless you think kids can abuse themselves -- and legislatures across the U.S. are debating whether sexting should be considered a juvenile sex crime. It’s also possible that there was no sexting, or no proof of it. Any of these would explain why administrators took no action -- and why DCF and the state’s attorney’s office apparently did not find anything newsworthy, if they investigated.

Different parents handle this sensitive issue in different ways. But if there was sexting, and the school district declined to treat it like a crime, I applaud. As I’ve written here many times in the past, I do not believe that sexting by teenagers should be penalized and prosecuted as if it were exploitive child pornography. A nude self-portrait by a 13-year-old may technically be child pornography, but it’s very far from the kind of child pornography produced by adults using force, fear or deception on children. By reporting the sexting to authorities, the district would have been inviting them to get involved, with potentially life-altering results for the students involved. If they were criminally charged with making child pornography, the young teens could have faced serious time in juvenile facilities or prison and lifelong sex offender registration.

These penalties are ludicrously disproportionate to the harm these kids could have caused (mainly to themselves) by sexting. In fact, Palm Beach Country legislators have already recognized this and proposed a bill that would treat sexting teens differently from adults, though still with criminal penalties. That’s why, as a Fort Lauderdale cyber crime criminal defense lawyer, I’m glad that there was ultimately no report about a criminal investigation of these kids. I hope that, if the district did indeed choose not to report sexting to the authorities, it did so with the intention of protecting these kids and their futures. Sexting is not appropriate behavior for school, but with the stakes so high, it’s much better for schools and parents to handle it without bringing in criminal authorities.

Continue reading "Former School Official Gets 'Nuisance Settlement' in Lawsuit Over Student Sexting" »

More than a year ago, I wrote on this blog about the conviction of John Stelmack, a school principal in Bartow, on child pornography charges. The case caught my eye as an Orlando child pornography criminal defense lawyer because it presented an unusual question: Can images be called child pornography if they are images of adult women with children’s heads pasted on top? Not surprisingly, lawmakers hadn’t considered this possibility when writing child pornography laws, and the Stelmack case was the first I had heard of in Florida presenting the question. To make matters worse, Stelmack had used pictures of two children he knew personally at elementary schools where he had worked, and was already under investigation for inappropriate hugging.

At the time of his June 2009 trial, Stelmack argued that his images were not really child pornography. He was convicted, but he appealed to Florida’s Second District Court of Appeal, making the same argument. That court heard his case in mid-October, as the Ledger of Lakeland reported. Before the court, Stelmack’s criminal defense attorney argued that the images did not fit Florida’s definition of child pornography -- “any image depicting a minor engaged in sexual conduct” -- because the images did not depict children’s bodies. The state’s attorney on the case disagreed, saying Stelmack’s purpose in creating the images was to objectify real children by showing them in a form of sexual behavior. Stelmack is currently serving five years in prison with ten years of probation, and courts have not granted his requests to be released while his appeal is heard. The appeals court didn’t say when it would rule.

Last year, I wrote that in my judgment as a Miami-Dade child pornography criminal defense attorney, Stelmack’s images don’t meet the definition of child pornography. This is a difficult case, because the images sound very disturbing. The parents of the children whose heads are in the pictures (who are not identified) undoubtedly feel strongly about this, along with other parents at his former school. It’s easy to see why a jury would vote to convict in this situation. However, his actions as reported do not appear to clearly meet Florida’s legal definition of child pornography -- and the law is what controls things in appeals courts. In fact, this issue has already arisen in federal law, which most recently led to a law specifically outlawing obscene depictions of minors appearing to engage in sexual conduct. This law left open the possibility of non-obscene images, which could include, for example, Renaissance art or scenes from movies.

However, this is a federal law, and Stelmack is being tried in Florida state court. Florida law does not explicitly forbid artistic or altered depictions of children involved in sexual conduct. However, it does include simulated intercourse in its definition of “sexual conduct,” and child pornography again is “any image depicting a minor engaged in sexual conduct.” The question is, is nudity by itself sexual conduct, and is pasting a head onto a clearly different body enough to depict sexual conduct? As a West Palm Beach child pornography criminal defense lawyer, I hope the appellate justices are giving those questions serious thought. This case may be unsavory, but as our justice system recognizes, people involved in unsavory cases have the same rights as every other defendant. In Stelmack’s case, that means fair consideration of whether his actions actually broke the law he’s accused of breaking.

Continue reading "Florida Appeals Court Considers Whether Photoshopped Images Are Child Pornography" »

Longtime observers of Florida crime and Internet issues may remember the case of Michael Shawn Reichert, a professor at the University of Central Florida who is charged with possession of child pornography. University authorities arrested Reichert, who teaches political science, after computer maintenance employees found the pornography on his work computer. There were 138 images in all, including three videos. This case caught my eye, as an Orlando cyber crime criminal defense attorney, because Reichert claims the pornography was put there by a computer virus. Now, as WESH reported Oct. 25, Reichert’s trial is starting and he is likely to continue using this defense.

According to articles written at the time of Reichert’s 2007 arrest, Reichert brought the images to the attention of the university computer technicians. WFTV reported that Reichert told a computer technician that spyware, a kind of malicious computer program, put the pornography on the machine and he wanted it gone. The technician spotted files with names suggesting that they contained child pornography and turned the computer over to investigators who confirmed it. A spokesman for UCF police told WESH that the pornography “does not look like a fluke” because it was downloaded on many separate occasions. Central Florida Future, UCF’s student newspaper, added that the images had been backed up to a handheld device, with the username “reicher” involved somehow. Reichert faces 138 counts of child pornography possession.

I don’t doubt that some observers think Reichert is lying about the spyware. As a West Palm Beach cyber crime criminal defense lawyer, I’m happy to say that this can be investigated and often proven, with help from a computer forensics expert. Assuming the technicians and investigators did not wipe the computer or its backup, or tamper with it significantly, Reichert can hire an expert to look through the machine for evidence that it really did have spyware, or another malicious program that could have put pornography there. (According to a report from last year, child pornography viewers use such viruses to put the pornography on a third party’s computer, where they can view it without having it on their own machines.) In the past, I have seen a few cases where defendants were able to prove this, for example, by showing that the illegal material was downloaded more quickly than a human being could do it.

Unfortunately, guilty defendants often claim a virus was responsible, so investigators are often inclined not to listen even when the evidence backs the defendant up. Even more unfortunately, not every defendant can afford to hire the experts needed to defend themselves. Everyone accused of a crime in the United States has the right to a fair trial, but there is no right to hire an expert to do the research and give the testimony necessary to prove the defendant’s innocence. This is why it’s so important for defendants to get experienced representation from a Fort Lauderdale cyber crime criminal defense attorney like me. Even before I founded my own law firm, I was fortunate enough to be part of the Cyber Crime Unit of the Miami-Dade State’s Attorney’s office. That means I know how evidence from a computer forensic investigation can turn around a case.

Continue reading "Trial Starts in Case of UCF Professor Who Says Virus Put Child Porn on Computer" »

This post is the fourth in my ongoing series about how parents can protect their children and teenagers from harmful people and things online. I am occasionally asked to speak on this topic from my perspective as an Orlando cyber crime criminal defense attorney. Today, I’d like to discuss pornography -- the kind depicting and intended for adults. (If you’re interested in reading about avoiding the kind of online predator who might be interested in making child pornography, I have a post on that subject here.)

Different parents have different approaches to explaining “the birds and the bees,” but most would agree that it’s better to hear it from a trusted adult -- not from a pornography website. Parents may want to control the messages that pornography might send about sex, or to be able to explain what’s going on so that kids and teens don’t make embarrassing assumptions and mistakes. The bad news is that pornography websites are extremely easy to find even by accident. They can also be very aggressive, popping up windows full of explicit pictures even after you thought you had left the site. Some even install “malware” that can keep pornography advertisements running all the time. The good news is that it’s your computer, and you have a lot of ways to control where it takes your kids.

As with other touchy issues, the best way to start is to be honest with your kids. Explain your concerns, at an age-appropriate level. You should also set down some ground rules about what you do and do not feel comfortable with your child doing. With younger children, you may want to make sure that computer use is always supervised. With older kids, that may not be feasible, but you can tell them to stay away from pornographic sites, or from certain sites that you’d rather they not see. You can also set and enforce time limits. Follow through, when necessary, with penalties such as taking away time online.

You don’t have to catch your kids in the act to see if they have been looking at pornography. You can review Web browsing histories or the browser’s cache to see what they have been up to. A guide to checking browsing history for different kinds of browsers is here. To view a cache, you will have to go into your computer’s file system; download a cache-viewing utility; or, in Firefox, type “about:cache” in the URL bar. For a family computer with multiple users, however, make sure that the kids really are the ones who went to those sites before you confront them. If your kids browse the Web with a mobile device, you may be able to review your bill or look through the device while it’s not in use.

If you don’t believe trust is enough to keep your kids away from porn -- or you’re not willing to take the chance -- you also have a variety of tools that can block content. Some Web browsers give you the option to block specific sites, and some sites, like Google or Flickr, allow you to set levels of content filtering. Your internet service provider (the company you pay for access to the Internet) may also offer a limited filtering service. And of course, there are software packages you can buy, which will give you the option to filter not only pornography and sex-related sites, but also sites with other types of objectionable content. Wikipedia has lists of such software here and here. There’s even filtering software for the iPhone. If you believe your child has found a way around filtering software, you can even take it a step further and purchase monitoring software that keeps track of every keystroke and command to tell you what your child has been doing online.

It’s worth noting that adults who send pornography to children are generally committing crimes. Here in Florida, and in other states, transmitting a sexual image to a minor is itself a crime. As a West Palm Beach cyber crime criminal defense lawyer, I know this can cause problems for adults as well as children, especially if the child pretends to be an adult online Even more importantly, some law enforcement officers say that when adults knowingly send children pornography over the Internet, it can mean they want to open a sexual conversation or a sexual relationship with the child. All of this makes it very important for parents to be honest with their kids about their concerns with online pornography.

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

Throughout the past few weeks, I have been running a series about Internet safety and teenagers, from the perspective of an Orlando cyber crime criminal defense attorney. This week, I would like to discuss cyberbullying. Cyberbullying is exactly what it sounds like -- bullying, but online or through technology in some other way. Unfortunately, it has been in the news a lot lately, through cases of teenagers like Megan Meier, Ryan Halligan, Phoebe Prince and Tyler Clementi, who took their own lives after becoming victims of online cruelty or unrelenting harassment. These cases are rare relative to the overall amount of bullying in schools, but every single one of them was a preventable tragedy.

Bullying and other forms of cruelty have always existed, but technology now makes it possible for the bullying to follow kids home. Cyberbullying is a particularly difficult subject for parents and teenagers, because it goes to the heart of the not-quite-adult status that teenagers have. Parents don’t want to see their kids suffer (or become bullies), but kids often don’t want parents involved -- in fact, parental involvement can sometimes make matters worse. As a result, some parents don’t know their kids are being bullied until it’s revealed by accident, or until the teen acts out in some way. That means parents must find other ways to tell if their teens are being bullied. If your kid becomes withdrawn, angry or starts acting out, it could mean something is wrong -- although it could also be normal behavior. Also, look for changes in the way the teen relates to friends and classmates. Has a formerly social teenager stopped going out? Has a friend stopped returning calls? If you have suspicions, you can look at your teenager’s phone bill and social networking interactions.

Even though other people are responsible for their own behavior, there are still some things kids can do to reduce their chances of becoming cyberbullying victims. As with other online behavior, you should ask your teens to be careful about what information they share. Most teenagers have a pretty good idea of what their classmates believe is cool and uncool, and in some cases, it might be wise to keep “uncool” information off the Internet. Teenagers using social media can also use privacy settings to ensure that only the people they choose can see information about their interests or activities. Ask them: Is this information you would be willing to put on a billboard outside your school?

If someone your teens don’t normally socialize with asks to be a friend online, they should consider whether they want to share their information with that person. This could mean denying a friend request, or it could mean accepting it, but placing tight restrictions on what that person can see until the teen knows the new “friend” better. In addition, ask your teenagers to think about the consequences of sharing pictures of themselves that might be embarrassing, including “sexting” pictures and pictures of drug or alcohol abuse as well as simply uncool ones. Even if a picture was only intended for specific people’s eyes, it can easily become public if those people are not trustworthy.

If your teen tells you he or she is a victim of cyberbullying, experts suggest listening and being as supportive as possible. It might be tempting to think teens should handle this on their own, or that this is just a part of growing up, but kids want to know that their parents are on their side. If your teen doesn’t want to talk to you about it, suggest an older relative, clergy member or counselor they might trust. There are also specific actions you can take. Ask your teen if he or she would consider just taking some time away from the Internet, or the specific sites where the bullying is taking place. Use social media sites’ privacy settings to block users who are harassing the teen, and see if your phone company can block calls and texts from bullies.

If you decide to take the bullying to school authorities or others, save the evidence -- emails, texts and social networking posts that you can print out or save to a file. Consider bringing these to the attention of school administrators so they are aware of what’s going on. Bullying at school, or using school computers, can be punished as a violation of school rules. If you know the parents of the cyberbullies, you can also take the evidence to them. Your teen may not want you to do this, but if you believe that he or she is in physical danger, it may be the best choice. If there have already been physical attacks, you may want to take the evidence to the police.

Finally, parents should also intervene if the teen is in the opposite situation -- if he or she is participating in cyberbullying. Kids might believe cruelty is more acceptable or less serious when it’s online -- but you should make it clear that bullying is not okay with you, regardless of how it takes place. Ask your teen how he or she would feel if the situation were reversed. Or, ask whether he or she has done the same things that make the victim a target of bullying. Sometimes, teenagers join a bully because they believe it will help them gain more social acceptance, without thinking about how it might affect the victim. Emphasize to your teen that when someone trusts him or her with personal information or photos, he or she should try to be worthy of that trust. That means deleting embarrassing photos and refusing to share embarrassing personal information. If teens receive messages that are mean or embarrassing, they can always delete those messages or refuse to pass them on. If they are guilty of persistent bullying, consider a serious, meaningful punishment, including one that might embarrass them in front of their friends.

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

This is the second post in a planned series of posts about protecting your children online, from themselves as well as from predators and others who could harm them. Media reports make it clear that this is a subject of increasing concern for parents, and I have been fortunate enough to speak a few times, as a West Palm Beach cyber crime criminal defense lawyer, on the subject. The Internet can be a great resource for kids, but it can also pose problems when it’s used incorrectly. This week, I would like to talk about your child and online privacy, an issue that encompasses the dangers posed by adult sexual predators and financial criminals.

Because social media, texting and other forms of chat are popular with teenagers -- but not familiar to most adults -- a lot of parents are concerned about the dangers that these technologies could pose. The good news is that these are not inherently dangerous technologies, any more than a hammer is inherently dangerous. Just as you can use a hammer to build something or destroy something, social media and other online interactions can help or hurt. The bad news is that some adults use these tools as a way to find teenagers who are vulnerable to sexual exploitation, or people whose identities are easy to steal. The key is to help kids develop good “street smarts” online, knowing how to use these tools to protect themselves from people with bad motivations.

As with most things, experts suggest starting by talking to your teenagers about how much they share online. Many social networking websites give their users an opportunity to fill in information like where they live, birthdays, full name and personal interests. Some of this information could be harmless to share, but some of it is personal enough that it could make them targets for predators or financial criminals. For example, filling in an entire date of birth could let predators know that the teen is underage. Ask your kids: would you write this information on a billboard for total strangers to see? If not, they should be very careful about whom they share it with online. This is an opportunity to help your teens develop good people sense and good judgment about other people’s motivations. Parents can also consider setting ground rules about what information is okay to share.

Undoubtedly, some teens are going to resist restrictions on what they can share. In the birth date example, teens might enjoy getting “happy birthday” messages from friends who were reminded of their birthdays by a social networking site. Luckily, many social networking sites offer privacy settings. Facebook, which is currently the most popular social networking site in the United States, gives users the option to fine-tune their privacy settings. You and your teenager can use this tool to eliminate some information entirely and make other information available only to friends, or to friends of friends, or to specific sets of people within the teen’s friends. If they would like to still receive birthday messages, they can delete the year and leave the month and the day online. They can even block specific people or make sure their profiles do not come up in a search.

In addition to carefully choosing what information they fill in on websites, kids should use good judgment about what they share in direct person-to-person chat, texting or email. Again, ask your teen: If someone came up to you on the street and started asking you about yourself, what would you think about that person and his or her motivations? What if you couldn’t see them, so you didn’t know if they were the same person they claim to be? What if they wanted very detailed information about your bank account or the way you look? That’s the situation when a stranger contacts you online. Not every stranger has an ulterior motive, but some of them could be looking for easy targets for identity theft or sexual exploitation. In my experience as an Orlando cyber crime criminal defense attorney, unsophisticated adults and teens can even end up charged with crimes if they share their information with people involved in fraud. When in doubt, kids should share less information, not more.

Finally, you as a parent should know your rights. Under the federal Children’s Online Privacy Protection Act, parents must give permission for websites to collect personal information from kids under the age of 13. You should use this as an opportunity to make sure you’re comfortable with the sites your kids are using. If a site is violating the law, you have the right to report it and delete your kids’ accounts.

If your teen is too old for this law, you can still consider setting ground rules about which sites are acceptable, in part by reading privacy policies. Consider posting a list of rules about what is okay to share, and make it clear that there are consequences for breaking them. And remember, you’re the one paying the bill for Internet and phone service. If you don’t believe your teen is following the rules, you can review your phone bill and Web browser history to see for sure. If necessary, you can set your browser to block sites or install software that blocks or tracks what your teen is doing online. Making mistakes is part of being a young adult, but if your teen has run out of chances, technology gives you an opportunity to enforce the rules.

Continue reading "Protecting Your Kids Online Series: Privacy and Predators" »

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.

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.

As a Miami-Dade cyber crime criminal defense attorney, I wrote last year about the arrest of Adonis Losada, an actor on the popular Spanish-language program Sabado Gigante, where he plays grandmother Doña Concha. Losada is accused of possessing and distributing child pornography, to a stranger online who turned out to be a Boynton Beach police detective. The Palm Beach Post published a story on Losada Aug. 30, saying the actor is upset that he has been incarcerated for nearly a year in Palm Beach County rather than in Miami-Dade. He says he cannot afford the $3 million bail the court is requesting, the article said, and complains that he cannot communicate with his English-speaking public defender.

Losada was first arrested at his South Beach home for possession of child pornography. The arrest report from that incident says he told the police he has a problem. He was released on bail after that arrest, but took the opportunity to flee to Georgia, a violation of the conditions of his release. When he was arrested in Georgia, Florida authorities brought him back to Palm Beach County rather than Miami-Dade. Though Losada had never been to Palm Beach County, authorities there were charging him with distributing child pornography as well, and the distribution charge originated in Palm Beach County because the officer who received the transmissions was in Boynton Beach.

Losada claimed in the article that he should be held in Miami, where the possession charge comes from and where he already has a private criminal defense attorney. That attorney is not working on the distribution charge in Palm Beach County, although he said he would try to move the distribution trial to Miami. Losada claims he cannot communicate with his public defender because he does not speak English well. He also says he was tricked into waiving his right to a speedy trial, kept in isolation and is being held with forged documents.

I would like to start by reminding readers and clients that Losada is partly responsible for his own predicament. Losada’s bail is very high because he is considered a flight risk, thanks to his trip to Georgia. Without this on his record, he may well have been granted a low enough bail that he would have been able to go home while awaiting trial. As a West Palm Beach cyber crime criminal defense lawyer, I do not recommend fleeing charges.

In my experience, it is relatively unusual to split criminal charges stemming from the same set of incidents in this manner. Losada allegedly possessed and transmitted the images from the same place -- his home -- and most people accused of transmitting child pornography are at least initially arrested in their home jurisdictions. As a Fort Lauderdale cyber crime criminal defense attorney, I suspect Losada’s fame among Miami’s large Spanish-speaking population could be part of why he is being kept in Palm Beach County. If prosecutors believe they may not get a fair trial due to the defendant's celebrity status, they have every right to make their case -- but they should make it in court, with a motion for a change of venue, rather than cooping Losada up for more than a year without a hearing.

Continue reading "Univision Star Adonis Losada Still in Palm Beach County Jail After Nearly a Year" »

As a West Palm Beach cyber crime criminal defense attorney, I have been interested to see all the media coverage given recently to “sextortion.” As this Associated Press article from Aug. 14 notes, sextortion is the practice of using explicit or naked pictures of someone to force favors out of that person, often favors of a sexual nature. Frequently, the article says, the pictures were not intended for the perpetrator, but ended up in that person’s hands as they got passed around between acquaintances or online. The article says federal prosecutors believe the practice is on the rise, although it did not cite specific numbers. It did cite several specific cases, including a particularly large case I wrote about for this blog back in June.

All of the cases in the article involve young men extorting other young people, often but not always young women. The victims may be classmates at school, but they may also be random people found through the Internet. In a case out of Maryland, the article says, a 17-year-old and two friends used a webcam to flash their breasts at an Internet chat room. A few weeks later, the victim began receiving threatening emails from 19-year-old Trevor Shea of Mechanicsville, Maryland, who said he would post the pictures to her MySpace page unless she sent more explicit pictures. She complied at least twice before authorities got involved and arrested Shea. In another case, 18-year-old Anthony Stancl of Wisconsin posed online as a girl in order to get male classmates to send him naked photos. He then revealed that he was male and used the photos to extort the classmates for sex.

The Today Show ran a brief segment on the topic Oct. 16:

As an Orlando cyber crime criminal defense lawyer, I was particularly struck by a statement made by the attorney in that segment. She said the threat of being prosecuted for child pornography -- and becoming a registered sex offender for life -- could drive some victims to hide rather than seek help. This is not an idle concern. I have written here several times about the trend toward prosecuting teenagers for making “child pornography” by taking pictures of themselves. I believe these prosecutions are exactly backwards -- subjecting teenagers to harsh penalties despite the lack of any real victim. Those penalties are designed for serious adult criminals, not for kids experimenting with their sexuality. If the threat of prosecution also discourages kids from seeking help when they do become victims themselves, that’s all the more reason to take a different, more sensible approach to the problem.

Of course, there’s also the issue of how to charge the “sextortionists” themselves. In the Maryland case, the article says, Shea was indicted for sexual exploitation -- presumably 18 USC sec. 2251, which (in relevant part) prohibits making child pornography. That crime has a mandatory minimum sentence of 10 years and a maximum of 20 for each count. If Shea faces multiple charges, he could easily grow old in prison. While his actions were certainly illegal and deserving of penalties, I am not sure this statute is appropriate. After all, it’s designed for hardened adult child pornographers who exploit small children -- not a 19-year-old demanding pictures from a girl two years younger.

As a Fort Lauderdale cyber crime criminal defense attorney, I might prefer to argue -- in a case without in-person sexual exploitation -- for a charge of extortion instead. Here in Florida, our extortion statute better fits the crime; it even explicitly includes extortion that “threatens ... to impute any ... lack of chastity to another.” This is a second-degree felony with up to 15 years in prison for each count, so it’s not a light penalty -- but it gives judges some much-needed discretion to distinguish between adults who exploit children and teenagers exploiting other teenagers.

Continue reading "Federal Prosecutors Say Cases of ‘Sextortion’ of People in Nude Pictures Increasing" »

A recent report from the Orlando Sentinel caught my eye as an Orlando cyber crime criminal defense attorney. According to an Aug. 12 article, a firefighter is behind bars after authorities caught him meeting a man for what he thought would be sex with the agent’s 11-year-old and 13-year-old daughters. In fact, the man was an undercover agent for the CyberCrime unit of the Florida Attorney General’s office, and no actual children were involved. However, Paul Joseph Quillen, 41, of Yulee, Fla., was arrested and charged with two counts of soliciting a minor for sex via a computer and two counts of traveling to meet a minor for sex. He faces up to 40 years in prison if convicted on all counts. Bail is set at $10,000, with the additional provision that Quillen must not have any contact with children or go online if released.

Quillen first came to the attention of the authorities when he joined an online chat room called “fmly excitement,” the article said. There, he met the “father”” who was actually an undercover detective. That person talked with Quillen for four hours. During that time, Quillen sent a picture purported to show his genitals; made salacious comments about the “daughters,” supposedly ages 11 and 13; and offered to perform a sex act on the “father” as the girls watched. He also mentioned having seen his girlfriend’s 10- and 12-year-old daughters naked at a nudist camp. After more communication online and by telephone, Quillen traveled to a Boston Market to meet the agent, intending to go to the nudist camp afterward. Quillen pulled into the parking lot behind the agent’s car, then pulled out and continued driving down the road. He was arrested about a mile away. Authorities found a 9mm handgun in his car, the article noted.

As a West Palm Beach cyber crime criminal defense lawyer, I thought the inclusion of this last detail was odd. If the handgun was legal, and Quillen is not charged with a firearms crime or violent crime, there’s no reason to make a fuss about it. There aren’t enough details in the article to say for sure how I would defend him, if I were his attorney, but I did notice that he seems to have left the Boston Market rather than go inside and have the meeting. If this is the case, Quillen might have a strong defense to the “traveling to meet a minor” charges, which are more serious. The statute makes it illegal to travel to, from or within Florida for the purpose of unlawful sexual contact with a child. If Quillen failed to follow through with the meeting, he could argue that he did not intend to go through with the meeting and thus did not have the intention that the law requires. This has been successful in at least some federal cases. He would still face the solicitation charges, of course, but those are less serious, carrying only a total of up to 10 years in prison.

People accused of trying to meet a minor for sex are not popular in our society. In addition to the harsh penalties laid down by the criminal code, they typically face sex offender registration for the rest of their lives, loss of jobs involving children, social ostracism and sometimes even threats of violence. Nonetheless, our justice system affords them the same right to defend themselves that anyone else accused of a crime would receive. As a Fort Lauderdale cyber crime criminal defense attorney, I cannot overemphasize how important it is for such people to take advantage of that right and get an experienced lawyer, fast. Even if you believe the case against you is airtight, an experienced defense attorney can look for mistakes and civil rights violations by law enforcement, as well as sloppy or overreaching charges. All of these can get a case dismissed or charges substantially reduced.

Continue reading "Panhandle Man Accused of Traveling to Orange County for Sex With ‘Underage Girls’" »

As an Orlando child pornography criminal defense attorney, I was very interested to read about a recent appeals court opinion that could affect sentencing for child pornography cases here in Florida. According to the Fulton County Daily Report, a legal-industry newspaper in Georgia, the Eleventh U.S. Circuit Court of Appeals recently ordered an Orlando federal district court to re-sentence a man from 17 1/2 years in prison to 30 years in prison. The opinion, which numbers 256 pages, comes in United States v. William Irey, No. 08-10997 (PDF), and contains one concurrence and four dissents totaling more than 100 of those 256 pages. The case pits sentencing for William Irey, a man accused of very serious child pornography and sexual abuse crimes, against the traditional deference shown to district judges during sentencing.

Irey, a 50-year-old businessman from central Florida, pleaded guilty to one count of leaving the United States to engage in sex with underage girls, producing pornography from those acts and distributing them on the Internet. The Eleventh Circuit describes that pornography as shocking, degrading and tortuous, involving 40-50 Cambodian girls from ages four to 16. Over multiple visits to Asia, Irey took photos and videos of this conduct and put them online, which eventually led to his arrest. The federal statute gives a sentence of 15 to 30 years in prison, although federal guidelines suggest life. At the trial, prosecutors asked for the full 30 years, but Orlando federal judge Gregory Presnell settled on 17 1/2 years and a great deal of supervised release, saying he had been convinced by a psychological defense witness that Irey had a mental illness he did not choose and is treatable. Prosecutors appealed.

A three-judge panel of the Eleventh Circuit upheld the sentence in February. One of those judges wrote separately that he would prefer a higher sentence, but agreed that appeals judges are not authorized to second-guess trial courts. In a very unusual move, the Eleventh then agreed to rehear the case en banc even though prosecutors did not appeal. The resulting six-judge majority overturned Presnell, saying the shorter sentence was unreasonable and an abuse of discretion. The majority -- which included one judge who reversed his position from the original panel -- did not believe pedophilia removed any of Irey’s volition. Rather, they pointed out, Irey took steps to avoid being caught, showing that he had control over his actions.

By contrast, the dissenters focused on what they saw as an improper attempt to dictate Irey’s sentence. Judge Tjoflat, writing alone, suggested that sending the case back for a new sentence without specifying any length would have done less “institutional damage” to the justice system. Judges Edmondson, Birch, Barkett and Martin wrote that while appeals courts can correct unreasonable sentences, the record of this case did not show a lack of reasonable basis for Presnell’s sentence. Birch and Barkett wrote their own dissents as well.

This decision could affect any criminal defense attorney. But it’s particularly relevant to my practice as a West Palm Beach cyber crime criminal defense lawyer because it seems to be partly based on moral disapproval of Irey’s crimes. (For example, the opinion notes with disapproval that he cheated on his wife with prostitutes, which was not at issue here.) Those crimes are shocking, and I agree that Irey deserves penalties. I am sure that the dissenters on the Eleventh Circuit feel the same. But as those dissenters pointed out at length, it is not the role of appeals courts to determine sentences. Our legal system has this rule because trial courts hear facts and see witnesses in person, while appeals courts do not -- making trial courts better placed to take the full circumstances into account. By stepping into the role that properly belongs to a trial judge, the dissenters say that the Eleventh Circuit has violated basic rules of the justice system and legal precedent.

Just as importantly for my practice as a Miami-Dade child pornography criminal defense attorney, this decision could declare open season on any criminal sentence that appeals judges happen to dislike. That is, if this decision is allowed to stand, it will allow appeals courts to change sentences on the vague grounds that they believe the crime was too serious to allow anything less than the maximum permitted sentence. It’s not hard to imagine a situation in which this could create an injustice by taking sentencing power away from the judge who heard actual testimony. No matter how strongly we disapprove of William Irey, this way of addressing it is bad for the integrity of the justice system.

As an Orlando cyber crime criminal defense attorney, I was interested to see articles last week about a proposed new federal law. The STALKERS Act would make cyber-stalking a federal crime, and expand the definition of “cyberstalking” to include acts that the victim is not aware of. Cyberstalking is currently a crime in most states, including Florida, and those states typically require victims to feel reasonable fear of the perpetrator in order to trigger an arrest and prosecution. Under the proposed law, introduced by Democrats Loretta Sanchez in the house and Amy Klobuchar in the Senate, the threshold is lower -- “behavior that a reasonable, impartial observer would recognize as stalking,” according to an article Sanchez wrote for The Hill. The bill would also increase penalties for stalking children, the elderly or anyone with a protective order. It has already passed the House.

The bill was endorsed in the press by Erin Andrews, a reporter for sports news network ESPN. Andrews was the victim of stalking in 2009, when 47-year-old Michael David Barrett took videos of her through the peepholes or keyholes of various hotel room doors. In the videos, Andrews is naked or partially clothed and curling her hair. They were posted on the Internet, and Barrett reportedly tried to sell related photographs to celebrity website TMZ.com. He has since been convicted of interstate stalking and is serving a 30-month sentence. In support of the STALKERS Act, Andrews said she was disappointed that Barrett will serve only two and a half years. Sanchez’s article notes that Barrett’s electronic monitoring does not meet the current federal definition of stalking, which is one reason she’s pushing the STALKERS Act. Klobuchar noted that the law is not as sophisticated as online criminals, in an article saying 25% of stalking cases happen online.

As a West Palm Beach cyber crime criminal defense lawyer, I approve of expanding the definition of stalking to include cyberstalking. As I noted, most states already have cyberstalking laws, and including electronic harassment would simply help to update the law to fit the way people actually use technology in the 21st century. The federal law may be behind on this issue because federal criminal law applies only to conduct that crosses state lines or takes place in specific federal areas, and most stalking is local. However, I have some concerns about application of the STALKERS Act to conduct that the victim does not notice. The relevant language says the law applies when the conduct “would reasonably be expected to cause emotional distress.” Who judges this? If the victim cannot because he or she is unaware of the conduct, I suspect law enforcement decides whether it’s distressing. This could be a problem in any case where law enforcement officers might want to overreach, such as when they want to “get” the defendant for other reasons.

Such a vague definition of a crime invites law enforcement abuses and could create a crime out of victimless, harmless behavior. Here in Florida, the victim of stalking must feel actual emotional distress, and cyberstalking is defined as electronic communications that cause that emotional distress but serve no legitimate purpose. Barrett’s behavior toward Andrews would not meet this definition, and in that sense, Florida law leaves a gap. However, as a Miami cyber crime criminal defense attorney, I suspect that videotaping a young woman naked through a hotel room could meet the definition of a crime in other ways, such as by violating wiretap laws. I hope that federal legislators consider this when they consider the well-meaning STALKERS Act and its possible unintended consequences.

As a Fort Lauderdale child pornography criminal defense attorney, I frequently represent and read about cases in which a defendant is charged with possession of child pornography as well as distribution of the same child pornography. It is (unfortunately) established in Florida law that defendants may be charged separately for possession and distribution of the same materials, as well as possession of several copies of the same material. Similar issues arose on the federal level in U.S. v. Faulds, 2010 WL 2680307 (7th Cir. July 8, 2010), an appeal of a federal child pornography prosecution, which ultimately failed. But as a post on the CYB3RRIM3 blog by law professor Susan Brenner pointed out, the ruling makes an interesting point about the fact that distributing an electronic file doesn’t mean giving up its possession.

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.

As a Fort Lauderdale cyber crime criminal defense attorney, I was interested to see two news items out of California about the conflict between defendants’ right to privacy and the growth of DNA technology. Last week, the Ninth U.S. Circuit Court of Appeals heard arguments in a lawsuit challenging California’s practice of taking DNA samples from everyone in that state arrested for -- but not necessarily convicted of -- a felony. According to the San Francisco Chronicle, the American Civil Liberties Union argued that this is a violation of privacy and may not work, given that one-third of Californians arrested for felonies are never convicted. California attorney general Jerry Brown, who is running for governor, called a news conference calling DNA “the fingerprint of the 21st century” and no more invasive.

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.

As a West Palm Beach cyber crime criminal defense attorney, I was interested to see a recent item about the difficulties of prosecution in cyber crime cases. SC Magazine, a publication for IT security workers, reported July 12 on the case of Eric Porat, 19, of Brooklyn, who is accused of trying to sell data obtained from Internet data mining company Digital River to the company’s competitors. Investigators wanted to know how Porat came to possess the information on about 200,000 people, but Porat invoked his Fifth Amendment right against self-incrimination. As the article notes, this is perfectly within Porat’s rights and has been upheld in court in other cyber crime cases. And because investigators believe Porat obtained the data through an Indian company or person, they have a limited ability to get the information through subpoenas.

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.

I’ve written here before about the phenomenon of “virtual” child pornography, in which children’s pictures are digitally placed into pornographic or obscene pictures. As a Miami-Dade child pornography criminal defense attorney, I am interested in this because it’s not quite technically child pornography -- no children are directly exploited to make it, which has led to court rulings that it is protected free speech. This issue was raised again last month in Utah, where a woman is facing 18 counts of sexual exploitation of a minor for digitally adding the head of a 13-year-old girl to the body of a woman in a picture depicting bestiality. Danette Stark, 37, is accused of making 30 flyers with the picture and words the Deseret News described as derogatory and profane, and distributing them at the middle school the girl attends. Officials declined to talk about a motive, but noted that Stark has a daughter at the school as well.

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.

As a West Palm Beach cyber crime criminal defense attorney, I was interested to read about a California man who is charged with extortion in connection with crimes allegedly committed online. According to a June 22 story from the Orange County Register, Luis Mijangos, 31, was arrested by the FBI that day for allegedly extorting more than 100 young women into sending him explicit photos and videos over the Internet. Mijangos is accused of hacking into more than 100 computers used by at least 230 people, using “malware” disguised as downloadable pop songs. Once he was inside the victims’ computers, he used his access to request naughty pictures that he then allegedly used to threaten them into sending more. He faces a federal charge of extortion. He has also admitted to participating in an international hacking ring and involvement in credit card fraud, the article said.

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.

If you follow celebrity gossip, you may have heard about an incident last week that caught my eye as a South Florida cyber crime criminal defense attorney. As CNN reported June 21, celebrity blogger Perez Hilton caused a minor scandal last week when he posted a picture of 17-year-old celebrity Miley Cyrus that appeared to show the view looking up her skirt. Observers suggested that Hilton could be charged with child pornography crimes because he posted the photo to his Twitter feed. News reports say no charges are filed or planned against Hilton, and Cyrus and her father, singer Billy Ray Cyrus, say they’re not interested in a prosecution. But Hilton has lost at least two advertisers from tweeting the picture, including ABC, whose corporate parent Walt Disney owns Cyrus’s Disney Channel show.

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.

As a Miami-Dade cyber crime criminal defense attorney, I was very interested to read about court sanctions brought against a fellow defense lawyer in a child pornography case. According to a June 12 article from the Detroit News, John Freeman of Troy, Mich., was sanctioned by a Detroit federal court for what the judge in the case said was a “blatant attempt to intimidate the minor victim’s mother” by asking for advance notice of the content of a victim impact statement from the mother. Freeman and his own defense attorney say there was no attempt at intimidation and that he was trying to balance his client’s due process rights with the legal rights given to crime victims. The National Association of Criminal Defense Lawyers filed an amicus brief in the case supporting Freeman.

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.

I’ve written here several times before about the legal issues surrounding the practice among teenagers of “sexting.” That’s when teenagers take nude or suggestive pictures of themselves and send them to their boyfriends, girlfriends or friends. As more kids have access to camera phones, webcams and other technology, this has become a growing issue for parents and school officials. It has also come to the attention of Miami cyber crime criminal defense attorneys like me because in many jurisdictions, teenagers are prosecuted for possession or distribution of “child pornography,” despite the fact that this is all voluntary, peer-group-member activity, and the “perpetrator” and “victim” are often the same person. A CBS news article from June 5 explains how the issue is being addressed by Pennsylvania prosecutors, as well as by legislators hoping to pass a law to better deal with the practice.

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.

Members of the public don’t always realize this, but law enforcement may legally confiscate the money and property of people convicted of certain serious crimes. To be eligible for forfeit, the property must have been used in the commission of the crimes. This comes up in my work as a Miami-Dade cyber crime criminal defense attorney, because child pornography crimes are among those that can trigger criminal forfeiture. For that reason, I was very interested to see an appeals court decision that triggered a series of blog posts across the online legal world, including the CYB3RCRIM3 blog written by law professor Susan Brenner. On May 31, she published a post about U.S. v. Hull, 2010 WL 2079537 (8th Cir. 2010), in which the Eighth U.S. Circuit Court of Appeals decided that the government may legally take the home and land of a man who pleaded guilty to two counts of child pornography possession.

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.

As a West Palm Beach cyber crime criminal defense lawyer, I work frequently with people who are charged with possession of child pornography. That means I keep an eye on the ongoing debate about the high sentencing requirements for federal child pornography crimes. And, as I have written here before, I agree with critics of the system that the mandatory minimums are too high. That’s why I was pleasantly surprised by a May 21 article in the New York Times, about a Brooklyn U.S. district court judge who is fighting the sentencing requirements out of his belief that they are too high to fit the crime of downloading child pornography. Judge Jack Weinstein is also advocating for defendant Pietro Polizzi, whose convictions he has thrown out twice.

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.

A few months ago, I wrote about the case of a Pennsylvania teenager who was falsely accused of taking drugs by his school district. School officials had seen Blake Robbins, a student at Harrington High School outside Philadelphia, eating pill-shaped Mike and Ike candies -- and thought he was popping pills. The twist to this story that interested me as a Fort Lauderdale cyber crime criminal defense lawyer: the school official didn’t see Robbins with the candy in person, but through a webcam installed on his school-owned computer. The case alerted parents in the school district to the district’s practice of using webcams on school-owned computers to remotely watch the students, causing a continuing local scandal. The district claims it used the cameras only to locate lost or stolen machines, while upset parents and students say webcams were routinely used outside of those circumstances.

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.

As a Miami-Dade cyber crime criminal defense attorney, I have been following the case of Jason Chen with great interest. Chen is the blogger whose home was searched after he reviewed a prototype fourth-generation iPhone for the consumer electronics blog Gizmodo. A California state law enforcement squad broke into Chen’s home to search it for evidence of what they say was a theft, triggering cries of outrage that Chen should have been protected under journalist “shield” laws. Attorneys for numerous media organizations, including some devoted specially to Internet journalism, asked a court to unseal the search warrant used to search Chen’s home. On May 7, the San Jose Mercury-News reported that the judge in that case punted the decision to the judge who originally signed the warrant, who will likely hear the case this week. Prosecutors claim it should remain under seal to protect a confidential informant.

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.

Some news from last Friday caught my eye as a West Palm Beach hacking criminal defense lawyer. According to the BBC, a Tennessee federal jury has convicted 22-year-old David Kernell of unauthorized access to a computer and felony obstruction of justice. Kernell was 20 and a student at the University of Tennessee when he briefly became famous for breaking into the Yahoo! email account of then-vice presidential candidate Sarah Palin. He is also the son of Tennessee state representative Mike Kernell, D-Memphis. The younger Kernell also faced a charge of wire fraud, of which he was acquitted, and a charge of identity theft, which ended with a hung jury. At his sentencing, he faces up to 20 years in prison for the obstruction of justice charge, a felony, and up to a year on the misdemeanor unauthorized access charge.

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.

As a Fort Lauderdale cyber crime criminal defense attorney, I was interested to see a recent article about a trend in child pornography prosecutions. According to an April 25 article in the San Jose Mercury-News, investigators were disturbed to notice that child pornography defendants are increasingly younger. In particular, law enforcement officers in the article cited an increase in cases of teenaged minors downloading or even creating child pornography. The article suggests that younger offenders might be more common because they are more comfortable with the Internet and technology, which has made it far easier to obtain child pornography despite strict bans on it.

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.

Polk County Sheriffs office rounded up 50 individuals and charged them with crimes ranging from possession of child pornography, sexual abuse, to production of child pornography. These charges range in penalties, but carry the designation of sex offender for life. David Seltzer is an experienced attorney when it comes to child pornography and cyber crime cases. All consultations are FREE and we practice throughout the United States. Please call today 24/7 if you or a loved one are facing any cyber crime or child pornography related charges. We can be reached toll free at 1-866-ARRESTED (within Florida), or at 305-444-1565. For more information on child pornography or the firm, please visit our website.

As a West Palm Beach cyber crime criminal defense attorney, I sometimes work in areas of the law where there’s little or no precedent, because the law has not yet caught up with technology and the way people use it. That may be the case in an appeal currently pending before the Seventh U.S. Circuit Court of Appeals in Chicago. Kevin Trudeau, an infomercial salesman famous for pitching alternative medicine, is appealing a contempt-of-court ruling by a federal judge who was annoyed that Trudeau asked the public to send the judge email in support of Trudeau. The judge received hundreds of messages, BusinessWeek reported April 8, and responded by holding Trudeau in contempt of court, sentencing him to 30 days in jail and a $50,000 fine. Trudeau appealed that ruling to the Seventh Circuit, which held oral arguments in the case April 7.

The appeal grows out of a Federal Trade Commission lawsuit alleging that Trudeau advertised his weight-loss book deceptively. Trudeau continued running the advertisements after a court order to stop them, prompting a fine from the court. In response, he asked his fans to send the judge email testifying that the weight-loss plan worked. The flood of responses froze the judge’s BlackBerry and prompted enough concern that federal marshals reviewed the messages for threats. Trudeau is out on bail while the case is resolved.

At the oral arguments before the Seventh Circuit, the judge was represented by a court-appointed attorney, Gary Feinerman. He argued that the contempt order was justified because a computer is part of a judge’s tools, just like a gavel. In this case, the actions took place in the judge’s “virtual presence,” and the judge was under attack online. He noted that some of the messages seemed threatening. Trudeau’s attorney, Kimball Anderson, argued that federal law says parties can be held in contempt only for actions that take place in a courtroom, with the judge as a witness, that affect the administration of justice. Anderson also argued that Trudeau didn’t realize he was doing anything wrong, and his followers didn’t shut down a server with their messages.

That last argument implies a comparison of the contempt order to a conviction for hacking, because shutting down a server is the result of one type of online attack. However, as a Miami-Dade cyber crime criminal defense lawyer, I don’t believe hacking is a useful analogy. A contempt of court order is not exactly a crime, but a sanction judges can order for parties who disrupt the case in a meaningful way. I think it’s unclear whether Trudeau did disrupt the case, although he certainly disrupted the judge’s life. I do believe it’s clear that he attempted to influence the judge, which could be considered a disruption -- but again, not one that took place in open court.

In the end, as with so many other legal issues, this issue may turn on the wording of the applicable federal law. If that’s the case, Congress should consider whether the law’s wording still achieves the law’s intended goal. State legislatures might also consider whether to update their own contempt of court statutes or rules. I am not sure whether this is the first test of whether contempt of court applies to online actions, but as a Fort Lauderdale cyber crime criminal defense attorney, I suspect it won’t be the last. The Internet is an important part of people’s lives, and the justice system needs to catch up quickly if it wants to avoid injustices.

My work as a Miami cyber crime criminal defense attorney gives me a firsthand look at the way our society’s restrictions on sex offenders affect their lives and their ability to move on in life. So I was pleased to see a ruling from a federal appeals court that recognized that one sentence went too far. The U.S. Court of Appeals for the District of Columbia ruled April 2 that the trial court may not sentence Mark Wayne Russell, 50, to 30 years without the use of a computer for any reason. Wired’s Threat Level blog reported that the majority in the ruling called the ban “substantively unreasonable” and said it “aggressively interferes with the goal of rehabilitation.” It sent the case back to lower court with orders to, at a minimum, give Russell’s probation officer flexibility.

Russell’s sentence also included 46 months in federal prison for trying to meet a 13-year-old girl (really an undercover officer) in person for sex, after chatting with her online. Before his arrest, he worked as an applied systems engineer for Johns Hopkins University. The computer ban would certainly keep him from pursuing a job in a technical field like this, the majority wrote. The opinion also noted that computers are now a necessity in many blue-collar jobs. In fact, it said, Russell was unable to apply for or take retail and fast-food jobs because of the computer ban. This directly conflicts with rehabilitation, a goal of sentencing, and also conflicts with Russell’s right to be deprived of no more liberty than necessary to achieve sentencing goals. A separate concurring opinion by Judge Karen LeCraft Henderson disagreed that the ban was a substantial burden on Russell’s liberty or that it would keep him from getting a job.

In making this ruling, the D.C. Circuit joined the Third U.S. Circuit Court of Appeals, which overturned a lifetime ban on the Internet for a sex offender in January. Those two circuits have now split with the Eleventh Circuit, which upheld a similar ban in August. As a Fort Lauderdale cyber crime criminal defense lawyer, I am glad the D.C. Circuit is in the majority. As the opinion said, even jobs that don’t require daylong computer use often still require computers for administrative tasks. For a white-collar worker like Russell, a total ban on computer use would mean giving up his career and training. Increasingly, such a ban also means giving up participation in certain aspects of society. Technically, computers are all around us -- in ATMs, cars, cash registers and cell phones. Applied as literally as possible, the computer ban could have made it difficult for Russell to function outside of Amish country.

Some sentencing orders are sensible restrictions intended to keep the defendant away from opportunities to repeat the crime. For example, I think most Americans would support a ban on driving for a repeat drunk driver with an unaddressed alcohol abuse problem. But as this case shows, other restrictions can overreach, banning activities not closely related to the crime or assuming a likelihood of recidivism that the defendant hasn’t shown. As a West Palm Beach cyber crime criminal defense attorney, I have noticed that sex crimes are among the few crimes that generate this sort of harsh, overreaching sentencing. Not surprisingly, they are also among the most emotionally charged crimes. Until our politicians and courts can resist making decisions based on emotion or appeal to voters, offenders like Russell will continue showing up in appeals courts.

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.

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.

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.

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.

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.

Because I am a Miami sex offender registration defense attorney, I have kept an eye on the local scandal involving sex offenders who live under the Julia Tuttle Causeway Bridge. The colony made the news a few years ago when it came out that sex offenders faced residency restrictions so severe that they actually couldn’t find anyplace else in the county where they could legally live. In fact, an investigation by New Times Miami found that the Florida Department of Corrections was ordering recently released inmates to live there, and some even have the address on their driver’s license. According to a Jan. 21 article in the Miami Herald, Miami-Dade County Commissioners have finally taken steps to address the problem by making new rules about residency.

The county’s new law is intended to stop confusion about the patchwork of city ordinances by superseding them. Under the new law, offenders still may not live within 2500 feet of schools. However, it also adopts the state’s lighter 1,000-foot residency restriction for all other places where children congregate, such as parks and day-care centers. This lifts harsher restrictions on those areas imposed by many cities. The county also added a 300-foot “child safety zone” in those areas, in which sex offenders may not loiter. The hope is that this will create more areas where offenders can find indoor housing. The ACLU of Florida, which has sued the city over the Tuttle Bridge colony in the past, said the new law was a step in the right direction, but still a half measure that doesn’t fully address the problem.

I agree. The easing of the 2500-foot restriction in many cities may help open up more housing, and that’s a good thing. But the new law leaves residency restrictions intact, and even adds a no-loitering restriction, despite no evidence that residency restrictions work. Police and Fort Lauderdale sex offender registration criminal defense lawyers like me know that most child sex crimes are perpetrated by someone the victim knows; that around half of perpetrators are relatives; and that the vast majority had never been arrested for anything before the molestation began. Furthermore, virtually forcing sex offenders to be homeless makes police’s job harder by making it harder to find those offenders.

Practical arguments aside, sex offender residency requirements also create a legal and ethical problem by re-penalizing people who have already done their time. This is against the spirit of our justice system, though perhaps not the letter, and creates real obstacles for ex-offenders who are trying to move on. Under the onus of sex offender residency and registration requirements, offenders have a hard time getting an address, getting a job and building law-abiding lives. And as far as I know, our society does not impose this kind of post-prison penalty for any other crime. As a West Palm Beach sex offender residency defense attorney, I wonder if the real motivation behind these laws is vengeance rather than protection of children.

Though my work as a Miami cyber crime criminal defense attorney, I’ve encountered numerous cases involving “sexting.” In far too many of these cases, prosecutors and school officials overreact and teenagers end up criminally charged with producing and sending child pornography, even in cases where they photographed themselves and were never in danger of exploitation. Now, according to the National Law Journal, the first sexting case has hit a federal appeals court. The Third U.S. Circuit Court of Appeals is considering whether prosecutors can bring child pornography charges against three teenagers whose pictures were found by school authorities in a “sexting” bust.

The case involves two pictures. One was of two girls, 12 at the time, who were photographed wearing training bras. The other was of a 16-year-old coming out of the shower topless, with a towel wrapped around her waist. They were among 16 kids who faced child pornography charges when their mid-Pennsylvania school district uncovered widespread sexting in 2008. The district attorney said he would file child pornography charges against them if they didn’t take a class about avoiding sexual predators, then write an essay about why sexting was wrong. Most of the students agreed, but the three plaintiffs did not. In their federal lawsuit, Miller v. Skumanick, the three girls argued that the photos were not child pornography, which makes them protected speech under the First Amendment and not appropriate for prosecution.

Before the Third Circuit, the girls’ attorney, Witold Walczak of the ACLU, argued that the photos were far too tame to be considered pornography. That meant the prosecutor lacked probable cause to charge them. He also argued that child pornography laws were not meant to apply to teenagers who photograph themselves. The attorney representing the district attorney argued that the law was intended to protect kids from their own bad decisions, and from sexual predators attracted to naked pictures. The NLJ reported that the Third Circuit gave that argument a tough reception, with one judge suggesting that the class was “a particular government official’s views of what it means to be a girl in today’s society[.]”

As a Fort Lauderdale child pornography possession defense lawyer, I hope the Third Circuit’s ruling sets a precedent for sensible behavior by prosecutors and school officials. It is not a good idea for teenagers to send each other naked pictures, but criminal prosecution takes that bad situation and makes it much worse. As the ACLU attorney pointed out, child pornography laws are intended to protect kids from adults who exploit them. That concern doesn’t apply to pictures kids take voluntarily, especially self-portraits or pictures taken by peer group members. Prosecuting them for this behavior doesn’t protect them so much as it produces lifelong negative consequences for a youthful mistake.

This is not idle speculation. As a South Florida child pornography possession criminal defense attorney, I have written on this blog several times about kids who face prison time and sex offender status for sexting. They include a young man here in Florida who was kicked out of college and has trouble finding work because of a child pornography conviction related to sexting. I hope the Pennsylvania case paves the way for jurisdictions around the country to take a less life-altering approach.

As a Miami cybercrime criminal defense lawyer, I frequently defend people who are charge with possession of child pornography. In most cases, the evidence against my clients comes from images law enforcement found stored in special folders on their computers, or sometimes on other electronic devices or in their homes. However, every now and then, a defendant comes along who is accused of possessing images stored only in a “temp” or “cache” folder, where recently viewed files are stored until they are purged some time later. This is despite the fact that Florida and federal child pornography statutes require that the defendant “knowingly” possess the material. Can this type of unintentional “possession” be considered a crime?

On the federal level, the answer seems to be yes. At least three federal appeals courts have addressed the issue. In United States v. Romm, 455 F.3d 990 (9th Cir. 2006) and United States v. Bass, 411 F.3d 1198 (10th Cir. 2005), the Ninth and Tenth Circuits both ruled that defendants’ knowledge that the temporary cache existed, and attempts to erase the temporary files, was enough to show “knowing” possession. The Eleventh Circuit, which does include Florida, has indicated that it agrees. In United States v. Kain, No. 08-3396 (11th Cir. 2009), the court arguably took it even further. It wrote, “A computer user who intentionally accesses child pornography images on a web site gains actual control over the images, just as a person who intentionally browses child pornography in a print magazine ‘knowingly possesses’ those images, even if he later puts the magazine down without purchasing it.”

In Florida state courts, the answer may not be as clear. In a 2006 case, Strouse v. State WL 436028 (4th DCA, 2006), the Fourth District Court of Appeal found that merely viewing child pornography is not enough to establish knowing possession of the images, even if the images are cached in a temporary folder. However, it said, when defendants try to delete or manipulate the files, this can help prove knowing possession. After that ruling, the Florida Department of Law Enforcement cautioned its officers against basing an entire case on temporary files. However, officers finding temporary files are unlikely to stop looking for stronger evidence elsewhere on the computer.

This state of affairs creates a sticky situation for Floridians whose computers may have been used to view child pornography, or may have been compromised by a virus. Unfortunately, even though our legal system promises that every defendant is presumed innocent until proven guilty, the reality is that child pornography possession defendants need a good Fort Lauderdale child pornography criminal defense attorney, as quickly as possible. In Florida state courts, defendants may be able to challenge cases based only on the existence temporary files that the defendant has not tried to manipulate. But in federal courts, district judges following the Eleventh Circuit’s instruction would be forced to treat mere viewing of files as possession, even though the user may have arrived at the site by accident and left quickly. Fortunately, as an experienced West Palm Beach child pornography possession attorney I can often find other avenues of defense for clients.

As a Fort Lauderdale child pornography criminal defense attorney, I was interested to see what may be the first large child pornography arrest in Florida of 2010. According to a Jan. 4 article in the Orlando Sentinel, Lake County authorities arrested a Walt Disney World employee Dec. 24 for possession of child pornography. James Treanor, 32, was charged with 200 counts of the crime, for possessing more than 5,000 images and 75 movies involving minors in sexual situations, many of whom reportedly appeared to be under the age of 12. Treanor told authorities that he had more, but deleted it because a friend planned to stay with him over the holidays. He is jailed with bail set at $10,000 per felony violation, which could be as much as $2 million if all of the counts are felony counts.

The newspaper said Treanor had a public defender, although that person was not reached before the article was published. I hope this attorney is prepared for a battle, because Treanor is facing serious penalties if this article is correct. Each image in the defendant’s possession can create a separate criminal count, which is likely why Treanor is charged with 200 separate counts of child pornography possession. Each of these carries up to five years in prison, which means he could be sentenced to as much as 1,000 years in prison -- effectively a life sentence. Judges have some discretion in sentencing, but public opinion is not kind to people accused of this crime. This may be especially true because he worked at Disney World, and presumably had contact with children.

One of the most difficult parts of my job as a West Palm Beach child pornography possession lawyer is to fight a premature conviction in “the court of public opinion.” Long before they get to a court of law, clients who are accused of child pornography possession and related crimes face serious, sometimes permanent consequences in other parts of their lives. This can include separation from a spouse, the loss of a job, loss of friendships and even physical attacks or intimidation. Even if the client is later found not guilty, it’s generally too late to reverse most of this damage. These attitudes can also bleed into the officially neutral justice system, which is why judges frequently have no flexibility in sentencing; defendants face lifelong sex-offender registration and residency requirements; and jurors and investigators can sometimes be prejudiced.

Of course, some people accused of child pornography possession are guilty. The goal of our justice system is to determine who is guilty and who is not, and even those accused of unsavory crimes are entitled to a fair trial. Another part of my job as a Miami child pornography possession criminal defense lawyer is to ensure that my clients get that fair trial, as far as that is possible. In some cases, that means excluding people or evidence that could prejudice the jury; in other cases, it means a full computer forensic search to find evidence that might exonerate my client entirely. Even when the system produces borderline absurd results, like a 1,000-year maximum sentence, I will fight to get my clients the fairest possible day in court.

As a Miami-Dade child pornography possession criminal defense attorney, I have known for years that viruses can silently download child pornography, exposing the computer’s owner to life-altering criminal charges and personal consequences. That’s why I was very pleased to see an Associated Press report Nov. 9 confirming that these cases are real -- and that prosecutors aren’t always willing to listen. The AP reviewed court records and interviewed defendants, attorneys and computer forensic examiners to understand the problem. Its conclusion: Viruses that download child pornography are real, and victims can lose their jobs and friendships and even go to prison because of them.

As the article explains, these viruses are typically used by actual pedophiles to download and store child pornography on an innocent person’s computer, helping them avoid getting caught. Sometimes, they can also be used to get back at someone or play a not-very-funny prank. In either case, the computer needs to be vulnerable to the virus and left online for long periods. The viruses store the child pornography in folders that users aren’t likely to open, like the temporary cache for a Web browser. Later, co-workers, family members or investigators can find the folders -- and the computer’s owner is unpleasantly surprised with a criminal charge for possession of child pornography.

Simply claiming that a virus is responsible won’t pass muster with many investigators, because people who are guilty frequently make this claim. However, computer forensic examiners told the AP that it’s not hard to tell whether this is the truth, from data on the machine as well as tell-tale physical evidence like DVDs in the home of the accused. Unfortunately, proving this usually requires the services of a forensic investigator, which can be very expensive. Courts may pay for the investigation if the defendant cannot, but they may also choose not to.

Ned Solon of Casper, Wyoming says that was the case for him. He said he never downloaded the child pornography found in a folder for a file-sharing program on his computer, and the computer defense forensics expert suspects he’s right. However, she never got to finish the job because of a payment dispute. Solon is appealing from prison, where he is serving a six-year sentence.

By contrast, Michael Fiola of Massachusetts was able to prove that a virus downloaded child pornography onto his work computer. But before he could do that, he was fired from his job for the state, had his tires slashed, received death threats and lost friends. To pay for his six-figure defense, Fiola and his wife spent their savings, took out a second mortgage and sold their car. At trial, experts showed that his computer was downloading child pornography at a rate too fast for any human being, at times when Fiola was not at home or work. Nearly a year later, the charges against him were dropped -- but the Fiolas say their physical and financial health suffered. They would like to sue the state, but cannot find an attorney willing to take the case for the small amount of money that Massachusetts law allows them to recover.

In my practice as a South Florida child pornography possession criminal defense lawyer, I see sad stories like these more often than I would like. In many cases, prosecutors haven’t quite caught up with the state of the art in networking technology, which allows child pornography fans to stay one step ahead. When they find child pornography, they don’t always do the painstaking work necessary to rule out viruses and other explanations for the pornography. The result can actually ruin innocent people’s lives, even if they are acquitted or charges are dropped. Merely the accusation of child pornography possession is enough to cause the loss of a job, a spouse, child custody, friendships and professional licenses and a good reputation in the community.

Stories like these are why I use computer forensics experts whenever appropriate, as a Fort Lauderdale possession of child pornography defense attorney. With computers, things are not always what they seem on the surface, and simply having these materials on a computer is not iron-clad proof of a child pornography possession charge. But prosecutors who are understandably eager to find and stop the perpetrator may not stop to consider that -- or they may genuinely not realize that an investigation could change the story. With the defendant’s freedom and future at stake, it is essential that prosecutors and police agencies give virus defenses fair consideration -- and that defendants do whatever they can to prove those defenses.

As a criminal defense attorney and a South Florida cyber crime criminal defense lawyer, I understand that there’s a fine line between a tool and its uses. That’s why I was disappointed to see a post on Wired’s Threat Level blog Nov. 2 about a man from Oregon who was criminally charged for selling “uncapped” cable modems and software that helps customers use those modems. Ryan Harris is accused by federal prosecutors of conspiracy and aiding and abetting wire fraud and computer intrusion. As Wired notes, however, he is not accused of directly breaking the law -- just of helping customers and Internet users to do so.

“Uncapping” cable modems means removing the limitations on maximum data speed that come with the modems, as well as other default settings. Brand-new cable modems typically limit upload and download speeds, but technically savvy owners can change the configurations to achieve much faster speeds. By itself, this is perfectly legal -- after all, the modem is the user’s own property. However, Internet service providers don’t like it because a large number of bandwidth hogs can disrupt their networks and undermine the market for faster, “premium” plans. They typically ban users they catch with uncapped modems. In addition, a user with an uncapped modem can use the modem to steal Internet service by spoofing a paying neighbor’s hardware address. Harris, who goes by DerEngel, is part of a band of cable modem hackers at TCNiSO.net, which sells uncapped modems, uncapping software and his book Hacking the Cable Modem.

According to Wired, Harris has made it clear that he and his colleagues do not condone using their work to steal from ISPs. Nonetheless, that is the accusation federal prosecutors made when they indicted him and TCNiSO Aug. 19 (with help from a grand jury). He is accused of knowingly helping at least one unindicted co-conspirator steal Internet services. By selling their hardware and software and providing support, the indictment said, Harris, TCNiSO and two unnamed employees conspired to help a customer steal Internet service. They are also accused of aiding and abetting the alleged co-conspirator, a teenager from Massachusetts known online as DShocker. DShocker pleaded guilty last year to hacking-related offenses, Wired said, but prosecutors don’t allege that Harris was involved in those offenses -- just that he sold DShocker hardware and software. The indictment also mentions that Harris and his company sold modems and a copy of his book to an undercover FBI agent.

Not surprisingly, Harris told Wired that he intends to plead not guilty. As a Fort Lauderdale cyber crime criminal defense attorney, I wish him luck. Judging by the indictment, all of the accusations against Harris have to do with other people’s actions -- he is accused of conspiracy and aiding and abetting. By contrast, the actions attributed only to Harris by the indictment -- selling some modems and a book -- are all legal. As he noted in the post, hacked cable modems have legitimate uses. And even if those legitimate uses aren’t what attracts users -- and Harris knew it -- it does not automatically follow that hacking and selling cable modems is itself a crime. After all, auto manufacturers aren’t criminally charged every time someone drives drunk in Florida, nor are firearms manufacturers charged when someone commits a weapons crime.

As a former prosecutor, I understand that prosecutors want to stamp out crime -- and theft of services is a crime. But as a Miami cyber crime criminal defense attorney, I believe it’s essential to distinguish between a tool itself and its uses. The law puts responsibility on the person who uses a tool to commit a crime-- not the person who provides that tool. To protect our freedom, we must continue to observe that distinction.

As a South Florida cyber crime criminal defense attorney, I keep an eye on news about how law enforcement agencies use mobile devices to make and prove their cases. That’s why I was slightly disappointed in an Oct. 22 article from the Orlando Sentinel that addressed the topic, but glossed over the potential Constitutional issues involved. The article notes that cell phones and their records have become important parts of police investigations, including Florida’s Casey Anthony case, in which a young mother is accused of killing her toddler daughter. But as I have written on this blog, the courts are still deciding how many phone records police should be able to access without a warrant.

The article details the importance that mobile device records are increasingly having for law enforcement. For example, cell phone records can show roughly where the device is physically located by tracing what towers it uses, allowing police to track a person’s movements. That capacity allowed police to discover that Casey Anthony never went to Tampa from her Orlando home, as she told her parents after daughter Caylee’s disappearance. In another case, phone records showed that Tracy Ocasio of Oconee made her last phone call near the home of James Hataway, a person of interest in her disappearance. The article notes that contacts, texts, emails and photos and videos on phones can all be useful to investigators; a cyber forensics professor told the newspaper that an estimated 80% of crime scenes have at least one piece of digital evidence.

Law enforcement does not need a warrant for data on where calls were placed and who was on the other end, because information shared with phone companies has no reasonable expectation of privacy. But the article briefly notes that officers need a search warrant or consent from the owner to search the devices themselves. In fact, as a Miami cyber crime criminal defense lawyer, I know that it’s not completely clear whether they need such a warrant. Officers may legally search a suspect’s physical papers during an arrest, but it’s not clear whether mobile devices, with their massive data capacity, count as “papers.” And of course, a search and seizure that does not come during an arrest may violate the Fourth Amendment to the U.S. Constitution, which is likely one reason the Florida Department of Law Enforcement has told officers not to search phones without a warrant. When it comes to mobile electronic devices, the law has not yet caught up with the development of new technology.

Like much of criminal law, laws on searching suspects’ phones must balance their rights with law enforcement’s need to do its job efficiently. Everyone involved in the system -- defendants, police agencies, prosecutors and Fort Lauderdale cyber crime criminal defense lawyers like me -- has an interest in seeing the law clarified. As you might imagine, I would prefer a clarification that leaves intact the Constitutional right to be free of unreasonable search and seizure, even if it means law enforcement must wait a few days to get warrants to search devices. But as an Orlando cyber crime defense attorney, I urge my clients and potential clients to be smart about what they carry around with them in the first place, so that a routine traffic stop cannot turn into a personal and civil-rights nightmare.

Ever since the story broke about sex offenders in Miami-Dade being directed to live under the Julia Tuttle Causeway, I have kept an eye out for articles on the issue of where registered sex offenders may live in South Florida. That’s why, as a Fort Lauderdale sex offender registration defense lawyer, I was disappointed to see that authorities are expected to allow one of the few homes for registered offenders to close because of a new playground opened two blocks away earlier this year. According to an Oct. 17 article in the South Florida Sun-Sentinel, eight residents requested an injunction allowing them to remain at the Mission of St. Francisco in Fort Lauderdale. But because of financial problems with the mission, the remaining residents have agreed to move out by Oct. 21.

St. Francis provides supervision, therapy and spiritual help for its all-male residents. Residents pay rent, work, attend chapel and therapy and follow the home’s rules. Originally a substance abuse residential treatment center, it slowly became a center for sex offenders after beginning to admit them in 2005. Residents interviewed for the article say the home has been good for them, and a social worker and academic interviewed for the article said the community and programming at St. Francis were probably ideal for stopping recidivism. However, when the playground opened in January, it triggered Florida’s sex offender residency law, which forbids registered sex offenders from living within 2,500 feet of any place where children congregate.

The residency law came under fire over the summer when media reports showed that a group of sex offenders were living under the Julia Tuttle Causeway in Miami. Like Fort Lauderdale, Miami-Dade has a strict sex offender residency law requiring registered sex offenders to stay 2,500 feet away from parks, schools and homeless shelters. This made it nearly impossible to find housing in the densely populated county, leading the Florida Department of Corrections to order some of the offenders to live under the bridge. St. Francis resident Michael Navarro faces similar problems in Broward County. He told the Sun-Sentinel that the state Department of Corrections gave him a list of approved areas to live, but the closest was in Fort Myers, about 140 miles away.

Chris Mancini, an attorney for the St. Francis residents, said sex offenders evicted by residency requirements tend to become homeless, making it nearly impossible for law enforcement to know where they are. As a Miami sex offender registration defense attorney, I couldn’t agree more. The goal of sex offender registration and residency laws is to allow law enforcement and the community to keep track of offenders. Laws that make it impossible for offenders to find a permanent address actively undermine that goal, allowing offenders with bad intentions to slip under the radar. As this article shows, they can also undermine efforts by the offenders themselves to overcome their problems and become productive members of society.

As a South Florida sex offender registration violation lawyer, I’d like to add that laws that indirectly or directly require homelessness are a failure of our society. Regardless of what these offenders may have done, they should not be ordered, under threat of arrest and possible re-incarceration, to become homeless. Nor should we intentionally take away one of the few housing options available to these people, however important a new playground may be. Miami-Dade is currently embroiled in litigation over the issue, but we do not need a court to tell us that this situation is not acceptable.

Here in Miami, we saw a celebrity arrest of sorts recently when Palm Beach County police picked up Spanish-language television personality Adonis Losada on child pornography charges. Losada, of Miami Beach, is best known for playing Dona Concha on Univision’s Sabado Gigante sketch comedy show. According to a Sept. 26 article in the Miami Herald, Losada was identified and arrested after he sent undercover officers a picture of child pornography. He faces 18 counts of child pornography possession and 30 counts of distributing child and computer pornography -- and California authorities are reportedly building a similar case against him. He has also been suspended from his show during the investigation, according to Univision.

Boynton Beach police found Losada in an online chat room for people interested in child pornography, the Herald said, then convinced him to send the pornographic image. Investigators were able to connect that activity to Losada’s home address, then search his home and recover 18 images of child pornography. Police described some of the images as graphic and disturbing, involving very young children. Losada was arrested on those charges, but released on $90,000 bail. However, after being released on bail, he headed to Georgia, where he was arrested again and extradited back to Palm Beach County. Losada now faces the additional 30 counts of distributing child pornography, and prosecutors have asked for $3 million bail because of his attempt to flee.

The article does not lay out enough details for me to say for sure how I might, as a Miami-Dade child pornography defense lawyer, defend this case. But in any child pornography case, I take a close look at the evidence and whether it meets the requirements set out by the statute. For example, to convict someone of possessing or promoting material showing a sexual performance by a child, the prosecution must show that the defendant knew about the illegal nature of the materials. The circumstances may also cast doubt on whether the defendant truly possessed the materials, in a legal sense. After a close look at where the material came from, law enforcement’s investigative methods and other facts, a good Fort Lauderdale child pornography criminal defense attorney may be able to mount a strong defense, even if it’s not disputed that the materials were on the defendant’s computer.

As a South Florida child pornography criminal defense attorney, I will also watch this case to see if Losada is treated more harshly because of his celebrity. As we recently saw with Plaxico Burress, fame can backfire, particularly if prosecutors feel pressured to make an example of a defendant or prove they aren’t going easy on a celebrity defendant. Losada is accused of some very serious crimes; distributing child pornography is a second-degree felony penalized by up to 15 years in prison for each count. As disturbing as the allegations against him might be, and regardless of the pressures his fame might put on the justice system, he is entitled to a fair trial.

At the beginning of the year, I wrote here about the ongoing debate over the legality of police searches of cell phones and other handheld devices. Last weekend, law enforcement in Winter Haven, a lakeside community near Tampa, made an arrest that could revive that debate. According to a Sept. 26 article in the News Chief of Winter Haven, Brian Jennings was arrested and charged with ten counts of sexual performance by a child after his girlfriend’s son brought Jennings’ iPod to school and discovered child pornography on it.

The unnamed boy did not have permission to take the iPod to school. According to the article, he was listening to music with the device when he found images on it, including adult and child pornography. Authorities believe at least 20 of the 974 images are child pornography. Another student told a teacher that the boy was showing the pornographic images to other students, leading school authorities to confiscate the iPod and call the Polk County Sheriff’s Office. After arresting Jennings, law enforcement returned to search his home and seize his computer.

Here in Florida, at least one federal court has already ruled that police officers may not search handheld devices after an arrest for something unrelated, although they may be able to do so during an arrest. In this case, that issue doesn’t matter because the iPod was found on a minor, and minor schoolchildren have fewer constitutional rights than adults. But as a Miami-Dade cybercrime criminal defense attorney, I am not at all sure that things would have been different if Jennings himself had been found in possession of the iPod. The Fourth Amendment is clear about search and seizure, but courts have been inconsistent about whether law enforcement needs a search warrant to search handheld devices like iPods and phones.

Nonetheless, as a Fort Lauderdale cyber crime criminal defense lawyer, I believe Jennings may have strong defenses open to him. The statute under which he’s charged makes a distinction between possession of material showing sexual performance by a child, a third-degree felony, and possession with intent to promote, which is a second-degree felony carrying double the potential prison time. The law says possession of three or more copies of a performance is evidence of intent to promote it -- but a smart Orlando cyber crime defense attorney can and should challenge that assumption. The statute forbidding simple possession also requires that the possession be “knowing,” meaning that there is no crime if the defendant didn’t know the material involved children -- which is possible if, say, he downloaded a bundled set of images.

The penalties Jennings faces are serious. If convicted on all charges, he faces more than two decades in prison. Furthermore, the charges are felonies, which means he would lose his rights to vote and own a firearm and may have trouble finding a job after prison. And of course, he would likely be required to register as a sex offender for the rest of his life, which limits where he may live and work and carries a heavy stigma. With this much at stake, I hope Jennings is given every chance to present evidence that might prove his innocence.

As a Miami child pornography criminal defense attorney, I was happy to see a recent news item showing that defense lawyers like me are not the only ones concerned about the severe penalties mandated by our federal child pornography laws. According to a Sept. 10 article in the National Law Journal, federal judges testified before the U.S. Sentencing Commission last week that they believe sentences for child pornography possession have become too severe. The judges said people convicted of possession are frequently first-time offenders that are not threats to the community, and should not be sentenced in the same harsh way as those convicted of commercial manufacture or sales of child pornography.

The Sentencing Commission hears testimony from judges, attorneys, probation officers and others about federal sentencing practices. It heard the testimony on child pornography sentencing in Chicago, its fourth stop of seven in a nationwide tour. Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel he does not condone child pornography possession, but pointed out that someone who watched such a video once can now be punished more severely than someone convicted of raping a child repeatedly over several years. In fact, he said, the average sentence for child pornography possession in his district more than doubled between 2002 and 2007, from 50 months in prison to 109 months.

The panel also heard from the Chief Judge of the Seventh U.S. Circuit Court of Appeals, Frank Easterbrook, who presides over the federal appeals court for the area. He said he wonders if the sentencing guidelines don’t produce “unreasonable and unjustified disparities” when he sees sentences for child pornography possession that are more than 40 times the size of sentences for bank robbers. Another objection was raised by U.S. Attorney Patrick Fitzgerald for the Northern District of Illinois, the prosecutor behind the Rod Blagojevich and “Scooter” Libby cases. Thanks to a Supreme Court decision that left judges free to depart from mandatory minimums, Fitzgerald said, his prosecutors prefer to request very high sentences because they believe judges will reduce those sentences. “[I]t is plain as day there is a deep disconnect” between judges and prosecutors on these sentences, he said.

Unfortunately, the problem these witnesses were addressing is far from abstract. In my work as a Fort Lauderdale child pornography possession defense lawyer, I have seen firsthand that this overly severe sentencing devastates the lives those who are prosecuted, and the lives of their families. The average sentence cited in the article for Eastern Michigan is now just over nine years in prison, during which time the defendant cannot support a family, develop a career or be a parent to his or her children. That’s a terrible personal cost, as well as a financial cost to society -- and it doesn’t even address the additional costs of lifelong sex offender registration requirements or life as a convicted felon.

I do not believe that child pornography possession should go unpunished, of course -- but sentences like these can be disproportionate to the crime, particularly when the accused is a first-time offender without a commercial interest in the material. And as the judges pointed out, they are also disproportionate to the federal sentences for other crimes, including violent crimes like assault or sexual abuse of a minor. As an Orlando child pornography crimes defense attorney, I have thought this for quite a while -- but when well-respected judges and prosecutors say the same, I believe the case for strong action by the Sentencing Commission is clear.

As a Fort Lauderdale cyber crime criminal defense lawyer, I have followed the Lori Drew case with interest. Drew is the Missouri woman charged with violating MySpace’s terms of service in order to set up a fake account to “cyberbully” a 13-year-old neighbor girl who later committed suicide. Because there was no criminal law applying to Drew’s behavior, prosecutors charged her under the federal Computer Fraud and Abuse Act with violating MySpace’s terms of service. A Los Angeles jury convicted Drew, but U.S. District Judge George Wu signaled his intent to overturn that verdict on the grounds that the law is unconstitutionally vague. Earlier this month, he did just that, and the New York Times published an approving editorial Sept. 8.

This prosecution was always controversial, criticized as a legal stretch that made relatively innocent behavior into a crime. Those concerns were shared by Wu, who said the Computer Fraud and Abuse Act was never meant to apply to cyberbullying. The Act, aimed at hackers and thieves, prohibits Internet users from knowingly accessing a computer without authorization for certain purposes or with certain negative results, including injury to another person. MySpace’s Terms of Service, the legal notice most Web sites include, prohibits users from doing some of the things Drew did. The prosecution construed this to mean that Drew had accessed MySpace’s computers without authorization and violated the Act.

Internet civil libertarians, South Florida cyber crime defense attorneys and Wu all saw serious problems with this approach. Wu wrote that making violations of terms of service into a crime would make a federal crime out of every violation, no matter how small or common. For example, he wrote, people looking for dates online might lie about their age and appearance; parents with Girl Scout cookies to sell might send “commercial” messages to friends. This is unconstitutionally vague, Wu said; under previous court decisions, criminal laws must be clear about what behavior is prohibited. In essence, he declared parts of the Act unconstitutional. The New York Times applauded that move, saying that the average Web user has no reason to believe violating a terms of service agreement breaks federal law.

As a Miami cyber crime criminal defense attorney, I strongly agree. If the prosecution’s interpretation of the law had prevailed, it would have put Web site owners, rather than federal law, in charge of what is and is not a crime. Companies may put almost anything they like in terms of service agreements, including rules that might later be voided by a judge as unenforceable as well as rules that are routinely violated. For example, the terms of service at yahoo.com say users may not use Yahoo!’s services to send unsolicited advertising, chain letters or content that is abusive or harassing. As anyone with a Yahoo! email account knows, these rules are violated almost constantly. Prosecuting every violator of every terms of service agreement would be impossible, a waste of prosecutors’ time and potentially a violation of Internet users’ civil rights. That’s why I am pleased with Wu’s decision, despite the tragic set of facts leading up to it.

As a Miami tax evasion criminal defense attorney, I was not surprised to see evidence that the U.S. Internal Revenue Service is planning to extend its efforts to fight tax fraud. According to a Sept. 1 article by Bloomberg News, the IRS has advertised among its employees to staff a new office dedicated to monitoring the “global high-wealth industry.” This office will have the responsibility of processing the information on 4,450 accounts that UBS agreed to turn over in its settlement of a lawsuit against it by the IRS. The IRS sued the Swiss bank after it refused to turn over information in a related criminal case, in which the bank admitted to intentionally helping U.S. taxpayers dodge their taxes through deception and elaborate networks of dummy corporations.

In part because so many tax evaders use dummy corporations, the new IRS department will be located within the agency’s Large and Mid-Size Business division. According to Bloomberg News, that’s the division with the most experience navigating the issues that apply to high-net-worth individuals with international holdings, such as tax treaties and international business structures, and a division with an embedded legal department. Currently, responsibility for auditing wealthy people is split between divisions handling small business, self-employed people and investors -- and not all of those divisions have experience in international transactions. The IRS has already asked Congress to approve funding to hire 784 new full-time workers to better enforce international tax laws. As a Fort Lauderdale tax evasion defense attorney, I believe this means this issue goes beyond UBS -- we can expect stricter enforcement of tax evasion laws in the future.

Tellingly, the Bloomberg article notes that the IRS expects up to 10,000 new tax evasion cases related to UBS -- more than twice the number expected to come through the settlement. The new cases are expected because of the popularity of the agency’s voluntary disclosure program, which offers limited immunity from tax evasion prosecution for accountholders who come forward before they are charged with any tax crime. Taxpayers still must pay back taxes and penalties, but they escape much more serious penalties and potential prison time by being honest. As I have noted on this blog before, the program has already generated more responses in one month than the IRS got in all of 2008. However, the deadline for making a voluntary disclosure is just two weeks away -- Sept. 23 -- so the agency may see even more disclosures soon.

As a South Florida tax evasion criminal defense lawyer, I represent taxpayers in Florida and around the world who need help coming forward in a way that protects their rights. Taxpayers must follow specific requirements in order to qualify for the program, and not all of their personal financial information is necessarily required in a voluntary disclosure. I can help taxpayers start the process; represent them in their dealings with the IRS, including the in-person interviews the agency has been demanding; and negotiate for the best, fairest possible penalties. With the deadline just two weeks away, it’s more important than ever for taxpayers who are in this position to take action quickly to avoid the very serious consequences of a federal criminal conviction. To set up a free consultation with an experienced attorney, please call 1-866-ARRESTED from anywhere within Florida or 1-866-685-3421 nationwide, 24 hours a day and seven days a week, or contact me online.

As a South Florida cyber crime criminal defense attorney, I don’t write about every child pornography case in the news because there are so many. But a case covered by the St. Petersburg Times Aug. 25 caught my attention because it came with a twist: The defendant is accused of not only possessing child pornography, but building a site online where users could trade it. Gary Lee Peel, a 19-year-old student at St. Petersburg College, faces 20 counts of child pornography possession and two charges of promoting child pornography.

According to the Times, Peel was caught when he allegedly uploaded a pornographic video onto a file-sharing Web site. This caught the attention of the private National Center for Missing and Exploited Children, which tipped off the authorities. The CyberCrime Task Force from the Florida Attorney General’s office traced the upload to Peel’s computer -- then discovered that he also built and maintained the Web site. All in all, investigators say they seized hundreds of images and videos, as well as two computers and other electronics. Of course, they also shut down the site.

The article does not specify what penalties Peel faces. But as an Orlando cyber crime criminal defense lawyer, I know it’s likely to be a long prison sentence. The penalty for possession of child pornography in Florida is up to five years in prison for each image -- meaning Peel could get up to 100 years for the possession charges alone. Promoting a sexual performance by a child -- that is, providing, making or distributing such material -- is a second-degree felony carrying up to 15 years for each charge, meaning he might face another 30 years for those. Those penalties could be even higher if prosecutors find evidence that Peel was involved in making the images, a very serious crime.

These are gravely serious charges that will have a profound effect on Peel’s future. In fact, even if he is ultimately found innocent, he could still face a serious social stigma and unfair persecution because our society abhors this type of crime. In my role as a Miami-Dade cyber crime criminal defense attorney, I fight hard for the rights of clients charged with sex crimes involving children, because I know that emotions sometimes overwhelm the logical judgment of law enforcement officers and prosecutors. In fact, even these days, officers and prosecutors may not have the technological savvy to understand exactly who has control over what data. This can lead to wrongful charges against computer users whose only mistake was to leave their computers vulnerable to tampering.

In these cases, I can use my own experience as a former cyber crime prosecutor to find evidence that might ultimately clear the client of wrongdoing. If necessary, I can even bring in outside computer forensic experts to track down the truth and testify to it before a jury. Without a doubt, child pornography crimes shock the conscience -- but when emotions run high, the civil rights of defendants aren’t always respected. As a Fort Lauderdale cyber crime defense lawyer, part of my job is to seek the truth and protect my clients’ legal rights -- even if it makes me unpopular.

As a South Florida cyber crime criminal defense lawyer, I have watched the fallout from the Lori Drew case with interest. Drew is the St. Louis woman who was prosecuted for making a false MySpace account and pretending to be a teenaged boy in order to spy on her 13-year-old neighbor, Megan Meier. Meier committed suicide after “Josh,” the imaginary teenaged boy, said cruel things to her. Drew’s actions were not illegal in Missouri at the time, but public outrage helped to pass a law making “cyberbullying” a felony in Missouri and a crime in several other states. (As I have noted on this blog before, Drew was later convicted of violating the MySpace terms of service, although she is likely to be acquitted.)

Recently, prosecutors in Missouri had a chance to test the new cyberbullying law. Elizabeth Thrasher, 40, of St. Peters, Missouri, is accused of harassing a 17-year-old girl who is the daughter of the woman Thrasher’s ex-husband is dating. According to the St. Louis Post-Dispatch, Thrasher was fighting with the mother of the teenager, which prompted the teen to send Thrasher a MySpace message telling her to grow up. Thrasher allegedly responded by creating a personal advertisement on the “Casual Encounters” section of Craigslist in the teenager’s name, listing her name, picture and several ways to contact her. Not surprisingly, the girl received a deluge of messages from strange men, including messages containing pornography.

The Post-Dispatch said this is the first felony prosecution under the cyberbullying law, although several misdemeanor cases have been filed. According to MediaPost News, Thrasher’s attorney is fighting the charge with the claim that it’s unconstitutional. Defense lawyer Mike Kielty said the law should be thrown out because it criminalizes behavior that is not a crime offline. He acknowledged that Thrasher’s behavior was “inappropriate and a bad idea,” but characterized his client’s behavior as similar to writing a name and phone number on a bathroom wall suggesting that men call “for a good time” -- which is not a crime in Missouri. To the Post-Dispatch, he said that the statute was poorly written and criminalized what was essentially a practical joke.

As a Miami-Dade cyber crime criminal defense lawyer, I’m not so sure her conduct would be legal in Florida, even if it was offline. Thrasher’s intent may have been to commit a practical joke, but her actions essentially offered a minor for sexual purposes. There are multiple federal and Florida state laws that might apply, including procuring a person under 18 for prostitution, cyberstalking and lewd and lascivious offenses on a minor.

Whether the Missouri cyberbullying law is unconstitutional is another matter, and one that could have important effects on similar laws in other states. According to the Post-Dispatch, the law prohibits adults from making threats and communications that could cause emotional distress to someone under 18. The MediaPost article quoted an Internet law expert who suggested that Kielty was wrong to think a law is unconstitutional just because the same behavior offline is legal, and pointed out at least one such law. As a Fort Lauderdale cyber crime criminal defense attorney, I know that no such law has been challenged -- but the question is whether it could be. While I believe the law’s intent was good, the strong emotions surrounding the Lori Drew case may have created unintended consequences that do a disservice to individual liberty.

The celebrity media reported potentially major cybercrime news yesterday when the identity of a blogger who smeared a former supermodel was revealed. As Inside Edition reported Aug. 20, Liskula Cohen sued Google to find out the name of an anonymous blogger who called her a “psychotic, lying, whoring... skank” using the Blogger service that Google owns. Earlier in the week, Cohen won the lawsuit and learned that the blogger is Rosemary Port, a public relations worker and socialite who Cohen said was a passing acquaintance. Cohen said she wasn’t sure why Port would say those things about her, but dropped her defamation lawsuit after confronting her.

Online privacy experts across the Web are saying this may spell the end of online anonymity. In previous online defamation cases, many Internet users have escaped liability and culpability because it’s difficult to connect a online posting with a person. Complicating matters, the federal Communications Decency Act shields online service providers such as Google and Yahoo! from liability for the material their users post, and judges do not always rule that providers must turn over information such as IP addresses that can identify the writer. Without that information, victims of defamation often don’t have any recourse but to sue an anonymous “John Doe.”

I believe that may change. In this court ruling, New York state trial court judge Joan Madden rejected Port’s argument that information in blogs should not be treated as factual assertions. If this argument is accepted by other courts, that means bloggers may be liable not only in defamation lawsuits, but also in criminal prosecutions for cyberstalking, cyberbullying or even criminal defamation (which is against the law in 17 states, including Florida). That has huge implications, not only for South Florida cybercrime criminal defense attorneys like me, but also for every Internet user. Without reliable legal barriers to maintain privacy, legal actions against Internet users could skyrocket.

As a Fort Lauderdale cybercrime criminal defense attorney, I have mixed feelings about this. Illegal behavior online is still illegal, and I support laws that apply the same standards to the same behavior in both forums. But when governments get the power to regulate or even criminalize speech, history shows that some will misuse that power to squelch unpopular ideas. If online service providers can routinely be compelled to turn over identifying information on users, criminal prosecution of free speech could become frighteningly common -- whether it’s speech about politics, touchy issues like sex or, as in this case, simply unkind to someone with the means to stop the speaker.

A second-grade teacher in Orlando was arrested last week on federal charges of receiving child pornography, the Orlando Sentinel reported July 30. Robert Sewell Barth, 57, has been away from his job at Cheney Elementary School since December, on “relief of duty” status. According to the Sentinel, that was the same month when investigators caught Barth viewing a child pornography video, then came to his home to investigate his computer. He was released on bail from Seminole County jail Thursday, with charges pending, but confined to his home and forbidden to have unsupervised contact with children. His Orlando child pornography criminal defense lawyer said he wants to continue his ongoing treatment for addiction to pornography.

During the December investigation, FBI agents found 1,100 pictures and at least 25 videos in Barth’s computer, the Sentinel said. Barth admitted to investigators that he had purchased child pornography and said he was addicted to pornography. He has taught at the elementary school for at least four years, and according to another Sentinel article, he was commended as teacher of the year there in 2007. He and his wife have also fostered 19 children for the state of Florida, and he has been a religious education teacher and Cub Scout leader. The Florida Department of Children and Family Services has interviewed 18 of the 19 foster children without finding any improprieties.

Barth has admitted to purchasing child pornography, according to the Sentinel. But as a Fort Lauderdale child pornography criminal defense attorney, I hope parents at his school and community members are able to see a distinction between possessing child pornography and the grave crime of molesting children. Barth is not accused of harming any children under his care, and if the Sentinel articles left nothing important out, there are no allegations against him of improper behavior with children under his care. Child pornography possession is a serious crime in its own right, but it is not molestation, a distinction that is very important to Barth.

Federal child pornography charges are very serious. The single charge of receiving child pornography Barth faces could land him in federal prison for five to 20 years, and that’s the sentence applied to people with no prior convictions. (If charged under Florida state law for possession of child pornography, Barth could go to prison for up to to five years for each individual image.) Already, his family has lost the ability to provide foster care and his career as a teacher is almost certainly over. If convicted, he faces a lifetime of sex offender registration requirements, obstacles to getting other jobs because of convicted-felon status and a corrosive social stigma.

As a Miami child pornography possession defense attorney, I fight vigorously for clients facing these steep penalties. In many cases, I can use technical knowledge and the help of computer forensic experts to raise important questions about the prosecution’s case. Depending on the circumstances, I may work to show that the images are not of children, or that they got onto the defendant’s computer through a virus or another person. Remember, the government must always prove its case beyond a reasonable doubt -- including in cases involving materials or acts that the community finds shocking.

Think before your text, that is the message we need to be sending our kids. The Sexting Revolution continues to haunt our kids and there is no end in sight. I guess this what we get for giving our kids camera phones. Ultimately who is to blame? Are the courts the best way to deal with this problem? There is an ongoing list of questions that can be posed when it comes to this topic, but the end results is usually the same: kidson criminal probation for being kids; which in turn can lead to a criminal record and problems in the future.

As a Fort Lauderdale Cyber Crime and Criminal Defense Lawyer, I see this problem everyday. Cyber crime both those with sexual content and non-sexual content are plaguing society. Cyber stalking is on the rise, and sexting is here to stay. The final question at the end of all this is, will the State (prosecutor) do the right thing or use the minor as a stepping stone?

Recently a teen in Melbourne, Florida received probation for forwarding sexually explicit photos. This was charged as some serious felonies, but plead down for resolution purposes. But again, I have to ask the question, where's the crime, and what does this resolution serve? Minors sending pictures of minors, and then being charged criminally. This is NOT what the legislature had in mind when they drafted this legislation. Until the legislature amends the laws, this will be debated.

If you or anyone you know needs the assistance of a former cyber crime prosecutor turned criminal defense lawyer in Florida, call 24/7 for a free consultation.

Patience pays off...sometimes, but with police agencies actively seeking out those soliciting minors, the agents investigating have all the time in the world. Police around the State and country are growing more patient in developing their suspects. No longer do law enforcement agencies look to net the "quick fix big fish," rather they have started "stalking" their subjects. What that means is they are digging into the backgrounds of their targets and learning everything they can before they make their arrest. They will have several chats, sometimes over a period of months until they finally make an arrest.

Recently in Miami Dade County a life guard was arrested and charged with solicitation of a minor online by the Broward Sheriff's office. BSO had been tracking and following him for months as they built their case. This was a combined effort with international ties, which ultimately led to his arrest. That is what makes this case a little more interesting than most. There are several issues that can arise when dealing with international cases, the evidence they bring and methods that may or may not lead to its introduction in a United States Court of law.

Allegations are all that has been made at this time, and everyone is presumed innocent until proven guilty. As a cyber crime defense attorney, there are many avenues that can be taken in order to successfully win and defend against the crime of online solicitation. If you or a loved one are facing charges, cyber crime or otherwise, don't delay call David Seltzer, Miami Dade Cyber Crime Criminal Defense Attorney for a free consultation 24/7. Your freedom and restoration of civil rights is our number one goal!

As a South Florida cyber crime criminal defense lawyer, I was interested to read an interesting analysis by the Washington Post’s Security Fix blog July 2 of a recent cyber crime against the government of Bullitt County, Kentucky. According to the blog, criminals in the Ukraine stole $415,000 from the county’s payroll account last week through an elaborate scheme that relied partly on hacking and partly on the cooperation -- or naivete -- of Americans used as “money mules.” While criminal charges have not yet been brought, the article interviewed two anonymous Florida women who said they were fooled into acting as mules -- one of whom is now almost $9,000 overdrawn by the scam.

The Ukrainians used a malware program to get access to the computer belonging to the Bullitt County treasurer. Using that, they were able to get access to the bank account and create 25 “employees” who were really the money mules. They then wired money in amounts around $10,000 to each of the mules, sometimes more than once. The mules’ job was to send the money on to the Ukrainian scammers via wire transfer, keeping a percentage as a fee.

However, the mules’ status was not always made clear to them, according to the article. The blogger spoke with two anonymous women, both Florida residents, who said they were initially hired from CareerBuilder.com to correct bad grammar and spelling in documents sent by “Fairlove Delivery Service.” One of the woman, a Miami resident, said she was later offered a job as a “local agent” helping the company get its money to overseas clients faster. Her job was to accept the Kentucky deposits into her personal bank account and wire the money to the Ukraine. She got suspicious and only wired about a third of the money, which turned out to be wise -- after Bullitt County discovered the scam, her bank account was frozen.

The other Florida woman had a similar story, but sent along all of the money as requested. Unfortunately for her, her bank honored Bullitt County’s request to reverse its deposit, which means her trust was repaid by an overdraft charge of nearly $9,000. The bank said she would be expected to repay the money. The article said authorities have not yet finished their investigation, so it’s not clear yet whether she may also face criminal charges. The article finishes with some tips for Internet users on how to avoid scams like this, including advice on avoiding the Trojan malware that affected the Bullitt County computers as well as being wary of online-only job offers.

That might sound like obvious advice to a Fort Lauderdale cyber crime criminal defense attorney -- but it clearly wasn’t obvious to these women, who could pay a high price for their credulousness. (In fact, in this economic climate, it might be easier than ever to scam job-seekers who are desperate for work.) In addition to the financial consequences they now face, they could be criminally charged as accomplices to a crime against Bullitt County, while the ringleaders remain free in the Ukraine. It’s hard to second-guess investigative work that’s still underway, but as a Miami-Dade cyber crime criminal defense attorney, I do not believe they should be held to the same standards of culpability as the original hackers.

Back in March, I wrote a Cyber Crime Lawyer Blog post about a school administrator in Virginia who got into legal trouble for doing his job. Ting-Yi Oei, an assistant principal at a high school in South Riding, Virginia, was asked to confiscate an “inappropriate” picture of a student found on another student’s phone, as part of a school investigation. When he did so, he was charged with possession of child pornography and two counts of contributing to the delinquency of a minor. He faced up to five years in prison for the felony child pornography charge.

I am happy to announce that the judge in Oei’s case dropped the charges completely, saying the picture was not explicit enough to be child pornography. And just last week, the school board voted to cover all of Oei’s legal bills, according to the Washington Post’s Loudon Extra. Those bills had grown to $167,621 in less than a year. The case also resulted in a job suspension for Oei, though he returned to work earlier this year.

As a South Florida child pornography possession criminal defense attorney, I’m happy to see that justice has been done in this case. Oei was following a supervisor’s orders and trying to maintain school discipline when he uploaded the photo. While that would technically be possession of child pornography (if the photo had been child pornography, which the judge said it was not), it’s a serious stretch of the imagination to equate those actions with the kind of child pornography possession that the law was intended to punish. If Oei had been convicted, he would have faced prison time, sex offender status, the end of his career and life as a convicted felon -- all for doing his job. You don’t have to be a Miami-Dade possession of child pornography criminal defense lawyer to call that a miscarriage of justice.

When I wrote about this case before, I mentioned that Oei had also faced charges for failing to notify authorities about “child abuse.” That charge was dropped, perhaps because there was no real child abuse in this case -- the article doesn’t say whether the girl took her own photo and voluntarily sent it, but that’s usually the case with sexting. However, that charge concerned me as a Fort Lauderdale child pornography criminal defense attorney, because it suggested that school administrators were under pressure to get authorities involved in sexting cases right away -- and nothing could be worse for the kids involved.

Most sexting cases involve teenagers making bad decisions -- not sexual assault, child abuse or another crime. Some consequences are appropriate, but the growing trend toward criminal prosecution of teenagers involved in voluntary sexual photos could ruin the lives of kids who made one bad decision. That’s why this South Florida child pornography criminal defense lawyer prefers that school administrators handle most cases of voluntary sexting, without involving authorities -- and without being prosecuted for simply doing their jobs.

A federal jury in Minnesota has ordered a woman there to pay nearly $2 million to major music labels for illegally offering songs for download, the Associated Press reported June 19. Jammie Thomas-Rasset, a mother of four from Brainerd, Minn., was sued by the Recording Industry Association of America (RIAA) for willfully violating copyrights on 24 songs that were made available for download online. She was one of more than 30,000 people who faced these lawsuits, and became an Internet celebrity because she was one of the few who fought the lawsuit rather than settling for a small amount of money.

This was actually the second trial against Thomas-Rasset. Her first trial which awarded the RIAA $222,000, was thrown out because the judge believed he’d made an error with jury instructions. Court testimony in the new case said an online security company hired by the RIAA, MediaSentry, downloaded songs from Thomas-Rasset’s computer, although the RIAA could not prove that the songs were illegally downloaded by anyone else, or that she was the person who had made the songs available. In fact, she testified in court that her children or ex-husband may have shared the songs. Nonetheless, the jury decided she should pay $80,000 per song, nearly $2 million, to major music companies owned by Warner Music Group, Sony, EMI and Vivendi Universal.

As a Fort Lauderdale cyber crime criminal defense attorney, I can’t help but notice that the penalty Thomas-Rasset is facing is hugely disproportionate to her alleged actions. My work produces intellectual property, so I’m sympathetic to the idea that intellectual property should be paid for -- but $80,000 is an absurd price for an individual song. The size of the judgment could also be seen as a deterrent, but given that Thomas-Rasset is a single mother of four who works for a Native American tribal government, it’s unlikely that she’ll actually be able to pay it. In fact, media reports have speculated that it might push her into bankruptcy. Not only could this make the judgment useless as a deterrent, it might backfire by creating public sympathy for her financial plight.

Thomas-Rasset was sued, not criminally prosecuted -- but in Florida, online copyright violations can actually be prosecuted as a crime. Florida’s Offenses Against Intellectual Property statute makes it a felony carrying up to five years in prison to alter or destroy information from a computer system without permission. It also prohibits theft of trade secrets or confidential information from a computer system. Downloading songs probably wouldn’t be covered by the statute -- but many other innocent activities could be. As a South Florida cyber crime criminal defense lawyer, I believe the statute was written to criminalize malicious hacking -- but it could be interpreted as penalizing harmless behavior like clearing old data out of databases.

The law is still catching up to how people really use the Internet, and unfortunately, Thomas-Rasset’s case is a good example of how we sometimes fall short. My job as a Miami-Dade cyber crime criminal defense lawyer is to help people who are trapped by the law’s shortfalls -- or by prosecutors who don’t understand technology -- avoid the life-changing consequences of a serious criminal conviction. File-sharers like Thomas-Rasset may have broken the law, but their crimes are not so serious that they deserve to have their finances ruined.

A former school principal in Bartow (Polk County) was convicted June 12 of possession of child pornography, the Tampa Bay Tribune reported June 13. John Stelmack was charged after a search of his office turned up pornographic pictures of an adult woman with the faces of two girls, 11 and 12, pasted over the woman’s face. Stelmack is being held in Polk County jail until his sentencing July 10, when he faces up to 25 years in prison.

Stelmack’s problems started in 2007, when he was accused of hugging some fifth-grade girls inappropriately. He was suspended for an internal investigation and asked not to contact anyone at the school. A few days later, he called to ask an administrator to check on something in his office. Investigators searched the office and turned up a briefcase in a locked closet with the doctored pictures. The Tribune reported that both children were from Florida; the Ledger of Lakeland, Florida reported that one child was at the school where Stelmack worked, and another was from a New York school where he had been principal before. He lost his job and was prosecuted for possession of child pornography.

Let me start by saying that the facts of this case are disturbing, and the jury’s decision may have been an understandable reaction to seeing upsetting images. However, as a South Florida child pornography criminal defense attorney, I do not believe that the facts reported would make Stelmack guilty of a Florida child pornography crime. Under state law, “child pornography” is clearly defined as “any image depicting a minor engaged in sexual conduct.” If these articles are correct, the images at issue do not depict a minor engaged in sexual conduct; they (reportedly) depict an adult engaged in sexual conduct, with children’s faces cut and pasted into the photo.

In fact, the U.S. Supreme Court has already ruled on this very issue, in 2002’s Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In that case, the court said that parts of the federal Child Pornography Prevention Act were unconstitutionally broad because they outlawed sexually explicit material showing someone that “appears to be a minor,” and material that “conveys the impression” of minors involved in sexual activity. As the court pointed out, these are broad enough to cover works with actual literary or social value, such as Shakespeare’s Romeo and Juliet, as well as constitutionally protected pornography featuring over-18 actors touted as “barely legal.”

Furthermore, the court’s original rationale for outlawing child pornography doesn’t apply to images like Stelmack’s. New York v. Ferber, 458 U.S. 747 (1982), excluded child pornography from the First Amendment protection enjoyed by legal pornography, because child pornography is always manufactured by illegal use of children in a sexual performance. Under that rationale, the material found in Stelmack’s briefcase should not be illegal -- no children were used or harmed when it was made. As a Miami-Dade child pornography criminal defense lawyer, I believe convicting Stelmack violated both the letter and the spirit of the law.

It’s also worth noting that Stelmack faces life-altering penalties for this conviction. He has already lost his job and probably his career in education, not to mention marital and social consequences. To these, the court has added a Florida felony conviction, which means prison time for most of the rest of his life; loss of many basic civil rights when he gets out; and trouble finding a new job. Even worse, he faces lifelong status as a sex offender, meaning restrictions on where he can live, onerous registration and re-registration requirements and a poisonous stigma. Those are more reasons why, as a Fort Lauderdale child pornography criminal defense lawyer, I believe he should not have been convicted, and I wish him well in any appeal.

Due to the increasing cyber crime issues arising around the world, I have decided to start informing my readers of the various cyber conferences that will be taking place around the globe. Please check out the ICCyber.org conference in Brazil.

For travel information please visit:

David Seltzer is a Miami based criminal cyber crime defense attorney. For a free consultation 24/7, please contact him today.

As a Duval County Child Pornography Attorney, I found this interesting, law enforcement arrested seventy-seven (77) people on charges of child pornography this week in Tallahassee, Florida. The arrests were part of an ongoing operation dubbed "Operation Orange Tree." The individuals arrested were from all over the place including two (2) men from Lee County, Florida now faced with child pornography charges and a lifetime of penalties and problems. Other counties where individuals were arrested are Polk County, Florida, and Duval County, Florida, all relating to child pornography and children.

As a Lee County Child Pornography Attorney, what does all this mean for the 77 individuals charged? What it does not mean, and what they should not do is perceive their lives to be ruined. At this point, the state/federal authorities have made allegations of charges. No one has been convicted of anything. When dealing with cyber crime cases, it is all about the forensics and the investigation. The method's and manner in which the agencies conduct themselves is of the utmost importance. T's have to be crossed and I's dotted. Police have to be held accountable for their collection of evidence, and the following of protocols, etc.

As a former Miami-Dade Cyber Crime Prosecutor, I am familiar with all the protocols and procedures that are necessary in a proper arrest and forensic review. I have years of experience in Cyber Crime and child pornography cases both as a prosecutor and a defense attorney. As a Polk County Child Pornography Lawyer, make sure that if you are facing serious child pornography or solicitation charges, your attorney has the necessary experience and can understand and interpret the evidence. Call today for a FREE consultation 24/7 365 contact us 866-685-3421.

Those looking for a harsh sentence are unlikely to be pleased by the July sentencing of Lori Drew, the Kansas City Star reported May 24. The judge in the case is still considering both the sentencing and a motion from the defense to overturn the guilty verdict for Drew, a Missouri mother who became the center of a debate on how criminal law should handle cyber crimes. But even if the verdict is not severe enough for some of Drew’s critics, the Star said, the case has already changed the law on cyber crime issues and possibly also changed the way Americans behave online.

As I have written on the Cyber Crime Lawyer Blog before, Drew was prosecuted under the federal Computer Fraud and Abuse Act for violating the terms of service for social networking site MySpace when she and an employee pretended to be teenaged “Josh” in order to make friends with a neighbor girl. The goal was to see what the girl, Megan Meier, was saying about Drew’s own daughter. Meier killed herself at the age of 13 after “Josh” stopped flirting and cut off communications, saying the world would be a better place without her. She had a history of depression.

No prosecutor in their home state of Missouri found a way to bring criminal charges against Drew, but federal prosecutors in Los Angeles charged her with unauthorized access to a computer network for violating the MySpace terms of service. Critics of the prosecution call this a stretch or even an abuse of the law. Ironically, the Star reported, Missouri’s harassment law -- updated in response to the case -- still probably wouldn’t apply to Drew’s actions, since her employee sent the messages. A prosecutor in St. Charles County, Missouri, where the Drew and Meier families lived, compared the case making MySpace the victim to a prosecution of a shooting in which Smith & Wesson was the victim.

As a South Florida cyber crime criminal defense attorney, I agree. Drew’s behavior was certainly unbecoming of a mother in her forties, but violating the terms of service for a Web site is not the same as hacking -- which is what “unauthorized access to a computer network” really is. Millions of people violate terms of service agreements every year; prosecuting most of them as hackers would probably create a public outcry. As Drew’s criminal defense lawyers pointed out, violating a terms of service agreement is not a crime.

However, as a Fort Lauderdale cyber crime defense lawyer, I can agree with confidence that this case has changed the law. At least ten states have passed laws against cyber bullying since the 2006 incident, and a similar federal law has been proposed, although it has come under fire for alleged First Amendment violations. While these statutes have their flaws, they help bring the law in line with the Internet. My Miami cyber crime criminal defense clients deserve laws that accurately take into account both the advances in technology and the way people really use those advances.

In Lee County Florida today, two men where arrested and charged with possession of child pornography.

Fort Myers Cyber Crime and Child Pornography Criminal Defense Lawyer, Free Consultation 24/7. Remember, it is all in the forensics...Cape Coral Child Pornography Criminal Defense Attorney.

David Seltzer, Cyber Crime Defense Lawyer at Balliro, Galasso, Leskovich & Seltzer, LLP, focuses on cyber crime defense.

President Obama today released his new cyber crime policy. Please see link below:

Cyberspace Policy Review: Assuring a Trusted and Resilient Information and Communications Infrastructure. No surprise cyber crime is on the rise. Obama's administration has indicated that cyber crime is a top priority. With the release of the new policies, let's see what transpires...

Polk County sheriffs office charged 45 people with possession of child pornography. This has been an ongoing investigation lasting over one (1) year.

45 Charged in Florida Child Pornography Sting

David Seltzer, former Miami Dade State Attorney Cyber Crime Prosecutor, is available 24/7 for free consultations. Now practicing Cyber Crime Defense Law, child porn/child pornography cases are being prosecuted in every jurisdiction in the United States. Your freedom and liberties are at stake, call for a free consultation with David Seltzer, Polk County Child Porn Criminal Defense Attorney.

As a cyber crime criminal defense lawyer in Miami, I have followed the sad story of Megan Meier and Lori Drew with interest. As you may remember, 13-year-old Meier committed suicide in 2006 after flirtatious messages from a boy she met on MySpace changed into cruel words. After Meier’s death, it was revealed that “Josh” was really Drew and an employee, who had created the profile to antagonize the girl after she had fought with Drew’s own teenaged daughter. Despite public outrage, Drew was not prosecuted for the death because her behavior was not a crime at the time. Instead, federal prosecutors charged and eventually convicted her for the cyber crime of unauthorized access to a computer, for lying about her identity online.

In response, several states (including Florida and Meier’s home state of Missouri) passed laws that made cyber bullying a crime. Now, the St. Louis Post-Dispatch reports that a congresswoman from California has introduced federal legislation that would do the same. The Megan Meier Cyberbullying Prevention Act would outlaw repeated electronic communications meant to cause substantial emotional distress to the recipient. And that’s the trouble -- according to critics, it essentially outlaws free speech. The article quotes UCLA law professor Eugene Volokh, an expert on Internet and free speech issues, saying that the language of the law “cannot possibly be constitutional,” and that he expects courts to strike it down if it passes.

Judging by the language of the law, the professor may be right. The language at issue outlaws any communication (in interstate or foreign commerce) “with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated and hostile behavior.” Those convicted face a fine, up to two years in prison or both. Under this language, I believe a recently divorced couple could be criminally charged for saying unkind things about one another online. In fact, it isn’t clear whether the messages would have to be sent directly to the other person, or if a message to a third party would be sufficient to break the law, as long as it was leaked and caused substantial emotional distress.

I might also be concerned about the vagueness of “substantial emotional distress” itself -- what was extremely upsetting to Meier might feel different to an adult or another teenager. Furthermore, it’s hard to predict who may be able to view comments online. As a South Florida cyber crime criminal defense attorney, I know that accounts can be compromised, messages mis-addressed and technology can break down -- and that’s without any viruses or government investigation. And then there’s the difficulty of proving intent -- not a constitutional issue, but a problem well-known to Fort Lauderdale cyber crime criminal defense lawyers like me.

Saying mean things about others online may not be the noblest application of free speech, but it is protected speech nonetheless. While I agree that Drew’s behavior was unacceptable, Congress should consider looking to tested state cyberbullying statutes for ways to bring their good intentions in line with the U.S. Constitution.

As a cyber crimes criminal defense lawyer in South Florida, I was interested to find another case of overzealous prosecution under child pornography laws. This one isn’t about “sexting” -- it’s about those naked bathtub photographs that many people take of their children. According to the York (Pennsylvania) Daily Record, a 59-year-old woman there was publicly prosecuted for taking this type of photo of her three-year-old granddaughter. The charges were dropped, but only after 15 months and a public arrest that the woman described as overly rough and violent.

According to the newspaper, Donna Dull dropped off her film at a Wal-Mart in 2005. An employee there called police after noticing that several photos, but not the entire batch, showed the granddaughter without her clothes during a bath. The police arrested her on child pornography charges in the parking lot of a mall, where she was surprised to hear police shouting for her to drop what she was carrying and get out of the car. In a lawsuit, Dull said the officers used excessive force in the arrest, slamming her into a parked car so hard that she sustained back injuries.

Fifteen months later, after looking at the case “very closely,” York County District Attorney Stan Rebert dropped the charges. The prosecutor who originally authorized those charges is now in private practice, but told the Daily Record that “There was no legitimate purpose for those photographs.” By contrast, York County’s special prosecutor for child pornography crimes, Christopher Moore, said child pornography laws shouldn’t stop loving parents and grandparents from taking photos of their kids. “It’s not what the [child protection] law was designed for,” he told the newspaper.

I couldn’t agree more. It’s not clear from the article whether Dull’s actions violated the letter of the law, but it seems from the article that she had no intention of violating its spirit. As a Miami cyber crimes criminal defense attorney, I believe this is a crucial difference. Because of how child pornography is made, child pornography charges are extremely serious. And they carry the penalties to match, including decades in prison and lifelong sex offender registration requirements.

Before we levy those punishments at people, we owe it to them to ensure that they are truly guilty. As with “sexting,” this woman may be guilty of bad judgment, but as a Fort Lauderdale cyber crimes criminal defense lawyer, I believe it does not serve society to treat her like a hardened criminal.

Last week, I mentioned a cyber crime proposal that was considered and (luckily) rejected by the U.S. Sentencing Commission. As you may recall, that proposal would have branded anyone who used a proxy server in an online crime as part of a “sophisticated” criminal enterprise. Because proxy servers are also in widespread use as security and “net nanny” applications, this caused an outcry that may ultimately have been responsible for the Commission’s decision to drop the proposal.

Those issues were on my mind when I read in the Washington Post that experts say organized crime is responsible for most computer security breaches. A lot of people have an image of hackers as loners who break into systems just to prove that they can, or for the fun of causing havoc. That may have been true ten years ago, but these days, cyber crime is a business. Often but not always based in Eastern Europe, these criminal cartels find security holes, then exploit them to steal financial information and identities. Once they have a credit or debit card number, they can buy things online or make false credit cards and use ATMs to extract large amounts of cash.

Of course, I support law enforcement efforts to track down online thieves and bring them to justice. But as a South Florida cyber crime criminal defense attorney, I can’t help wondering whether lawmakers might overreact to the fact that organized crime is now the leading source of hackers. As with the Sentencing Commission proposal, we may see more proposals to harshly punish cyber crime, piling on sentence enhancements extra penalties like asset forfeiture and asset freezes -- all predicated on the assumption that prosecutors are dealing with a sophisticated criminal enterprise. When the accused is a lone hacker or a teenager whose prank went wrong, those laws could be inappropriately harsh.

Unfortunately, this sort of unintended consequence is a common feature of laws on other hot-button issues, including drug crimes and child pornography charges. Improvements have been made in the last few decades, but drug laws in particular are notorious for being overly harsh on offenders whose only crime is simple possession. And as a Fort Lauderdale cyber crime criminal defense lawyer, I am well-versed in the overreaching and civil rights questions posed when child pornography laws are applied too broadly, as with teenagers accused of sexting.

Piling on harsh sentences and civil penalties may be appealing during an election, but even when the full cost -- in lives and money -- becomes obvious, it can be hard for politicians to back down on “tough on crime” positions. That’s why, as a Miami criminal defense attorney, I support careful consideration and flexibility in any change to sentencing guidelines, on the federal level or here in Florida.

The U.S. Sentencing Commission, a panel that sets sentences for federal crimes, avoided making a potentially serious mistake last week. The Associated Press reported April 15 that the panel has dropped a proposal to make the use of a proxy server a sentence enhancement for people who are convicted of cyber crimes. According to the piece, the change would have increased sentences by about 25% for people accused of using a proxy server to hide their identities online. Critics said the proposed language was too broad.

To understand why they think so, it might help to review what proxy servers are. Whenever you view a Web page like this one, your computer -- called the client in networking lingo -- is sending a request for information to the Web server that hosts the page. A proxy server is an optional go-between that would receive your request and relay it to the Web server, then send the page to your machine.

Law enforcement is interested in proxy servers because criminals use them to hide their internet provider (IP) addresses, so they can commit online crimes anonymously. However, proxy servers can also be used to avoid viruses, filter out inappropriate content and cache frequently visited pages for quick retrieval. That means proxy servers are very widespread -- and indeed, some people advocate them as an easy way to make your computer more secure. That’s why privacy advocates and internet security experts were upset at the Justice Department’s proposal to increase sentences for anyone convicted of using a proxy server to commit a crime. The Sentencing Commission rejected that proposal April 15.

As a cyber crime criminal defense lawyer in Miami, I applaud that move. This is a good example of how important it is for law enforcement and legislators to understand technology thoroughly before they make new laws. The Justice Department’s proposal was aimed at criminal organizations using sophisticated networks of proxy servers to cover their tracks -- but under the proposed language, it was just as likely to net someone who used a computer at a public library to commit a crime. That crime might be quite serious, but the use of proxy servers there would not only not be a sign of “sophistication,” but not even voluntary.

These sorts of technological details are often very important in my practice as a Fort Lauderdale cyber crime criminal defense attorney. Thanks to my experience in the Cyber Crimes unit of the Miami-Dade State’s Attorney’s office, I understand that things are not always exactly as they seem when it comes to computers. Very small details can hold the key to an Internet crime case. Just as importantly to my South Florida cyber crime criminal defense clients, I understand how law enforcement investigates cyber crimes -- and can use that knowledge to mount them the best possible defense.

The New York Times reported today that there have been an influx of mistrials and misguided verdicts relating to juror's disregard for the law and the American system of justice as jurors are turning to the WWW for information. As a Miami Cyber Crime Defense Lawyer, I am not really sure how I feel about this. Our society is now controlled by technology, and dependent on it for our everyday lives. Is it fair to now ask people to go backwards as technology continues to move us forwards?

As a Fort Lauderdale Criminal Defense Attorney, I understand the ramifications of individuals tainting their perspective on a case with outside information. However, the real question at this point is how do we as a judiciary going to deal with it? This problem is not going to go away, and both sides always want a fair trial, but with technology in our face 24/7, is every jury from here on out going to require sequestration?

Looking at this matter on anther level, a recent NBA player was admonished for Twittering during the halftime of a recent game.

This article from the New York Times is simply the beginning of this debate. Stay tuned...

As a Miami cyber crimes criminal defense lawyer, I have followed the ongoing media coverage of “sexting” with great interest. Sexting is the name the media uses for the practice among teenagers of taking naked or near-naked photos using a cell phone or other device, then text messaging or emailing them to boyfriends and girlfriends. When adult authority figures find out, some of these teens have ended up charged with manufacturing or possession of child pornography, even though the “victims” are the same age, took the photos voluntarily and frequently photographed themselves.

The phenomenon may have taken on an added twist in Virginia. According to a March 7 Washington Post article, an assistant high school principal in Reston is being prosecuted for possessing an “inappropriate” photo of a student taken by another student. Ting-Yi Oei was arrested Aug. 20 and charged with possession of child pornography, as well as two counts of contributing to the delinquency of a minor. Oei’s defense attorney has told the court that he possessed the photo as part of a school investigation into students circulating nude photographs. Nonetheless, he faces a felony charge carrying up to five years in prison.

There isn’t enough information in the article to tell how credible each side’s claims are; the case has not yet gone to trial. However, if Oei truly possessed the photo only because of an investigation, this would seem like a case of prosecutors gone wild. Keeping order at the school is part of a school administrator’s job. Judging by the number of cases of sexting reported in the media, Oei cannot be the first school official to confiscate a phone with naughty pictures on it. The sheriff’s office also originally charged him with failure to report child abuse to parents and authorities. That charge was later dropped, possibly after prosecutors realized that child abuse is not the issue when one minor takes nude photos of another.

If Oei is successfully prosecuted for simply doing his job, it could set a dangerous precedent for all other school officials -- at least in Virginia -- who try to handle sexting problems on their own. And that, in turn, could be dangerous to students accused of taking or possessing the photos. If Florida school administrators risk criminal charges for failing to get authorities involved in sexting cases early, I would have to advise them, as a South Florida cyber crimes criminal defense lawyer, to call law enforcement early in all sexting matters. That would mean that teenagers could end up charged with serious child pornography crimes, rather than having their cases resolved at school.

Here in South Florida, each count of child pornography possession is a third-degree felony carrying up to five years in prison, plus lifelong sex offender registration and other penalties. As I have said before on this blog, I feel that child pornography charges do not fit the crime when minors are accused of voluntarily taking nude photos of themselves, or possessing and transmitting such photos. As a Fort Lauderdale cyber crimes criminal defense attorney, I believe the penalties for a child pornography conviction are inappropriate for these teens. That would be even truer for administrators whose only “crime” was trying to maintain discipline at their schools.

The Connecticut Law Journal had a story March 2 on a precedent-setting court decision that could have a dramatic effect on my practice as a Miami cyber crimes criminal defense attorney. A man in Connecticut was convicted in federal court of downloading and distributing child pornography. Like most defendants accused of these crimes, he was sentenced to prison time -- in this case, six and a half years in federal prison. As a foreign (British) national who was convicted of a crime, he will also be deported once his sentence is over.

But unlike most child pornography distribution defendants, the man was also ordered by the court to pay financial restitution to one of the minors shown in the pornography. This is the first case that the Law Journal -- or I, as a cyber crimes criminal defense lawyer in South Florida -- found in which someone was ordered to pay restitution for merely downloading and distributing the materials. In previous federal child pornography cases, only people convicted of actually making the pornography have been ordered to pay restitution, and the greatest amount ever ordered was just over 25% of the $200,000 ordered in this case.

A court can (and sometimes must) order people convicted of child pornography expenses to pay financial restitution to victims, but that law specifies a conviction for exploitation of a child. The attorneys in this case disagree over whether that was the case. A private lawyer hired by the victim (in addition to the prosecutor) argues that sexual exploitation is repeated with each new download, regardless of whether the defendant actually had sexual contact with the victim. The defense attorney, by contrast, points out that the victim couldn’t have known when or how many times the materials were downloaded, making it difficult to argue that she was harmed with each new download. He intends to appeal the decision to the Second U.S. Circuit Court of Appeals.

It’s worth noting that there’s another financial dimension to this case. Before his prosecution, the defendant was an executive at a drug company, although he has since been fired. According to the Law Journal, he owned four homes. This may explain the $200,000 restitution order, which was substantially larger than previous restitution orders in child pornography cases -- the judge may simply have decided that the defendant could afford it. The attorney for the defendant speculated that the number of restitution claims might grow if victims and their lawyers see that it’s “...a lucrative area if a defendant has assets.”

As a Fort Lauderdale child pornography possession criminal defense attorney, I am eager to see what the court will say, especially if the idea of financial restitution catches on in federal child pornography cases. Restitution orders are intended to stop people convicted of crimes from profiting from wrong acts, especially if they are enriched at the victim’s expense. Unlike with, say, an illegal download of a movie, the defendant did not steal the victim’s product and deprive her of profit. Nor did he help make the pornography, which would clearly make him guilty of exploiting her. If a restitution order, or any other court order, doesn’t meet the circumstances specified by the law, I do not believe it’s a just order -- no matter how heinous the underlying crime might be.

As a Miami cyber crimes defense attorney, I was interested to see a New York Times article from Saturday about a case of possible cyber bullying right here in South Florida. According to the newspaper, University of Florida freshman Katherine Evans got in trouble last year for “cyber bullying” her English teacher at Pembroke Pines Charter High School. Evans, a former honors student, didn’t like the way the teacher responded when she asked for help, or the rebuke she got for missing class once during a school blood drive. In response, she went to social networking Web site Facebook and wrote a post denouncing the teacher’s “insane antics,” then offered it as “the place to express your feelings of hatred” for the teacher.

Evans took her post down after a few days -- but was called into the principal’s office two months later and suspended for cyber bullying. She is now suing to have the suspension removed from her record, saying she’s concerned about how it could affect her future. Evans’ attorney in the case says her post was protected free speech, but an administrator for the Broward County School District said inviting students to say they hate a teacher crosses a line comparable to verbal threats or assault.

If that’s so, Evans might be vulnerable to criminal harassment or threat charges in Florida. Florida has no law against cyber bullying, but it prohibits threats in verbal or written form, as well as cyber stalking. However, as a Fort Lauderdale cyber crimes defense lawyer, I wonder if the behavior Evans is accused of would actually qualify as cyber bullying.

Generally speaking, cyber bullying laws in other states define cyber bullying as using the Internet or other electronic communications to intentionally inflict emotional harm on someone else. In many cases, it must be done repeatedly or consistently. In short, it’s the same bullying behavior that’s always gone on in schools -- just transferred to the Internet. Indeed, most of these laws rely on school administrators to find and punish the behavior, but a few authorize criminal charges. Missouri, the home of the highly publicized Megan Meier case, makes cyber bullying a felony carrying up to four years in prison.

That’s a high price to pay for a moment of frustration -- much higher than the three-day suspension Evans received. Her Facebook post could clearly have inflicted emotional harm on her teacher -- but in the physical world, it’s unlikely that it would have been interpreted as bullying. As an attorney for the American Civil Liberties Union told the newspaper, her comments would have been protected speech, and possibly forgotten about by now, if they had been made in person. It’s not for a South Florida cyber crimes defense attorney to second-guess the actions of school administrators, but I believe that criminal cyber bullying charges would have been inappropriate for this case.

In a recent announcement, Myspace.com removed 90,000 registered sex offenders from its website. What is interesting to me as a Miami Criminal Defense Lawyer, is how many of those individuals removed may have been in violation of their sex offender conditions by being online? And if so, will they be prosecuted for the violation?

Usually sexual crimes involving minors committed in today's world involve restrictions on what individuals can and cannot do. In almost all circumstances I have experienced, internet usage has been severally restricted. If an individual who is a registered sexual offender or predator is on probation and requires the use of a computer to work, their freedom to surf the internet is limited. In most cases the machine is equipped with either a keystroke logger or some other form of monitoring device, which allows probation to supervise and monitor every move. Website access is limited to only those sites that the individual requires for work, once they are approved by the appropriate agency's involved.

I can imagine very few circumstances that would require an individual on sexual offender or predator probation to be using myspace.com or any other comparable social networking site, such as facebook.com. That being said, one thing we as a society need to address is, are all individuals who are forced to register as sex offenders, really sex offenders, in the sense that are they a danger to the community? And how long until the courts attempt to impose a lifelong ban on internet usage by sex offenders or predators?

In my opinion each situation must be visited on a case-by-case basis, only after a careful review and understanding of the underlying facts. Working as a Fort Lauderdale Criminal Defense Attorney, I come across all types of criminal activity and each case must be looked at in a vacuum, as no two cases are alike. Some individuals end up in situations where they are not a danger to the community, and are labeled for the rest of their life.

Case on point, as a Miami Criminal Defense Lawyer, I represent an individual who had consensual intercourse with a minor when he was barely an adult. Unfortunately, he does not qualify under the new Romeo & Juliette laws, and now with a wife and two kids, has nowhere to live since he has been evicted from his home once his landlord learned of his status. Miami Dade County told him to use the MacArthur Causeway as his registered address. Is that what we as a society have become? The city in which he lives does not truly allow sex offenders to live there. However, they are willing to look at each case on a case-by-case basis and if a court of competent jurisdiction makes a finding that the individual is not a danger to the community, then the city will allow him to continue to reside there. Just one of the many reasons why the legislature needs to take another crack at the registration statutes, because sometimes good people get caught in the crossfire.

The Battalion, Texas A&M University's school newspaper, reported Feb. 2 that an associate professor turned himself into the police on charges of possession of child pornography. According to the article, a co-worker contacted the police after noticing that the man had shared files with questionable content on the university's network through iTunes. A police detective told the paper that he did not believe the man meant to share the files. He is charged with seven felony counts of possession of child pornography, each of which is a third-degree felony carrying two to 10 years in prison.

Regardless of whether this man meant to share the files, possession of child pornography is illegal -- if that's what the materials are. However, I'm also interested in the fact that he probably didn't mean to share those files publicly. As a Fort Lauderdale cyber crime criminal lawyer, I've learned that many users don't even realize how easy it is to accidentally expose their data to the world. Many computer programs and even operating systems (like Windows Vista or MacOS X) come with the ability to share files on a local network or the entire Internet. These programs may come with file-sharing already enabled or disabled by default; that decision is up to the software's publisher.

Of course, you have the option to change the default settings -- but not everyone realizes they can or should. If you leave file-sharing on, or share folders without making sure you know what's in them, you may end up allowing your co-workers or family to see materials you would rather keep private. This has implications beyond content that might merely be embarrassing. For example, if you have lists of your clients' names and Social Security numbers on your work computer, you are responsible for keeping that information private. If you don't, it could fall into the hands of identity thieves, with serious consequences for your company and your job.

Being aware of "cyber safety" can also help you avoid being the victim of a crime yourself. You probably know that the Internet is full of viruses and other "malware" that can harm your computer. As I've written here before, a hostile programmer can also write a program that turns your computer into a miniature Internet server -- a host computer. Once this program is on your machine, people who want to escape detection can route their Internet activities through your computer without you noticing. You may not be trafficking in child pornography or illegally transferring stolen money into offshore bank accounts, but to investigators, it will look like you are.

Of course, you'll have a chance to explain the truth and defend yourself -- but usually not until after you've been arrested, detained, imprisoned and humiliated. As a Miami cyber crime criminal attorney, I can promise you that law enforcement does not generally have a sympathetic ear for people they believe are guilty of serious crimes. If you can avoid problems by checking or unchecking a box -- as this man in Texas may have been able to do -- it's worth investigating.

An unusual story caught my eye this morning on CNN.com. Apparently, a man from New Zealand bought an mp3 player from a thrift store in Oklahoma, only to discover that the player was pre-loaded with confidential U.S. military files. The information on the player included long lists of soldiers' names, contact information and Social Security numbers; mission briefings; and lists of equipment sent to war zones. The military is still investigating whether the information truly is top secret, but the man who bought the player told CNN that he'd be happy to return it if asked to do so.

Fortunately, the story suggests that the man isn't being prosecuted for this security breach (if there is one). But as a cyber crime criminal defense lawyer in South Florida, I can easily imagine ways in which he could have been. For one thing, unauthorized possession of classified information could be considered an espionage crime, particularly since the man is a foreign national. Just speaking to the New Zealand or U.S. press about it could trigger further spying charges, whose penalties include decades in prison, confiscation of any property the government believes is related and certain revocation of any visa issued to this man.

Even devices that don't come pre-loaded with classified information may still cause problems for unwitting buyers. For example, possessing a long list of names and Social Security numbers could trigger identity theft charges brought by a prosecutor who doesn't believe the information really came with the player. Or, let's say the man found child pornography on the player. Merely possessing child pornography is a crime, and authorities are generally unsympathetic to people they believe are child sex offenders. All of this could add up to a wrongful prosecution and possible criminal conviction, which would then trigger the same immigration problems and potential federal and Florida asset forfeiture.

As a Miami cyber crime defense lawyer, I find that most of my clients and colleagues don't realize how hard it is to truly erase things from a data drive, even a small flash drive like this mp3 player (which is basically a "memory stick" with headphones). Even reformatting a hard drive doesn't truly erase files, which can be found and restored by computer experts. To completely obliterate data that could constitute a security breach, experts recommend several rounds of formatting, overwriting with meaningless data and reformatting. Even better is physically or magnetically destroying the disk.

In fact, the U.S. military has standards for erasing drives containing classified information -- standards that must not have been followed in this case. I am glad that so far, no innocent people are being prosecuted as a result.

About a month ago, I posted to this blog about "sexting," the media's name for the practice among teenagers of sending naked or near-naked pictures to one another in text messages. More recently, I actually spoke to a writer for Wired, in my capacity as a Miami cyber crimes defense attorney, on the subject. I haven't seen those quotes online yet, but I did notice that the magazine's Threat Level blog has picked up on the story. In a post from Jan. 15, the blog interviews online privacy experts about the rash of prosecutions for teens caught sending naked pictures of themselves.

The most recent case cited by the blog is the prosecution of six teenagers in Pennsylvania. Pittsburgh's WPXI reported Jan. 13 that three girls, ages 14 to 15, voluntarily took naked or near-naked self-portraits with their phones, then sent them to three boys ages 16 to 17. They were caught after a teacher confiscated one of the phones. The boys are charged with possession of child pornography, and the girls are charged with possession as well as manufacturing and distributing child pornography. As the Wired piece notes, this makes the girls simultaneously the victims and the perpetrators of the alleged crime -- a nonsensical situation.

More importantly, as the article also notes, child pornography laws were never intended to protect teens from their own sexual curiosity or consensual behavior with each other. Laws against making, possessing or distributing child pornography were intended to protect children and teens from adults who use force or age to exploit them. Consensual sexual behavior among teenagers is a controversial subject, but every state, including Florida, has laws that distinguish between that behavior and actual rape or sexual assault. No such distinction is written into Florida child pornography laws, perhaps because they are relatively new.

Teenagers should absolutely be aware that there could be serious consequences when they post inappropriate pictures of themselves online. But given the harsh penalties carried by child pornography statutes -- including lifelong sex offender registration requirements in many states -- criminal prosecution seems like overkill. Putting kids in jail doesn't protect them or other kids from sexual predators. As a Fort Lauderdale cyber crime criminal lawyer, I would support efforts by lawmakers to modify state and federal child pornography laws to reflect that.

If you were pulled over while driving, would the police officer be legally permitted to look through your iPod, Blackberry or other handheld device? That’s the question posed by CNET’s Police Blotter report Jan. 12. And according to the article, it's not just an idle question posed by South Florida cyber crime attorneys like me. Two different federal courts -- one here in Florida -- have already examined the question and come to different answers.

In the first case, a Georgia police officer was sent to investigate complaints about a parked truck. He spotted crack cocaine inside the truck and arrested its driver, then immediately looked through the driver's mobile phone. He found "lewd images" of an apparently teenaged girl and charged the man with possession of child pornography. At trial, the man's attorney argued that the phone search violated the man's Fourth Amendment right to freedom from unreasonable searches and seizures. The judge ruled that it did not -- and thus, the evidence could be used at trial.

A man here in South Florida had better luck. He had been arrested for trying to buy drugs from an undercover DEA agent. The arresting agent waited until the booking process to look through the man's phones (he had two), where he found text messages he photographed as evidence. The agent testified in court that this was standard practice intended to find evidence of crimes, but the federal judge in that case found that claim not credible and did not allow the messages to be used as evidence at trial. It is worth noting that the judge may have allowed the search during the arrest, since it is established that warrantless searches are legal when they are "incident to a lawful arrest."

In fact, as the article notes, officers may legally search a person's physical papers, photographs and diaries during an arrest. The question is whether handheld devices fall into that category or should be treated as a new category of information altogether, one that requires a search warrant. After all, the amount of information stored on a 40-gigabyte iPod would produce more than 11,000 pounds of paper if printed out. When the "incident to a lawful arrest" exception to the Fourth Amendment was created, nobody anticipated that people might be arrested with these huge amounts of information on their persons. Once again, technology has outpaced the law.

The Fifth U.S. Circuit Court of Appeals has already addressed this issue, ruling that police may search phones. However, that opinion applies only to states within the Fifth Circuit, and we Floridians are in the Eleventh Circuit. And the Florida Department of Law Enforcement has told officers to get a warrant to search cell phones. Nevertheless, as a Miami cyber crimes defense lawyer, I suggest to my clients that they make sure their phones and other handheld devices don't contain anything that might interest a police officer, regardless of whether they think they might be arrested. A DUI or a drug possession charge is already bad news; the last thing anyone needs is a Florida cyber crime charge on top of it.

For the past week or two, a hot topic in news outlets around the U.S. has been “sexting” -- a practice among teenagers of sending naked or near-naked pictures of themselves via text message to friends, boyfriends and girlfriends. ABC News reports that many teens then forward the pictures to friends or post them online, where they can spread quickly. The On Parenting blog at the Washington Post says that 22% of girls and 18% of boys reported having sent these pictures electronically.

As you might imagine, this can have profoundly negative consequences for the teens’ social lives -- but in some cases, it’s worse. A few teenagers around the country have actually been charged with making or possessing child pornography because of these pictures. In Wisconsin, a 17-year-old boy was charged with possession after posting naked pictures of his 16-year-old ex-girlfriend on the Web. Four middle-schoolers in Alabama were arrested for exchanging photos. And in New York, a 16-year-old is facing prison for soliciting and sending pictures of his 15-year-old girlfriend to friends.

As a cyber crimes defense attorney in South Florida, I do not believe that our child pornography laws were designed for these situations. The teens usually take their own pictures and voluntarily share them, which makes it difficult to see it as the kind of exploitation of children that Florida child pornography statutes were intended to punish. In fact, under Florida state law, actual sexual activity between young adults ages 16 to 21 is not criminalized under “normal sex offender rules” -- but “sexting” may still be. (As far as I know, Florida has not yet seen this type of prosecution.)

Sending pictures to a third party without the subject’s consent may be another matter. This is certainly unkind, and courts or lawmakers may decide that it’s a criminal activity as well. However, a conviction for possession of child pornography in Florida draws up to five years in prison for each picture or video, plus a lifelong requirement to register as a sex offender. This seems like an overly harsh punishment for a crime that at least started out consensual.

Even though I’m a Florida criminal defense lawyer, a court ruling from Australia caught my eye this week because it addresses an issue that’s becoming very important in my Florida cyber crimes defense practice. Australia’s Supreme Court ruled on Monday that a man was properly convicted for possession of child pornography because he had sexually explicit images of cartoon children on his computer. In fact, these were images of characters from the television show The Simpsons (knockoffs, not official or authorized images), including the family’s three children.

As the New York Times reported, the case turned on the question of whether the cartoon characters could be considered people under the law. The defendant argued that they shouldn’t be considered people because they “plainly and deliberately” did not look like natural humans. Justice Michael Adams of the court agreed that the characters were not strict reproductions of people, but ruled that even images that are not strictly faithful to the human body may be considered persons under the law. Noting that owning these images would be a serious crime if they were photos, the justice said that the lower court was right to rule that fictional or imaginary characters qualify as people for purposes of the child pornography law.

If you think this couldn’t happen in freedom-loving America, I’m sorry to say that you’re not entirely right. As the NY Times link above mentions, an Iowa man is currently being prosecuted for possessing sexually explicit manga (Japanese comic books); the government does not allege that the images were produced using real children or that he owns any photos or videos. And the U.S. Supreme Court ruled this past May that defendants may be prosecuted for soliciting or offering child pornography even if the material is computer-generated, digitally altered from legal pornography or nonexistent. That is, merely offering or asking for this material is now a crime.

Fortunately, that court has also ruled that simple possession of material not produced using actual children remains legal. That may sound like a fine distinction, but it’s very important to my clients and to me, as a Miami cyber crimes attorney. Child pornography is not covered by free speech laws, the way adults-only pornography is, because children (and their parents) can’t legally consent to making it. That means that genuine child pornography is always produced by criminal activity. Drawings and computer-generated images that seem to be child pornography -- but aren’t -- may be disturbing or unpopular, but they don’t have this problem.

Miami Criminal Defense Lawyer asks, is your computer safe? Do you have your passwords written under your desk blotter or in your rolodex? Even if you are good at hiding your password, technology today makes it very easy for someone who knows what they are doing to crack your codes. What does that mean for you as a user?

If someone gains access to your computer for even a minute, they can turn your computer into a host computer and source all their activities through your machine, insulating them from police detection. So when the authorities come a knocking, and eventually they will, you will look like the culprit. What agencies and users are starting to do is incorporate some of the changes recommended by a panel - Panel Offers Ways to Bolster Cyberspace Security. One security system is similar to a USB device that gives out scrambled codes every time the user seeks to log in, thus giving the user a new password each time.

There are a variety of ways to protect yourself, but the simplest way is making sure you don’t leave the front door open. For more information on cyber crime prevention or advice if you are facing cyber crime charges in the United States, please contact David Seltzer, Miami Criminal Defense Lawyer Miami Cyber Crime Defense Attorney today for a free consultation 24/7.

The Santa Rosa Press-Gazette reported Dec. 2 that an Air Force serviceman was arrested for possession of child pornography. According to the article, the Cyber Crime Unit in Florida Attorney General Bill McCollum’s office found pornographic images of children online and traced them back to the man’s computer. In April, law enforcement seized the computer and an external hard drive, on which a forensic analyst found multiple images and videos alleged to be child pornography. The man is charged with 15 counts of possession of child pornography and one count of promoting the sexual performance of a child, carrying a total of 255 years in prison.

Unfortunately, the article doesn’t go into details about the images and how they were produced. But as a criminal defense attorney specializing in cyber crimes, I can see many possible defenses for this man, just from the few facts presented. For one thing, evidence that something was sent from a person’s computer is not evidence that it was sent by that person. You may not realize it, but viruses and “malware” can and regularly do quietly install themselves on vulnerable computers, which allows them to send and receive all kinds of things without the owner’s knowledge or permission. That was the case for a Massachusetts state worker I wrote about back in June. Of course, another human could also have used the machine.

Either way, once this stuff is on your computer, it can be automatically transferred to an external hard drive or other storage medium by backup software, thus giving law enforcement “evidence” that you collect it. There are many technical pitfalls like this when it comes to tracing electronic evidence. Others include easy-to-fake timestamps, “spoofed” identifying information and lack of accountability for Internet users and companies overseas. If an alleged solicitation was accomplished through Internet servers in another state, you can be charged with a federal crime, even if everyone involved lives in Florida. If you’re charged with this kind of crime, it is essential to find a lawyer experienced in cyber crimes defense, who understands where to look for these small but potentially exonerating details.

Finally, I’d like to point out that the man in this case is being charged under a relatively new Florida law: The Cyber Crimes Against Children Act of 2007. Among other things, this law doubled the penalty for promoting or distributing certain images of a child, which may explain the lengthy potential prison sentence. Whatever the outcome, I hope justice is served.

The Supreme Court of the United States has “drawn the line in the sand” about what is and is not child pornography. See Ashcroft v. Free Speech Coalition. So is taking pictures of your children in the bathtub, or them running around the house naked child pornography? Having been a prosecutor in Miami and dealing with cyber crimes/child pornography, and now a criminal defense lawyer, it is simply something you cannot explain. You know child pornography when you see it. Art is still art, and there is nothing illegal about taking pictures of children clothed, or nude. The question you have to ask yourself when determining if the image is child pornography is, what is the focus of the image? Is the purpose of the image sexual in nature? Does the image focus on a certain part of the minor’s body? The list goes on from there as to what factor government officials use in determining what is and is not child pornography.

That being said, images that don’t fall under child pornography may fall under the category of child erotica. Child erotica is not illegal to possess. However, it is often times difficult and open to many varying degrees of interpretation as to whether something qualifies as child pornography or child erotica. Furthermore, depending on your State laws and the position of the US Attorney in your State, possession of child erotica may be a crime.

In a recent article published by an affiliate of the Miami New Times, the author published images of her children in various stages of undress. (See Newspapers nude child photos draw police review). Now let me state that I have not seen the images, but from what I gather, the focus was no sexual in nature, rather artistic. So why the uproar? It is an election year and politicians can’t be seen as soft on any type of crime that may involve minors. The courts have settled the issue, however, like anything else dealing with the law it will be continually debated for years to come. But again, child pornography is just something you know when you see it, and unfortunately leaves a lot open for interpretation. So ladies and gentleman, the moral of the story is keep your family photos to yourself!

Our family, who had never, ever been touched by any type of legal situation before, found ourselves in a desperate situation. My husband was arrested for a cyber crime - online solicitation, and we were thrust in the middle of a confusing, frightening, unfamiliar world. I immediately began checking on attorneys. I knew we had to move and move fast. I wanted the very best Florida criminal lawyer there was. I also wanted one familiar with cyber crime. Over and over again the name of David Seltzer, Miami Criminal Computer Crime Lawyer kept coming up. I was told if I wanted the best- he was it. I knew with situations like this you didn’t play around. My husband’s very life depended on quality representation. I contacted Mr. Seltzer, Miami Criminal Cyber Crime Attorney, and he immediately took control of the situation. They arrested my husband in our home state of Kentucky and took him to Florida. Mr. Seltzer’s people met my husband at the jail and got him released. They rented a motel room where he could wait until he was allowed to return to KY. He never had to spend one night in jail in Florida. I was home here in Kentucky and I was panicking, I didn’t know what to expect or what to do. I think Mr. Seltzer, Miami Criminal Computer Lawyer, called me at least 10 times a day during that first week. He gave me his personal cell phone number and gave me permission to use it anytime I needed it. When he says he is available 24/7 – he means it! He definitely went the extra mile to walk us through the court system step by step. Although this crime had the potential of 15 years in jail and a minimum of 21 months, my husband did not have to serve any jail time at all. We cannot convey how important it is to have a good attorney in cases like this. Everyone was right when they told me Mr. Seltzer was the very best criminal attorney in Florida. He is not only knowledgeable about cyber crimes, and computer and internet crimes, he was previously a prosecuting attorney who dealt with cyber crimes in Miami. Mr. Seltzer, Miami Criminal Attorney is very assertive and he is on top of every aspect of your legal defense. Nothing gets by him. If you are facing legal problems, I urge you to contact him immediately. Mr. Seltzer, Miami Criminal Lawyer did an outstanding job for us and we give him our highest recommendation.

Signed
A GRATEFUL WIFE

In India an individual charged with a cyber crime now has to prove their innocence (Onus on IP address owner to prove innocence). Is the United States any different? I refer you to one of my earlier posts - Presumption of Innocence, Where Did It Go?

Being involved in the cyber crime world I see it all the time. IP addresses, an individual's fingerprint in cyberspace can be manipulated, spoofed, make someone virtually untraceable. So how can an ordinary individual be expected to protect themselves against a sophisticated cyber criminal and then have to prove their innocence?

Florida and the rest of the United States is not there yet, but I can assure you that an individual charged with a cyber crime case is not going to take it lying down. Yes, the State has the burden of proof and the ability and resources to secure necessary evidence, but do they always do it? IP logs are retained for a limited amount of time depending on the internet service provider ("ISP"). Yahoo!, EBAY, Facebook, Hotmail, AOL, etc., all have retention periods for logs that can range from 45 days and up. Once the data is purged, it is gone forever. Which can make defending yourself extremely difficult, if not impossible.

It has been my experience that ISP's are friendlier to law enforcement and give private attorney's the run around at every corner. So I have taken it one step further on the advice of a colleague. I have recently had a local police department investigating one of my clients served with a Brady Notice, as well as the local State Attorney's Office. The State can get the potentially exculpatory evidence with ease, which may vindicate my client; thus, close their investigation, so why wouldn't they want it? The name of the game is cover your A$$. Make sure if there is potential computer evidence out there that can help your case, it's preserved. Even if the State won't issue a subpoena, ask that a preservation letter be sent to the ISP so that they evidence can be preserved in its current state for 90 days. At least that way you have some time to fight with the ISP for the records. If you can't get it done in 90 days, on the 89th day, have the State send another one extending the time period.

Remember, it is not possible to store all the data our computers generate on a daily basis. It just doesn't make sense for the ISP's financially, so the key is preservation, because at the end of the day, you may be the one proving your client's innocence rather than the State meeting it's burden of proof.

Cyber crime is on the rise. Not a novel or new statement, but what is novel and new is the way that law enforcement, attorneys, and judges are dealing with this new area of the law. South Florida (Miami and Broward County) is no exception or stranger to the increased cyber crime. Cyber law crosses into various aspects of our current legal system – civil, domestic, criminal, etc. This list is meant to give you a glimpse into the world of cyber crime and what lies ahead for the defense bar. Combating these case is often timely and costly, but with the right strategy and defense, cyberspace may hold the key to vindication!

Here is part 1 of the Top 10 Do's and Don'ts on various issues concerning cyber crime cases (Part 2 to follow in the upcoming weeks):

6. Chat logs, are they what they purport to be? Has your agency caught up with the Jones’? What type of technology are they using to track your client’s chats? Most agencies are new at the whole cybercrime game, so they are doing things the old fashioned way; they are cutting and pasting the chat logs into a word file. Often times you can argue that is not the “best evidence,” as the data is easily manipulated and often times missing lines of text as well as other important text entries. There is software out there that allows the undercover agent to track the conversations, whereby they don’t have the ability to manipulate the data. Check your jurisdiction’s case law. But the best evidence is always the logs. Computers don’t generally retain chat logs, but often times forensically you can recover excerpts, which can be helpful.

7. IP Logs. Always check the little things that can be overlooked. I have seen it before, where an agency is investigating a crime and has subpoenaed IP logs, date/time, etc., but has either forgotten to include the appropriate time zone, the wrong time zone, or didn’t take into account daylight savings time. So make sure the government agency has subpoenaed the right IP logs. For example, if the issue is an AOL email that was sent containing suspected child pornography, the correct IP log to subpoena would be found in the header information of the email sent, not the IP log captured when the AOL screen name registered the account.

8. Is your client a collector? Generally speaking, someone who possesses child pornography has tendencies that are obsessive compulsive. They collect images and videos, and will usually have hundreds if not thousands of images. So what does that mean for the client who is found with one or two? Very important not to dismiss your clients statements as to how or why they are there. Computers these days do a lot of crazy things and if your client only has a few pictures, I would get ready to dig in your heals in order to determine where they came from and how they got there. (Refer back to No. 1 – Forensic Expert is key!)

9. Does the search warrant authorize what the agency actually did? Computer search warrants can be very technical and complex these days. With that being said, the judge who is reading the warrant often times doesn’t understand what the warrant specifically authorizes. Then again, sometimes neither does the affiant of the warrant. This tip on search warrants should be read it conjunction with number 3, because when you are deposing the affiant you want to grill them on the warrant to ensure that they accurately portrayed the sworn affidavit to the judge. Fruit of the poisonous tree…Additionally, information contained in a warrant may be inaccurate. For example, the affiant may have used an incorrect IP address as its source of probable cause, wrong property description, may not have had probable cause to believe the evidence they are seeking would be stored on a computer, and the list goes on. Furthermore, does the warrant even authorize a search of the computer and/or additional seized media post-seizure? If it does authorize a search, what does it authorize a search for? If it is documents, and they discover images of child pornography, do they continue to search without a warrant, or did they stop to secure a new warrant to search? Just a few issues to scratch the surface on warrants.

10. Consent, to what? Agencies often attempt to secure consent to search electronic media rather than get a search warrant. What you need to look for is what was seized, whose electronic media was it, did the person who gave consent have the ability to give consent (does that person use the computer on a regular basis, do they have their own login information, is the computer password protected…). Agency’s investigating cyber crime love to execute the knock-and-talk with a consent waiver in their hand. Target is usually not home and the girlfriend, wife, or adult child, signs on behalf of the target that has no idea what is going on. Later on appeal, the State argues they had probable cause and through inevitable discovery, they would have gotten a warrant. I submit to you that’s bogus. If they had probable cause, they would have come warrant in hand, and but for the consent to search form being executed by an individual without authorization, they would not have any evidence.

a. Additionally, depending on your workplace, your client may already have given their employer permission to search their workplace computer. Be it a form you signed on day one of your employment that informed you of the company’s computer policies, or a daily banner that comes up on your screen every time you logon, an employer may be able to give law enforcement what they are asking for. This scenario is wholly dependent on what the banner/notification policy states.

The litany of questions and hypothetical’s is too long for this list, but just be aware that in the land of cyberspace, there are always alternative theories and legal issues that will keep the government agencies on their toes and require exploration by the defense bar deep into the world of cyberspace!

David S. Seltzer is a former Miami-Dade County Cyber Crime State Prosecutor. His practice is limited to criminal defense with a specialty in cyber crime. For more information or to contact David S. Seltzer, please visit www.cybercrimesdefense.com.

First off, thank you to Prof. Patrick Corbett, from Thomas M. Cooley, who passed this story on to me. I recently ran into Patrick at the ABA Cyber Seminar, in Washington, DC. I attended Cooley, prior to transferring to Miami. I transferred for family reasons, but I truly believe that the education at Cooley is one of the best in the country, because they really, truly care about the success of their students.

State worker was charged with possession of child pornography on his workplace computer. A situation that is all too familiar these days. However in this case, the computer wasn't all that accurate. Yes, the computer did possess child pornography, but in filing a case the State must also prove that the user knew (or had dominion on control over the images). In this situation the State had neither. In a forensic review of the computer, the defendant was able to prove that he was not accessing or viewing child pornography, rather the computer was. What?

This is not the first instance of computers doing things on their own. Basically what happens is that you either intentionally, or unintentionally (virus), download a software application. They come in many forms, but the gist of the application is the same - it seeks out pornography, and doesn't differentiate between child and adult. It then appears to the world that your "machine" has been viewing pornography, and thus the police investigation/charges.

Who's fault is this? You would think that in the "pursuit of justice," that the police would be cognizant of the various types of viruses out there and when they forensically analyze the media they seize, that they would search for them. In reality what happens is that due to the backlog of media that is waiting to be forensically analyzed throughout this country, once the analyst discovers the evidence to make its case, the forensic review stops and the case gets filed. That begs the question, who really has the burden of proof?

It just goes to show you that you really can't judge a book by it's cover. For the article, click here: State Worker Cleared on Child Pornography Charges

State and Federal agencies are cracking down on child pornography in an effort to protect the nation’s young from repeated online victimization. Internet Service Providers, such as Verizon, Time Warner, and Sprint , have announced that they will be spending in excess of $1 million dollars to purge their systems of anything child porn related. For more details see: Verizon, Time Warner Cable, Sprint to Block Child Porn Sites

The question is at the end of the day, how will this really help protect our nation’s youths? Will all the nation’s ISP’s follow suit? Will this become legislation? If the Federal Government steps in, what happens when this is challenged in the court’s over free speech and first amendment issues, just like Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). This new twist in fighting child pornography is not over...

Determining what to charge and what is legal is never easy. Ask 10 people to opine on the same image, chances are good you will get multiple perspectives; question is which one is right?

The definition of teens, according to www.dictionary.com, is defined as the numbers 13 through 19. Furthermore, under the law, the legal definition of a minor is anyone 17 years and younger. Therefore, “teen,” even though it includes minors, it also includes LEGAL adults. So how does one avoid the obvious trap of being caught with child pornography when the site is advertising “legal teens,” or “barely legal?” In either instance, the site purports to depict what they are telling you is legal, so who is at fault when the police come knocking and the image “appears” to be a minor?

It is very deceptive to those who search the internet with no intentions of breaking the law, and then one day find themselves on a teen website with images of women, who may or may not be legal. It is unfortunate that there is no set in stone method of determining what constitutes a “minor” and what is legal. The standard in determining whether or not to charge a suspected image of child pornography lays solely in the prosecutors hands. It’s called prosecutorial discretion, and means watch out, as each prosecutor will have a different opinion. In some cases it is really too close to call, and then you would hope that the prosecutor doesn’t take the “let’s roll the dice” approach.

Factors used to determine whether or not a minor is in fact a minor are the size of limbs, body hair and/or pubic hair, facial features, breast size, and genitals, to name a few. Most often prosecutors will employ the services of a licensed doctor to opine as to the age of the child. However, it doesn’t end there. The prosecution still needs to prove the image is real and not virtual (a discussion for a different day).

Back to the topic at hand, how do you know if you are looking at legal pornography or child pornography? The short answer is you don’t know. However, I believe there is a strong argument to be made not only on the above factors that the prosecution uses in making their filing decisions, but also in the website itself. Sites that advertise “barely legal teens,” are telling you the viewer that you are looking at images that will not get you arrested. The problem is accountability. Most of the websites that post these images are not based in the United States, and therefore, it is often very difficult to prove the age of the child, and the factors above may be the only way. Question is, do you want to rely on someone else’s discretion?

The “too close to call” category of images is something most prosecutors shy away from, but there are those overzealous ones that will charge anything, and see what sticks. For further discussion or information on this matter, please feel free to contact me, as I am sure this debate will continue...

Over the weekend, I was in my home town of Montreal, Quebec, Canada, when an incident broke out. A little background first about Montreal. Montreal is a beautiful European city, but it is very tight-knit, in that in the surrounding neighborhoods and communities, everyone knows what’s going on.

A teacher at one of the local private schools in Westmount, a suburb of Montreal, was arrested in Virginia for allegedly soliciting an undercover police officer over the internet. As I was in Montreal over the weekend, I attempted to find out more. I went over to the high school, where I was essentially escorted out of the school for inquiring about the subject. This wasn’t the end of it. No one in the city seemed to want to help this individual. Now, I am not insensitive to the underlying allegations; however, what bothers me is that as a society, this man has already been tried and sentenced. What happened to the presumption of innocence today? The same people who threw me out of the school are the same ones who teach our children about our justice system and society.

I understand that the crime he is alleged to have committed is appalling to our society; but does no one believe in the system of justice that we have followed for centuries? I have seen people charged with murder get more assistance than I have this individual. Forget rights, the allegation alone has created a situation whereby he is guaranteed NOT to get a fair trial.

I recall when I was a prosecutor trying a case involving child pornography. I had similar thoughts; who can really be fair and impartial? I really truly believed that it was possible for someone to sit as a juror and render a fair verdict. Looking back on it, when faced with images of child pornography and evidence of where it came from, was there any way a conviction wasn’t coming? Now the defense in that case did a fabulous job representing the client, but did it matter? Was the client really tried by a “jury of his peers?” Were the pictures alone the basis of the conviction, or did the jury actually listen to the evidence?

Is there still a presumption of innocence in our society when online crimes involving children are ALLEGED. Does the State/Government still have the “burden of proof,” or has it really shifted to the defense (contrary to our laws) to prove his innocence?

After what I experienced in Montreal over the weekend, I know I still believe in this country’s justice system, I’m just not sure most of its citizens do.

In a recent news article delivered to me by a friend of mine, Mark Mulroney, the technology used to search a suspect’s computer has taken a giant leap forward. No longer are police and investigators required to track cables, label machines, and photograph the exact location of every device. With this new device from Microsoft, the Computer Online Forensic Evidence Extractor, commonly referred to as COFFEE, law enforcement can literally have your information at their fingertips.

COFFEE is a USB thumb drive that contains 150 commands that can dramatically cut the time it takes to gather digital evidence, and decrypt passwords and analyze a computer's Internet activity, as well as data stored in the computer. What could have taken days, weeks, and months, to crack can now be done in a fraction of the time. What does this mean? Well let’s look at it from a law enforcement point of view.

For law enforcement, it means less time on scene taking down computers, and quicker analysis’ of machines (possibly depending on the purpose of the investigation), to name a few benefits. Therefore, faster turn-around time on pending investigations and prosecutions, and ultimately, it could lead to saving law enforcement a lot of time and money, which we all know they can use with budget cuts all over the country, especially in Florida.

What does this mean for the non-law enforcement individuals? Well, for now until the entire scope of what this device is capable of, not much will change. I am certain that this device will be challenged as to authenticity of the material recovered. I have yet to see how exactly is can re-create a clone or image of a hard drive, which is what is needed to preserve the integrity of a computer’s hard drive. It looks like all this does is a quick search of the drive for whatever the investigation calls for. Some interesting discussions that may follow as a result of this are whether or not inserting a thumb drive into a computer can trigger a virus, or alter any computer data, or trigger a program, which all can compromise data. I am sure Microsoft has explored all those possibilities, but as the world goes, so do technological advances and someone will figure out a way to trip this device up. It is inevitable. Food for thought, what happens if this gets in non-law enforcements hand, then what…?

For the more information on COFFEE, check out:

Microsoft device helps police pluck evidence from cyberscene of crime

Microsoft Calls on Global Public-Private Partnerships to Help in the Fight Against Cybercrime

Microsoft COFEE (Computer Online Forensic Evidence Extractor) for law enforcement

Is your information safe? People take a lot for granted when it comes to the internet and their financial information. For example, the simplest thing that most people forget to do when using a public computer is making sure they are logged off and thus, the person after you doesn't access your information. Internet security is an issue that it is at the forefront of countries security all over the world. Internet hacking is the crime de jour, and the new target for organized crime. No longer do people walk into banks and rob them like Bonnie & Clyde, they do it from the comfort of their living room. What are you doing to make sure that your information is secure?

So I was watching a television program and there was an interesting storyline. The program addressed a plethora of child pornography issues, which are clearly becoming an increasing concern for law enforcement as technology quickly advances. Without going into the entire show, the two interesting issues were: Youth Enhancement Software (Image Manipulation) and Steganography .

The program focused on the landmark case of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), possession of virtual child pornography is not illegal, rather free speech. And what has developed as a result of that is a world that law enforcement and the Supreme Court cannot control. Technology that is used for “good,” age progression software; is now being used in reverse – age regression. So essentially, legal aged girls are being photoshopped back into their youth, and the child pornography is legal. According to the Supreme Court, that’s legal. Virtual child pornography or manipulated images are going to make prosecution of child pornography a whole new world. As these images start popping up around the world, prosecutors will no longer be able to stand up there and state that the images are actual real children. Expert testimony is going to drive the cost of prosecution on these cases through the roof, and with cutbacks all over the country in law enforcement, it will be interesting to see what gives, the trial tactics, or the Constitutional right to “free speech…”? If anyone image in the defendant’s control is not “authentic,” the entire prosecution is compromised.

Another interesting issue addressed in the program was Steganography . Basically, it’s a secret image or text hidden behind another image. This is interesting because it is becoming more prevalent on the web and easily available to anyone who can download the necessary software. It’s not used solely for child pornography, but it’s been its most recent adaptation. To the naked eye, without the appropriate software, looking at a picture of the Statue of Liberty can really be pornography. When you decrypt the code, you will not see any lost pixels or portions of the image. So sending it over the internet can often allow the image to travel undetected through internet photo scanner programs (a discussion for another day).

It makes you wonder about technology today and its effects on the investigation and prosecution of child pornography, what does tomorrow hold? Technology is going to continue to be an uphill battle for all involved in protecting our youth. So again, what has to give to protect our children, whose rights, free speech?

The law is in place to protect all of us, including police, so what makes them feel that they can (a) toe the line, or (b) break the law? First, before I continue on this topic, let me stress that the case I am referring to is not being prosecuted in South Florida, but it is being prosecuted in the State somewhere.

I was recently retained to work on a matter pertaining to cyber crime. Upon my review of the facts, I was shocked and appalled that the prosecuting agency was acting in this manner - not willing to discuss the case or the lack of the case they have. Instead, what it appears as though they are willing to do is create law, which as the current state of the case law stands would be great for the defense bar!

I am referring to an online solicitation case with chat logs, not closely, but CLEARLY entrap the defendant. The undercover is the aggressor in each chat, brings up all the sexual conversations, even after the defendant continually says he is not interested in that, and even goes so far on one occasion as to initiate the chat session. Do you want more? The undercover, after she continually invited the defendant to come and visit, asked him of course to bring protection, to which the defendant again said, do not want to have any sexual contact/relations. Undercover, then offered to book a hotel room for them! It went on...

Now if this case ever came across my desk when I was a prosecutor, I would have slapped the detective upside the head and then explained to them why I was not filing the case.

If that isn't enough, there are other issues. Did I mention to you that they are missing NUMEROUS portions of the chat logs as they had computer issues and could not save them. What they do have are excerpts that were cut-and-pasted from the chats, but they are INCOMPLETE. Oh, and they only chose to use the logging feature provided to law enforcement at certain times to record the chats, when it suited them. And of course, there is no mention in the chat logs by the undercover of her age, being a minor, there are references but no direct mention. Also, they said it was common practice for their department to wipe the undercover computer's hard drive, thus making it impossible for any recovery by the defense. This case is a mess for the State, yet there is no telling them that.

On the issue of the chat logs, there is a case on point that addresses this situation. In United States v. Jackson, 488 F.Supp.2d 866 (8th Cir.(Neb.) May 08, 2007), the Court held that cut and paste chat logs failed to meet the foundational requirements of authentication, and thus not admissible at trial. The Court stated that the State has the burden of proof to show that the transcripts are authentic and trustworthy. Id., at 871; see also United States v. Black, 767 F.2d 1334, 1342 (9th Cir.1985); Fed.R.Evid. 901(a); United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000); United States v. Webster, 84 F.3d 1056, 1064 (8th Cir.1996).

In Jackson, the State sought to introduce “editorialized” transcripts, as portions of the conversations were not available as they were omitted in the copy and paste process, not saved, or destroyed. Jackson, at 870. When the time came to use the actual chats, the computer had been wiped, there was no logging feature used, and the editorialized versions were all that was available. Id. “The cut-and-paste document offered by the State is not an accurate original or duplicate, because it does not accurately reflect the entire conversations between the defendant and [undercover]. Id. At 872.

A computer forensic expert testified that there were numerous alternatives to the cut-and-paste method that would have been far more accurate, and would not have allowed data to be lost. Furthermore, that had the computer not been erased, the chat logs may have been recoverable. The Court went on to state that the missing data “creates doubt as to the trustworthiness of the document…[as] deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.” Id. It is clear that the proposed document does not accurately reflect the contents of the original. Id. At 872.

Two additional cases that also address the admissibility of chat logs and transcripts are United States v. Tank, 200 F.3d 627 (9th Cir.2000) and United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir.1998). However, these cases are distinguishable as the actual computer files were offered as evidence, not cut-and-paste versions.

The Court in Jackson, went on to exclude the chat logs in lieu of allowing the officer to refresh his recollection as to the missing portions, as doing so would have allowed the government to indirectly present the chat logs to the jury, and create an unfair situation for the defendant. Jackson, at 872; see also Hall v. American Bakeries Co., 873 F.2d 1133, 1136 (8th Cir.1989).

So is it worth it to hold your ground and start creating law that probably won't conform what's right, or should the prosecutor here realized that you can't win them all?

Take it from someone who has been there, this article rings true - Technology Complicates Prosecution. Prosecution has become a cost benefit analysis, more so than one might realize. Cost - budgets are getting slashed, to the point where the courts, the state, and all other agencies involved are looking at ways to cut costs. Benefit – the defendants. Defendants are not getting charged with the maximum counts they may be exposed to, since the State cannot afford to prove the charges. Experts cost money, and the State has none. Trials for child pornography based on the Supreme Court’s ruling regarding manipulated images and computer generated images, have turned a child pornography case into a battle of experts. Whose expert is more believable? Whose is more qualified? To the naked eye, a computer generated image is indistinguishable.

Check out this article by Dr. Hany Farid. He is one of the foremost experts in computer generated graphics. Creating and Detecing Doctored and Virtual Images.

As a defendant in a case involving computer images, you’re given the slight advantage if you can get the jury to believe the images are not real. However, when a jury sees a child pornographic image, it is hard for them to believe that someone actually used a computer to generate the image. There are a lot of factors that people often overlook when looking at an image. The person or individual in the image is not generally the best way to tell whether the image is real or fake. Experts will look at lights and shadows, human interaction with other humans, or objects. Other things to look at are the creases in pillows, sheets, indentations on couches, beds, clothing, the list goes on. Creating the perfect computer generated image will take an inordinate amount of time. But here is the kicker. If, and I stress if, a defendant can prove that one image on their computer is computer generated, as it relates to child pornography, a jury will probably have a really hard time believing a State expert that the rest are real and not computer generated. Battle of the experts…

Continue reading "Miami is no different in Prosecuting Child Pornography" »

Let’s give credit where credit is due, Miami boasts some of the best computer forensic experts I have ever seen. What do you think happens when you delete something on your computer? Well before I learned about computers, I like you, thought it was erased and gone forever. But for some people, sadly that is not the case. When you delete a file or an image, and then take the next step to clear the recycling bin, the files are still on your computer. Sometimes for years to come…

There is software out there that you can use to wipe your computer clean in hopes to erase files, but there have been situations where machines have been wiped 5 plus times and files can still be recovered. So what is on your machine that is so secretive…? Once you learn how a file structure works on a computer you might better understand how the files are recovered. But generally, any forensic examiner worth their salt will find what they are looking for or at least remnants of a file. The stars have to align for all properties of a file to be completely erased, or you have to have some proven wiping software.

For more information on files structures and deleted files check out:

Slack Space
Window Washing Slack Space
Cyber Scrub, What you erased is not really gone

FBI discusses the realities of cyber crime and how the "world" can deal with it. Interesting video segment. The agent is very candid about the cost analysis of doing business and that in order for an agency to get involved, it must make financial sense in that there must be a victim that has essentially suffered large damages. Is that fair? Is that the answer that best deals with the cyber crime problem in this world?

Who gets to pick and choose what case gets investigated and what doesn't? Why should one victim be more important that another? The government preaches that their goal is to combat cyber crime, but they admit to letting people off the hook simply because they didn't victimize enough people for enough money.

Cyber crime is here to stay, that is clear. The question is what if anything can the government do to stop it? I submit to you, only time will tell…

Continue reading "Localized Cyber Crime in Miami and the Global Effect from an FBI Perspective" »

Ever hear of the book "... for Dummies?" Here is Hackers for Dummies. Hackers for hire. You pissed off at someone and want to exploit them, well there are "Cyber Crime Tool Kits" out there for sale, with tech support. The police are on to them, but the question is how do the police stay ahead of the game? It's the same old problem, too much technology out there and not enough money to try to stop the crime. Check out the story, it addresses a lot of very interesting issues that create problems for not only the general public, but law enforcement.

So you again thought you were safe. What people have to realize is that the cost of doing business has gone up in today's world, mainly due to stories like this one. Companies spend millions of dollars a year to protect their infrastructure as well as their clients valuable personal information, only to discover that everything they thought they were doing right has been hacked. As technology advances and we as a society get away from the traditional telephone system, cyber space has become the new switchboard. Not only is it cheaper to make a call on the internet, but you often times have more control over various telephone features that most people don't realize exist. I have been a Voice Over IP user for years and what has essentially occured is that I am always connected to my numbers, be it online, through my blackberry, or a simple text message. I guess there is such a thing as being too accessible.

This nationwide FBI investigation has lead to the arrest of multiple suspects in conjunction with a voice over IP scam (VoIP). What the subjects would do is hack VoIP companies and steal online telephone minutes and resell them. Check out the video and see how these hackers bragg about the capabilities of the companies to secure themselves.

Continue reading "Voice Over IP Hacker Arrested in Miami, a new Cyber Crime" »

So what do you do with all the junk mail you receive about your personal information? Do you believe everything that you see in an email? If so watch this video and educate yourself as to what really goes on in cyberspace. More of my comments to follow.

I know this is probably old Florida news by now, but it just makes you wonder about all the money the government invests into protecting our children and then something like this happens. Agencies are getting more money to fight crimes of this nature, but are they really making any headway? I have the utmost respect for law enforcement – having been a former prosecutor – but where are all the funds going? I know in Miami for example, some of the finest officers in the country, they are undermanned and overworked.

A few months back it was a prosecutor who killed himself after being exposed in an undercover child exploitation sting. Are we creating monsters as a society by continually exposing individuals (voluntarily) to child pornography and solicitation cases? Should there be continual review processes in place to ensure that the people we pay to protect our children are in fact doing so and not “falling off the wagon?”

I have no doubt that our law enforcement personnel are doing their job and it’s only a few bad eggs spoiling the bunch, but there needs to be some oversight to make sure that we weed out the bad apples and make sure we monitor those exposed to these crimes. This DCF arrest doesn’t spell the end to government workers involved in child exploitation scandals, the question is how is the government going to guard against it?

DCF Worker Accused of Using Children to Make Porn

In today’s day and age you would be hard pressed to find someone who doesn’t know how to use a computer. Computers are everywhere and control everything. So is it surprising to hear that according to the US Department of Defense, the volume of cyber crime grew by 54% in the last year. If you think about it, the target area, or the playground as some individuals might call it, as grown virtually in cyber space. Paper is a thing of the past and everything has gone high tech. Banks, credit cards, you name it and it involves a computer.

But the real question is, are the big companies the only ones that have to be concerned? The answer is clear. With a 54% increase in cyber crime, it is a problem that everyone has to take notice of. Small and medium sized enterprises should be more aware, to the individual working online with personal information.

As a defense attorney who specializes in cyber crimes, I get calls all the time from people who have had their personal websites hacked, to their identities stolen. Of course there are remedies and manners of redress that are available, but we as individuals have to be prepared. We have to take the necessary steps to protect ourselves from cyber crime. The governments can only do so much. The local police and government agencies are overworked, under financed, and under manned to deal with the increase in cyber crime. And the crimes that they do focus on are the high priority, high profile crimes, as they should. However, then who is left to look after the little guy?

You. So be mindful of where you enter your personal information. Protect your computers with the appropriate software, and trust no one. Your information is sacred and if you lose it, it will spell trouble for you.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Realtor Pleads Guilty in Escort Ads Case

Rivalry between realtors lands one in court

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

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

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

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

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

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

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

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

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

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

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