Cyber Crime Lawyer Blog

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.