Articles Posted in Computer crimes

11 October 2018.  Orders Granting Petition for Review

No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.

As this case demonstrates, the novelty of an assimilative charging decision under Article 134 often wears off during the course of an appeal,

Says ACCA in a footnote to United States v. Meredith, 7 August 2018.

Specification 1 of Charge II alleged appellant violated the Computer Fraud and Abuse Act (CFAA), 10 U.S.C. § 1030, by obtaining the sex videos from HN SS’s and KS’s computer. We agree with the parties that the evidence for the Article 134 offense assimilating the CFAA, specifically, 18 U.C.S. § 1030(a)(2), was legally and factually insufficient.

Check the warrant, or in the military the search authorization.

The recent decision of the Army Court of Criminal Appeals in a government appeal tells you why it’s important to check the warrant.

In United States v. Gurzynski, the court had before it a government appeal of a military judge’s decision to suppress evidence of a computer media search.

How many times do we see the private search as an issue.  The upset spouse searches the computer to find evidence of infidelity, the Sailor’s friend or roommate comes across contraband CP on a computer and looks further, etc., etc., etc.

A responsible law enforcer would take the information to get a search warrant or command search authorization.  But that doesn’t always happen.  What does happen is that the law enforcer or someone in command goes and looks for themselves.  The question then becomes whether that is a search or is it a continuation of a private search.  If a private searcher shows the law enforcer exactly what they saw and that alone, there may not be an unlawful search.  But what happens if the law enforcer does more than strictly replicate what the private searcher did.  So Orin Kerr has some information for us in the Washington Post.

[T]he 11th Circuit handed down a new computer search decision,United States v. Johnson, that both sharpens and deepens the circuit split on how the private search doctrine of the Fourth Amendment applies to computers. Johnson isn’t a likely candidate for Supreme Court review. But it does leave the private search doctrine in computer searches ripe for Supreme Court review in other cases working their way through the courts.

Prof. Berman at sentecing law and policy invites our attention to an interesting new decision from the Third.

US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) .

We all of us have an a client who is charged with distribution of CP because they were using a P2P program such as Limewire, and where the automatic settings placed information in the “shared” folder.  Because the information is in the shared folder it is accessible to others who search Limewire and come across it.  Actually many clients have been caught through the FBI or some other enforcement agency trolling Limewire for such information.

In United States v. Blouin, ARMY 20101135 (A. Ct. Crim. App. 28 May 2014), the court has, in my view, taken a broader view of what qualifies as CP for the purpose of a guilty plea.  However, the court is not taking an unknown or unvisited trail.

Blouin was charged with possessing CP in violation of 18 U.S. Code Sec. 2256(8), to which at trial he plead guilty.

As is common in these type of cases, the prosecution threw up a whole bunch of alleged (173 to be exact) CP images, without really understanding what they were doing.  And they compounded this with offering 12 images as a “sample.”  This caused the military judge to reopen providency, because he found only three of the images were likely CP.

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Here is an interesting opinion from the Sixth about the reasonable expectation of privacy in items transmitted or available through Limewire (or similar P2P programs).  There is none, compared to other ways stuff gets onto a computer – in the Sixth.

Defendant had no reasonable expectation of privacy in his computer from police accessing it via Limewire when he was hooked up to the Internet. He did not create an expectation of privacy from his efforts to hide files on his computer. Warshak has no application to this situation. United States v. Conner, 2013 U.S. App. LEXIS 7437, 2013 FED App. 0365N (6th Cir. April 11, 2013)[.]

The court references United States v. Warshak, 631 F.3d 266 (6th Cir. 2010).