Posts Tagged ‘internet crime’

MySpace Judge Agrees with Us

Friday, July 3rd, 2009

 

Remember the Lori Drew case? She’s the mom who was convicted last Thanksgiving for creating a fake MySpace persona, which she then used to harass a teenaged girl until the girl committed suicide.

After she was convicted, we argued that her conviction stretched the meaning of the statute too far. Here’s what we wrote:

The underlying statute, the Computer Fraud and Abuse Act, is a federal law intended to prevent hacking. Drew created a fictitious MySpace account, which was used to harass the girl. In doing so, Drew violated MySpace’s terms of service, though she apparently never read them. By violating the terms of service, Drew got unauthorized access to MySpace’s servers, and the prosecution went out on a limb to argue that this technically violated the CFAA.

But does it really?

Plenty of pundits are now doubting that the verdict will survive an appeal. Congress clearly intended the law to criminalize hacking into someone else’s computer. That’s different from creating a fictitious screen name — a very common and socially acceptable occurrence.

Terms of service are conditions imposed by websites which govern permissible use, and which almost always prescribe penalties that may be imposed for violations. These penalties normally range from warnings and temporary disabling of access, to permanent denial of access. The relationship is essentially contractual.

But if the prosecution’s theory is upheld on appeal, then breaching such conditions would have criminal consequences.

Criminalizing this kind of behavior isn’t exactly far-fetched. Crime is essentially that behavior which society considers so threatening that the guilty must be punished with a restriction on liberty or a loss of property. The existence of a civil remedy does not preclude something from being criminal — a thief is civilly liable to return what he stole, but still faces jail regardless. And there may be something to an argument for criminalizing the false personas on social networking sites frequented by minors, to protect society from predators.

But that’s clearly not what Congress was trying to do here. Furthermore, the prosecution’s stretched interpretation is just too overbroad. Rather than being narrowly tailored to focus on those who violate the TOS of a child-used site for the purpose of committing a nefarious or dangerous crime, the prosecution’s theory simply criminalizes all violations of any site’s TOS agreement. A court of appeals is likely to find that an improper application of the law.

Lori Drew was scheduled to be sentenced today. (Well, technically yesterday. Thursday. We’re still working, so it’s still Thursday to us.)

But she wasn’t sentenced. Instead, Judge Wu threw out her conviction. According to CNN, he refused to uphold the jury’s verdict because the guilty verdict would set a bad precedent that anyone who violates a site’s TOS could also be found guilty of a misdemeanor. Criminalizing all violations of a site’s TOS agreement is not what the law is designed to do. Because it technically allows such improper application of the law, it is probably unconstitutional for vagueness.

This was just an oral decision. Wu is expected to issue his written decision soon.

Great minds think alike!

Memo to Child Porn Defendants: The “It Was Only Research” Defense NEVER WORKS.

Thursday, May 7th, 2009

GEN. MELCHETT: Field Marshall Haig has formulated a brilliant new tactical plan to ensure final victory in the field.

CPT. BLACKADDER: Ah… Would this “brilliant plan” involve us climbing out of our trenches, and walking very slowly towards the enemy?

CPT. DARLING: How could you possibly know that, Blackadder? It’s classified information!

CPT. BLACKADDER: It’s the same plan that we used last time. And the seventeen times before that.

GEN. MELCHETT: Ex-ex-ex exactly! And that is what is so brilliant about it! It will catch the watchful hun totally off guard. Doing precisely what we’ve done eighteen times before is exactly the last thing they’ll expect us to do this time! There is, however, one small problem.

CPT. BLACKADDER: That everyone always gets slaughtered in the first ten seconds.

GEN. MELCHETT: That’s right.

From “Blackadder Goes Forth” Plan A: Captain Cook


(Quoted scene begins around 8:30)

Because of the frankly horrible topic of this post, we thought we’d dilute it a bit with a bit of Atkinson, Fry and Laurie. But it’s on point. As this clip illustrates, it simply defies common sense to try the same thing repeatedly and expect a different outcome.

But in child porn cases, defendants and their attorneys keep trying the same thing over and over, and all that happens is they go to jail.

We’re talking about the “I was only doing it for research” defense. Pete Townshend of The Who tried it, to no avail (although possession charges were dropped six years ago today, when no porn was found to be in his possession, he was still put on the sex offenders registry for paying to visit a child porn site). Any number of less-well-known defendants have also tried it and failed. Washington Post reporter Lawrence Charles Matthews tried it, and he actually had done a radio series on the subject, and he still got time (and his case, U.S. v. Matthews, 200 F.3d 338 (4th Cir. 2000) specifically held that there is no exception for journalistic or other allegedly-legitimate uses of child porn). A law enforcement officer, Michael McGowan, claimed to have been doing his own investigation on his own time, and wound up getting 20 years. Talk show host Bernie Ward claimed he was doing research for a book, and got 87 months last year.

Even though the defense never works, people keep trying it. And so we come to erstwhile war hero Wade Sanders, the former assistant deputy Secretary of the Navy who came to national prominence when he vouched for former presidential candidate John Kerry, who just got sentenced to federal prison.

First, some background. CAUTION: EXTREMELY DISTURBING CONTENT FOLLOWS.

During an apparently typical investigation, an undercover FBI agent logged onto a peer-to-peer file sharing service (where members can copy files from each other’s computers), and searched for computers containing files with the term “pthc,” which is shorthand for “preteen hardcore.” The agent found several child porn files on Sanders’ computer, including a photo of a preteen naked girl lying on her back with ejaculate on her stomach, a 10 minute video of adult males inserting their penises into the mouths of prepubescent naked girls with one scene of ejaculation, and a photo of two naked prepubescent boys engaged in anal intercourse. It was easy to identify the location of the computer where the files were located, and a search warrant was obtained. On executing the search warrant, three computers and an external hard drive were seized, all of which contained many more equally disturbing photos and videos. (This is common. Most offenders who possess child porn possess a large quantity of it.)

During the search, Sanders spoke with the agents. When asked if any child porn would be found, he only said that he sometimes encountered it while downloading adult porn, and always deleted it. At no time did he suggest that he was conducting research that might explain any child porn they might find. And he wasn’t found to actually have any research notes or materials.

The evidence appeared strong enough that he decided to plea to the charge, under 18 U.S.C. § 2252(a)(4)(B). Under the Guidelines, his offense level was adjusted upwards for having materials involving under-12 kids, using computers, distributing materials, and possessing over 600 images, to level 29. He got the standard 3E1.1 three-level reduction for accepting responsibility, getting him to level 26, with a sentencing range of 63 to 78 months.

At sentencing, the prosecution asked for the low end of 63 months. Sanders sought probation.

In his own defense, Sanders claimed that he was researching child porn, but with a twist. He started by saying he’d gone through hell in Vietnam combat. Then, in 2004, he started supporting John Kerry for president, and was criticized by other veterans. This criticism made him feel betrayed, and sparked an onset of post-traumatic stress disorder. This PTSD manifested itself with obsessive-compulsive behavior. He then stumbled on an image of child porn, was horrified by it, and became overly protective of the little kids. So he obsessively began trying to find out where the kids came from and the conditions they lived in.

The judge, Thomas Whelan, flatly stated that he didn’t buy it. He found no evidence that Sanders was telling the truth about being involved in any research. Sanders never mentioned this during the search, either. And his own story didn’t explain the stuff he’d downloaded before 2004. Judge Whelan also pointed out that the “I was only doing research” claim, even if true, is still not a valid defense under the law.

So, although the judge did come down off the Guidelines sentence, Sanders still received 37 months in prison — at the end of which he will be 105 years old. In all likelihood, this is a life sentence for the man.

* * * * *

What puzzles us is why people keep trying this defense, when the law doesn’t recognize it and it never ever works?

If we might be a little shameless here, we’d recommend that people try our piece titled “Understanding the Investigative Process to Better Defend Your Client,” in Inside the Minds: Strategies for Defending Internet Pornography Charges (2008). Or they might take our online CLE on defending internet porn cases, (the first in our “Hope for Hopeless Cases” series with West LegalEdcenter, which also includes that chapter in the course materials.

These cases rarely go to trial. Like Sanders, defendants usually plead out because the evidence appears overwhelming. Still, appearances can be deceiving, and there are often ways to attack the evidence itself. Maybe not enough to justify taking the case to a jury, but perhaps enough to negotiate a better deal. (Not implying that was the case with Sanders, nor impugning his attorney in any way, of course.)

What is most likely to work, however, is not trying to explain it away. Rationalizing the evidence is only going to hurt your credibility, as it did to Sanders.

Instead, what is most likely going to work is to attack the evidence itself. This is time-consuming and expensive, and isn’t guaranteed to work. After all, investigators have the luxury of building their own cases, and cherry-picking the strongest cases from the enormous number of possibles they could charge. Ideally, you want to be able to give the prosecution a new way of looking at the evidence, so that they realize it’s not necessarily as strong as they originally thought. It takes deep understanding and analysis by experts, as well as compelling advocacy. But even in a less-than-ideal situation, the more you can put the prosecution on the spot to defend its evidence — that the photos are real, that they depict real people, that the kids really are minors, etc. — or the more you can raise doubt about how incriminating it is, the better your chances of a decent plea offer.

Prosecutors rarely change their assessment of what a case is worth based on excuses and rationalizations. They made up their mind based on the evidence they have. A good defense is going to give them a new way of looking at that evidence, to get them to re-assess the defendant’s culpability, their chances of success, or (yes) the amount of work they’re going to have to do if this goes to trial.

And FOR THE LAST TIME, PEOPLE, “I was only doing research” is NOT going to do the trick.

“Sexting” – Humiliating? How About Criminal?

Thursday, March 12th, 2009

sexting.png

There has been a spate of news articles over the past week about a supposedly new teen trend called “sexting” — basically kids taking nude photos and sending them to each other’s cell phones and computers. The articles follow a Today Show interview with the mother of a girl who committed suicide last July after her photos started getting spread around. Most of the articles out there are of the “how do we protect our children from themselves” variety, but there is also a legal consideration. A lot of this activity could count as child porn, and could result in criminal prosecution.

Jesse Logan was a high school student in the Cincinnati area. Like plenty of teenage girls before her, she gave her boyfriend some nude photos. Unlike the Polaroids of previous generations, she sent them electronically, either by cell phone or by email.

Also unlike physical Polaroids, making copies of these photos would be free and easy. A potentially unlimited number could be sent off to others, just as she had sent them to her boyfriend. When they broke up, the ex-boyfriend sent copies to other high school girls. The photos spread around from cell phone to cell phone, and she started getting harassed at school. She became miserable, stopped going to school, and even went on a local TV station to tell her story.

Two months later, one of Jesse’s acquaintances committed suicide. She went to the funeral, then came home and hanged herself.

Hers is only the most tragic case making the news right now. But it happens all the time. There are reports that nearly half of all high school boys these days have seen nude photos of girls in their school. Some of those are spread by the girls’ boyfriends after a breakup, but most seem to have just been disseminated through normal teen chat.

If those ex-girlfriends were under 18 — and most of them probably were at the time, this being high school — then those photos are child porn. Distributing child porn, possessing it, and disseminating it to minors are all crimes that can get those high schoolers in serious trouble.

The consequences could be very severe. The ex-boyfriends and others who spread their photos could be charged with child porn, receive real jail sentences, and spend the rest of their lives as registered sex offenders.

Realistically, a teenage boy with a nude photo of his girlfriend isn’t likely to be charged with child porn. But someone who sends that photo to others, or posts it online, or otherwise spreads it around… that’s a whole ‘nother story.

It doesn’t even have to be intentional. Alan Grieco, a psychologist who treats Florida sex offenders, told Tampa Bay Online about a client who, when a young 20-year-old man, had dated a 17-year-old girl. He had a nude photo of her on his cell phone, which he did not share with anyone else. But after breaking up, his new girlfriend found the photo and sent it to the first girl’s parents. That young man was then charged with child pornography, and is going to spend the rest of his life living with that.

The kids who voluntarily send nude images of themselves aren’t thinking about how easy they will spread, how permanent such things are once they’re in the wide electronic world, and how much of an embarrassment they could be in the years ahead. That’s bad enough. But what’s worse is that the kids who receive, post and pass around these photos could be putting themselves in very hot water indeed.

MySpace Conviction Probably Exceeded Scope of Law

Tuesday, December 2nd, 2008

 

We were away last week, achieving an unqualified victory in a case brought by the Antitrust Division. But while we were gone, Lori Drew got convicted of three criminal counts of accessing a computer without authorization. Drew is the mom who was accused of harassing a teenaged girl over the Internet to the point where the girl committed suicide.

The underlying statute, the Computer Fraud and Abuse Act, is a federal law intended to prevent hacking. Drew created a fictitious MySpace account, which was used to harass the girl. In doing so, Drew violated MySpace’s terms of service, though she apparently never read them. By violating the terms of service, Drew got unauthorized access to MySpace’s servers, and the prosecution went out on a limb to argue that this technically violated the CFAA.

But does it really?

Plenty of pundits are now doubting that the verdict will survive an appeal. Congress clearly intended the law to criminalize hacking into someone else’s computer. That’s different from creating a fictitious screen name — a very common and socially acceptable occurrence.

Terms of service are conditions imposed by websites which govern permissible use, and which almost always prescribe penalties that may be imposed for violations. These penalties normally range from warnings and temporary disabling of access, to permanent denial of access. The relationship is essentially contractual.

But if the prosecution’s theory is upheld on appeal, then breaching such conditions would have criminal consequences.

Criminalizing this kind of behavior isn’t exactly far-fetched. Crime is essentially that behavior which society considers so threatening that the guilty must be punished with a restriction on liberty or a loss of property. The existence of a civil remedy does not preclude something from being criminal — a thief is civilly liable to return what he stole, but still faces jail regardless. And there may be something to an argument for criminalizing the false personas on social networking sites frequented by minors, to protect society from predators.

But that’s clearly not what Congress was trying to do here. Furthermore, the prosecution’s stretched interpretation is just too overbroad. Rather than being narrowly tailored to focus on those who violate the TOS of a child-used site for the purpose of committing a nefarious or dangerous crime, the prosecution’s theory simply criminalizes all violations of any site’s TOS agreement. A court of appeals is likely to find that an improper application of the law.

Will Internet Anonymity Be the Next Federal Crime?

Wednesday, November 19th, 2008

anonymous-blogger.png

Jury selection began today in what many are calling a landmark trial in the new field of Internet law. As the first case of its kind, U.S. v. Lori Drew could have a far-reaching impact on the future of anonymity on the web.

Lori Drew faces federal counts of Conspiracy and of Accessing Computers Without Authorization. Drew is charged with creating a false Internet identity on the social networking site MySpace, posing as a teenage boy. Prosecutors say she then used that false identity to befriend a depressed 13-year-old girl, a former friend of Drew’s daughter, and then began to harass the girl with hurtful messages. The girl hanged herself after allegedly receiving the messages, including one telling her that “the world would be a better place without you.”

Although Drew is not charged with the girl’s death, U.S. District Judge George Wu ruled last Friday that evidence of the girl’s suicide could be introduced by prosecutors. He stated that any prejudice would not be unfair, because the fact that the girl committed suicide is common knowledge, and jurors would be instructed that Drew is not charged with causing the suicide. Although the events took place in Missouri, the trial is being held in Los Angeles, where the MySpace servers are located.

The case is being closely watched, as Drew is being prosecuted under a law normally used to target computer hackers, and expanding the reach of the law could create criminal liability for many.

The Computer Fraud and Abuse Act prohibits accessing protected computers without authorization. The prosecution seeks to expand the scope of this prohibition, to include violating the terms of service of a website that prohibits people from misrepresenting their identity through false accounts.

Using a false name to register with a website is commonplace. Anonymity is sought for a variety of reasons, most of them socially acceptable. Reasons range from fears of identity theft, protection from predators, avoiding spammers and scammers, and other justifiable concerns in this high-tech age. There are malicious reasons, too, such as concealing the identity of individuals committing crimes online.

The jurors being selected today will be asked to determine whether violating MySpace terms of service, by registering a false user profile, is a federal crime. They may well do so, especially now that they will hear that this particular false profile was allegedly used to harass a young girl to the point where she committed suicide.

Feel free to comment to this post anonymously or under a false name. It does not violate The Criminal Lawyer’s terms of service.

Treasury & Fed Rules Outlaw Internet Gambling

Thursday, November 13th, 2008

Online gambling illegal

Yesterday, the Federal Reserve and the U.S. Treasury promulgated new rules that prohibit the processing of payments related to Internet gambling. By forbidding financial institutions from processing the payments, the government has essentially outlawed online gambling.

What constitutes “online gambling” is left up to state law. A few kinds of betting are still allowed, including government lotteries, horse racing and fantasy sport leagues. College and pro sports books, however, are no longer allowed. The same goes for online poker, roulette, craps, slots and other casino-type gaming.

Internet gambling is believed by many in law enforcement to be important to organized crime. It is a profitable source of revenue in its own right, and is difficult to police. “Street level” bookmakers are also believed to use online sports gambling to facilitate their activities, and to hedge or shift the risks of the street wagers they accept.

The new rule has been opposed by Democratic lawmakers and gambling businesses, as well as by financial institutions that would bear the burden of implementing the rule.