Criminal Law

When is social media contact criminal?

Stacked3This week's Daily Record column is entitled "When is social media contact criminal?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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When is social media contact criminal?

The online world is simply an extension of the offline world. So it’s no surprise that people’s behavior on social media sites can result in criminal charges. But the complexity of the relationships and privacy settings on different social media sites can sometimes complicate the process of proving that the conduct that occurred was in fact criminal.

This very issue arose recently in a case out of Florida — O’Leary v. State, 109 So. 3d 874 (Fla. Dist. Ct. App. 2013).*

In this case, the defendant was accused of sending written threats to kill or do bodily harm in violation of section 836.10, Florida Statutes (2011). Specifically, it was alleged that he posted on his personal Facebook “wall” statements — directed toward his relative and her partner — which constituted threats of serious death or bodily injury. The post was viewed by one of his cousins, who then informed his uncle of the post, who then in turn reported the post to the relative who had been threatened.

In reaching its decision, the court explained that controlling precedent established that the statute was violated when “1) a person writes or composes a threat to kill or do bodily injury; 2) the person sends or procures the sending of that communication to another person; and 3) the threat is to the recipient of the communication or a member of his family.”

The court then noted that a “communication” occurred since electronic communications were specifically enumerated in the statute. As such, the primary issue to be determined on appeal was whether the accused “sent” the message by virtue of his posting it on his personal Facebook page, an issue of first impression in Florida.

The accused argued that posting threats to his Facebook was the equivalent of simply “publishing” a message, which, in and of itself, does not constitute a violation of the statute since he took no other steps to ensure that the threat was seen by the people mentioned in the posting.

The court, however, disagreed, holding that to constitute “sending” under the statute, all that is required is that the message be posted where another can see it, whether it’s the person being threatened or a relative of said person.

The court explained that by posting the threats to his Facebook wall, the defendant intended for all of his “friends” to see it, including the cousin that he shared with the victim: “Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Facebook users. Had appellant desired to put his thoughts into writing for his own personal contemplation, he could simply have recorded them in a private journal, diary, or any other medium that is not accessible by other people. Thus, by the affirmative act of posting the threats on Facebook, even though it was on his own personal page, appellant “sent” the threatening statements to all of his Facebook friends, including (his cousin).”

The court reached the right decision in this case, in part because it wisely analogized the online conduct to similar offline conduct. As I’ve often said, comparing online conduct to offline conduct leads to the correct analysis more often than not, since doing so makes the online conduct more understandable and accessible, despite its less familiar setting.

Online interaction may be a relatively new phenomenon, but when it comes right down to it, it’s no different than offline behavior. And in the case at hand, the medium didn’t change the message, it simply altered the channels of distribution.

* Brought to my attention by Rochester criminal defense attorney Gary Muldoon.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.

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Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys

 

Stacked3A special edition article that I recently wrote for the Daily Record column is entitled "Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys

In 1996, I stepped into a courtroom as an assistant public defender for the very first time. I had no idea what I was doing. I had only recently been hired by the Monroe County Public Defender’s Office after interning there for a few months. I had some training from the attorney whose caseload I was taking over and I even had a mentor assigned to me. Her name was Jill Paperno and she was an extremely experienced felony attorney. She had a wealth of information to offer me, but truth be told, at the time, it was incredibly overwhelming.

So, like most public defenders, I learned on my feet. And, I became a very good criminal defense attorney over time — with a lot of help from my more experienced colleagues at the office. Whenever I ran into an issue or had a question, I would pop my head into someone’s office and got the answer I was seeking in no time.

But I’ve always thought that there had to be a better way. If only I could have harnessed all the information and collective experience of my colleagues and my mentor in one place. If only I’d had a manual that walked me through the process of representing someone accused of a crime, from the initial intake process through every stage of representation. If only someone with decades of criminal defense experience would take the time to sit down and write a step-by-step guide for new and less experienced attorneys with an interest in criminal defense. Wouldn’t that be nice?

Well sure enough, just 16 years after I first set foot in a courtroom, my wish came true: the “how-to” guide that I had envisioned for young criminal defense attorneys was finally published. It’s called “Representing the Accused: A Practical Guide to Criminal Defense” and coincidentally enough, was written by my former Public Defender mentor, Jill Paperno.

This book is everything I had imagined — and more. It provides young lawyers with advice on just about every aspect of every stage of representing a criminal defendant. From file organization and effective client communication to subpoenaing information and trying a case, this book covers all the bases.

Paperno starts with practice management basics — things you don’t even realize are important when you first start practicing law, in large part because most law schools completely fail to teach lawyers about the ins and outs of managing a case from start to finish. But as you quickly learn when your first criminal defense file grows from a single sheet of paper to hundreds, a large part of effective case management revolves around effective organization of your files.

Paperno tackles this incredibly important, albeit not exactly enthralling topic, at the beginning of the book explaining: “Although a career in criminal defense may be one of the most exciting ones you can select, there are certain kinds of excitement you want to avoid — the excitement of being unable to find an important document or a particular file, for example. Thus, one of the keys to a successful practice is developing the less exciting skill of organization.” Then over the next 18 pages, she provides detailed tips for organizing files gleaned over her 25-year career in criminal defense, ranging from document organization and management to file management and storage, both paper and digital.

From there, she carefully and concisely walks young attorneys through every aspect of a criminal case. In Chapter 3, she offers an assortment of general practice tips, including her warning that as a criminal defense attorney, you should develop a thick skin and prepare to be disliked by just about anyone you encounter in a case, including opposing counsel, judges and witnesses.

Another important tip —sometimes strange things are true. Paperno explains, “Sometimes a client will tell you something that seems completely ridiculous. But before you discount it, if it supports the defense, investigate whether it might be true. Repeatedly over the years, I have been told things I thought were absurd, but learned that there was truth to the claim and eventually used the information to support a defense.”

She then provides a broad overview of the life of a criminal case in Chapter 4 and in subsequent chapters addresses each and every stage of a criminal case, starting with the initial interview of your client in Chapter 5. From there, each chapter focuses on a specific stage of the case, starting with your client’s arrest and arraignment, moving on to pre-trial procedures, including choosing a defense theory, investigating the case, drafting motions, conducting hearings, and finally, at the end of the book, she devotes one chapter to trying cases and another to sentencing.

From discovery and subpoenas to cross-examination techniques and sentencing considerations, Paperno provides invaluable tips and advice from the trenches throughout the book, including this gem in Chapter 9 — a sound piece of advice that clearly comes straight from the mouth of a lifelong criminal defense attorney: “The prosecutor will be an important source of information in your case. But should you rely exclusively on information provided by the prosecutor? The short answer: a definite and resounding NO.”

If I had to come up with one criticism of this book, it would be that it glosses over the importance of, and the effects of, technology as it relates to both the physical management of files and in the investigation of a criminal case. Although these issues aren’t ignored, they are given no more than a passing nod, something I suspect has more to do with the fact that this book was a long time in the making and technology has advanced incredibly rapidly over the last few years.

It is difficult to keep pace with rapidly changing technologies, whether it’s mining social media for evidence or storing and managing client files in the cloud. So the lack of focus on the effects of technology in this book is understandable, but hopefully will be addressed more thoroughly in the second edition of this book. Another minor critique — an index in a subsequent edition would also be a nice addition.

These two small points aside, I highly recommend this book. It provides much-needed information for young lawyers and should, in my opinion, be a part of every law school curriculum. Paperno’s book is an incredible resource and one that I wish had been available to me when I started practicing criminal law back in 1996. The bottom line: this book is a must-have for all newly graduated and aspiring criminal defense attorneys.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.

When judges, jurors and the Internet collide

Stacked3This week's Daily Record column is entitled "When judges, jurors and the Internet collide."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

When judges, jurors and the Internet collide

In the past, I’ve described misguided attempts by judges to excessively penalize jurors for using social media or the Internet during the pendency of trials. In fact, over the last year, judges have gone so far as to fine or jail jurors who have used social media during trial, and legislators have proposed laws that would criminalize such conduct. This despite the fact that jurors have been violating judges’ orders not to research or discuss pending cases since the dawn of jury trials.

But for some reason, the use of social media and the Internet by jurors really bothers some judges. In fact, it just gets their goat. The question is: why?

Perhaps it’s because many judges don’t understand social media so they find it to be more threatening than traditional methods of violating their orders, such as reading about a case in the newspaper, researching issues using encyclopedias, or discussing the case with their spouses over dinner. Or perhaps it’s because use of the Internet leaves a digital trail, making violation of judicial orders easier to prove.

Or maybe it’s because jurors these days aren’t as smart as they used to be and can barely restrain themselves from rushing out immediately after a verdict is handed down and blabbing to reporters all about the different ways that they’ve used the Internet to violate judicial orders.

I’m not exactly sure what the answer is, but I’ do think that it was a combination of the three theories above that lead to the latest brouhaha stemming from a juror allegedly using the Internet during a trial to research issues raised during trial.

The case at issue arose in Tampa, Fla., in the aftermath of a federal criminal trial in which the defendant, Buju Banton, a reggae star, was convicted of drug charges. Following the conclusion of the trial, the Broward/Palm Beach New Times quoted one particularly clueless juror as saying, “I would get in the car, just write my notes down so I could remember, and I would come home and do the research.”

Shortly thereafter, defense counsel wisely brought a motion seeking a new trial. The news of the alleged Internet research rankled U.S. District Court Judge James Moody so much that on Jan. 8, he issued, post haste, an ex parte order requiring federal marshals to enter the wayward juror’s home and seize her computers.

This move caused the prosecutor to spring into action, and, motivated by what I can only assume was an intent to hopelessly confuse everyone involved, he objected on grounds usually made by defense counsel. The prosecutor raised both privacy and due process concerns, arguing that the court was required to issue a warrant supported by probable cause.

He explained the basis of that argument in his motion: “The order theoretically would permit the marshal to enter the juror’s home, business or vehicle and take any computer device (desktop, laptop, tablet, smartphone) found therein. The order allows for these devices to be held indefinitely, without any regard for the disruption the loss of personal computers might have on Ms. Wright’s affairs.”

Either the prosecutor’s thinly veiled attempt at obfuscation was a success or the judge was swayed by his cogent constitutional arguments. Because the next day, on Jan. 9, in a sudden and unexpected turn of events, the judge abruptly rescinded his order and instead instructed the rogue juror to retain counsel and bring the hard drive of any computer that she owns or the computer itself to an upcoming hearing.

So, the saga in Tampa continues. Will the accused juror be excessively penalized because she chose to violate the judge’s order by using a computer instead of a newspaper or encyclopedia? Will the prosecutor remember to take off his defense counsel hat once this hearing is over? Will our reggae star get a new trial?

Also of interest — will the legal profession ever become accustomed to “newfangled technologies” like the Internet? Or, will we insist on exhibiting knee jerk, negative reactions every single time a new technology comes along and affects the practice of law — like some kind of warped legal edition of “Groundhog Day?” And, most importantly, if we choose the latter, will we choose Bill Murray to play the leading role or should we choose someone younger and more dope, like Zac Efron?

Tune in tomorrow and see.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.

 

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NY judge rules public tweets are public

Stacked3This week's Daily Record column is entitled "NY judge rules public tweets are public."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Much has been written about People v. Malcolm Harris, a criminal case pending against an Occupy Wall Street protester charged with disorderly conduct based upon allegations that he disrupted traffic on the Brooklyn Bridge while protesting.

In part, the reason for much of the attention is that it turns out Mr. Harris had a Twitter account, to which it is alleged that he posted about the protests as he was protesting. And, not surprisingly, the prosecution is very interested in gleaning information from his social media postings about his whereabouts and activity around the time of his arrest.

Accordingly, a few months ago, the prosecution served a subpoena on Twitter, seeking access to information related to Harris’ Twitter account. Harris’ then moved to quash the subpoena, but his motion was denied on the grounds that Twitter owned the data and thus Harris lacked standing to challenge the subpoena.

Following that decision, Twitter then moved to quash the subpoena and on June 30, New York City Court Judge Matthew A. Sciarrino Jr. issued ruled on Twitter’s motion to quash in People v. Harris, 2012 NY Slip Op 22175.

As explained in the decision, the order that Twitter sought to quash “required Twitter to provide any and all user information, including email addresses, as well as any and all tweets posted for the period of September 15, 2011 to December 31, 2011… It … deals with tweets that were publicly posted rather than an email or text that would be directed to a single person or a select few.”

So, contrary to the assertions of some who have commented on this ruling, from the language of the decision, it appears that direct messages, which are private messages sent between two individuals and are thus akin to emails or texts, were not sought by the prosecution. The only data sought by the prosecution was Harris’ public tweets and his user information.

In reaching its determination, the court wisely considered offline analogies for the online situation at issue. Specifically, the court likened a public tweet to yelling loudly in a public place: “Consider the following: a man walks to his window, opens the window, and screams down to a young lady, ‘I’m sorry I hit you, please come back upstairs.’ At trial, the people call a person who was walking across the street at the time this occurred. The prosecutor asks, ‘What did the defendant yell?’

“Clearly the answer is relevant and the witness could be compelled to testify. Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.”

I think the court’s analogy is particularly applicable to Twitter, as opposed to other social networks, since tweets from unprotected accounts, which make up the vast majority of Twitter accounts, can be read and accessed by anyone who chooses to view them. This is true regardless of whether a Twitter user follows or is followed by the person viewing the tweets. In other words, unprotected tweets are public messages relayed to anyone with Internet access who cares to view them.

As such, the court concluded, correctly so, in my opinion, that there is no reasonable expectation of privacy in public tweets: “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist … Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”

After holding that public tweets are public, the court held that pursuant to the operation Stored Communications Act (“SCA”) (18 USC §2701 et seq.), all content requested pursuant to the subpoena that was more than 180 days old would be turned over to the prosecution, but any data less than 180 days old would require a warrant.

I think this issue was correctly decided by the court. Don’t get me wrong — I have grave concerns about unfettered governmental access to confidential electronic data stored with third parties and believe that that the SCA is in dire need of revision in order to keep up with the times.

But, unlike much of the private information stored with third-party providers, public tweets are just that: they’re public. And Twitter users who have agreed to Twitter’s terms of use and claim otherwise are deluding only themselves.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.


Proposed cyberbullying law is unnecessary

Stacked3This week's Daily Record column is entitled "Proposed cyberbullying law is unnecessary."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Proposed cyberbullying law is unnecessary

Recently, Monroe County Legislators Mike Barker and Carmen Gumina proposed legislation that would make cyberbullying a crime. Under the bill, cyberbullying directed toward a minor would constitute a Class A misdemeanor in Monroe County, punishable by up to a year in jail.

The crime of cyberbullying would occur where the defendant engaged in the following conduct: “(W)ith intent to harass, annoy, threaten or place another in fear of personal injury, engaging in a course of conduct or repeatedly committing acts of abusive behavior over a period of time by communication or causing a communication to be sent by mechanical or electronic means, posting statements or images on the Internet, through a computer network, or via cell or smart phone. Acts of abusive behavior shall include, but not limited to: taunting; threatening; intimidating; insulting; tormenting; humiliating; disseminating sexually explicit photographs, either actual or modified, of a minor; disseminating the private, personal or sexual information, either factual or false, of a minor without lawful authority.”

WHAM (13wham.com) recently reported that Gumina explained the law was needed because current laws have not kept up with technology: “There is no law around posting pretty nasty things about your peers. … It’s almost impossible now because there is no law on the books … At least there will be a law in the books that could help law enforcement prevent bullying from happening in the first place.”

While Gumina’s intentions are no doubt well-intentioned, his assertion that no other laws address this type of conduct is simply false.

I am the co-author, along with Brighton Town Court Justice Karen Morris, of the Thomson West treatise “Criminal Law in New York,” a book that thoroughly examines the substantive crimes defined in New York’s Penal Law.

As part of my preparation for the yearly supplement to this treatise, I review all new New York cases addressing the crime of aggravated harassment in the second degree, which is, just like the cyberbullying law proposed by Barker and Gumina, a Class A misdemeanor.

Penal Law s. 240.30(1) provides that a person is guilty of aggravated harassment in the second degree “when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm …”

When Penal Law s. 240.30(1) was originally enacted, it required that the communication occur “by telephone, or by telegraph, mail or any other form of written communication.” In 2008, the statute was amended to include communications delivered via digital means and the following language was added: “by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication.”

In keeping with the legislative intent behind the 2008 amendment, New York courts have broadly interpreted this section to include harassing communications made using mechanical means, including the Internet, so long as the communication was directed at the complainant, People v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384 (City Crim. Ct. 1999).

Also covered by this section are unwelcome messages transmitted via online social networking sites or online forums, People v. Rodriguez, 19 Misc. 3d 830, 860 N.Y.S.2d 859 (City Crim. Ct. 2008); People v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384 (City Crim. Ct. 1999). Similarly, emails and text messages are also forms of communication contemplated by Penal Law s. 240.30(1), M.G. v. C.G., 19 Misc. 3d 1125(A), 862 N.Y.S.2d 815 (Fam. Ct. 2008); People v. Limage, 19 Misc. 3d 395, 851 N.Y.S.2d 852 (City Crim. Ct. 2008).

So, contrary to Gumina’s contention, the proposed cyberbullying bill is unnecessary. The conduct prohibited by the bill is already unlawful in New York pursuant to aggravated harassment in the second degree and passing the proposed legislation would duplicate the current law and cause confusion in the prosecution of new crimes.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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New York Court of Appeals grapples with Internet porn

Stacked3This week's Daily Record column is entitled "Court of Appeals grapples with Internet porn."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Court of Appeals grapples with Internet porn.

Last week, the New York Court of Appeals handed down its decision in People v. Kent, 2012 N.Y. Slip Op. 03572. In this decision, the court considered whether the defendant, by simply viewing images of child pornography on his computer screen, had knowingly procured or possessed child pornography in violation of Penal Law § 263.15 (Promoting a Sexual Performance by a Child) and Penal Law § 263.16 (Possessing a Sexual Performance by a Child).

The issue presented was a narrow one and required an analysis of whether “accessing and displaying” the images in a Web browser — where the browser, unbeknownst to the defendant, stored the images in its Web cache — constituted “control” over the images sufficient to amount to procurement or possession of the images.

After analyzing the applicable statutory definitions, case precedent, and the legislative intent behind the enactment of the relevant statutes, the court concluded that in the above scenario, sufficient “control” was not shown:

“We hold … that regardless of a defendant’s awareness of his computer’s cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant’s conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving.”

The court then explained that New York’s current statutory framework was enacted prior to the large scale use of the Internet and was thus arguably in need of an update to include language like that found in the correlating federal statute:

“The federal statute regulating conduct related to child pornography, 18 USC § 2252A, provides a useful contrast. Section 2252A was amended in 2008 to provide that any person who either “knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography” is subject to a fine and imprisonment …”

I agree with the court’s analysis of the law as written and believe that the law is in need of revision in order to keep up with changing technologies.

That being said, what interested me most about this decision was not the court’s holding but the discussion found in the concurring opinions centered around whether simply viewing child pornography should be a crime.

In his concurring opinion, Judge Smith agreed that the legislative intent behind the New York statutes was to target consumers of child pornography, but he seems to (mistakenly) believe that those who simply view it do little to contribute to demand for child pornography since their actions don’t profit those who distribute it:

“I … acknowledge that, as Judge Graffeo says, Penal Law §§ 263.15 and 263.16 are designed to target the consumers of child pornography, in the hope of eliminating the market for it. … Under Judge Graffeo’s reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free — someone who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer — is subject to up to seven years in prison for a first offense (see Penal Law § 70.00[2][d] ). This is surely a stringent punishment for someone whom many would think more pathetic than evil.”

What Judge Smith doesn’t take into account is that the act of simply visiting most websites results in profits for the website owners. Even owners of websites that require no entry fee for the viewing of some images — especially those as profit-savvy as the purveyors of online pornography — are undoubtedly earning passive income from, at the very least, ads appearing on the site.

As the website receives more traffic, it becomes more appealing to advertisers and the website owner can thus charge more for ads placed on the site. So, every time someone visits a free website that contains images of child pornography, that individual is undoubtedly lining the pockets of — and increasing the future earning potential of — distributors of child pornography.

Accordingly, the inquiry should not focus on whether the consumer must pay a fee to access the images, since the mere act of visiting these websites supports the child pornography trade. If the legislative intent is to decrease demand by instilling the fear of prosecution in those who might view online child pornography, then the act of simply viewing any online image of child pornography should be unlawful. Whether payment is required for the “privilege” of doing so is irrelevant; the producers of online child pornography are profiting from the violation of our children nonetheless.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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Are police unlawfully accessing social media accounts?

Stacked3This week's Daily Record column is entitled "Are police unlawfully accessing social media accounts?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Are police unlawfully accessing social media accounts?

It’s undeniable: social media use has permeated our culture. People are sharing information about all aspects of their lives via social networking sites. Some of these disclosures are broadcast publicly while others are limited to select friends and followers.

This broad scale sharing of information has not gone unnoticed by the legal profession. In past columns I’ve discussed the recent efforts of lawyers to mine social media for evidence, resulting in a number of ethics opinions that attempt to provide guidance and establish ethical boundaries for lawyers as they wade into the electronic minefield of social media.

But, as an attendee asked when I recently spoke at a seminar sponsored by the Monroe County Public Defender’s Office, what about law enforcement? How far can police officers go when seeking to obtain access to social media evidence in order to prove the guilt of an accused?

I thought it was a great question and suggested that it was an issue that the courts would increasingly have to wrestle with as law enforcement stampeded into uncharted social media territory.

And, an example of just such a decision arrived a few weeks later. I received an email from one of the attendees, well-known Rochester criminal defense attorney and prolific author, Gary Muldoon and he advised me of a recent case on point, People v. Munck, 92 A.D.3d 63, 937 N.Y.S.2d 334 (3d Dept. 2011).

One issue addressed by the court in Munck was whether, during a police interrogation, police had unlawfully obtained access to the defendant’s MySpace account. The court briefly addressed the issue, holding that the officer’s conduct was lawful, and cited a New York Court of Appeals decision as the basis for its holding:

“While defendant received oral Miranda warnings, which he agreed to waive, that interview was voluntary and noncustodial, no violation of his rights occurred and he was allowed to leave. Toward the end of the questioning, when Akshar feigned interest in MySpace Web page designs, defendant voluntarily provided his username and password to his accounts and verbally agreed to let Akshar access them. In our view, contrary to defendant’s claim, Akshar did not use impermissible or fundamentally unfair or deceptive tactics to gain access to these accounts  (see People v. Tarsia, 50 N.Y.2d 1, 11, 427 N.Y.S.2d 944, 405 N.E.2d 188 [1980] ).”

Tarsia is a case that delves in depth into the issue of coercion during police questioning. Specifically, the court was tasked with determining whether Tarsia’s consent to allow the police to use a voice stress test during his interrogation was the product of coercion.

In reaching its decision, the Court of Appeals examined the essence of coercion:

“However, while more subtle methods, though sometimes harder to perceive, are equally to be condemned when they trammel on the rights of those in custody … it may take a discerning eye to tell those that are fundamentally unfair from those which are no more than permissible instances in which the police have played the role of ‘midwife to a declaration naturally born of remorse, or relief, or desperation, or calculation’ … In this case, the coerciveness argument derives from the subsidiary claims that defendant was misinformed as to the purpose of the voice stress test … (But) there was no misrepresentation made that the test results could be admissible in a trial against him. Rather, the test was used simply as an investigatory tool … Lieutenant Gaul explained in advance what the signs of stress would be and examined the stress chart in defendant’s presence.”

In other words, the court in Tarsia was focused on the use of coercion to induce a confession of guilt. The defendant understood that the officers were attempting to get him to admit to a crime. He knew why he was being asked to consent to the voice stress test.

However, in Munck, the law enforcement tactics used were far more deceptive. This becomes obvious when, as I always suggest should be done when dealing with the online world, the situation is compared to a similar offline analogy. Here, the officer feigned an interest in Web design in order to obtain access to Munck’s MySpace information. Thus, the tactics used were akin an officer claiming expertise as a book editor and then asking the defendant to disclose the location of his diary so that the officer could review it for purposes of submitting it as a memoir to a book publisher.

The reason the officer request access to Munck’s MyCase password was anything but forthright. The convoluted tactics used were “fundamentally unfair” and “trammeled” on Munck’s rights.

Just because the Internet is still viewed as the “Wild West” doesn’t mean law enforcement officers can ignore the Constitution and run willy nilly over the rights of the accused. Unfortunately, I think Munck sets that precedent. My hope is that over time, as Internet-based tools become more familiar, a new sheriff will come into town (in the form of a decision from another Judicial Department or the Court of Appeals) and will set the record straight.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations atMyCase, a powerful and intuitive cloud-based law practice management platform. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com. 

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When Does Contact Via Social Media Constitute a Crime?

DrThis week's Daily Record column is entitled "When Does Contact Via Social Media Constitute a Crime?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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When Does Contact Via Social Media Constitute a Crime?

As the use of social media becomes commonplace, criminal courts are increasingly faced with the task of determining which types of social media contact violate the law.

For that reason alone, it’s important for lawyers to familiarize themselves with social media, since it’s difficult to determine whether conduct occurring  via social media sites violates the law in the absence of a basic understanding of social media. 

This very scenario resulted in a somewhat unintentionally comical arraignment here in Rochester last May, as explained by reporter Gary Craig in a Democrat and Chronicle article entitled “Threat Alleged Via Facebook ‘Poke.”

As explained in the article, at first, the judge was unable to proceed, but after obtaining information about the inner workings of social media from the peanut gallery, the judge declined to revoke the defendant’s bail and reserved the right to re-consider the issue at a later point in time:

“Federal prosecutors are alleging that a Hell's Angels member threatened a witness - through a Facebook page "poke." The allegations, which run counter to the motorcycle club's "tough-guy" image, were challenged this morning by a federal judge. Beforehand, however, the courtroom became an open forum in which lawyers, a probation officer, a court reporter, and, yes, even a newspaper reporter were asked by the judge for insight into how Facebook privacy settings work. (Only a few - newspaper reporter excluded - could provide answers.)”

Just a month prior to this arraignment, the Town of Webster Justice Court addressed a very similar issue in People v. Welte, 920 N.Y.S.2d 627. At issue in Welte was whether an accusatory instrument was legally sufficient where the defendant was charged with criminal contempt in the second degree and stalking in the fourth degree. 

In this case, the complainant, the mother of the defendant’s child, alleged that the she had a “no contact” order of protection against the defendant and that the order required that he have no direct contact with her, either directly or through a third party. It was further alleged that he violated the order of protection by obtaining a copy of her Facebook “friends list” and then communicated with her “friends” via Facebook.

This was an issue of first impression and the court noted that there was little, if any, guidance available. So, Justice Thomas DiSalvo wisely applied precedent regarding comparative offline behaviors that were violative of orders of protection to the online conduct alleged in this case, which makes perfect sense, since online behavior is simply an extension of offline conduct:

“Changes in technology, including the way people communicate, continue to present unique challenges to the courts. As of the date of this decision there are no reported cases of anyone charged with violating an order of protection by accessing Facebook. One must then look to cases wherein defendants are charged with indirectly contacting protected persons by making statement to others.”

After considering applicable case law and applying it to the facts of this case, including the specific language used in the order of protection at issue, Justice DiSalvo concluded that the allegations that the defendant simply contacted friends of the complainant were insufficient to support the charges alleged:

“In the instant case the defendant's action in contacting the complainants friends and family via her “Friends List” would not in the normal course of events violate any provision of law. In addition, the defendant was not directed to stay away from the friends and family of the complainant. Lastly, the accusatory instruments do not allege that the defendant was intentionally attempting to contact the complainant through her friends list, only that the defendant was not to contact her through a third person.”

In other words, as I always say, the medium doesn’t change the message. That a new form of communication is used does not make the contact immediately suspect. Instead, it is important to have a basic understanding of the technology being used and to then examine the content of the message and the context in which is was received in order to ascertain whether the conduct constituted a crime. 

Nicole Black is a Rochester, New York attorney and GigaOM Pro Analyst. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in late 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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Can Police Obtain Cell Phone Location Data Without a Warrant?

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This week's Daily Record column is entitled "Can Police Obtain Cell Phone Location Data Without a Warrant?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

Can Police Obtain Cell Phone Location Data Without a Warrant?

In their continuing effort to battle alleged criminals both big and small, police are turning to the newest technologies to track and locate suspects. The latest weapon in their arsenal is cell site location information (CSLI).

Increasingly, police agencies are seeking access to the CSLI data maintained by cell phone providers, which provides them with a customer’s past location records. This information is gleaned from the signals sent by the customer’s cell phone to the carrier’s cell phone towers. In many cases, these records are obtained in the absence of a warrant.

Just this summer, two New York courts addressed the legality of this practice and reached conflicting conclusions. The New York Appellate Division, First Department held that warrantless access to this type of information was permissible whereas just last week, the U.S. District Court for the Eastern District of New York held that warrantless access to CSLI data was unconstitutional.

First, in July, the First Department handed down their decision in People v. Hall, 926 N.Y.S.2d 514, (1st Dept. 2011). The Court briefly addressed the constitutional issues presented and then concluded that access to three days of location surveillance in the absence of a warrant was permissible: “Obtaining defendant’s CSLI without a warrant did not violate the Fourth Amendment because, under the Federal Constitution, defendant had no reasonable expectation of privacy while traveling in public.”

In comparison, the EDNY reached the opposite conclusion (In the Matter of  an Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 10-MC-897 (NGG)). After an extensive constitutional analysis, U.S. District Judge Nicholas Garaufis concluded that a probable cause warrant issued by a judge is required before law enforcement can obtain a customer’s CLSI data: “This court…seeks to resolve the question before it: whether the request for at least 113 days of cumulative cell-site-location records for an individual's cell phone constitutes a search under the Fourth Amendment…The court concludes that it does. Consequently, the information sought by the Government may not be obtained without a warrant and the requisite showing of probable cause.” 

Of course, this isn’t the first time this issue has been addressed, nor will it be the last. Courts across the country have reached conflicting decisions on this issue and the Supreme Court is expected to review a case that presents a similar issue.

Additionally, there are competing bills pending in Congress regarding geo-location data.

First, in June, Sen. Ron Wyden (D-Oregon) and Rep. Jason Chaffetz (R-Utah) submitted “The Geolocation and Privacy Surveillance Act,” which would require probable cause and a warrant before the government could access all types of geo-location data, including information related to past movements, such as CSLI data.

Meanwhile, Sen. Patrick Leahy (D-Vermont), proposed legislation that would only require a warrant for real-time cell phone data, not past data. Ironically, that same piece of legislation includes a provision that would require law enforcement to obtain a warrant prior to accessing data stored in the cloud.

With the rapid pace of technological change, Fourth Amendment privacy issues are of ever-increasing importance. That people choose to utilize technologies that provide private companies with extensive amounts of personal data does not mean the information magically becomes part of the “public realm” or that consent to governmental access of said data is somehow presumed.

As law enforcement becomes more creative in their efforts to spy on US. Citizens, changes must be made to ensure that our constitutional rights are not obliterated in the face of a fundamental lack of understanding of new technologies.  Or, as Judge Garaufis so eloquently put it: “While the government's monitoring of our thoughts may be the archetypical Orwellian intrusion, the government's surveillance of our movements over a considerable time period through new technologies, such as the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to Oceania than our Constitution permits. It is time that the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

Nicole Black is of counsel to Fiandach & Fiandach in Rochester. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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Prosecution of Innocents

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This week's Daily Record column is entitled "Prosecution of Innocents."

A pdf of the article can be found  here and my past Daily Record articles can be accessed here.

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Prosecution of Innocents

I came across an interesting case last week, People v. Rios, 26 Misc.3d 1225(A), 2010 WL 625221 (N.Y. Sup. Ct. 2010), while conducting research for this year’s annual supplement for the Thomson West book I co-author with Judge Karen Morris, Crim- inal Law in New York.

The case was based on a criminal prosecution that involved an unusual set of facts and prosecutorial over- reaching that could have been the basis of a “Law & Order” episode. People had died, gosh darn it, and someone was going to pay with their freedom — lack of criminal liability notwithstanding.

In this unfortunate case, which never should have been prosecuted in the first instance, a jury convicted the defendants — a building owner and manager — of the charges of criminally negligent homicide and second-degree reckless endangerment.

The victims were firefighters who died while responding to a fire in an apartment building owned and managed by the defendants. While fighting the fire, six firefighters became trapped on the fourth floor. Ultimately they jumped from a window on the fourth floor as an attempt to escape the fire. Tragically, two firefighters died, while the other four were severely injured.

A subsequent investigation revealed the lessee of the apartment from which the firefighters jumped had installed illegal partitions that blocked some fire escapes and impeded the firefighters’ ability to predict the fire’s strength, and to navigate within the apartment to escape. It also was determined that another lessee’s modifications in an apartment on the third floor — which included installation of an illegal partition and a jury rigged electrical system created in order to heat the room created by the partition — caused the fire in the first instance.

The defendants were prosecuted on the theory that they “recklessly tolerated the hazardous conditions that were created by the tenants and that caused the deaths of the firefighters.”

One issue raised on appeal concerned whether the court should grant the defendants’ motion to set aside the verdict on the grounds that the evidence was legally insufficient to establish that the defendants knew of the conditions that caused the firefighters’ deaths. A second issue raised, which I plan to address in another column, concerned whether juror misconduct occurred when a juror sent a Facebook “friend”request to a firefighter witness while the trial was pending.

Ultimately, after an extensive analysis of the facts, the trial court granted the defendants’ motion to set aside the verdict on the ground that the evidence did not support the prosecution’s theory that the defendants had actual knowledge of the conditions in the fires that resulted in the deaths. The court noted that no electrical or building violation codes ever were issued for the building where the fire occurred, and that the prosecution relied solely on circumstantial evidence to establish that the defen- dants had actual knowledge of the conditions at issue.

In fact, that was what I found most striking about the case — the apparent house of cards on which the prosecution relied as its case in chief. The court described the prosecution’s utter lack of evidence as follows:

The inferences argued by the People ... were neither reasonable nor logical, and called for the jurors to engage in speculation and conjecture. ... These inferences upon inferences were not circumstantial evidence upon which the jury could properly have inferred guilt.

Inferences upon inferences never should be the foundation of a criminal prosecution. In the face of pointless and tragic deaths, many seasoned prosecutors seek to place blame and lose sight of the fact that civil liability does not necessarily amount to criminal liability. Tenuous prosecutions such as this — while great fodder for a prime time television show — are shameful when real people’s lives are at stake. Convicting people innocent of a crime does not bring back the dead. It only serves to contort our criminal justice system into an unrecognizable beast, driven by vengeance rather than justice.