Criminal Law

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 and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

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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 and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected]. 

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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.


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 and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

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Can Police Obtain Cell Phone Location Data Without a Warrant?


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 and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

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Prosecution of Innocents


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.


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.

Silence is no longer golden


This week's Daily Record column is entitled "Silence is no longer golden."

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


Silence is no longer golden

Earlier this month, the U.S. Supreme Court handed down its decision in Berghuis v. Thompkins, No. 08-1470.

At issue in Berghuis was whether the defendant, Van Chester Thompkins, a suspect in a shooting, waived his Miranda rights by remaining silent and then, after three hours of interrogation, responded to a question from one of the interrogating officers with a one-word response.

The Court held, in a 5-4 decision written by Justice Kennedy, that by remaining silent the defendant did not invoke his right to remain silent. The Court also concluded that when Thompkins ultimately spoke to police following a three hour period of silence, his actions were knowing and voluntary, thus he waived his right to remain silent. In the dissent, Justice Sotomayor explained the second half of the holding as follows:

The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of ‘waiver’ must, counterintuitively, speak — and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police.

In other words, the majority deemed that any ambiguity be construed in favor of the police, since interrogating officers are apparently too thick to comprehend silence indicates a desire to be silent. Or, as Justice Kennedy explained in the majority opinion:

If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression "if they guess wrong."

Because, really, the last thing we want police officers to do is to think. And in their defense, one would necessarily require a degree in quantum physics to make the deduction that a prolonged period of silence on behalf of a defendant from the very start of an interrogation indicated a desire to remain silent.

So, it would seem that the motivation behind the decision is to protect the police from their own stupidity. Because otherwise, the dimwitted police might face the oh-so-embarrassing happenstance of suppression of evidence, should they violate an accused’s constitutional right to remain silent.

That’s what bothers me the most about this decision: When it's distilled down to its essence, there is an underlying assumption that police are less savvy and intelligent than the suspects whom they interrogate. That’s certainly not the case when it comes to police procedures. No one knows how to walk that fine line between lawful and unlawful behavior better than the police, especially when it comes to interrogations.

On the other hand, when it comes to Miranda rights,the jurisprudence has become so complicated, that the invocation of those rights requires specific words, which vary depending on the jurisdiction in which you’re arrested. In order to successfully invoke Miranda rights, an accused must either accidentally stumble on the correct choice of words or take a course to learn about the proper way to protect one’s constitutional rights.

Even that’s not as simple as it seems, however. Just a few weeks ago, two Norfolk, Va. high school teachers were placed on administrative leave after a parent complained about their efforts to educate students about the proper invocation of their constitutional rights when stopped by the police.

The lesson to be learned is that, in the wake of Berghuis, U.S. citizens would be wise to take to the Internet and educate themselves regarding the protection of their rights during an encounter with the police. Because, according to the U.S. Supreme Court, if you don’t properly invoke a Constitutional right, you lose it.

The Case of the Lost iPhone


This week's Daily Record column is entitled "The Case of the Lost iPhone."

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


The Case of the Lost iPhone

When I first heard that a prototype of the new iPhone had been found in a bar, it sounded so outrageous I was convinced it was an elaborate publicity stunt that Apple had cooked up.

In case you missed it, here’s a brief re-cap: 1) a fairly new Apple engineer went out drinking in Silicon Valley and left a prototype of the new iPhone behind at a bar; 2) some guy finds it, makes a few inquiries at the bar regarding the original owner, and then takes it home; 3)the original finder (OF) is able to view the owner’s Facebook account on the iPhone before the phone is remotely shut down, presumably by its owner; 4) OF suspects that the phone, which looks like no other iPhone currently on the market, might be a prototype, although it could just as easily be a Chinese knock off; 5) OF never attempts to locate the original owner even though he knows his name from the Facebook account and instead calls the 800 line at Apple a few times in an attempt to return the phone; 6) OF then offers to sell the iPhone to Gizmodo, a well known technology blog; 7) Gizmodo buys the phone for $5,000, takes it apart, confirms that the inside of the phone most certainly looks like Apple components and subsequently posts pictures of the disassembled phone on its blog.

You’ve got to admit the entire scenario sounds outlandish. To start with, who walks around with an iPhone prototype? Apple is famously secretive about its new products. How is it possible that some low level engineer has access to the new iPhone prototype, let alone is given permission to take it offsite?

And why would Gizmodo pay $5,000 for something that could easily be a Chinese knock off? Alternatively, if Gizmodo suspected it truly was an Apple prototype, $5,000 seems like an awfully low price for such a rare find.

It all sounded so ridiculously farfetched that I was quite sure Apple and Gizmodo were in cahoots and that the new iPhone would ultimately look nothing like the prototype that had been “accidentally revealed.”

Imagine my surprise when I learned that a search warrant had been executed and that the police were actually investigating whether a crime had occurred. Which is, in my opinion, the most fascinating issue in this case: Was a crime committed?

One of the more interesting crimes that some pundits are suggesting may have been committed is California Penal Code s.485, “Appropriation of Lost Property by Finder.” CPC s. 485 provides:

One who finds lost propertyunder circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

Based upon what I’ve read, I think OF and Gizmodo are out of luck. Both Gizmodo and OF knew the name of the Apple engineer to whom the phone belonged. Pursuant to CPC s. 485, since they knew the identity of the original owner, both parties had an obligation to make reasonable attempts to locate him and return the phone. In fact, after the phone had been disassembled, Gizmodo located the engineer, posted photos of him and was able to reach him by phone.

Accordingly, both parties failed to make reasonable efforts to locate the original owner of the phone and appropriated it to their own use: OF sold it and Gizmodo disassembled it and blogged about it.

There are other criminal statutes that may apply as well, including CPC s. 496 and Misappropriation of Trade Secrets in violation of the California Uniform Trade Secrets Act.

No one knows how this will play out, given that charges have not yet been filed. However, in my opinion, it’s not looking good for either OF or Gizmodo. Perhaps I’m wrong. Only time will tell.

Fight the Power, But Time Your Battles Wisely


This week's Daily Record column is entitled "Fight the Power, But Time Your Battles Wisely."

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


Fight the Power, But Time Your Battles Wisely

Police officers are only human, just as infallible as the rest of us.

They also possess a lot of power, which the bad cops —a relatively small minority —abuse on a daily basis. The rest are just doing their job, which is not an easy one.

Just as I did as a public defender, officers interact with troubled, drug-addicted and mentally disturbed people day in and day out. Like many defenders, after a while they burn out, their patience levels decrease and they become easily aggravated.

That’s why when I encounter a police officer, I get nervous. I make no sudden move- ments, speak politely and do as I’m asked.

That’s also why I cannot, for the life of me, understand Professor Henry Louis Gates’s reaction after he was approached by Police Sgt. James Crowley. Crowley was responding to a 911 call from a concerned neighbor regarding an apparent break in, and Gates admitted he had forced open the front door to the house he was renting.

Any reasonable person who had just engaged in the suspicious act of breaking in to their own home would have quietly and quickly provided the officer with proof that they lived there. Granted, Gates probably did not look like your “average” burglar, given his age, demeanor and dress; however, it was entirely within the realm
of possibility that he was, for example, an angry husband breaking in to his former home in violation of a restraining order. Alternatively, he could have been the victim of a home invasion, with his attackers wielding guns in the background.

The officer had an obligation to investigate the situation.

I was in a similar situation a few years ago, when I was teaching my eldest child about 911. She inadvertently dialed 911 and I quickly hung up the phone. A few minutes later, two Monroe County Sheriff’s Deputies appeared at my door. I assured them everything was fine and that we had dialed 911 accidentally, but I could tell one of the deputies wasn’t quite convinced. I understood his hesitation. It was entirely possible we were being held captive in our home.

As much as I despise police contact and, in spite of my initial gut reaction to refuse law enforcement officers entry into my home —my most sacred zone of privacy —I invited him in to look around. I understood the reason for his concerns.

His intrusion was minimal. He glanced into the family room and saw my kids quietly, calmly watching television. Then he asked where the garage was, approached it stealthily, opened the door and looked around. After observing our demeanor and surroundings, he seemed satisfied everything was fine. He politely thanked me and they left.

As a result of that interaction, I felt safer. The deputies simply were doing their job, and I appreciated their efforts.

I strongly suspect the encounter between Professor Gates and Sgt. Crowley could have ended in much the same fashion had it been handled differently.

There’s a time and a place for just about everything. And the time to express your angst as to how you’re being treated by a police officer generally is after the
encounter has ended.

As Colin Powell explained adeptly when discussing Gates’s arrest on “Larry King Live”: “When you’re faced with an officer trying to do his job and get to the bottom of something, this is not the time to get in an argument with him.”

Curfew Fails Abused Children


This week's Daily Record column is entitled "Curfew Fails Abused Children."

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


The Rochester youth curfew was defeated once again last week when the New York State Court of Appeals issued its decision in Jiovon Anonymous v. City of Rochester.

At issue in the case was the legality of the youth curfew law, which became effective September 2006. The ordinance made it unlawful for those younger than 17 to be in a public place Sun- days through Thursdays between 11 p.m. and 5 a.m.,
and between 12 and 5 a.m. Fridays and Saturdays.

A minor accused of violating curfew could taken into custody immediately, and a conviction of the ordinance constituted a “violation,” as defined in the Penal Law,
punishable by a sentence of up to 15 days in jail.

The court limited its review to the constitutional issues raised on appeal and concluded that intermediate scrutiny, rather than strict scrutiny, was the appropriate level of analysis. Thus, in order to prevail, the City of Rochester was required to show that the curfew ordinance was “substantially related” to the achievement of “important” government interests.

The court applied the test to the constitutional claims of both the minors and parents affected by the law and determined that the Appellate Division, Fourth Department concluded correctly that Rochester’s curfew law was unconstitutional.

The court emphasized that the city failed to offer sufficient evidence to establish that the imposition of a curfew significantly reduced juvenile crime or victimization: “Without support from the City’s own empirical data, we conclude that the justifications made by the Mayor and the Chief of Police for the nighttime curfew, based primarily on opinions, are insufficient since they do not show a substantial relationship between the curfew and goals of reducing juvenile crime and victimization during nighttime hours.”

Similarly, the court concluded that the curfew law impermissibly interfered with parental due process rights, arguably interfering with stated goal of promoting parental supervision rather than supporting it: The “curfew ‘does not allow an adult to pre-approve even a specific activity after curfew hours unless a custodial adult actually accompanies the minor. Thus, parents cannot allow their children to function independently at night, which some parents may believe is part of the process of growing up’ (Nunez, 11 F3d at 952). Consequently, we conclude that the
challenged curfew is not substantially related to the stated goals of promoting parental supervision.”

The court then implied that the law would have had a better chance of passing constitutional muster if it had included a parental consent exception.

As I’ve noted in the past, my concern with youth curfews is that they effectively prevent children from escaping traumatic home environments. The inherent assumption behind curfews is that all guardians are caring, selfless and emotionally stable individuals.

Unfortunately, that is not always the case. For children with drug-addicted or abusive guardians, their homes are anything but safe. In many cases, the safest recourse for these children is to go elsewhere; sometimes the street simply is the safest alternative.

Arguably, curfew laws that include a parental consent exception at least provide a  neglected child with some flexibility, since it’s safe to assume that drug-addicted or otherwise neglectful parents are more than happy to have their children out of their sight.

The parental consent exception does little to protect the well being of abused children, however, since many abusers refuse to allow their child to leave the home. The home is the abuser’s playground and the child is their toy.

Any type of curfew law, then, is harmful to abused children. Such laws effectively imprison children in their abuser’s lair, actually encouraging —rather than preventing —victimization.

Any initiative that results in harm to a percentage of the population it is intended to protect is a failure.

Accordingly, rather than appealing the Court of Appeal’s decision or attempting to amend the curfew law, the city should simply abandon its failed initiative.

In New York, Privacy Trumps Technology


This week's Daily Record column is entitled "In New York, Privacy Trumps Technology."

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


Last week the New York Court of Appeals handed down its decision in People v. Weaver, a case I wrote about when oral arguments occurred in March.

At issue in Weaver was whether GPS tracking device evidence obtained by law enforcement without a warrant should have been suppressed.

The disputed evidence was obtained after a GPS tracking device was placed on the defendant’s car in the absence of a warrant and his movements were tracked for 65 days without his knowledge.  He was eventually arrested and charged with 2 counts of burglary, for which he was later convicted.

The Appellate Division, Third Department, concluded that the evidence obtained from the GPS device was admissible since the defendant had no expectation of privacy regarding movements that would have been visible via the naked eye.

In my earlier article, I vehemently disagreed with this conclusion, urging that the constitutional interpretation of our laws must conform to the ever-changing technological landscape, and that the failure to do so would render our laws and constitutional protections obsolete:

Technological advances are changing our lives in ways we never before imagined. New devices are being invented that enhance the ability of law enforcement officers to observe and follow our movements in ways not envisioned just 10 years ago. Who knows what capabilities law enforcement will have 20 years from now?…Judicial oversight of the use of advanced technologies is necessary to prevent baseless, invasive and limitless intrusions into the lives of law-abiding Americans.

I was pleased to learn that the New York Court of Appeals agreed, ruling that the evidence was inadmissible. 

The Court noted that GPS technology does not simply enhance the senses, but rather allows a “new technological perception” that could not otherwise be obtained without massive amounts of manpower, equipment and funding. 

Also of importance to the Court in reaching its determination was the vast amount of personal information that could be collected via constant GPS tracking of a person’s whereabouts, including the individual’s political, professional, religious and amorous associations.

Accordingly, the Court concluded that the evidence should have been suppressed pursuant to the New York State Constitution:

Technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated.  Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.

Judge Smith, Judge Read and Judge Graffeo dissented.  In Judge Smith’s dissent, he asserted that the majority’s holding amounted to the constitutionally unsupportable proposition that certain technological devices were too advanced to be utilized by law enforcement in the absence of a warrant.

To an extent, I agree with Judge Smith—the majority’s holding encompasses the idea that the complexity and invasiveness of emerging technologies warrants judicial scrutiny of the methods utilized by law enforcement in order to prevent abuse. We part ways to the extent that he asserts that this proposition is unconstitutional.

Rather, the majority’s holding is simply an acknowledgement that the right to be free from unlawful governmental intrusions must not be permitted to be whittled away in the face of increasingly intrusive technologies. 

Simply put, in New York, the right to privacy should always remain paramount.

It is, for that very reason, that Weaver is one of those heartening decisions that makes me proud to be a New Yorker.  It is rare that a lone opinion is able to single-handedly restore my faith in the judicial process and the protections offered by our State Constitution.  People v. Weaver is just such a case.