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The Computer Forensics Digest
Computer Forensics in the Courts and in the News
October 2010
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Planning 2011 CLEs?
I'm writing this at 35,000 feet, as I return to Vermont after a lecture trip to the Reno and Las Vegas offices of the Nevada Federal Defender. During my visit, I delivered two related computer forensics CLE lectures; the handout for each lecture can be viewed by clicking on the links below:
If you are planning CLE programs in the coming year and are interested in including either of these lectures, please contact me by email or cell phone (802-318-4604) to insure your preferred date is available. Each seminar can be tailored for a 1-3 hour timeslot. Feedback from the Nevada lectures is available upon request.
Computer Forensics Case Digests
Among the more interesting questions considered by the courts last month:
Is a warrant that fails to limit the scope of the government's search of seized electronic data fatally flawed?
What constitutes staleness with respect to the issuance of search warrants in child pornography investigations?
Do allegations of sexual molestation of a child provide probable cause for the issuance of a search warrant to search for child pornography?
To view the complete set of case summaries of substantive discussions from last month's decision, see the October 2010 Computer Forensics Case Digest.
U.S. v. Rosa, 09-0636-cr (2nd Cir. 10-27-2010) -- Following reports by two young children that they had been sexually abused by a neighbor and shown child pornography on a computer, New York law enforcement agents applied for a warrant to search the home of Defendant. The search warrant authorized the search of Defendant's premises for a wide range of electronic and computer equipment "which would tend to identify criminal conduct[.]" However, the warrant did not include any supporting information or detail the criminal conduct in question. The application for the search warrant was more detailed: it listed the crimes being investigated and included an affidavit from the lead investigator that detailed the allegations of the boys. Following execution of the warrant, a forensics examination of the seized computer equipment revealed hundreds of CP videos and thousands of images. Images of sexual abuse of the children by the Defendant were also discovered. After entering a conditional guilty plea to three counts of production of child pornography, Defendant appealed, arguing that the search warrant lacked particularity and therefore was an unconstitutional general warrant. The Court of Appeals agreed that the search warrant as issued was not sufficiently particular to permit a "tailored search of his electronic media." The Court underscored the fact that in the electronic age, the "particularity requirement" is increasingly important. The Court also agreed with Defendant that the U.S. Supreme Court has disallowed reliance on unincorporated and unattached material in determining the constiutionality of a search warrant. See Groh v. Ramirez, 540 U.S. 551 (2004). Notwithstanding the clear constitutional error, however, the Court of Appeals upheld the District Court's refusal to suppress the evidence. Relying on Leon, the Court concluded that the negligence in failing to more carefully draft the search warrant was "isolated" and that exclusion of the evidence was not necessary to deter deliberate police misconduct.
U.S. v. Merz, No. 09-3692 (3rd Cir. 10-12-2010) [Unpublished] -- Defendant was sentenced to life in prison after being convicted of advertising, possessing, receiving, and transporting child pornography. Defendant's conviction stemmed from an investigation of a message board called "Ranchi," which specialized in images and stories of child pornography. During the investigation, an FBI agent posted two files to the message board, along with text suggesting that the files contained child pornography. However, when people on the message board tried to download the files, their IP addresses were captured and transmitted to the FBI. Roughly 8 months later, one of the captured IP addresses was traced to Defendant's home, and he was arrested. A search of his home resulted in the seizure of a computer and 106 DVDs. The forensic exam of the computer revealed that Defendant was an administrator child pornography Web site called "My Kingdom Forum." The exam also revealed that Defendant had transmitted a sexually explicit video of a young girl to another user on the site. The Defendant appealed on a variety of grounds, including the argument that the information contained in the search warrant was stale. The Court rejected that argument, noting that it is common wisdom that child pornography collectors retain contraband for a long time, "as it is difficult to obtain." The Court also noted that similar length of time between investigation and the search warrant had been validated in United States v. Vosburgh, 602 F.3d 512 (3d Cir. 2010).
U.S. v. Hampton, CRIMINAL ACTION NO. 10-39-JBC (W.D.Ky. 10-22-2010) -- Defendant was identified as an individual possessing or distributing child pornography on three occasions between January, 2008 and March, 2009. A search warrant was executed at Defendant's home on January 27, 2010. Defendant moved to suppress the evidence seized, arguing that the evidence on which the warrant was based was stale. In reviewing a magistrate's recommendation to deny the motion, the District Court applied the four factor staleness test enunciated in United States v. Frechette, 583 F.3d 574 (6th Cir. 2009). 1) The character of the crime: possession and distribution of child pornography typically occurs over a long period of time; 2) The criminal: if a suspect has lived at the targeted location for a long time, that supports a finding that evidence will be kept there for months or years; 3) The thing to be seized: By their nature, digital images of child pornography can be stored indefinitely; and 4) The place to be searched: A person's home, particularly one in which they have resided for many years, constitutes a "secure operational base" that supports a finding of probable cause that child pornography will be found there, even a year after the original identification of defendant. The District Court conceded that the magistrate had not specifically applied Frechette, but had applied the substance of the elements. The recommendation to deny was adopted.
U.S. v. Houston, CR 10-40001 (S.D. 10-6-2010) -- Defendant moved to suppress evidence seized pursuant to two search warrants. The primary basis for the search warrants was evidence that Defendant had molested his niece. Defendant argued that such evidence could not provide probable cause for the presence of child pornography on his computer. The Court noted that the Eighth Circuit has held that for the purposes of probable cause, there is an "intuitive relationship" between acts of child molestation and probable cause. United States v. Colbert, 605 F.3d 573 (8th Cir. 2010). Relying on its intuition (as well as outright speculation that Defendant might have photographed his niece), the Court concluded that there is a sufficient nexus between molestation and child pornography to support a finding of probable cause. For good measure, the Court also tossed in the Leon good faith exception. Defendant's motion to suppress was denied.
Computer Forensics In the News
My Web site ComputerForensicsDigest.com contains links to a large number of news articles about computer forensics cases and technology. Click on the heading above to view the most recent entries in my database.
If you or your office are interested in CLE-certified training in this complex and rapidly-developing area, or if you need assistance with computer forensics issues in an on-going case, please contact me.
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Frederick S. Lane
Author, Attorney, Lecturer,
Computer Forensics Expert
For Assistance with Computer Forensics Issues In a Pending Case or To Schedule a CLE for Your Office Or Bar Association,
Please Call 802-318-4604
or fill out my Contact Form.
Upcoming Lectures:
December 1, 2010
"LimeWire Made Me Do It"
Federal Defender of California [C.D.], Los Angeles, CA
December 8, 2010
"LimeWire Made Me Do It -- And Other Digital Excuses"
Alabama Federal Defenders Program [M.D.], Montgomery, AL
February 11, 2011
"Jurisprudishness: Law and Visual Culture in the United States, 1842-1973"
College Art Association Annual Meeting, New York, NY
February 17, 2011
"The History of Privacy in America"
The Warren White Lecture, Drury University, Springfield, MO
March 3, 2011
"There's No Such Thing As Safe Sext"
Boston College, Newton, MA
April, 2011
"There's No Such Thing As Safe Sext"
National School Boards Assoc. Annual Conference, San Francisco, CA
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The Computer Forensics Digest is a publication of Mathom Enterprises and Frederick S. Lane, an author, attorney, educational consultant, expert witness, and lecturer who has appeared on "The Daily Show with Jon Stewart," CNN, NBC, ABC, CBS, the BBC, and MSNBC. He currently serves as chairman of the Burlington (VT) School Board. His fifth book, "American Privacy: The Four-Hundred-Year History of Our Most Contested Right," is now available from Beacon Press or the retailer of your choice. Visit http://bit.ly/37DI3D for additional information.
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