Cybercrime Newsletter Nov - Dec 2016
The following is a compendium of news reports, case law and legislative actions over the latest bi-monthly period that may be of interest to our AG offices that are dealing with cyber-related issues. Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute expresses a view as to the accuracy of news accounts, nor as to the position expounded by the authors of the hyperlinked articles.
Cyberspace Law Developments
Recent Developments in Cyberspace Law
Survey: 2/3 of State Prosecutor Offices Working With BCW Evidence
Nearly two-thirds of state prosecutors’ offices are working with body-worn camera (BCW) evidence, according to a random sample survey conducted by the Center for Evidence-Based Crime Policy at George Mason University. The report also found that 92.8 percent of prosecutors’ offices with BWCs have used such evidence in court. The report, Body-Worn Cameras and the Courts: A National Survey of State Prosecutors, may be accessed at http://cebcp.org/wp-content/technology/BWCProsecutors.pdf.
7th Circuit: Police Justified in Using Cell-Site Simulators
A divided Seventh Circuit Court of Appeals affirmed, 2-1, Damian Patrick’s 57-month sentence handed down by the U.S. District Court for the Eastern District of Wisconsin, finding that Milwaukee police officers were justified in using cell-site simulators to pinpoint his location as a suspected parole violator. The case is U.S. v. Patrick, no. 15-2443 (7th Cir. Nov. 23, 2016).
NIST Finalizes Guidance for IoT Makers
The National Institute of Standards and Technology (NIST) released guidance for manufacturers of devices linked to the Internet (Internet of Things or IoT), urging them to incorporate strong security protections into their products. The NIST Special Publication 800-160 focuses on the engineering actions necessary to provide cybersecurity protections throughout the life cycle of the product.
Alaska Bar Opinion Bans “Web Bugs”
The Alaska Bar Association Ethics Committee issued Opinion 2016-1 finding it ethically impermissible for a lawyer to use a “web bug” or other tracking device to track the location and use of emails and documents sent to opposing counsel. The opinion provided examples of how web bugs interfere with the lawyer-client relationship and the preservation of client confidences. The opinion may be accessed at https://www.alaskabar.org/servlet/content/2016_1.html.
State Decisions on Cyber Issues
Glispie v. State, 2016 Ga. LEXIS 736 (Nov. 7, 2016)
The Georgia SupremeCourt affirmed in part the lower court’s judgment, finding that given Jaylend Glispie’s possession of drugs, cash, cell phones and a razor blade with white residue, it was reasonable for the magistrate to infer that the cell phones were used for drug deals, so there was a legally sufficient basis for issuance of a search warrant for the phones in Glispie’s possession.
State v. Gornall, 2016 Ohio App. LEXIS 4466 (Nov. 2, 2016)
The Ohio Court of Appeals affirmed the lower court’s denial of Elliott Gornall’s motion to suppress the evidence because the warrant set forth what the officers believed would be found on the computer with as much specificity as possible, and the record did not support a conclusion that they possessed any more specificity as to the location of computer files concerning Gornall’s drug activity.
DeGeorgia v State, 2016 Ga. App. LEXIS 571 (Oct. 20, 2016)
The Georgia Court of Appeals affirmed the trial court’s denial of David DeGeorgia’s motion to suppress the electronic images on the computer, as law enforcement’s viewing of the hard drive was guided by DeGeorgio’s wife in order to view the files she had already seen, and the officer’s viewing provided probable cause for a search warrant for the remaining computer equipment.
Moats v. State, 2016 Md. App. LEXIS 148 (Oct. 25, 2016)
The Maryland Court of Appeals affirmed the lower court’s judgment, ruling that the police acted in accordance with the Fourth Amendment by seizing Timothy Moats’ cell phone incident to arrest and then obtaining a warrant before searching the phone’s contents.
State v. Novick, 2016 Wash. App. LEXIS 2569 (Oct. 25, 2016)
The Washington Court of Appeals affirmed David Novick’s conviction, finding the State presented sufficient evidence that he sent commands from the control panel to intentionally record his girlfriend’s private communications, thus committing the computer trespass.
State v. Hidey, 2016 Ohio App. LEXIS 4088 (Oct. 3, 2016)
An Ohio Court of Appeals reversed the lower court’s ruling, finding the seizure of Kody Hidey’s cell phone at a police interview did not violate the Fourth Amendment, as the detective had probable cause to believe it contained evidence of an armed robbery; its warrantless seizure was demanded by the exigencies of the situation because Hidey knew from the interview that police suspected his phone had been used to relay information about a crime, and the detective had reason to believe he would destroy or discard it or delete the information on it.
State v. Shaskus, 2016 Ohio App. LEXIS 4815 (Nov. 29, 2016)
An Ohio Court of Appeals reversed the trial court’s ruling, finding it erred in granting James Shaskus’ motion to suppress evidence from the search of his email account because the search was not overbroad or insufficiently particular. The court found that although the warrant authorized the search of “any and all” emails, it was reasonable to conclude that emails predating the exchanges between a person answering an ad for a trade of minors for sex and the person who placed the ad might have contained evidence about the solicitation of a minor.
Cybercrime Initiatives in the Attorney General Community
Alabama Attorney General Luther Strange held a training session on the investigative process for local law enforcement in Talladega County which included sessions on collection of digital evidence.
Arizona Attorney General Mark Brnovich announced that Jesse Ryan was sentenced to 100 years in prison after being found guilty of 10 counts of possession of child pornography. Ryan was prosecuted by Assistant Attorney Generals Jared Kramer and Jordan Emerson.
Arkansas Attorney General Leslie Rutledge announced that Ronald Antoniello was sentenced to 100 years in prison and a $300,000 fine after being found guilty of 30 counts related to child pornography.
Hawaii Attorney General Doug Chin announced that Donovan Soto was indicted on two counts of possession and distribution of child pornography pursuant to an investigation by the Hawaii ICAC Task Force in conjunction with Homeland Security Investigations.
Idaho Attorney General Lawrence Wasden’s ICAC Task Force investigators arrested John Mitchell on charges of possession of child pornography.
Kentucky Attorney General Andy Beshear’s Cyber Crimes Unit arrested five men on child pornography charges pursuant to its Operation Shielded Child initiative.
Louisiana Attorney General Jeff Landry’s Cyber Crime Unit arrested two men on online child exploitation charges pursuant to a multi-agency investigation.
Massachusetts Attorney General Maura Healey announced that Andrew Roderick was arrested by State Police assigned to her office for possession of child pornography. Roderick is being prosecuted by Assistant Attorney General Allyson Portnoy.
Mississippi Attorney General Jim Hood announced that Thomas Gardner was sentenced to 20 years in prison, with 17 years suspended, followed by five years of post-release supervision and $2100 in fines, and must register as a sex offender upon release, after pleading guilty to one count of online child exploitation. Gardner was prosecuted by Special Assistant Attorney General Brandon Ogburn.
New Jersey Attorney General Christopher Porrino announced that Rafael Andreu was sentenced for four years in prison, including 20 months of parole ineligibility, after pleading guilty to distribution of child pornography. Andreu was prosecuted by Deputy Attorney General Lilianne Daniel.
New York Attorney General Eric Schneiderman announced a settlement with medical emergency care service MedRite Care, LLC, d/b/a MedRite Urgent Care, for paying for positive reviews on consumer review websites, without requiring any experience with its services and without disclosing the payments, in violation of consumer protections laws against misrepresentation. MedRite will pay $100,000, $50,000 of which is suspended pursuant to compliance, and is prohibited from paying reviewers without required disclosures.
Vermont Attorney General Bill Sorrell announced a settlement with websites Donatic and Givalike and their principal Benjamin Katz over claims they were bilking consumers who donated to charities through online obituaries. The companies and principal will pay the State $15,000 in penalties.
Hedda Litwin is the Editor of the Cybercrime Newsletter and may be reached at 202-326-6022. The Cybercrime Newsletter is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material. For content submissions or to contact the editor directly, please e-mail firstname.lastname@example.org.