Cybercrime Newsletter Sept - Oct 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

Mass. High Court Restricts Seizures of Cell Phones

The Massachusetts Supreme Court affirmed a lower court’s granting of Onyx White’s motion to suppress, ruling that police cannot seize or search a suspect’s cell phone based on an inference that if more than one person was involved with the suspect in committing the crime, his cell phone would likely have been used in the crime. The court found that police must have “particularized evidence” for the search or seizure. The case is Commonwealth v. White, no. SJC-11917 (Mass. Sept. 28, 2016).

Machine Intelligence the Highlight of Hype Cycle Report

Technology research firm Gartner released its 2016 Hype Cycle Report on emerging technologies, predicting the rise of machine intelligence in all applications over the next 10 years. The benefits of what Gartner defines as “radical computational power, near-endless amounts of data and unprecedented advances in neural networks” will probably not be realized for at least five years, according to Gartner. The report may be accessed at http://www.gartner.com/technology/research/hype-cycles/.

Ninth Circuit Tosses FTC Suit Against AT&T for Slow Internet Access

A three-judge panel of the Ninth Circuit Court of Appeals reversed the U.S. District Court for the Northern District of California’s denial of AT&T Mobility LLC’s motion to dismiss a suit brought by the Federal Trade Commission (FTC) under the FTC Act alleging AT&T failed to properly inform its unlimited data customers of its program to reduce Internet speeds for those going above a specific data threshold. The appeals court ruled that AT&T was a common carrier exempted under the Act. The case is FTC v. AT&T Mobility LLC, no. 15-16585 (9th Cir. Aug. 30, 2016).

Claim in Match.com Suit for “Match” With Murderer Left Intact

A three-judge panel of the Ninth Circuit Court of Appeals affirmed the U.S. District Court for the District of Nevada’s dismissal of all but one of the claims in Mary Beckman’s suit against Match.com for connecting her with a man with pending murder charges who attacked her. The court ruled that the Communications Decency Act does not shield companies from failure-to-warn claims. The case is Beckman v. Match.com, no. 13-16324 (9th Cir. Sept. 1, 2016).

UNT to Host Cell Phone Security Lab

The University of North Texas (UNT) Criminal Justice Department announced it will open a cell phone cybersecurity laboratory at its Frisco campus to assist police departments and federal agencies in their investigations by analyzing cell phone data from devices used in criminal activities. The new lab will also allow students to gain experience with law enforcement and the justice system as well as provide training in more advanced technology.

“Sunshine” Restrictions Off on FCC Set-Top Box Plan

The Federal Communications Commission (FCC) lifted its “sunshine” restrictions on public comment so that outside groups could comment on its set-top box plan over calls for more transparency. The plan would require pay-TV providers such as DirectTV and Comcast to create streaming apps to provide their content to third-party devices, obviating the need to rent a sex-top box.

Sprint to Settle Illinois Uncashed Rebate Litigation

Sprint has agreed to pay $2.5 million to reimburse 30,000 consumers in Illinois who never cashed checks from a complicated rebate promotion. The lawsuit was filed by the Illinois State Treasurer’’s Office, which will identify the affected customers to be paid. The case is People of the State of Illinois ex rel. Michael Frenchs v. Sprint Spectrum LP, no. 2016-CH-1864 (Ill. Cir. Ct. Aug. 22, 2016)

State Decisions on Cyber Issues

Expectation of Privacy in CSLI

Zanders v. State, 2016 Ind. App. LEXIS 282 (Aug. 4, 2016)

The Indiana Court of Appeals reversed a lower court judgment, ruling that the warrantless search of Marcus Zanders’ cell phone’s historical location data violated the Fourth Amendment because Zanders had a reasonable expectation of privacy in the cell-site location data stored by the provider.

Ed. Note: Deputy Attorney General Tyler Banks of the Indiana Attorney General’s Office represented the State.

State v. Jenkins, 294 Neb. 684 (Sept. 9, 2016)

The Nebraska Supreme Court affirmed a lower court judgment, ruling that Erica Jenkins did not have a reasonable expectation of privacy in the historical cell site data maintained by her cellular service provider because the data was routinely collected by the provider for all subscribers and enabled only general conclusions to be drawn regarding the caller’s location. The court further found the data was not collected by the government, did not involve a physical intrusion on private property and did not enable real-time tracking or permit prosecutors to place Jenkins at a precise location or any point in time.

Ed. Note: Assistant Attorney General Stacy Foust of the Nebraska Attorney General’s Office represented the State.

Probable Cause to Search Cell Phone

Walker v. State, 2016 Tex. App. LEXIS 8398 (Aug. 4, 2016).

A Texas court of appeals affirmed a lower court’s judgment, finding the search warrant contained sufficient facts from which the trial court could find probable cause that Jamon Walker committed capital murder. The court further found there was a fair probability that evidence of a capital murder would be found in the contents of a cell phone belonging to Walker who had confessed to shooting the victim and who exchanged numerous text messages and phone calls with the victim around the time of the shooting.

Commonwealth v. Hernandez, 2016 Mass. LEXIS 608 (Aug. 19, 2016).

The Massachusetts Supreme Court reversed and vacated the lower court’s order, ruling that the Commonwealth’s application for an anticipatory search warrant had merit with respect to its request for possession of Aaron Hernandez’ cell phone, which he gave to his attorney in order to obtain legal advice, because there was probable cause to believe that absent the issuance of the warrant, the phone would be secreted from view. The court further found that issuance of the warrant was proper because there was no claim that the phone was privileged; the court found probable cause to believe that the phone contained evidence of crimes under investigation; the attorney had no legitimate purpose to retain the phone once the contents were downloaded; and the attorney’s continued retention of it meant that it was being “secreted.”

State v. Friddle, 281 Ore. App. 130 (Sept. 14, 2016).

The Oregon Court of Appeals reversed the lower court decision and remanded, finding that the warrant application established probable cause to examine the contents of only a single cell phone and the home security system, and it did not substantiate probable cause that recordings of an alleged assault would be found by way of forensic examination of other devices included in the warrant.

Ed. Note: Solicitor General Anna Joyce and Assistant Attorney General Susan Howe of the Oregon Department of Justice represented the State on the brief.

Commonwealth v. White, 475 Mass. 583 (Sept. 28, 2016).

The Supreme Court of Massachusetts affirmed the order allowing Onyx White’s motion to suppress, finding that as detectives lacked any information establishing the existence of evidence likely to be found on White’s cell phone, they lacked the nexus required for probable cause to seize that device, and lacking probable cause, the seizure was improper. Further, the court found that the Commonwealth had not met its burden of demonstrating that a delay of 68 days between the seizure and the application for a search warrant was reasonable, and even if it were, the evidence recovered from the phone would still require suppression as the fruit of an unlawful seizure.

GPS Monitoring of Sex Offenders

Doe v. Coupe, 2016 Del. Ch. LEXIS 122 (Aug. 12, 2016).

A Delaware chancery court granted defendant’s motion for summary judgment, ruling that Delaware’s statute, which mandated GPS monitoring of all Tier III sex offenders granted parole or probation without reference to their individual risks of recidivism, did not violate the Fourth Amendment, as plaintiffs did not have a legitimate privacy interest that sufficed to shield them from GPS monitoring, and the incremental infringement on plaintiffs’ privacy imposed by the GPS monitoring requirement was not unduly burdensome.

Request for State to Obtain Evidence

State v. Lewandowski, 2016 N.H. Lexis 187 (Aug. 23, 2016).

The New Hampshire Supreme Court vacated the lower court’s order, ruling that it erred in granting Michael Lewandowski’s proposed order requiring the State to obtain, preserve and produce his cell phone and social media communications and cell phone service provider records because the State did not possess them and the court could not compel the State to obtain evidence for Lewandowski.

Ed. Note: Assistant Attorney General Sean Locke of the New Hampshire Department of Justice represented the State on the brief and argument.

Photos of Stolen Items on Facebook

Bryant v. State, 2016 Tex. App. LEXIS 10015 (Sept. 8, 2016).

A Texas appeals court affirmed a lower court judgment, finding the direct and circumstantial evidence admitted during Deandre Bryant’s bench trial was legally sufficient to support his conviction for aggravated robbery and included, among other evidence, that police found photos of items stolen from the victim on both Bryant’s and his co-defendant’s Facebook pages.

Access to File-Sharing of Child Pornography

Smith v. State, 2016 Fla. LEXIS 1995 (Sept. 6, 2016).

The Florida Supreme Court, in a case in which Duncan Smith pleaded guilty to 20 counts of transmitting child pornography to an undercover officer via the Internet, approved the district court decision, holding that the use of a file-sharing program, where the originator affirmatively grants the receiver access to child pornography placed by the originator in files accessible through the file-sharing program, constitutes the transmission of child pornography.

Federal Decisions on Cyber Issues

Expectation of Privacy in IP Address

U.S. v. Caira, 2016 U.S. App. LEXIS 15098 (7th Cir. Aug. 17, 2016).

The Seventh Circuit Court of Appeals affirmed the judgment of the U.S. District Court for the Northern District of Illinois denying Frank Caira’s motion to suppress, ruling that the DEA did not commit a Fourth Amendment search when it subpoenaed Caira’s IP address because he voluntarily shared that information with a third party and had no reasonable expectation of privacy in it.

Mandate for GPS Installation in Taxis

El-Nahal v. Lassky, 2016 U.S. App. LEXIS 15767 (2nd Cir. Aug. 26, 2016).

The Second Circuit Court of Appeals affirmed the summary judgment granted by the U.S. District Court for the Southern District of New York, ruling that even if the agency-mandated installation and use of the Taxicab Technology System devices in New York City taxicabs may have constituted a search as to those with a sufficient property interest in a taxi, Hassan El-Nahal failed to make a sufficient showing of his property-based Fourth Amendment claim.

Authority Over Computer

U.S. v. Wright, 2016 U.S. App. LEXIS 17429 (7th Cir. Sept. 23, 2016).

The Seventh Circuit Court of Appeals affirmed the judgment of the U.S. District Court for the Central District of Illinois, finding that Talon Wright’s partner exercised common authority over the desktop computer because although Wright owned it, the partner was a joint user who enjoyed virtually unlimited access to and control over it. The court found the partner had authority, even assuming it was password-protected, because while the partner did not know the password, her children did, which strongly suggested that Wright made no attempt to keep it from her.

Double Jeopardy

U.S. v. Zavesky, 2016 U.S. App. LEXIS 18033 (8th Cir..Oct. 5, 2016).

The Eighth Circuit Court of Appeals affirmed the judgment of the U.S. District Court for the Southern District of Iowa, ruling that Thomas Zaresky’s convictions for receipt and possession of child pornography did not violate double jeopardy because different dates and different visual depictions were involved.

State Legislative Update

The Michigan Senate passed SB 995, a bill that would allow companies developing self-driving technology to operate their vehicles without the presence of a test driver. The bill would also address circumstances that a manufacturer of automated technology must ensure exist for testing of the vehicle. The bill has been forwarded to the House Committee on Communications and Technology.

Cybercrime Initiatives in the Attorney General Community

Twenty-one States have petitioned the U.S. Supreme Court to hear the appeal of a case against Backpage.com on accusations the site facilitates child sex trafficking.

Alabama Attorney General Luther Strange held the fourth in a series of training sessions for local law enforcement which included the latest practices in collecting digital evidence.

Arkansas Attorney General Leslie Rutledge announced that Michael Cox was sentenced to 12 years on child exploitation charges.

California Attorney General Kamala Harris arrested Carl Ferrer, CEO of online advertising website Backpage.com, on felony charges of pimping a minor, pimping and conspiracy to commit pimping.

Delaware Attorney General Matthew Denn’s Child Predator Task Force arrested Robert Vasecka, who was then an officer with the New Castle County Division of Police, on possession of child pornography.

Florida Attorney General Pam Bondi announced that her motion to preliminarily enjoin scam tech support company E-Racer Tech, LLC and its owner, James Veser, from doing business and freezing the company’s assets was granted.

Idaho Attorney General Lawrence Wasden’s Internet Crimes Against Children unit investigators arrested Bogdan Lyashchuk on five counts of child exploitation.

Illinois Attorney General Lisa Madigan announced that Robert Rossi was sentenced to 12 years in prison for possession and reproduction of child pornography.

Louisiana Attorney General Jeff Landry announced that Jeffrey Payne was arrested on 100 counts of possession of child pornography following a joint-agency investigation.

Michigan Attorney General Bill Schuette announced that John Cafarelli pled guilty to 10 counts of possession of child pornography, four-year felonies.

Minnesota Attorney General Lori Swanson’s Office settled a lawsuit against CashCall, Inc., a California-based Internet lender, which provides $11.7 million in financial relief to borrowers and bans the company from doing business in the State unless it complies with State laws.

Mississippi Attorney General Jim Hood announced that Eric Smith was sentenced to 40 years in prison, with 33 years suspended, followed by five years of post-release supervision, after pleading guilty to one count of child exploitation. Special Assistant Attorney General Brandon Ogburn of the Cyber Crime Unit prosecuted the case.

New Jersey Attorney General Christopher Porrino announced that Steven Anan was sentenced to four years in state prison after pleading guilty to second-degree distribution of child pornography, with Deputy Attorney General Marie McGovern taking the plea and handling the sentencing for the Division of Criminal Justice.

New York Attorney General Eric Schneiderman’s Office reached separate settlements of six million dollars each with fantasy sports sites DraftKings and FanDuel, resolving lawsuits alleging false and deceptive advertising practices.

Oregon Attorney General Ellen Rosenblum announced a global settlement, valued at more than $100 million, of litigation between the State and Oracle which includes cash payments to the State as well as a six-year Unlimited License Agreement for products and services.

South Dakota Attorney General Marty Jackley announced that Levi Drussell was arrested for Attempted Enticement of a Minor Using the Internet and Attempted Transfer of Obscene Material as a result of a multi-agency sex trafficking investigation.

Texas Attorney General Ken Paxton’s Fugitive Apprehension Unit assisted in the arrest of 25 suspected child predators following a joint sting operation targeting adults who used the Internet and social media to solicit minors.

Vermont Attorney General William Sorrell announced that Jose Agorrea was arraigned on one felony count and five misdemeanor counts of possession of child pornography and faces a maximum sentence of five years.

Virginia Attorney General Mark Herring announced that Edward Tillman was sentenced to 20 years in prison, with 15 years suspended, for possession of child pornography.

Wisconsin Attorney General Brad Schimel’s special agents arrested Steven Hughes on three counts of possession of child pornography during a multi-agency undercover investigation.


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 hlitwin@naag.org.

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