The National Attorneys General Training & Research Institute
Cybercrime Newsletter January 2019
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.
The Financial Industry Regulatory Authority (FINRA) released its 2019 Annual Risk Monitoring and Examination Priorities Letter, focusing on online securities distribution platforms and compliance with new rules and disclosure obligations. This is the first time the agency has put a spotlight on risk monitoring.
The Fourth Circuit ruled that politicians can’t ban unfavorable constituents from social media pages and accounts used for official purposes. Davison v. Randall. The editor thanks Assistant Chief Deputy Brian Kane of the Idaho Attorney General’s Office for bringing this case to our attention.
The National Institutes of Health (NIH) launched a bring-your-own-device project for participants of its All of Us research program which will enable them to share health information with researchers to broaden the program’s data collection efforts.
Twitter released its biannual transparency report, showing that it received 80 percent more legal demands globally, with 87 percent of that total global volume originating from Russia and Turkey. The 13th report includes a new section on data insights surrounding Twitter rules enforcement and covers the period January-June 2018.
The U.S. District Court for the District of Massachusetts sentenced Martin Gottesfeld to 10 years in prison after a jury found him guilty of conspiracy to damage protected computers related to cyberattacks he carried out on Boston Children’s Hospital and another facility.
The U.S. District Court for the District of Massachusetts also ruled that the Massachusetts wiretap law banning the secret recording of government officials is unconstitutional because the person being recorded is a public official or police officer performing their duties in public. Martin v. Gross.
The European Commission’s High-Level Expert Group on Artificial Intelligence released Draft Ethics guidelines for trustworthy AI. It breaks down the ethical purposes for the use of AI, with a final version expected to be published in March 2019.
Michigan enacted Act. No. 444, which provides for the operation and regulation of drones; creates the unmanned aircraft systems task force; and prohibits conduct related to the operation of drones.
The Ohio legislature passed HB 425, which would declare police body camera recordings not to be public records.
Recent State Cases of Interest
In People v. Pride, a California Court of Appeal ruled there was no Fourth Amendment violation when a detective portrayed himself as a friend to gain access to the defendant’s social media account and viewed and saved a copy of a video the defendant posted that was later admitted into evidence, because the defendant assumed the risk that one of his “friends” could save and share the information. AAG Julie Garland and DAGs Meredith White and Laura Baggett represented the People.
In Commonwealth v. Brennan, the Massachusetts Supreme Court found that the Commonwealth made the requisite showing of probable cause that the defendant committed three separate acts of intentional harassment when he placed a GPS on a husband’s car, then placed a GPS on the wife’s car and then tracked the movements of the devices.
In State v. Brown, the Nebraska Supreme Court upheld the district court’s denial of defendant’s motion to suppress, finding that by obtaining the cell site location information (CSLI) under the SCA, and without the benefit of the U.S. Supreme Court’s not-yet-issued decision in Carpenter, officers were merely following the statute, and this was not the type of police activity the exclusionary rule sought to deter. AAG Melissa Vincent represented the State.
In Blunkall v. State, a Tennessee Court of Criminal Appeals found that relief based on a claim of ineffective assistance of counsel was properly denied because counsel made a reasoned decision not to file any motions to suppress, and any alleged error did not affect the outcome where the inmate could not show that a motion to suppress text messages with the victim would have been granted because the records were lawfully obtained. Senior Counsel Leslie Price handled the appeal.
Recent Federal Cases of Interest
In U.S. v. Smith, the Second Circuit found that the defendant, who was convicted of six counts of possession of child pornography, pointed to no evidence of bad faith with respect to a police department’s failure to preserve a tablet’s settings at the time the tablet was seized.
In U.S. v. Goldstein, the Third Circuit ruled that the government violated the defendant’s Fourth Amendment rights when it acquired his cell site location information (CSLI); however, the government was acting under an objectively reasonable good faith belief that obtaining CSLI was constitutional at the time so the good faith exception to the exclusionary rule applied.
In U.S. v. Burton, the Fourth Circuit ruled that police officers did not violate the defendant’s Fourth Amendment rights when they seized the cell phones without a warrant because under the exigent circumstances exception, the police officers had probable cause at the completion of the initial interview to seize them for fear the defendant would destroy digital evidence if allowed to depart with the phones.
In U.S. v. Moorehead, the Sixth Circuit determined that even if a Network Investigative Technique warrant ran afoul of the Fourth Amendment, the good faith exception to the exclusionary rule applied to preclude suppression.
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.