Search incident to arrest

As you probably know, the Fourth Amendment requires that police get a warrant to conduct a search (intrusion on privacy) and/or a seizure (intrusion on possession of property) . . . unless an exception to the warrant requirement applies.

One of those exceptions is called “search incident to arrest,” and it means just what it says: An officer who effects a full custodial arrest (i.e., you’re going to the lockup) can conduct a search incident to that arrest automatically . . . without obtaining a search warrant.

For reasons I'll go over in a minute, the Supreme Court has held that an arrest justifies a search, so an officer can automatically conduct a search incident to arrest (or “search incident,” as it is usually known).

The issue then becomes the scope of the search: How much can the officer legitimately search under this exception? The answer to that derives from the justification for this exception. The Supreme Court has explained that the rationale for search incident is based on (i) the need to protect the officer by locating and seizing any weapons the person has and (ii) the need to preserve evidence from destruction by locating and seizing any evidence of a crime the person has. United States v. Robinson, 414 U.S. 218 (1973). An officer can, therefore, search the arrestee’s person (a basic search, strip and bodily cavity searches require additional justification) and “containers” the person has with him or her under this exception.

I keep looking, but so far have only found one case that even touches on whether the search incident exception applies to a search of the data on a laptop. Unfortunately, that case just blew the issue off without really deciding anything.

There are, though, a couple of recent federal district court cases that deal with a similar issue: the scope of the search incident exception as applied to cell phones.

In United States v. Mercado-Nava, 2007 WL 1098203 (District of Kansas 2007), a Kansas state Trooper arrested a truck driver after the Trooper’s drug dog alerted to the cab of the truck. The Trooper found a cell phone on the arrestee and downloaded its entire memory at that time (according to the opinion, which is important – a search incident has to be contemporaneous with the arrest or it’s invalid).

Mercado-Nava seems to have argued that, basically, the officer went too far in seizing this data from his cell phone. That would be a challenge to the scope of the search; I get the sense this defendant conceded that the officer could seize the cell phone as part of search incident, but claimed the exception did not justify searching through the data it contained.

The Kansas district court relied on a recent case from the Fifth Circuit Court of Appeals, United States v. Finley, 477 F.3d 250 (5th Cir. 2007), in which that court held that an officer acted properly in searching through the phone’s call records and text messages. The Fifth Circuit rejected Finley’s argument that the cell phone was a “closed container” and that, therefore, police had to get a search warrant to go through the data it contained.

The Kansas district court reached the same conclusion, upholding the search of Mercado-Nava’s cell phone under the search-to-prevent-evidence-from-being-destroyed prong of the search incident exception. As this court said, “[t]he need to preserve evidence is underscored where evidence may be lost due to the dynamic nature of the information stored on . . . cell phones”. United States v. Mercado-Nava, supra. So, under these decisions, the data on a cell phone is encompassed by the search incident exception and is fair game when someone is arrested.

A California federal district court very recently reached a different result in United States v. Park, 2007 WL 1521573 (Northern District of California 2007). Officers executing a search warrant at an address in San Francisco arrested Park, who had been inside the premises that were searched (and in which the officers found an indoor marijuana-growing operation).

The arrest seems to have been perfectly valid. The issue here, as in the Mercado-Nava case, whether the search incident exception justified a search of the contents of Park’s cell phone. After the arrest, an officer searched his cell phone’s memory and noted “the names and telephone numbers of individuals whose information appeared in Park’s phone.” United States v. Park, supra. (Officers also searched the memory of cell phones seized from others arrested in this incident.)

Park moved to suppress information obtained from his cell phone, arguing, again, that the search simply went “too far.” The prosecution, on the other hand, argued basically that the search incident exception justifies the search of any and all data contained on an item lawfully seized from an arrestee:

[T]he government asserted that, although the officers here limited their searches to the phones' address books, the officers could have searched any information-such as emails or messages-stored in the cell phones. In addition, in recognition of the fact that the line between cell phones and personal computers has grown increasingly blurry, the government also asserted that officers could lawfully seize and search an arrestee's laptop computer as a warrantless search incident to arrest.

United States v. Park, supra. So, while this case didn’t involve a laptop search, the government’s position is that if a laptop had been seized from Park when he was arrested, officers could have searched its entire contents, as well . . . with no warrant, but pursuant to the search incident exception.

The district court disagreed:

The searches at issue here go far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence. . . . Inspector Martinovich stated that he initiated the searches because `evidence of marijuana trafficking and/or cultivation might be found in . . . the cellular telephones.’. . . Officers did not search the phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence. Instead, the purpose was purely investigatory. Once the officers lawfully seized defendants' cellular phones, officers could have sought a warrant to search the contents of the cellular phones.

United States v. Park, supra. The court therefore granted Park’s motion to suppress.

The Park court did what a few other courts have done so far: In reaching its conclusion it relied on the amount and complexity of information that can be stored on cell phones (and on laptops).

I think this is a good distinction, but other courts have not really gone along with it. The problem, here, is figuring out how and why the amount and complexity of the information at issue matters in terms of applying the search incident exception. If the exception lets an officer look into a bag the arrestee has with him (as it does), then why doesn’t it also let an officer search the memory of a cell phone (or the hard drive of a laptop) the person has with them?

Suicide

Maybe you saw the recent stories about the British police’s deciding not to pursue criminal charges against people who were in a chatroom with Kevin Whitrick when he committed suicide.

Maybe you also saw the earlier stories, the ones that came out in March just after Whitrick killed himself.

Those stories said the British police were looking into whether people in the chatroom could be charged, on the premise that they encouraged Whitrick to kill himself. . . . after he hanged himself before a live webcam.

At the time, he was logged into an “insult” chatroom where people “`have a go at each other.’” Reports were that after Whitrick tied a rope thrown over a ceiling joist around his neck and stood on a chair, apparently having announced his intention to kill himself, some people were posting comments such as “`”F***ing do it, get on with it, get it round your neck. For F***'s sake he can't even do this properly'”.’" It seems, though, that at least some of the people who were observing all this did not realize he was really serious, because news reports also say they were horrified when he actually hanged himself.

I’m perfectly willing to believe that, however incredible it seems given that the man was standing on a chair with a rope around his neck, these people didn’t realize he was really serious about committing suicide. I’m also willing to believe that they never intended to encourage him to do so.

But I don’t want to write about whether the people in that chatroom last March knew they were, at least in principle, encouraging someone to commit suicide. I want to talk about whether ANY type of online conduct could expose someone to criminal liability for another’s suicide.

Let’s start with what some claimed happened in the Whitrick case: people in a chatroom with the person (John Doe) who has announced he’s going to kill himself who encourage him to go ahead and do it. Let’s assume we have chat logs and all kinds of evidence that makes it clear at least some of the people in the chatroom deliberately encouraged Doe to kill himself . . . and he did.

Okay, the prosecution can prove beyond any reasonable doubt that these people encouraged Doe to commit suicide. So what?

In the U.S., anyway, there are only two suicide-related crimes: causing someone to commit suicide and assisting someone with committing suicide. Let’s see if either could apply to the Doe case.

The American Law Institute’s Model Penal Code (which, as I’ve mentioned, has been a very influential template for criminal law in the U.S.) has a provision which says that “[a] person may be convicted of criminal homicide for causing another to commit suicide only if he purposely causes such suicide by force, duress or deception.” Model Penal Code section 210.5(1). The drafters of the MPC added this provision because they said causing someone to commit suicide would be a “pretty clever way” to commit murder, and so it would.

Let’s assume, then, that one of the people in the chatroom (X) when Doe killed himself was having an affair with Doe’s wife and wanted Doe out of the picture. So X wants to cause Doe to commit suicide, and consequently does everything he can to encourage him to do so. Could we prosecute X for “causing” Doe’s suicide?

Probably not. First, he didn’t use force – he didn’t put a gun to Doe’s head and say “kill yourself”. I know that sounds idiotic, but there aren’t any real “causing” suicide cases.

The reason they put “force” in there is that about 80 years ago in Indiana, a really nasty fellow, who was quite powerful in the state, politically, kidnapped a woman, took her on a train to Chicago and told her he wanted to marry her. Problem is that he was drunk out of his mind during the train ride and, in attempting to rape her, bruised, bit and seriously mutilated her, so much so she had trouble walking when they got to Chicago.

While she was being kept prisoner in a hotel there, she was allowed to go to a drugstore, under the supervision of one of the jerk’s henchmen, to buy some makeup. She bought poison (yes, it was easy to do that eighty years ago) and took it, intending to kill herself because of what he was doing and had done to her (the pain was apparently terrible). She took too much poison, which made her throw much of it up, so it didn’t kill her immediately. She died several months later, having been taken home after he found out what she’d tried to do, apparently of infection caused by the bites he had inflicted (this was before antibiotics were available) combined with the damage to her liver caused by the poison.

The drafters of the MPC were thinking of this kind of the use of force in their causing suicide provision but, since we don’t have that in my hypothetical, this isn’t an option for going after X. (The fellow who did all this to Madge, the woman I just talked about? He was prosecuted for murder and convicted, spent about 40 years in prison. And no, he really should not have been convicted of murder, since there was no evidence he ever intended to kill her, but the citizens of Indiana were too outraged to care much.)

Duress won’t work because X didn’t point a gun at Doe’s son, Fred, and say, “kill yourself or Fred’s a goner.” Deception probably won’t work either because X was perfectly straightforward in encouraging Doe to kill himself. He may not have identified himself, and his motives, but there was not the kind of deception the drafters of the MPC were going at here. X didn’t tell Doe he had an incurable, godawfully painful disease that would kill him but only after prolonged, excruciating suffering, for example.

But the biggest problem, the probably insurmountable problem, is: How can you say X “caused” Doe to kill himself? The decision to take one’s life is always ultimately up to that person. I can see where force and duress, even deception, can alter circumstances so that while the ultimate decision is up to the person who kills himself, we can justifiably say the perpetrator’s conduct overrode their free will. In my hypothetical (as in the British case and the few similar online suicide cases I’m aware of), we just do not have enough to say that anyone in the chatroom caused Doe’s suicide.

What about assisting suicide? Suicide is not a crime in the U.S. It used to be (just as it used to be in Britain where, centuries ago, they buried suicides at a crossroads with a stake through their hear), but lawmakers finally figured out that criminalizing it just makes no sense at all. If someone succeeds, there’s no one to prosecute; if they fail, you can prosecute them for attempting suicide (and that used to be done), but that’s really a terrible way to approach the problem.

So suicide is not a crime, which means it’s not a crime to assist (aid and abet) suicide, in the traditional sense. The Model Penal Code, though, has another provision – one that has been adopted by most, if not all, states – which makes it a crime to “purposely aid or solicit another to commit suicide” as long as the person’s conduct “causes such suicide.” Model Penal Code 210.5(2).

I don’t see any basis for arguing that, based on the conduct I outlined in our hypothetical, X “solicited” Doe to commit suicide. That implies X planted the idea in Doe’s head, and he clearly did not.

Could we say that encouraging Doe to kill himself qualifies as “purposely aiding” his suicide? Well, in regular criminal law one can be held liable for a crime if he encourages someone else to commit it. There are cases in which Jones is pointing a gun at Smith and Roe helpfully shouts, “shoot him” . . . and Jones does. Roe can be prosecuted for aiding and abetting (encouraging) the attack on Smith (assault or homicide, depending on the outcome).

So, we can probably say our hypothetical X did, in fact, assist Doe in his suicide by encouraging Doe to kill himself . . . but we come back to the same problem I noted above: How could the prosecution ever prove that X’s comments CAUSED Doe to kill himself?

"Murder"

I’ve been writing lately about various issues involving different kinds of online mayhem, so I decided to look at what is presumably the worst possible online crime – murder. I think we would all agree that in the real-world deliberately taking another person’s life is the worst crime possible . . . absent certain mitigating circumstances.

It is not murder for a solder to take another person’s life. Taking life in the course of combat is the soldier'sduty; it’s not considered murder because he or she is acting out of a type of necessity. The life is taken as part of a struggle between two countries and their respective sovereign needs to prevail in the conflict is seen as necessitating – and justifying – the killing inflicted by the members of their respective militaries.

It is not murder to take another’s life to save your own (self-defense) or to save another’s life (defense of others). It is not murder to take one life in order to save two or more lives (necessity, what we might call civil necessity because it applies to civilians).

It is murder to kill someone simply because you want to . . . because you dislike them, because their existence is inconvenient for you, because you want to see what the experience is like or because you’ve done this before and have gotten hooked on the experience of extinguishing life. That’s all true in the real world, where lives really end when someone is murdered.

What about online? What about virtual murder? By virtual murder I mean “killing” that occurs online in a virtual environment . . . not the (so-far-theoretical) use of computer technology to take someone’s life in the real, physical world. That would simply be murder, no discussion, no controversy, no ambiguity – homicide by another means.

I’ve not made a serious empirical study of this, but I gather that so far virtual murders can occur in at least two ways online. One is player killing in online games; the other is avatar murder in online environments like Second Life.

I’m not a gamer, and while I know something about World of Warcraft, I make no pretense to understanding its rules or the etiquette of online combat. From what I’ve read and heard, though, I gather that nonconsensual player killing (killing outside, say, of duels) can and does occur, but seems to be considered bad form. That is, it happens, but players who engage in killing repeatedly may find themselves being shunned.

If that’s true, I find it interesting, for several reasons. One reason is that it seems to import the norms we follow in the external world into this virtual environment. The norms are not enforced as stringently as in the “outside” world – there seems to be no process for bringing virtual charges of homicide, having a virtual trial and then virtually executing those who are convicted of virtual murder. And I’m most definitely not arguing for that. Seems to me the whole point of participating in online environments is to leave behind the structures and strictures of the real-world.

I merely find it interesting that a version of the external norm that sees homicide as unacceptable migrates into online environments where homicide is usually not forever. That is, a character who is murdered can be resuscitated, except in extraordinary circumstances, so what really happens is not the extinction of a virtual life but the interruption of that virtual life. I can understand why even the interruption would be traumatic. A few years ago, I was playing an online game, did something stupid, realized I was going to die in the game and found myself frantically pounding on the keyboard in an effort to stop it (and I might even have been repeating something like “No!” or “Wait!” while I was pounding) . . . but I failed and I died and it was a really weird experience. I came back, of course, did things right the next time and didn’t die.

Online games that involve any level of potentially lethal combat are one context, one in which, I would argue, there is at least some assumption of the risk of virtual homicide. That is, even though there are apparently norms in play in some games, anyway, that discourage player killing, it happens. And I gather it can be a perfectly routine part of certain game structures, such as combat scenarios.

As far as I’m concerned, the more intriguing context for analyzing virtual murder is online worlds like Second Life – places that de-emphasize, or compartmentalize, mayhem and functionally tend to simulate real-life. I haven’t been able to track down any instance of “real” murder in Second Life – just an account of a pseudo-murder that seems to have a social event. The Second Life Insider has a really good post on “avatar murder” which, while it doesn’t describe any actual avatar murders, raises some good questions about avatar murder as entertainment:

If two consenting adults role play the killing of one another, few people care. There was no actual crime, there are no actual victims, few people believe the role-play will escalate into a real killing nor will it encourage or entice others to kill. Most importantly, witnessing one avatar murdering another does not seem to be widely offensive.

Here, we have consensual murder, something that rarely happens in the real-world and is still a crime when it does happen. Just ask the German cannibal who claimed he had “full consent” from the man he killed; consent is not a defense to murder in the real-world because, as I’ve said before, a crime is an offense against the state. The state does not care if the victim consented to being killed because (i) the killer’s conduct violated the state’s rules of conduct and (ii) it shows he is dangerous, i.e, has the potential to do this again.

Online, though, why should anyone care if people play at murder? It may seem a weird way to amuse yourselves, but remember that fantasized homicide is a dominant theme in our entertainments, in movies, books, television, etc. It always has been. We find the ultimate crime fascinating, so it will not be surprising if people start to play at it in places like Second Life, places where killing is impermanent and therefore not entirely socially unacceptable. If murder enclaves crop up in Second Life, they might occupy a status analogous to red-light districts, you know, places you go to for the kind of activity you don’t want to publicly acknowledge engaging in. (“Hi, I’m a lawyer in real-life, serial killer online.” . . .)

Would the law care if virtual murder became an avocation in online environments like Second Life? I can’t see why it would. As the post quoted above notes, no one is really killed so no real “harm” occurs; and if the killing is part of a game, the victim agreed to be killed so, unlike the combat games I talked about above, here the person has consented to that specific outcome.

If virtual murder became popular, some might argue that this kind of activity should be criminalized because it could encourage those who participate in the virtual killings or those who observe the killings to extrapolate what occurred online to the real-world. That is, critics of our hypothesized virtual murder clubs would argue that, they should be criminalized because they could encourage people to commit “real” murder.

That argument should founder on the First Amendment. The activity we are attributing to our hypothesized virtual murder clubs would constitute speech protected by the First Amendment in the same way, and for the same reasons, violent video games are protected by that amendment. Entertainment Software Association v. Blagojevich, 469 F.3d 641 (Seventh Circuti Court of Appeals 2006). We assume people can separate the unreal from the real, that they are not so malleable as to emulate whatever they observe online (or on television or on a movie screen, for that matter).

This is an odd post, I’m afraid. It’s been my way of working through some issues I suspect we will encounter one of these days, as the complexity and peculiarity of our cyberlives continue to evolve.

Virtual crimes, conflicting laws

You may have seen the stories about “ageplay,” in Second Life – virtual sexual activity between two adults, one of whom assumes the role, and the physical appearance, of a child.

I’m gong to do another post, at some point, on whether ageplay and other virtual versions of real crimes are, or should, be against U.S. law. (That post will be a supplement to the Virtual rape post I added relatively recently).

Here, I want to talk about something quite different: a report that German authorities are investigating what seems to be ageplay – but may also encompass posting images of virtual children having sex with virtual adults – for the purposes of prosecuting someone. The prosecution would be for child pornography.

Section 184(3) of the German Criminal Code criminalizes child pornography, i.e., pornographic material that depicts “the sexual abuse of children”. Specifically, it makes it a crime to produce, disseminate, publicly display, post “or otherwise make” child pornography available. The German Criminal Code includes the use of computer technology to do any of these things. German Criminal Code section 11(3). The child pornography crimes are punishable by “imprisonment from three months to five years.” German Criminal Code section 184(3).

I don’t see any mention of virtual child pornography in the German statutes. The U.S. states which criminalized virtual child pornography prior to the Supreme Court’s holding that such provisions violate the First Amendment usually outlawed images that that were, or “appeared to be” those of a child engaged in sexual activity.

As I’ve noted before, the Supreme Court held that criminalizing images that “appear” to involve a child but actually do not violate the First Amendment, because the images constitute speech; the Court held over thirty years ago that “real” child pornography can be criminalized because its production involves the infliction of physical and emotional “harm” on real children. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). When no children are involved, the images essentially become fantasy, and, as I explained in a post last year, pure fantasy is a type of speech that cannot be outlawed.

So we have a conflict of law: Virtual child pornography is illegal in Germany and legal in the U.S. I will assume, for the purposes of this analysis, that the ageplay or other activity on Second Life gives rise to what constitutes the creation and dissemination of virtual child pornography under German law. So I’m assuming, again purely for the purpose of analysis, that some participants in Second Life are violating German criminal law.

I’m also going to assume, as seems likely, that our hypothesized violators of the German Criminal Code are not themselves in Germany . . . that they are, let us say, in the U.S. Where does that leave the German police?

Pretty much up a creek, as they say. Even if they are able to identify U.S. citizens who are creating and posting virtual child pornography that violates German law, the German authorities really can’t do much about it, at least not in traditional terms. They can ask U.S. authorities to turn those people over to the Germans to be prosecuted in Germany, but U.S. authorities will refuse to do so. It’s a basic principle of international law that Country A does not have to turn over one of its citizens to be prosecuted in Country B if what the citizen did was (a) done in Country A and (b) legal in Country A. It’s called the principle of dual criminality: If the U.S. has an extradition treaty with Poland, a U.S. citizen can be extradited to Poland to be tried for murder because murder is illegal in the U.S., and in every other country, for that matter. The person charged with murder can’t take refuse in the premise that “I didn’t know what I did was wrong” because it’s wrong in both countries.

It’s completely different, however, when what you did (create virtual child pornography) is perfectly legal in your own country. It would be blatantly, inherently unfair to drag you off to another country to be prosecuted there for what was legal when you did it and where you did it.

So, under the traditional approach to crimes, there isn’t anything the Germans can do about the virtual child pornography (if such there is) on Second Life . . . unless they find German citizens who are responsible for some of it or unless they identify U.S. citizens who are responsible for some of it and who are foolish enough to come to Germany. If the latter were to happen, the U.S. citizens would be out of luck. Another basic principle of jurisdictional law, especially criminal jurisdictional law, is that once you get hold of the person, you have jurisdiction to prosecute them regardless of whether what they did was a crime in their own country.

What about non-traditional approaches? Well, I suppose German authorities could hire hackers and have them delete/deface/do whatever seemed satisfactory to the virtual child pornography hypothetically being created and/or posted on Second Life. Or maybe they can create virtual German police officers and send them into Second Life to try to deter the creation and posting of such material . . . though I’m not precisely sure how they’d do that.

That latter option creates an interesting scenario . . . a virtual conflict of laws and law enforcement officers in online worlds such as Second Life. I assume Second Life’s terms of service would give the company the ability to banish foreign law enforcement officers from Second Life, but I really haven’t checked. As I noted in an earlier post on virtual gambling, Second Life has invited the FBI in to check out its virtual casinos, so it seems amenable to having at least some domestic law enforcement presence in Second Life.

Or, as seems most likely, the German authorities could simply give up on all this, as they have given up on trying to prosecute U.S. citizens who create and maintain pro-Nazi and Holocaust-denial websites, both of which are outlawed in Germany.

Acquitted!

N. Furukawa, whom I wrote about in Border Wars, was acquitted yesterday of “bringing child pornography into the United States on his way back from a business trip to Japan and the Philippines.” Dan Browning, N.Y. Man Cleared of Child-Pornography Charge, StarTribune.com (May 14, 2007).

He had been “jailed since April 20, 2006, when customs officials working at the Minneapolis-St. Paul International Airport discovered child pornography on his computer equipment.” N.Y. Man Cleared of Child-Pornography, supra.

Throughout the process, Mr. Furukawa steadfastly maintained his innocence, though he did not deny it was possible that child pornography had been on computer media he was bringing with him when he returned to this country:

Furukawa, who has dual U.S. and Japanese citizenship, testified that he was a self-employed computer consultant with offices in New York, Japan and the Philippines. Among his clients was one of Japan's leading producers of adult videos. Furukawa said the firm hired him to help set up Web pages to market adult videos around the world and to `scour the Internet’ for pirated copies.

Furukawa has maintained since his arrest that he didn't know the child pornography was on his computer, but acknowledged telling government agents that any computer connected to the Internet could have child pornography on it. He also said he had downloaded it inadvertently about 20 times in the past while hunting for pirated videos, but that he tried to delete the files when he discovered them.

N.Y. Man Cleared of Child-Pornography, supra.

Interviewed afterward, jury forewoman Sarah Snider said the jurors examined the logs for the computer Mr. Furukawa had with him when he was entering the U.S. and saw that he had “downloaded thousands of files. The child porn files were `few and far between, she said. `It's our belief he wasn't looking for it.’” N.Y. Man Cleared of Child-Pornography, supra. Another juror said “no one disputed that the images were illegal child porn. `We just didn't see proof that he knew, or that he willingly had that on his computer.’" N.Y. Man Cleared of Child-Pornography, supra.

I’m very glad to report Mr. Furukawa’s acquittal. In my correspondence with him, and with his wife, I was very impressed by their integrity and honest belief that our justice system would do the right thing. I’m very glad they were right.

Virtual rape

You may have seen the report that Belgian police are investigating a possible virtual rape in Second Life.

I analyzed the legal status of virtual rape 5 years ago, using the then-infamous Lambda Moo virtual rape as the basis of my analysis. I pretty much stand by what I said on the subject then, so I’m not going to repeat myself here. If you want to read what I said, please read the original article: Susan Brenner, Can There Be Virtual Crimes?, 4 California Criminal Law Review 1 ¶¶ 100-127 (2001).

Basically, if we assume, as seems to be unclear, that virtual rape is possible in an online world like Second Life, the issue then becomes whether it inflicts a “harm” the criminal law should address. As I argue in my article, a real online virtual rape such as the one that happened in Lambda Moo (details in the article) does inflict “harm” on the victims, but it’s “merely” a psychic “harm.”

Criminal law has historically dealt only with real, physical “harm” to persons and property. It began addressing a kind of psychic “harm” a few years ago, with the rise of stalking laws. That trend has accelerated somewhat with the increased use of expanded harassment provisions to target those who use online communications to inflict “serious” or “substantial” emotional distress on another person. Virtual rape MIGHT be prosecutable under one of those statutes, though I think they generally tend to require that the distress be the result of a continuing course of conduct . . . of a repeated series of acts. That would be a problem if the virtual rape involved only one attack.

Do I think we should expand our rape laws to encompass psychic, virtual rape?

Read the article.

Can you trust your neighbors?

I want to talk about two recent cases, both of which go to our (some of us, anyway) using technology to spy on our neighbors, for various reasons.

The first story is from Rochester, New York. It’s about Monroe County Sheriff’s Deputy Michael Hildreth, who was convicted of felony eavesdropping but acquitted of computer trespassing.

The charges were based oh Hildreth’s using spyware to do just that—spy on his neighbor:

Hildreth, who . . . [was] assigned . . . to a computer crimes unit, conducted an unsanctioned investigation of next-door neighbor James E. Missel, whom he believed posed a threat to young girls in their neighborhood . . . in Penfield.

Assistant District Attorney Mark Monaghan said a follow-up investigation after Hildreth's arrest turned up no evidence of wrongdoing by Missel, who had volunteered for more than 30 years with a private school. . . .

Hildreth allegedly sent Missel an e-mail about potential job prospects with an attachment that, when opened, planted the spyware program eBlaster on Missel's computer and allowed Hildreth to monitor every keystroke made, Web site visited and chat room entered on the computer.

Michael Zeigler, Deputy Found Guilty in Spyware Case, Rochester Democrat and Chronicle (April 25, 2007). According to this story, the 45-year old Hildreth faces a sentence ranging from probation to up to four years in prison. He will be sentenced on June 26.

The other case is from New Jersey, and involves Robert DeFilippo, who allegedly spied on “his son, his daughter and a former landlord through their computers.” Margaret McHugh, Father Accused of Spying with Software, Newark Star-Ledger (January 12, 2005), 2005 WLNR 6489995.

DeFilippo sent e-mails containing attachments that, when opened, installed spyware allowing him to monitor the victims' computer activity, access their passwords and get into their e- mail, Morris County Prosecutor Michael Rubbinaccio said. . . .

Rubbinaccio's office began investigating . . . when DeFilippo's former landlord, Karen Kiehn, who had evicted him, reported that a computer service company discovered spyware on her computer. She began having problems with it after opening an e-mail from DeFilippo, according to the arrest affidavit. . . .

Kiehn said she has a $10,000 judgment against DeFilippo for back rent on a Morristown apartment, and she believes `he was looking for a way to get information on how I was going to proceed on collecting my judgment.’

McHugh, Father Accused of Spying with Software, supra. DeFillippo ultimately pled guilty to “four counts of third-degree computer theft”, according to the New Jersey Superior Court opinion denying his appeal of the 45-day jail term he was sentenced to serve. State v. DeFilippo, 2006 WL 1388878 (N.J. Super. Ct. 2006). In reviewing the facts, this court explained that in addition

to the e-mail problem experienced by Kiehn, defendant's son, a college student, subsequently noticed that someone had accessed his e-mail account and sent e-mails in his name, and defendant's daughter also discovered that false e-mails had been sent under her name.

[T]he prosecutor's office determined that defendant had installed a spyware program in Kiehn's computer, which permitted him to gain access to her passwords, credit card information, and e-mails. He obtained Kiehn's credit card number when she made an online purchase and wrote it down for future use. He had also installed the spyware programs on the computers of his son and daughter. He admitted to installing the spyware on Kiehn's computer to retaliate against her, and on his children's computers to `inquire about their well being.’

State v. DeFilippo, supra. The court affirmed the sentence, by the way.

The first thing I find interesting about the two cases is the similarity of the conduct – of how easy it is for our neighbors (former neighbors) and relatives to spy on us. We might at least casually consider the possibility that people whom we live with could engage in such activity . . . but who expects your neighbor or your former tenant or anybody else you just happen to know to decide to spy on you?

So that’s interesting. We can become a nation of really adept eavesdroppers, if we so desire . . . which reminds me of a bizarre incident I had in a law class a few years ago. We were discussing the federal wiretapping laws, and after class one of the students came up to me, to ask a question (a legal question, or so I thought). This student was a clearly middle-class woman, who had mentioned she was married, had some kids and lived n a nice suburb. . . . none of which matters in the slightest, except that it certainly did not lead me to expect her to ask what she did. She said she and her husband had gone to Radio Shack and bought some kind of directional microphone (whatever was hot technology, say, ten years ago) and were trying to use it to eavesdrop on conversations in their neighbors’ homes . . . but it wasn’t working!!!! She seemed to expect, what?, that I could make it work or explain why it didn’t work. All I remember is basically saying, in a nice, professional way, “get away from me.” Creepy, way too creepy.

Struggling back to my point: Hildreth was convicted of eavesdropping under a New York statute that makes it a crime unlawfully to engage “wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.” N.Y. Penal Law § 250.05. That makes sense, doesn’t it? Based on the few facts we have, it seems he was intercepting his victim’s internet activity because he was monitoring what the man was doing in real-time. Federal courts parsing the federal wiretap laws have said for the “interception” of an electronic communication (like email, or web surfing or chatting) to occur, the communication must be captured “in flight,” that is, while it is still being transmitted.

Once an electronic communication has been stored on a computer, the violation, if any, consists of gaining access to the computer without being authorized to do so – what is often called hacking. It seems that there was not enough evidence to convict Hildreth of hacking, or computer trespassing. The evidence must have shown, then, that he merely tracked what his victim was doing online as it was occurring. That would be interception, not hacking.

As that may demonstrate, we have a bit of an arbitrary distinction (IMHO) between the processes of capturing data while it is in transmission and capturing it after it has been stored on a hard drive or other media. The New York offenses here derive from two old crimes: eavesdropping and trespassing. Eavesdropping, which was a crime at common law, centuries ago, basically consisted of just that: lurking around buildings in an effort to overhear what you weren’t supposed to overhead. Trespassing, as we all know, consists of going where you are not supposed to be. The statutes involved in the Hildreth case are simply evolved forms of these crimes: He was convicted of eavesdropping but acquitted of trespassing, presumably because the government could not show he “went into” the victim’s computer (whatever that means).

What about DeFillippo? Why computer theft? Well, the New Jersey statute that defines the crime I assume he pled guilty to makes it an offense (“computer-related theft”) either to (i) gain unauthorized access to a computer or computer data or (ii) obtain, take or copy any data stored on a computer which one has accessed without authorization. New Jersey Statutes Annotated § 2C:20-25. I can’t tell if the foundation of the charge against DeFilippo was that he gained access to the victims’ computers without being authorized to do so (hacked) or that he stole data from their computers (theft). From what the court said in the excerpt I quoted above, it seems as if he could have been charged with both . . . since he gained unauthorized access to the three victims’ computers and, as least as to his former landlady, took data from her computer without being authorized to do so.

One thing I find particularly interesting, and sinister, about the DeFilippo case is that he used his unauthorized access to these various computers to pretend to be other people, real people: He pretended to be his son in emails, he pretended to be his daughter in emails and he sent his former landlady an email that purported to come from her lawyer. McHugh, Father Accused of Spying with Software, supra. I’ve long been fascinated by that, because it seems to me you could do a lot of damage to someone’s life by posing as them, either in emails or online. Our law does not, however, make simply posing as someone else – simple imposture – a crime. It’s a crime to pretend to be certain things, like a judge or a police officer, but not you or me.

Our Public "Private" Lives

On October 15, 1999, in Nashua, New Hampshire, Liam Youens murdered Amy Boyer and then killed himself.

Youens shot twenty-year old Amy as she left the dental office where she was working while attending college and then turned the gun on himself.

Why did he kill her? For some reason, Youens became obsessed with Amy in high school, after seeing her on a bus.

The two apparently never even had a conversation, but over the years Liam Youens became more and more obsessed with Amy Bouer. For several years he maintained a website – http://www.amyboyer.com -- on which he rambled about his obsession with her, and with her death. The site included comments like “I have always lusted for the death of Amy” and “Why am I killing her”, repeated three times.

Youens also stalked Amy by staking out her parents’ home at night. He seems to have finally decided to ambush Amy as she left work, but didn’t know where that was. To find out, he contacted an “Internet-based investigation and information service known as Docusearch.com.” Remsburg v. Docusearch, Inc., 149 N.H. 148, 816 A.2d 1001 (New Hampshire Supreme Court 2003). Youens placed several orders with Docusearch for, among other things, Amy’s birth date and Social Security number. After placing several requests, he finally got the address of the orthodontist for whom she was working. Soon afterward, he drove there and killed her.

Since Youens killed himself, as well, there was no homicide prosecution. Amy’s mother sought a type of redress by suing the only available participant in her daugher’s death: Docusearch, Inc. Helen Remsburg filed a federal lawsuit against the company in which she asserted several civil, tort causes of action – one of which was invasion of privacy. Remsburg v. Docusearch, Inc., 2002 WL 844403 (U.S. District Court for the District of New Hampshire 2002).

In this claim, Mrs. Remsburg argued that Amy “had a reasonable expectation of privacy in her personal information, including . . . her work address.” New Hampshire’s law in this area was not clear, so the federal district court certified the question of whether one has an actionable expectation of privacy in their work address to the New Hampshire Supreme Court. This is a process federal courts use when they need to apply state law in a suit before them; the federal court essentially asks the state court to decide what the law is.

This is what the New Hampshire Supreme Court did. It actually disposed of the workplace privacy question rather summarily:

We must first establish whether a work address is something secret, secluded or private about the plaintiff. . . .

In most cases, a person works in a public place. `On the public street, or in any other public place, [a person] has no legal right to be alone.’ W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 117, at 855 (5th ed.1984).

A person's employment, where he lives, and where he works are exposures which we all must suffer. We have no reasonable expectation of privacy as to our identity or as to where we live or work. Our commuting to and from where we live and work is not done clandestinely and each place provides a facet of our total identity.

Webb v. City of Shreveport, 371 So.2d 316, 319 (La.Ct.App.1979). Thus, where a person's work address is readily observable by members of the public, the address cannot be private and no . . . action can be maintained.

Remsburg v. Docusearch, Inc., (New Hampshire Supreme Court 2003).

The same result applies under the Fourth Amendment, which limits what government agents can and can’t do in investigating crime. There’s a long line of cases holding that our movements in public, which can be observed by anyone, are not private.

And since what occurs in public places is not private under the Fourth Amendment (or for civil tort law governing invasions of privacy), the government can install cameras to record our movements in public without obtaining a warrant. As a Delaware court noted, “all courts who have considered the Fourth Amendment in the context of cameras aimed at public streets or other areas frequented by large groups of people have determined that an expectation of privacy in these areas is unreasonable.” State v. Bailey, 2004 WL 2914320 (Delaware Superior Court 2004).

Several courts have also found that there is no Fourth Amendment violation when the government puts video cameras on telephone poles and aims them at someone’s home in order to monitor what goes on outside the home. In United States v. Jackson, 213 F.3d 1269 (10th Cir. 2000), for example, federal agents did precisely this and the Tenth Circuit Court of Appeals held that there was no Fourth Amendment issue:

[T]he video cameras installed on the telephone poles were incapable of viewing inside the houses, and were capable of observing only what any passerby would easily have been able to observe. Thus, Ms. Jackson had no reasonable expectation of privacy that was intruded upon by the video cameras. Therefore, we conclude Ms. Jackson's rights under the Fourth Amendment were not implicated, and there was no need for the police officers to obtain a search warrant before installing and utilizing the video cameras.

Some courts suggest it would violate the Fourth Amendment to use them to look inside the home, though I’d argue there is no violation even then if the camera is only looking through an unshielded window, i.e., a window with no shades or curtains to conceal what goes on inside.

I actually agree with all of these courts, as long as the observations of someone’s home or activities are limited to what a human being could observe by following them (to work, say) or by standing in a particular, public place (on the sidewalk in front of or across the street from Ms. Jackson’s home, say). If and when we start encountering technology that lets government agents and stalkers spy on us in new and really intrusive ways (by looking through the walls of our home, for example), I’d say these cases don’t apply.

But that’s not what I wanted to talk about in this post. What I want to talk about is the residual issue that bothers me in these cases: the collection and retention of data about our lives.

Simply observing what we do in public spaces is nothing new. We have been observing each other, often minutely, since humans began living in social groupings. We are used to this, we intuitively understand the contours and consequences of this type of routine observation and accommodate ourselves accordingly.

It seems to me, though, that capturing and retaining the precise details of our activities, even in public, adds a dimension that has never been present before. The installation of cameras on public streets and in other public places, coupled with the increasing use and pervasiveness of embedded technologies like RFID chips will make it possible to track and record essentially every aspect of our “public” lives. Who, you ask, will be doing this tracking and recordation – the government?

Well, in some instances (as with Ms. Jackson), it will be the government, but for the most part it will be done by private entities – businesses who want to familiarize themselves without tastes and habit so they can more successfully pitch their products to us. (Think of the mobile advertisements in the film “Minority Report,” if you’ve see it.) Much of this tracking and recordation will involve our online activities, as it already does, but that, too, is outside the scope of the Fourth Amendment and comparable civil privacy rights.

I’m not sure what this new dimension is – whether it implicates privacy or something else. I can see the argument that it constitutes an incremental infringement on privacy because of the accuracy and retention of the data being collected. When I used to work in Chicago, I took a commuter train from Evanston to the Loop five days a week (and sometimes on Saturdays). I’d tend to see familiar faces on the train, just because the same people usually rode to and from work at basically the same times. I might have been able to pick some of those faces out of a crowd, or out of a police photo lineup if I’d been asked, but that’s probably the most I could have done. I would never have been able to identify precise physical characteristics (height, weight, eye color, etc.) or even clothes they’d worn, perhaps over and over.

In other words, I would have observed all that information about them, on some level, but my observations would have been sloppy (you basic vague impression of a person) and transient (quickly forgetting what I’d seen in the press of dealing with my own life). With surveillance cameras and RFID chips in clothing and train passes, every aspect of every commuter’s appearance, schedule (took the 7:45 a.m. train X number of times in May, took the 8:15 a.m. train twice that month) and habits (purchased bottled water at the kiosk in the train station on Monday evening, had two beers at the bar in the station on Friday) will be recorded and retained. How long will it be retained? Well, I know that surveillance data is frequently discarded or overwritten, but that’s out of economy, not necessity.

We can, and will, store immense quantities of digital data, which means all of this mundane information about our lives can be available . . . to whomever, for whatever reasons. If it is held by commercial entities, which is the most likely scenario, anyone from the government to a Liam Youens can gain access to the specific details of our lives by requesting them and paying a fee.

I don’t know if it’s privacy or something else, but I can’t help feeling that we lose “something” when the “public” details of our lives are archived and available to whomever, or whatever, wants to rummage through them.

The Government Made Me Do It . . .

I’m often asked why people caught in online stings – like the men in the “To Catch a Predator” shows – can’t raise entrapment as a defense.

Everyone seems to have heard about the defense . . . and those caught in these stings are, in a literal sense, “entrapped.”

The government sets up a fake operation and they fall for it.

In the online predator cases, the government fabricates the whole thing: the existence of a child, the email chats with that child and the premise that the adult male correspondent is going to be meeting that child for the purposes of having a sexual liaison.

Notwithstanding all that, those caught in stings like the “To Catch a Predator” operation will not be able to use entrapment as a defense because U.S. law, anyway, is very parsimonious in allowing people to raise this defense. To illustrate how and what that is, I’m going to use my favorite online entrapment case: United States v. Poehlman, 217 F.3d 692 (9th Circuit Court of Appeals 2000).

According to the court, Mark Poehlman graduated from high school and joined the “Air Force, where he remained for nearly 17 years. Eventually he got married and had two children. When Poehlman admitted to his wife that he couldn't control his compulsion to cross-dress, she divorced him. So did the Air Force, which forced him into early retirement, albeit with an honorable discharge.” U.S. v. Poehlman, supra. Poehlman was a foot fetishist, as well as a cross-dresser. U.S. v. Poehlman, supra.

Losing his wife, his children and his career “left Poehlman lonely and depressed. He began trawling Internet “alternative lifestyle” discussion groups in an effort to find a suitable companion.” U.S. v. Poehlman, supra. When he disclosed his interest in cross-dressing and foot-fetishism, he was met “with strong rebukes.” U.S. v. Poehlman, supra.

He finally “got a positive reaction from a woman named Sharon. Poehlman started his correspondence with Sharon when he responded to an ad in which she indicated that she was looking for someone who understood her family's `unique needs’ and preferred servicemen. Poehlman answered the ad and indicated that he `was looking for a long-term relationship leading to marriage,’ `didn't mind children,’ and had unique needs too.’” U.S. v. Poehlman, supra.

“Sharon,” who was actually an FBI agent, responded positively to Poehlman’s email, and told him she was looking for someone who could “help” with “the special education” of her children. Poehlman responded by saying he “had strong family values” and would treat her children as his own. “Sharon” wrote back saying she was looking for a “`special man teacher’” for her children, and for him to write back if he understood and was interested. U.S. v. Poehlman, supra. “Poehlman replied by expressing uncertainty as to what Sharon meant by special man teacher. He noted that he would teach the children `proper morals and give support to them where it is needed’ . . . and he reiterated his interest in Sharon.” U.S. v. Poehlman, supra.

That, of course, is not what “Sharon” wanted to hear, because Poelhman had gotten involved in an online sting effort. Over the next “six months and scores of e-mails,” the agent posing as “Sharon” worked on Poehlman, making it clear that she expected him to introduce her three fictive daughters – “Karen, aged 7, Bonnie, aged 10, and Abby, aged 12” – to varied types of sexual activity. U.S. v. Poehlman, supra. He ultimately agreed, apparently because introducing the children to sex was held out as a quid pro quo for his having a relationship with “Sharon.” U.S. v. Poehlman, supra.

Poehlman traveled from Florida to California, where he was to begin their instruction, but was arrested by FBI agents and local law enforcement officers. He was convicted of crossing state lines to have sex with a minor in violation of 18 U.S. Code section 2423(b) and sentenced to 121 months.

On appeal, he raised entrapment as his defense. U.S. v. Poehlman, supra. In its opinion, the Ninth Circuit Court of Appeals explained what he had to establish to win on this issue:

When entrapment is . . . raised, the trier of fact [i.e., the jury] must answer two related questions: First, did government agents induce the defendant to commit the crime? And, second, was the defendant predisposed? . . . . [T[he government induces a crime when it creates a special incentive for the defendant to commit the crime. This incentive can consist of anything that materially alters the balance of risks and rewards bearing on defendant's decision whether to commit the offense, so as to increase the likelihood that he will engage in the particular criminal conduct. Even if the government induces the crime, however, defendant can still be convicted if the trier of fact determines that he was predisposed to commit the offense. Predisposition . . . is the defendant's willingness to commit the offense prior to being contacted by government agents, coupled with the wherewithal to do so.

U.S. v. Poehlman, supra.

This, then, is why stings, including the “To Catch a Predator” stings, work. In setting up a sting, the government’s whole purpose is to induce somone who ultimately becomes a defendant to commit (or attempt to commit, in some stings) the crime for which he is charged. That is not a problem as long as the government can prove that he was predisposed to commit the crime. We see this in the “To Catch a Predator” and other, similar online stings: The government merely creates the opportunity for someone to embark on the commission of a crime, such as traveling to have sex with what the person believes is a minor with whom he has corresponded online. As long as the government’s role is purely passive – as long as it is limited, basically, to creating the opportunity for someone to act on their own, evil impulses – the government will not be deemed to have entrapped the person into the commission of a crime.

The Poehlman case is one of the relatively few instances in which entrapment worked. The Ninth Circuit found, first, that the government had inducted him to commit the crime of which he was convicted: “The government . . . played on Poehlman's obvious need for an adult relationship, for acceptance of his sexual proclivities and for a family, to draw him ever deeper into a sexual fantasy world involving these imaginary girls.” U.S. v. Poehlman, supra.

That, though, is not what makes this case unusual; it is not uncommon for courts to find that the government induced someone to commit a crime since, as I noted above, this is the whole purpose of sting operations, online or not. What makes this an unusual entrapment case is that the court also found that Poehlman had not been predisposed to the commission of the crime: “Having carefully combed the record for any evidence that Poehlman was predisposed to commit the offense of which he was convicted, we find none. To the extent the jury might have found that Poehlman was predisposed to commit the offense, that finding cannot be sustained.” U.S. v. Poehlman, supra. (He apparently argued entrapment at trial, but failed to convince the jury; the Ninth Circuit reversed the conviction because it found that the jury should have accepted his entrapment defense.)

The Ninth Circuit ended its opinion by essentially scolding the government:

`When the Government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would have never run afoul of the law, the courts should intervene.’ [Jacobson v. United States, 503 U.S. 540 (U.S. Supreme Court 1992). . . . Poehlman is such a citizen. Prior to his unfortunate encounter with Sharon, he was on a quest for an adult relationship with a woman who would . . . accept his proclivities, which did not include sex with children. There is surely enough real crime in our society that it is unnecessary for our law enforcement officials to spend months luring an obviously lonely and confused individual to cross the line between fantasy and criminality.

U.S. v. Poehlman, supra.