Encase and Consent to Search a Computer

EnCase, as you may know, is the leading software police officers (and others) use in conducting a computer forensics analysis of a computer. It’s routinely employed by law enforcement; if you're not familiar with it, you can read about it here.

In an earlier post I wrote about consent as an exception to the 4th Amendment’s requirement that police obtain a warrant to search a place or a thing, like a computer.

The underlying premise of the consent exception to the search warrant requirement is, essentially, that your right under the 4th Amendment belongs to you and you can waive it, i.e., you can decide not to exercise it.

So you do that by consenting to a search: If an officer has stopped you to give you a ticket and he says, “Can I search your car, just check to see if there’s anything there that shouldn’t be?”, you can either assert your 4th Amendment right by saying “no” or waive it by saying “yes.” (If you say no, the officer can’t search unless he or she has probable cause to believe there’s evidence of a crime in the vehicle, and the same is true of any place or container.)

In that earlier post I explained that the consent exception has two dimensions: In the example above, the person who happens to be driving the car is asked to consent and it’s up to that person to allow the search or refuse to allow it. For the person’s consent to be valid, though, they must have had the authority to consent to a search of the property in question.

As I also explained in that earlier post, in United States v. Matlock, 415 U.S. 164 (1974), the U.S. Supreme Court held that co-users of property can each consent to the search or seizure of that property. The Matlock Court held that the authority to consent derives not only from sharing ownership of property (though that works, too), but also from sharing the use of property. The obvious example of that is roommates: A roommate can consent to a search of the areas commonly used by those who share the apartment or house; a roommate probably will not have authority to consent, say, to a search of a bedroom belonging exclusively to another roommate, especially if that roommate keeps the others out of his/her bedroom. There’s no common access to the property in this instance.

As I explained in a more recent post, the Supreme Court held, in Frazier v. Cupp, 394 U.S. 731 (1969) that this common access = authority to consent rationale applies even to relatively trivial matters. Frazier let his cousin Rawls use his duffle bag; when Rawls was arrested, he had the duffel bag and he consented to police’s searching it. They found evidence that was used in a criminal prosecution against Frazier, which he tried to suppress by arguing that Rawls didn’t have authority to consent to the search. Frazier said Rawls was only allowed to use certain compartments in the duffel bag and the evidence was found in other compartments; according to Frazier, that meant Rawls did not have authority to consent to a search of the whole bag. He lost: As I explained in the earlier post, the Supreme Court essentially said that if you give someone access to your property, however large or small it is, you assume the risk they’ll betray you by consenting to a search of that property.

That brings us to People v. Brown, 279 Mich. App. 116, 2008 WL 2151725 (Mich. App. 2008). Here are the basic facts in the case:

[Craig Brown] was [an] officer with the . . . Brown City Police Department. Lieutenant Timothy Donnellon. . . was investigating . . . Officer Albert Geoit for anabolic-steroid use. . . . Geoit told the police that Brown supplied him anabolic steroids.

Donnellon asked Michael Winters, an inspector with the Postal Inspection Service, to intercept any suspicious parcels addressed to . . . [a] post office box registered to Brown. . . . On February 28, 2003, a parcel arrived for [the] post office box. Winters [obtained] a federal search warrant . . . [and] executed the search. The parcel contained ten packages of Finaplix-H, which . . . contained Trenbolone. . . .

On March 1, 2003, Donnellon executed a warrant to search Brown's residence. The owner of the building, Gladys Graves, lived on the second story and Brown rented the first floor. . . . In the only first-floor bedroom . . . police found a magazine, `Anabolics 2000’ lying on the bed. In the first-floor kitchen, the police found a topical anabolic steroid, Testosterone Androgel, which is available by prescription. The police discovered additional anabolic steroid-related magazines. The police also found Brown's credit-card statements reflecting purchases from Websa Co., the source of the Finaplix-H in the parcel, and Finafarm, a company that sells a kit that makes possible the human consumption of anabolic steroids. Lapeer County Sheriff Detective Nancy Stimson recovered such a kit . . . from Brown's house. . . . .

Graves had a computer upstairs that Graves allowed the police to search.

People v. Brown, supra. It’s this computer that we’re concerned with. Detective Stimson

brought the computer to Robert Gottschalk, an expert in electronic-data retrieval, for investigation. Gottschalk removed the hard drive and used EnCase forensic software to make a copy of the hard drive. Gottschalk testified that EnCase software allows reproduction of all files that have not been overwritten, including Internet files. In particular, he testified that `it created-it created the image, which is . . . an exact copy of everything that's on the hard drive; not only the data but everything else that's there. Maybe a file that was deleted at one time. It copies all of the data off of it.’ Gottschalk searched the copied hard drive for anabolic-steroid-related terms, and found numerous e-mails relating to defendant's purchases of anabolic steroids.

People v. Brown, supra.

Brown argued that the search of his files on the Graves computer violated his rights under the 4th Amendment: He said Graves did not have the authority to consent to a search of his email and other files.

Graves owned the computer, and let her children and grandchildren use it. According to the Michigan Court of Appeals, although Brown “was allowed access to the computer, there is no evidence” he had a right to use it or that he could “regulate others’ access to the computer.” People v. Brown, supra.

If that was all we had, it would be clear Ms. Graves had authority to consent to a search of the computer. She owned it, and she presumably used it, as well; the fact that she let Brown use it on some terms in no way eliminates her authority over, and ownership, of the computer. But there’s a wrinkle.

Brown also claimed “Graves's consent was invalid because his e-mail account was protected by a password. He . . . argues that `even though the files were allegedly accessed using the computer of Ms. Graves the police had no right to enter those password protected files without a search warrant.’” People v. Brown, supra. That’s a pretty good argument, because he’s not challenging the police’s obtaining emails from an Internet Service Provider. He’s saying, which seems to be correct, that the police searched for, found and seized them from the computer hard drive. He’s also saying he had a legitimate 4th Amendment expectation of privacy in those files because they were password-protected.

That’s a good argument because in Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001), the U.S. Court of Appeals for the Fourth Circuit held that Conrad, Trulock’s roommate,

lacked authority to consent to the search of Trulock's files. Conrad and Trulock both used a computer located in Conrad's bedroom and each had joint access to the hard drive. Conrad and Trulock, however, protected their personal files with passwords; Conrad did not have access to Trulock's passwords. Although Conrad had authority to consent to a general search of the computer, her authority did not extend to Trulock's password-protected files.

The Michigan court, though, didn’t buy Brown’s argument, and it’s all because the police used EnCase. Here is how the court resolved this issue:

Few cases have yet discussed the propriety of EnCase software. In United States v. Andrus, 483 F.3d 711 (C.A.10, 2007), the defendant's father consented to the search of a computer in the defendant's bedroom. The police used EnCase . . . to access the hard drive without first determining the need for a user name or password. There was testimony that someone without forensic equipment would need the defendant's user name and password to access files stored within the defendant's user profile.

The court indicated that `[t]he critical issue . . . is whether. . . these officers could reasonably have believed [the father] had authority to consent to a search of the computer. . . . The court noted that, “[i]f the circumstances reasonably indicated [the father] had mutual use of . . . over the computer, the officers were under no obligation to ask clarifying questions.” Here, . . . Graves had control, if not exclusive control, over the computer. Accordingly, the officers were under no obligation to ask whether defendant's files were protected by a password. Thus, defendant's claim that his Fourth Amendment rights were violated must be rejected.

People v. Brown, supra.

Personally, I disagree with this decision because it effectively means you have no way to secure files on a computer you share with anyone else. The Trulock court analogized the use of a password to protect files to using a lock to protect a footlocker; in each instance you’ve done what you can to keep others out. No court would find police’s breaking a lock to get into a footlocker to be a valid consent search, even if the owner of the locker’s father/wife/roommate/whomever consented to their doing so. I don’t see why the outcome should be different when it’s a computer program being used to achieve essentially the same end.

Textual Obscenity?

On August 7, Karen Fletcher, a 56-year-old agoraphobic, was sentenced to five years probation after she pled guilty to violating federal obscenity law.

According to a story in the Pittsburgh Post-Gazette, she has spent the last seven years in her home, unable to leave. The charges against her were based on stories she wrote and published on a website: the Red Rose Stories website. The stories described the rape, murder and torture of children, often very young children.

Ms. Fletcher said she began writing the stories as a kind of therapy, but then began posting them on the website. People who became members of the site could read the stories online. It cost $10 to become a member, and when she was prosecuted she had 10 subscribers.
Ms. Fletcher said she began writing the story as a way to help her deal with her own sexual abuse and what she called her “monsters.” She said creating these fictional monsters, who were so much worse than the monsters she’d encountered in real life, somehow made it easier for her to deal with the horror she had apparently experienced in her dealings with real life monsters. She also said that in the stories awful things were happening to others, not to her, which also helped her deal with her fears.

Why was she prosecuted for obscenity? Well, as I understand it, the U.S. Attorney for the Western District of Pennsylvania is aggressively cracking down on obscenity and child pornography. While child pornography might seem the logical charge here, the stories do not involve the victimization of any real children and therefore could, at most, constitute virtual child pornography. As I’ve noted before, the U.S. Supreme Court held several years ago that the First Amendment prohibits prosecuting people for creating and publishing virtual child pornography.

But what about obscenity? We usually think of obscene material as visual material – photographs, videos, even drawings. Ms. Fletcher’s work is purely textual. Can it quality as obscenity?

The Supreme Court addressed the issue of text as obscenity in 1978, in Kaplan v. California, 413 U.S. 115 (1973). Here are the facts in that case:

Petitioner was the proprietor of the Peek-A-Boo Bookstore, one of the approximately 250 ‘adult’ bookstores in . . . Los Angeles, California. On May 14, 1969, . . . an undercover police officer entered the store. . . . The officer then asked petitioner if he had ‘any good sexy books.’ . . . . At petitioner's recommendation, . . . . the officer purchased the book Suite 69. On the basis of this sale, petitioner was convicted by a jury of violating California Penal Code § 311.2 [which made it a crime to distribute obscene material].

Kaplan v. California, supra.

Kaplan argued that, as text, the book was protected by the First Amendment and was therefore not obscene. The Supreme Court phrased the issue in the case this way:

This case squarely presents the issue of whether expression by words alone can be legally ‘obscene’ in the sense of being unprotected by the First Amendment. When the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression. See Roth v. United States, 354 U.S. 476 (1957). "Obscenity can . . . manifest itself in conduct, in the pictoral representation of conduct, or in the written and oral description of conduct. The Court has applied similarly conceived First Amendment standards to moving pictures, to photographs, and to words in books.

wrote aboutKaplan v. California, supra.

The Kaplan Court held that a book – and, presumably, other text – is not entitled to First Amendment protection “merely because it has no pictorial content.” It found that the state of California could “reasonably regard the ‘hard core’ conduct described [in the book] as capable of encouraging . . . antisocial behavior, especially in its impact on young people.” Kaplan v. California, supra. It remanded the case to have a lower court decide if the content in the book was, in fact, obscene under the “community standards” test I wrote about recently.

I assume Ms. Fletcher was charged with, and pled guilty to, violating 18 U.S. Code § 1466(a). This is the federal statute that makes it a crime to distribute obscene material: “Whoever is engaged in the business of . . . selling or transferring obscene matter, who knowingly . . . possesses with intent to distribute any obscene book, magazine, picture, paper, film, videotape, or phonograph or other audio recording, which has been shipped or transported in interstate or foreign commerce, shall be punished by imprisonment for not more than 5 years or by a fine under this title, or both.” Since the statute refers to a “book” or “magazine,” it’s obviously intended to encompass textual obscenity.

A few years ago, I wrote a law review article on criminalizing various types of speech, including obscenity. (If you want to read it, you can download it here, but it’s quite long.) While obscenity was a late arrival in American criminal law, the crime does seem to have been based on a concern with encouraging sexual activity at a time when many in our society were prudish.

Personally, I don’t see obscenity as a big issue today, but that’s obviously not true in the Western District of Pennsylvania. The Pennsylvania U.S. Attorney who brought the charges against Ms. Fletcher apparently did so because she truly believes the stories Ms. Fletcher wrote and posted online are likely to encourage someone to act out the awful things the stories describes. Unlike this U.S. Attorney, I don’t buy that argument. How can anyone buy that argument in a country in which movies and TV and games and books and other amusements depict all kinds of horrific violence?

While none of this material involves the horrible violence against children depicted in Ms. Fletcher’s stories, the same presumptive causal chain, the same monkey-see, monkey-do, rationale has to apply in both contexts. It seems to me that if this simplistic causal link between what we read and what we do exists, as some believe, we’d be a nation of homicidal maniacs. We’d all be acting out what we’ve seen in movies and on TV and read in books . . . but we aren’t.

I finished a law review article this summer that touches on some of these issues; in the course of writing it, I read about research that has been done on the connection between violent content we see (or read or play) and our acting in violent ways. The research seems to show that violent content increases aggressive thinking and some impulses, but it does not lead directly to our acting on what we’ve read or seen or done in a video game.

It seems there were lawyers who, like me, think Ms. Fletcher had a good First Amendment defense to the charges . . . but she couldn’t go that route. According to the Post-Gazette story I mentioned earlier, her agoraphobia would have made it impossible for her to leave her home to come to court and sit through what would have been a week-long trial. According to the same source, she was also terrified at the prospect of losing; her attorney said she might not have been able to handle going to jail.

So Ms. Fletcher pled guilty – quite understandably, it seems – and we will have to wait to see if obscenity charges can legitimately be predicated on the online dissemination of textual material.

Power

This is what it looks like where I am . . . only much, much worse. Estimates are that between 300,000 and a million people here are without electricity because of an incredibly windstorm on Sunday . . . four hours of sustained winds 60 mph+. I'm one of those people . . . no electricity = no Internet = no blog posts.

I have some posts ready, but they're on my laptop at home, home has no power, and it's just too much effort to transfer them to a computer where I can get Internet access, especially since we're all dealing with the new challenges of getting around, getting and keeping food, etc.

The power may be back on by the weekend. When it's back, I'll start blogging again.

Gives me a real, visceral appreciation of those digital Pearl Harbor, shut down the power grid scenarios.

The DOJ and the WTO

This post is specifically about the U.S. District Court of Utah’s opinion in U.S. v. Lombardo, 2007 WL 4404641 (2007), but it’s also about how cyberspace often leads to a clash between domestic, national law and international law.

The Lombardo case began with a 34-count indictment which charged an assortment of defendants with conspiring to violate the federal RICO act, bank fraud, transmitting wagering information in violation of the Wire Act and money laundering.

According to the District Court, the charges arose from the defendants’ participation in an alleged criminal

`Enterprise’ created for the purpose of providing transaction processing services to illegal gambling websites. The Enterprise consisted of individual defendants Baron Lombardo, Richard Carson-Selman, Henry Bankey, Tina Hill, Count Lombardo, Frank Lombardo, and Kimberlie Lombardo, as well as entity defendants CurrenC Worldwide, LTD, Gateway Technologies, LLC, Hill Financial Services, Inc., and BETUS. . . . [T]he Enterprise [used] a website called the `Gateway’ . . . to facilitate payments . . . to various gambling websites. When bettors wished to gamble at one of the[se] websites . . ., their payment information was forwarded by the gambling site to the Gateway for processing.

When a bettor opted to pay using a Visa or MasterCard credit card, the Gateway processed the bettor's credit card payment information by mis-classifying the charge. . . to hide its gambling nature, thus duping banks into disbursing funds. The Enterprise paid money to at least one bank employee to ensure that mis-coded credit card charges were processed and paid. . . .

Gambling website operators were provided with constant . . . information regarding the status of credit card payments and wire transfers via the Gateway. Money was held by the Enterprise in foreign banks and was transferred to the United States through payments to accounts, entities, and individuals associated with the Enterprise. Some of the funds were also reposed in various trusts created by the Enterprise. The Enterprise charged the gambling website operators substantial per-transaction fees on all credit card payments and wire transfers processed through the Gateway. . . .

Baron Lombardo, Henry Bankey, and Richard Carson-Selman created . . . CurrenC Worldwide, LTD, through which the Enterprise conducted . . . payment processing. . . . Lombardo controlled the movement of gambling funds through credit card transactions via Gateway Technologies, which operated . . . the Gateway website. . . .Carson-Selman was responsible for selling the payment processing services to gambling websites. Tina Hill created Hill Financial to provide the accounting services . . . to move and track the gambling funds. Henry Bankey supervised . . . this accounting system. Count Lombardo . . . maintained the equipment on which the Gateway website was operated. Kimberlie and Frank Lombardo managed . . . Western Union wire transfers. . . .

U.S. v. Lombardo, supra.

The defendants filed three motions to dismiss the charges against them. We're only concerned with two of the motions: The motion to dismiss the Wire Act charges and the motion to dismiss the charges as barred by a decision of the World Trade Organization (WTO).

The Wire Act, which is codified as 18 U.S. Code § 1084(a), provides as follows: "Whoever being engaged in the business of betting or wagering knowingly uses a wire communication facility for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest . . . shall be fined . . . or imprisoned not more than two years."

The defendants moved to dismiss the Wire Act charges against them on the grounds that the Act only criminalizes the transmission of communications related to betting or wagering on sporting events or contests. They also apparently argued that the activity they allegedly engaged in concerned “games of chance such as those employed by online casinos”, not “sporting events or contests.” U.S. v. Lombardo, supra.

In ruling on this motion, the District Court noted that the Wire Act was adopted in 1961, well before the Internet, and has primarily been used to prosecute those who engaged in bookmaking, i.e., took bets on sporting events over the telephone. U.S. v. Lombardo, supra. It also noted that “very few courts” have considered whether this bookmaking statute also applies to wire communications related to online casino gambling.

The District Court acknowledged that the U.S. Court of Appeals for the Fifth Circuit has held that the Wire Act “only prohibits transmissions related to bets or wagers on sporting events or contests.” U.S. v. Lombardo, supra. The Fifth Circuit based its holding on two factors: One was the legislative history of the Wire Act (the Congressional debates and other records indicating why the Act was adopted). The other was the fact that when the Fifth Circuit issued its decision, legislation had been introduced into Congress to “fix” the Wire Act; this legislation, which was never passed, would have expanded the Act so that it explicitly encompassed gambling unrelated to sports. U.S. v. Lombardo, supra.

I think the Lombardo District Court should have stopped at this point and granted the motion to dismiss the Wire Act count(s), but it did not. Instead, the District Court cited a New York state court decision that indirectly supports the proposition that the Wire Act applies to gambling other than sports betting. The Lombardo court’s relying on this New York decision is problematic both because it’s a state court decision – and we’re talking about a federal statute, which is properly construed by federal courts – and because the court did not actually address the sports betting issue. So instead of going with a federal Court of Appeals, the Lombardo court denied the motion to dismiss based on a state court decision that didn’t really address the underlying issue.

It’s the other motion to dismiss, though, that I find the most interesting. In this motion, the defendants asked the District Court to dismiss the Wire Act counts on the theory that decisions from “the World Trade Organization (WTO) bar prosecution of Defendants for facilitating online gambling protected under the General Agreement on Trade in Services (`GATS’). U.S. v. Lombardo, supra. Here’s a bit of context on GATS:

As a member of the WTO, the United States has agreed to multiple treaties, including GATS. Pursuant to GATS, the United States has made a series of commitments to allow foreign providers of services access to certain domestic markets. . . . Congress formally approved GATS in the Uruguay Round Agreements Act (`URAA’) in 1994.

U.S. v. Lombardo, supra. In approving GATS, Congress could have excluded certain activities – like gambling – from the commitments it made to open its markets to foreign service providers. It did not, apparently because in 1993 Congress equated gambling with real-world casinos and horse-racing and other activities, all of which do not raise the transnational issues cyberspace often presents.

The problem arose in 2003, when Antigua filed a suit with the WTO, claiming the U.S. was discriminating against legitimate, licensed online casinos based in Antigua. Antigua said the U.S. was violating its GATS commitments by enforcing federal statutes to in effect ban Internet gambling. As you can read in the story you will find here, Antigua’s Internet gambling companies wanted access to the U.S. market for online gambling, which was estimated to be worth $15.5 billion annually. The U.S. responded by saying it made a “mistake” when, in GATS, it committed to open its borders to “other recreational services” that included “gambling and betting services.” In 2005, the WTO ruled against the U.S. and gave use one year to bring our law into compliance with GATS.

As I understand it, we’ve pretty much stalled ever since, except for a couple of really clever mistakes. In May, 2007, the U.S. told the WTO we were simply going to take back our mistake and withdraw “gambling and betting services” from GATS and from WTO jurisdiction. The WTO pointed out that a country can only withdraw a sector commitment (like a GATS commitment) if it pays compensation for future lost revenue to countries disadvantages by the decision. The European Union demanded $100 billion as their compensation, and other countries began filing similar (though smaller) claims. Antigua claimed damages of $3.44 billion, but in December of 2007 the WTO awarded it $21 million in damages.

The most interesting aspect of the Antigua award is that it is not a cash payment (which, apparently, is customary in WTO disputes): As this article explains, Antigua was given the right to violate copyright protections on items including music and movies form the U.S. So, Antigua won the right to legitimately commit $21 million worth of copyright violations because someone goofed up in executing GATS.

And what about the Lombardo defendants, you ask? They lost on their GATS motion to dismiss the Wire Act charges. The District Court held, correctly, IMHO, that they did not have the right to use the WTO’s decision on the GATS issue as a defense. The WTO’s decision is not a decision of a U.S. court (preferably a federal court) construing the Wire Act, and so simply was not relevant to the charges against them.

Personally, I think we should simply license online gaming and quit trying to overcome the inevitable. Last year, Representative Barney Frank introduced an interesting bill that would do just that. If you’re interested, you can find the text of the bill here.

Failed Defense: First Sale Doctrine

The U.S. Court of Appeals for the Eleventh Circuit recently decided a case involving a conviction under 18 U.S. Code § 2318: U.S. v. Harrison, 534 F.3d 1371 (11th Cir. 2008).

The relevant portion of § 2318 provides as follows:

Whoever, in any of the circumstances described in subsection (c), knowingly traffics in . . . a counterfeit label or illicit label affixed to, enclosing, or accompanying, or designed to be affixed to, enclose, or accompany . . . a copy of a computer program . . . shall be fined . . . or imprisoned for not more than 5 years or both.

18 U.S. Code § 2318. The “circumstances described in” § 2318(c) are factors that give the federal government jurisdiction to prosecute the case. The factors that applied in this case are that the counterfeit/illicit labels in question were “affixed to . . . or designed to be affixed to . . . a copy of a copyrighted computer program.” 18 U.S. Code § 2318(c). (The other primary factors conferring jurisdiction are that the crime was committed in U.S. territory and/or involved the use of the mails or a facility of interstate commerce . . . like the Internet.) If you’re interested in the elements of a case under this statute, you can read about them in the Department of Justice manual you can find here.

Here are the facts in the case, as given in the defendant’s brief to the Eleventh Circuit:

In . . . 2005, Harrison owned and ran a Georgia corporation by the name of Sales International, LLC (`SI’). . . . SI was run by Harrison out of the basement of his residence in Oxford Georgia. His employees included . . . [names omitted].

The businesses sold, among other things, Microsoft [Certificate of Authority] labels. Harrison bought COAs in stand alone form. . . . from a few . . .sources. Used licenses were purchased from companies that had already used their licenses and were ready to upgrade. He also bought COAs from one individual. He also purchased items through Original Equipment Manufacturers. When COAs were purchased with other items, employees were charged with opening boxes and separating the COAs from the software. The COAs would then be sold with a similar type of software or in a stand alone format.

In 2005, after learning of a change in the law, Harrison ceased selling COAs for a period of time. However, after consultation with several attorneys and believing there were defenses to the new law, he resumed his sale of COAs but on a much smaller scale. In July 29, 2005, after an undercover purchase of software . . . by the FBI, a search warrant was executed upon the residence/businesses. No further sales of COAs occurred. . . .

Brief of Appellant in U.S. v. Harrison, No. 07-13808-GG (U.S. Court of Appeals for the Eleventh Circuit), 2008 WL 2857833.

On July 7, 2006, a federal grand jury in the Northern District of Georgia returned an indictment charging Harrison with four counts of violating. 18 U.S. Code § 2318. On May 18, 2007, he pled guilty to two counts of the indictment, but reserved his right to appeal his use of a particular defense: the first sale doctrine (or first sale defense). Brief of Appellant, supra. What had happened was that Harrison wanted to raise the defense at his trial, but the government filed a motion to exclude him from doing so, and the court granted the motion. He saw no point, apparently, in going to trial without being able to raise his defense, so he pled guilty while reserving his right to ask the Court of Appeals to reverse the trial court’s order and let him use it, at a later trial.

The first sale doctrine is used as a defense in copyright infringement cases. Here is how the Department of Justice manual I mentioned earlier describes the defense:

A common defense to a claim of infringement of the distribution right is the `first sale’ doctrine, codified in 17 U.S.C. § 109, which provides that ` . . . the owner of a . . .copy . . . lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the . . . that copy’. . . . In other words, once a copyright-holder sells or gives a . . . copy to another person, the copyright-holder generally cannot control how that . . . copy is subsequently sold or transferred. . . . Putting it in terms of the purchaser's rights, the first purchaser and any subsequent purchaser of that specific copy may further distribute or dispose of that particular copy without the copyright-holder's permission.

The first sale doctrine does not grant the purchaser or anyone else the right to make additional copies of the work he has. Making unauthorized copies of a lawfully-obtained work still violates the law. . . . Consequently, the first sale doctrine is a defense only against an allegation of infringement by means of distribution.

U.S. Department of Justice, Prosecuting Intellectual Property Crimes Manual § II.

As the Eleventh Circuit noted in its opinion, Harrison “essentially wished to argue that because he legitimately owned the COAs it did not violate federal law to distribute those COAs.” U.S. v. Harrison, supra.

In its brief to the Eleventh Circuit, the Department of Justice argued that the first sale doctrine does not apply in prosecutions under 18 U.S. Code § 2318:

The United States criminal code, Title 18, criminalizes certain copyright violations. For example, 18 U.S.C. § 2319 criminalizes violation of 17 U.S.C. § 506(a). The statute violated in the instant case, however, requires no copyright violation. The indictment here alleges violation of 18 U.S.C. § 2318. Nowhere within 18 U.S.C. § 2318 does the statute require any violation of Title 17, nor does the United States allege in the instant indictment that the Defendant infringed any copyright. . . . Instead, the United States alleges precisely what is required by § 2318, that is, that the Defendant knowingly trafficked in illicit labels.

Brief of Appellee in U.S. v. Harrison, 2008 WL 2857834. The Department of Justice also pointed out that the first sale doctrine only applies to items subject to copyright, so since “the COAs charged in the indictment are not subject to copyright, the first sale doctrine dos not apply.” Brief of Appellee, supra.

Harrison lost. The Eleventh Circuit held that the

first-sale doctrine is not available to an 18 U.S.C. § 2318 defendant. . . . [T]he statute defines a distinct crime; Harrison was not charged with copyright infringement. Congress could have easily incorporated the first-sale defense into § 2318, but chose not to. Nor would Congress choose to, for allowing a first-sale defense to a § 2318 prosecution would swallow the statutory scheme in its entirety. The statute targets the secondary market in authenticating labels; the first-sale doctrine eliminates restrictions on secondary markets. Therefore, to allow a first-sale defense would be to allow precisely the secondary market Congress intended to eliminate.

U.S. v. Harrison, supra.

That presumably leaves Harrison to comply with the sentence the federal district court imposed after he pled guilty: He was sentenced to imprisonment for 46 months, a fine of $25,000 and ordered to pay restitution to his victim(s).

Zappers and Tax Evasion

You may have seen the article in the August 30 edition of the New York Times that discusses the use of “zappers,” computer software that can be used to siphon cash from a business’ receipts.

As the Times article explains, zappers are used to alter the electronic sales records in a cash register: If the business is a restaurant, the owner uses the zapper to erase the register’s record of food orders the total cost of which is equivalent to the amount of money the owner has siphoned from the take. The point, of course, is to avoid paying income tax (and maybe other taxes) on the entirety of the business’ receipts.

It’s old wine in new bottles – an old scam in a new guise. As the article notes, before cash registers and records were computerized, businesses used to keep a double set of hard copy books and use the second set – the modified set – to conceal the unreported income. Interestingly, the article says that the U.S. Internal Revenue Service doesn’t seem to have a handle on the user of zappers; it quotes an IRS representative as saying that the agency doesn’t track the use of zappers, which I interpret as saying that the IRS is not trying to find out how often they are being used.

The article also says the province of Quebec has aggressively pursued the use of zappers. The province’s tax collection agency has apparently conducted over 230 investigations involving the use of zappers.

There have, apparently, only been two prosecutions in the U.S. that involved the use of zappers to evade the payment of income tax. I thought I’d focus on one of them to illustrate how what we have here is an old crime being committed in a new way. This is not an area in which we need new law (unless we decide to outlaw the creation and/or use of zappers, which I’ll get to later).

The case is from Detroit. The defendant was (is) Talal Chahine. Here are the facts in the case, as taken from a 2007 U.S. Department of Justice press release:

Talal Khalil Chahine is the sole owner of La Shish, Inc., a Middle Eastern restaurant chain located in the Detroit, Michigan metropolitan area. The Indictment alleges that Talal Chahine conceived and executed a thescheme to skim cash proceeds from the restaurants for the tax years 2000 through 2004.During those tax years, La Shish, Inc. maintained a double set of computerized books, records and balance reports, one actual and one altered. The altered records were produced by a complex computer program that artificially reduced the amount of receipts in the form of cash that was actually received by the restaurants. Talal Chahine oversaw the maintenance of the double set of books, as well as the skimming and concealment of more than $20,000,000 in cash received by the restaurants. To evade government scrutiny, the skimmed cash was not deposited into U.S. bank accounts, but instead, at the direction of Chahine, converted into cashier’s checks made out to persons located in Lebanon and reduced in physical size by changing small denomination notes into larger denomination notes. These conversions were made for the purpose of transporting the cash outside the United States to Lebanon, away from U.S. government reach and detection.

U.S. Attorney for the Eastern District of Michigan, Superseding Indictment Returned against La Shish Owner (May 30, 2007).

I found what I believe is the superseding indictment the press release refers to. You can find it here, if you’d like to check it out. It essentially repeats the factual allegations in the press release, and then contains five counts, each of which charges Chahine with tax evasion in violation of 26 U.S. Code § 7201. Here’s an example:

COUNT FIVE: Income Tax Evasion

From on or about January 1, 2004 through on or about April 15, 2005,
within the Eastern District of Michigan, Southern Division, TALAL KHALIL
CHAHINE, defendant herein, did willfully attempt to evade and defeat income tax in
the approximate amount of $1,077,567 due and owing by him to the United States of
America for the calendar year 2004, by failing to make an income tax return on or
before April 15, 2005, as required by law, to any proper officer of the Internal
Revenue Service, by failing to pay to the Internal Revenue Service said income tax,
and by concealing and attempting to conceal from the United States of America his
true and correct income and the nature and extent of his assets and the location thereof, all in violation of Title 26, United States Code, Section 7201.

In 2005, Chahine apparently fled to Lebanon, to avoid prosecution on these charges; according to news stories, he remains a fugitive. Christy Arboscello, Palm Palace to Take over La Shish Restaurants, Detroit Free Press (July 10, 2008). He may never be caught, and never face trial on the charges.

As I noted earlier, we don’t need new law to address the “harm” the zappers are being used to inflict . . . the evasion of income (and maybe other) taxes. We could, I suppose, outlaw the creation and sale of zappers, but I don’t really see the need to do that. The point, after all, is to keep people from using them, and the best way to do that would seem to be to aggressively prosecute people like Chahine, who are using them to avoid the payment of taxes. According to the Times article, government may be losing a LOT of revenue to zapper-facilitated-fraud.

I don’t know how you crack down on that. Maybe there’s some way to come up with a counter-program . . . software that can detect the presence of a zapper? Or maybe you could require business – particularly business in the food and entertainment services, which is where this seems likely to happen – to install some kind of program that would monitor the registers and detect the use of a zapper or any other kind of program that could hide money.

Exigent Search of a Computer

This post is about the rule that lets officers seize -- but not search -- evidence, such as a computer, because they believe it would be risky or even dangerous to delay and follow usual procedure.

As I’ve explained before, under the 4th Amendment officers must have either (i) a search warrant or (ii) an applicable exception to the warrant requirement in order to conduct a lawful search of someone or of their property or to seize their property.

As Wikipedia explains, one of the exceptions that can justify a search is the “exigent circumstances” exception. This exception is based on the premise that sometimes police simply cannot take the time to get a search warrant because if they do, the evidence they’re after will either be destroyed or will have been moved, maybe out of their jurisdiction or maybe to some place where they may not be able to find it. So it’s essentially an emergency exception.

A U.S. District Court judge’s opinion from last fall, in a case out of Texas, illustrates how the exigent circumstances exception can apply to a computer search or seizure. Here are the facts in the case:

On January 24, 2007, FBI . . .Agents Lynd and Sabol. . . . were . . . investigating a conspiracy involving [Guadalupe] Martinez, [Jason] Trowbridge, Chad Ward, and Stuart Rosoff in which [they] . . .`exceeded authorized . . . access to a . . . database to obtain personal identification information on individuals . . . so the conspirators could harass them by making threatening phone calls, disrupting telephone service and making false 911 calls to elicit response by police, fire and ambulance. . . [T]his is known as `swatting. . . . [A]round noon, the agents proceeded to Ward's home and interviewed him. Ward stated . . . that Trowbridge had a girlfriend who lived with him, Trowbridge had instructed him to destroy evidence on one occasion, had seven computers in his home and was anti-government and could take care of himself if law enforcement arrived. . . .

The agents proceeded to Trowbridge's town home at about 3:00 p.m to . . . talk.. . . When the[y] knocked on Trowbridge's door . . and called out Trowbridge's name, the music inside the home stopped playing. . . . Angela Roberson, Trowbridge's girlfriend . . . answered the door and [said] Trowbridge was not home. She agreed to talk . . . about Martinez and allowed them to come inside. The agents remained on the first floor of the three level town house. . . . Roberson [said] she had exchanged instant messages with Martinez regarding his swatting activities on . . .computers in the home, that spoof cards had been purchased using computers in the home, and that Trowbridge had computer access to a commercial database at the home. . . .Lynd observed a wireless router that would allow a person within a few hundred yards to access the computers and erase or change them. . . . [T]he officers noticed three computers downstairs, and Roberson said that there were three upstairs. . . . Roberson called Trowbridge's cell phone, and the agents heard [it] ring upstairs. Roberson hung up . . . stating that Trowbridge did not answer. At this point, the agents believed that Trowbridge was hiding upstairs but did not know how many people were upstairs [or] if there were any weapons. . . . Lynd called and spoke with Trowbridge who said he was not home and Lynd could make an appointment to speak with him and his attorney. . . .

At some point during the conversation with Roberson, the agents developed probable cause to search the computer hard drives because she identified [them] as being used to have conversations with Martinez and to purchase spoof cards. The agents then spoke with the U.S. Attorney's Office [which] advised them that it would be difficult to get a search warrant in the late afternoon because of Houston traffic. [In] Lynd’s experience individuals involved in computer crimes had attempted to destroy computer evidence. [He knew] computer evidence is more fragile than drug evidence. It can be destroyed by turning off the computer, smashing it with a hammer, using a magnet, or throwing it into a fire. Lynd was sure the evidence would be gone in a few minutes if the agents left. Both agents did not believe it would be safe to leave one at the residence while the other secured a search warrant. Lynd based this fear on the fact Roberson and Trowbridge were concealing Trowbridge's presence upstairs, people had fled the residence, the residence smelled like marijuana, and they could not see what was occurring upstairs. Sabol also knew Trowbridge had been affiliated with an anarchist group. Lynd . . . was concerned that Ward had called Trowbridge to warn him that the agents were coming.

The agents asked Roberson for a copy of the computers and when she refused informed her that they would seize the computers to prevent the destruction of evidence. [She] . . . asked the agents to leave. . . . When Houston police . . . officers arrived to perform a safety sweep, Roberson told them that Trowbridge was upstairs. The police officers escorted him downstairs. . . . [A]dditional agents arrived and seized the computers. . . . The agents . . . did not search anything else in the home.

U.S. v. Trowbridge, 2007 WL 4226385 (N.D. Tex. 2007).

After seizing the computers, the agents checked them into an evidence control room in Houston, got a warrant to search the computers, and then shipped the computers to a forensic lab, where they were analyzed. U.S. v. Trowbridge, supra. On June 19, 2007, a federal grand jury charged Trowbridge with conspiring to violate 18 U.S. Code § 1029, which criminalizes what is called access device fraud. You can read about the crime in the U.S. Department of Justice Manual you can find here.

Trowbridge moved to suppress the evidence recovered from the seized computers, arguing that seizing the computers violated his rights under the 4th Amendment because the agents did not have a warrant authorizing the seizure. In ruling on his motion, the district court first noted that an intrusion into someone’s home – like the intrusion and seizure here – is presumptively unreasonable unless the person consents (which Trowbridge did not) or unless “probable cause and exigent circumstances justify the encroachment.” U.S. v. Trowbridge, supra. The court then cited a federal appellate court for the proposition that exigent circumstances exist when

(1) the degree of urgency involved and amount of time necessary to obtain a warrant; (2) the reasonable belief that contraband is about to be removed; (3) the possibility of danger to the police officers guarding the site . . . while a search warrant is sought; (4) information indicating that the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of [evidence] are characteristic behavior of [the suspect].

U.S. v. Trowbridge, supra. The district court then considered whether, under this standard, the agents had exigent circumstances that justified seizing the computers:

[T]he situation was urgent because the officers believed Trowbridge was upstairs and could quickly destroy the evidence. Lynd was sure that the evidence would be gone in a few minutes. The agents . . . feared for their safety. [T]he U.S. Attorney's Office told the[m] . . . it would be difficult to obtain a search warrant that day. . . . [T]he officers believed that Trowbridge was hiding upstairs and had access to the computers. They had also been told that Trowbridge had instructed Ward to destroy evidence in the past. . . . Both did not believe it would be safe to leave one agent at the residence while the other secured a warrant. Roberson and Trowbridge were deceiving them by concealing Trowbridge's presence in the home. Sabol had seen two individuals fleeing the house and was unaware whether they might return. The[ fact] Trowbridge was allegedly affiliated with an anarchist group also alarmed the agents. These facts support a finding that it would have been dangerous for one of the officers to guard the residence.

Considering the fourth factor, . . . Martinez had recently been arrested and news of this arrest may have been available to party line members. . . . [T]he agents had spoken with Ward. They were concerned that he would call Trowbridge to warn him that they were coming. When Roberson called Trowbridge's cell phone, the officers heard the phone ring upstairs. This indicated to the officers that Trowbridge was upstairs and was aware of their presence. . . . [T]he agents had spoken with Trowbridge on the phone confirming that he knew of their presence. Finally, . . . Lynd testified that computer evidence is easier to destroy than drug evidence. . . . [T]here was reason to believe that Trowbridge would destroy the evidence. Ward informed the officers that Trowbridge had instructed him to destroy evidence in the past; therefore, the destruction of computer evidence may be characteristic of his behavior. . . . Lynd testified that individuals accused of computer crimes had attempted to destroy evidence in his experience and that Martinez had disposed of computer evidence.

U.S. v. Trowbridge, supra.

So the district court judge found that the agents reasonably relied on the exigent circumstances exception in seizing the computers to prevent the destruction of the evidence they contained. It denied Trowbridge’s motion to suppress the evidence, but he can always appeal that decision, either after the case has gone to trial or after he enters a guilty plea that lets him reserve the right to appeal this issue.

I think the federal judge was right in finding that there was an exigency here. It looks to me like the agents did everything they could to get a search warrant and, finding that it was simply not possible to get one, they acted as they should, to preserve evidence. And you’ll note that no one searched the seized computers until after the government had gotten a search warrant authorizing the search of each one. The scope of the exigency here only justified seizing the computers; it didn’t authorize searching them.

This, by the way, is the only reported case I can find, so far, anyway, on swatting, which somewhat surprises me.

Aiding and Abetting the Crime of Exceeding Access to a Computer

That’s a long title, but I can’t come up with anything shorter that captures what this post is about.

Let’s start with the facts in U.S. v. Reyeros, 2008 WL 2924837 (Third Circuit Court of Appeals 2008), the case this post is about:

[In 1999, Juan Reyeros asked Hernan Uribe] for help identifying an American company through which . . . cocaine could be imported into the United States. [Juan told Uribe his brother] Jorge [Reyeros] was a Customs inspector and could use that position to ensure containers containing drugs could enter the United States without being inspected.

Uribe . . . sought the help of [Rafael] Garravito-Garcia to find an American company to receive the smuggled cocaine. Garravito-Garcia . . . contacted an American acquaintance, James Lagrotteria, for assistance. Unbeknownst to the conspirators, . . . Lagrotteria was an informant for Customs and the United States Drug Enforcement Administration (“DEA”).

Garravito-Garcia introduced Uribe to Lagrotteria in Colombia in March 1999 and the . . . men met to discuss plans to import cocaine into the United States. Lagrotteria was tasked with identifying an American company suitable for receiving the imported cocaine. Lagrotteria was told that the conspirators were working with a Customs official and that the official planned to check a Customs computer database to see if any company Lagrotteria identified had been flagged by Customs as having previously imported contraband.

In April 1999, Customs and DEA agents fabricated records for a fictitious company they named `TJ Import Produce.’ They put the records in a Customs database and, on April 8 . . . Lagrotteria informed Garravito-Garcia that he had identified TJ Import Produce as a potential recipient of the cocaine the conspirators hoped to import. A few days later, on April 12, . . ., Jorge accessed the Customs computer database and examined the mock importation and inspection records for TJ Import Produce. Subsequently, Uribe informed Lagrotteria that TJ Import Produce had been investigated and was suitable.

Later . . . Lagrotteria traveled to Colombia to meet Juan and to discuss . . . the . . . plans to import cocaine. Uribe informed Juan and Lagrotteria he was having trouble locating 500 kilograms of cocaine. Juan responded that, to make the conspiracy worth the risks involved, they needed to import at least 500 kilograms of cocaine. . . .

[I]nstead of shipping cocaine directly from Colombia to the United States, the[y] planned to ship the drugs through Ecuador, concealed in a cargo container purportedly holding bananas. . . . Juan explained that the . . . drugs should be shipped from . . . because Jorge had said it was `impossible to take anything out of Colombia.’ . . . The[y] never actually carried out their plan, however, because they were not able to acquire cocaine.

U.S. v. Reyeros, supra. They may never actually carried out their plan, but they were still indicted by a federal grand jury:

Counts 1 through 4 . . . named only Jorge [Reyeros] and charged him. . . with conspiracy to import cocaine, . . . and . . . exceeding authorized access to a Customs computer, in violation of 18 U.S.C. § 1030(a) and 2. Specifically, the Indictment alleged that . . . Jorge conspired . . . to import into the United States cocaine concealed in cargo containers. It also alleged that Jorge had, on multiple occasions . . . unlawfully accessed a Customs computer database, obtained information identifying containers designated for inspection by Customs, and provided that information to his co-conspirators in furtherance of the conspiracy.

U.S. v. Reyeros, supra. Counts 5 and 6 of the indictment charged Juan and Jorge Reyeros, Uribe and Garravito-Garcia with conspiring to import cocaine and with aiding and abetting Jorge Reyeros’ exceeding authorized access to the Customs computer.

At trial, the jury acquitted Jorge Reyeros of the charges in Counts 1-4, but convicted him and his brother Juan of the charges in Counts 5 and 6 . . . which really doesn’t make any sense. The jury’s verdict means it found (a) that Jorge did not conspire to import cocaine and did not exceed his authorized access to a Customs computer as charged in Counts 1-4 but (b) found him guilty of conspiring to import cocaine as charged in Count 5 and guilty of aiding and abetting his own unauthorized use of the Customs computer. (I don’t know what the jury did as to Uribe and Garravito-Garcia, since this opinion is only about the Reyeros brothers.)

The rationality of the jury’s verdict concerning the Reyeros brothers is not, though, what I want to write about. What I want to write about is the exceeding authorized access and aiding and abetting exceeding authorized access charges.

Counts 2-4 of the indictment charged Jorge with exceeding his authorized access to the Customs computer. There were three counts because each count was predicated on a different instance when he used the Customs computer improperly; as I’ve noted before, a “count” in an indictment or other charging document (an information, or a complaint) charges one “crime.” Since each act of gaining unauthorized access to the Customs computer was a crime, it followed that the indictment would charge three crimes in three counts.

Section 1030 of Title 18 of the U.S. Code makes it a crime to (a) gain unauthorized access to a computer (an “outsider” hacks into a system without permission) and (b) exceed one’s authorized access to a computer. Here, Jorge was authorized to use the Customs computer for U.S. Customs business; he was not authorized to use it, as the indictment alleged, to help out people who wanted to smuggle cocaine into the U.S. In using the Customs computer for that purpose, Jorge exceeded the scope of his authorized access to the system, and committed a crime. I did a blog post about this crime a couple of years ago; you can read that post if you’d like to know more about it.

But Jorge was the only one of the people involved in this conspiracy to import cocaine who COULD commit the exceeding authorized access crime. For one thing, the others apparently had no way to access the Customs computer; and if they had, their access would have been unauthorized -- the (a) crime above, not the (b), exceeding authorized access crime.
They were, though, charged with aiding and abetting Jorge’s exceeding his authorized access to the Customs Computer. This charge appeared in Count 6 of the indictment and we know Juan and Jorge were convicted on that count; for the purpose of analysis, I’m going to assume that Uribe and Garravito-Garcia were also convicted on that count.

As I’ve mentioned before, aiding and abetting is the way the criminal law reaches out and holds people liable for encouraging someone else to violate the law. Aiding and abetting – or accomplice liability -- applies even though Juan Reyeros, Garravito-Garcia and Uribe were themselves incapable of committing the crime of exceeding authorized access to the Customs computer. The theory of aiding and abetting – or accomplice – liability is that if you encourage someone to commit a crime, you are at least to some extent responsible for causing the commission of that crime, and should be held liable for what you set in motion.

Here, it doesn’t matter that when Jorge Reyeros exceeded his authorized access to the Customs computer to see if the TJ Import Produce company would be a suitable conduit for the cocaine he was checking on a company that did not exist. In other words, it does not matter, as far as the law of aiding and abetting is concerned, that he had been set up and was really not doing anything that would promote the conspiracy to import cocaine.

That fact is irrelevant as far as Jorge’s liability for exceeding his authorized access to the Customs computer because that crime was committed when he used the computer in a way he was not authorized to; his purpose in exceeding his legitimate access to that computer is irrelevant insofar as the computer crime charge is concerned. He knew he was using the computer to do something he was not supposed to do and that constitutes the commission of this crime. And since he committed the crime, the others are liable for their role in “causing” him to commit the exceeding authorized access crime.

This is one of those cases where would-be criminals get themselves convicted of a tangential offense even though they failed to commit the crime that was their goal. These guys never actually imported cocaine because they couldn’t get any, but their failure doesn’t prevent their being charged with conspiring to import cocaine and exceeding authorized access.

By the way, the federal judge who handled the trial sentenced Jorge to serve 292 months in prison and sentenced Juan to 235 months in prison. On July 31, the U.S. Court of Appeals for the Third Circuit affirmed their convictions, so it looks like they’re stuck in prison for a long time.

Search Incident to Arrest of a Blackberry

This post is about whether police can search a Blackberry carried by an arrestee without getting a warrant to do so.

That is, it's about what's known as "search incident to arrest."

As Wikipedia explains, search incident arrest is a traditional exception to the 4th Amendment’s requirement that police get a warrant before searching a place or a person.

The Supreme Court has held that when an officer arrests someone, it is “reasonable” under the 4th Amendment for the arresting officer to search the person’s clothing and whatever he or she might be carrying, like a bag or a briefcase. I wrote about the exception in an earlier blog post.

In U.S. v. Carroll, 537 F.Supp.2d 1290, a 2008 decision from the U.S. District Court for the Northern District of Georgia, a defendant moved to suppress evidence obtained by searching (we’ll get back to that in a minute) his Blackberry. Here’s a summary of the facts in the case:

On February 20, 2007, federal agents obtained a warrant to arrest Jeremiah Carroll on charges of conspiracy to distribute marijuana. On March 9, 2007, Carroll, accompanied by his attorney, surrendered to law enforcement officers at their offices. He was carrying a backpack when he surrendered. Law enforcement officers searched the backpack . . . and discovered a Blackberry.

The Blackberry's functions include a cellular telephone, which has both temporary and permanent memory. The temporary memory contains, for example, a `recent calls’ list. The permanent memory contains more static, stable data, such as a programmable `contact’ list of names, addresses, and phone numbers. The `recent calls’ list is dynamic and changes every time the Blackberry receives a call. The `contacts’ list changes only when changes are inputted.

Law officers searched and recorded the contents of the Blackberry's `contacts’ list. The Government seeks to introduce some of the contents of the `contacts’ list at trial.

U.S. v. Carroll, supra.

The question was whether the search of the Blackberry violated the 4th Amendment. Carroll said it did, filing a motion to suppress evidence obtained from the contacts list.

In ruling on his motion to suppress, the U.S. District Court explained that it raised two issues: The first was whether the agent’s going through the contacts list and recording its contents was a “search” under the 4th Amendment. The other issue arises only if going through the contacts list was a “search;” if it was, then it had to comply with the requirements of the 4th Amendment, i.e., it had to have been conducted pursuant to an exception to the 4th Amendment’s warrant requirement (since the agents did not get a warrant to search the Blackberry).

As to the first issue, the court noted that neither the prosecution nor Carroll had briefed whether

the search of the Blackberry constituted a `search’ for Fourth Amendment purposes, because they apparently assume that it did. This is not necessarily true. `”[T]he State's intrusion into a particular area ... cannot result in a Fourth Amendment violation unless the area is one in which there is a ‘constitutionally protected reasonable expectation of privacy.”' New York v. Class, 475 U.S. 106 (1986). Even inherently personal things, like the contents of a conversation, are not protected by the Fourth Amendment if conducted in a way that defeats a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347 (1967). A person's status under the law is directly relevant to the analysis. Parolees, for example, have a significantly diminished expectation of privacy, and may be subjected to searches that would be unconstitutional if directed against non-criminal citizens. . . . . Prisoners have no reasonable expectation of privacy. . . .

Carroll voluntarily surrendered himself . . . at law enforcement offices. He elected to bring his backpack, which contained his Blackberry. He elected not to delete the contents of the `contacts’ list before his surrender. The Court is not convinced that Carroll had a reasonable expectation of privacy in the contents of the Blackberry's memory when he surrendered himself for arrest. The parties have not briefed, and the Court will not here decide, whether one who voluntarily surrenders himself for arrest, with time in advance to contemplate his belongings and with the advice of counsel, has a reasonable expectation of privacy in those belongings. The Court requests further briefing on whether Carroll had a reasonable expectation of privacy in the contents of his Blackberry.

U.S. v. Carroll, supra. So here, the court’s actually doing the prosecution a favor: It’s raising the possibility that the agents’ looking through the contacts list on the Blackberry was not a search, which means they didn’t need a warrant or an exception to the warrant requirement for the search to be valid under the 4th Amendment.

Now the defense is going to have to convince this court that Carroll did have a 4th Amendment expectation of privacy in the backpack, even though he brought it with him when he surrendered. I think he does.

If you’re walking down the street carrying a backpack, a police officer can’t simply search your backpack (having stopped you and told you to hand it over) because you DEFINITELY have a 4th Amendment expectation of privacy in its contents. It seems to me, then, that this court is wrong in raising the issue as to whether it was a “search” for the agents to go through Carroll’s backpack when he surrendered; I think the prosecution and defense were absolutely correct in assuming it was a search (because, IMHO, it was). I think this court is confusing the issue of whether we HAD a search with the other issue it had to address – the issue as to whether the search was reasonable under the 4th Amendment.

When Carroll filed his motion to suppress the information obtained from his Blackberry, the U.S. District Court referred the motion to a federal magistrate, which is common in the federal system. The federal magistrate analyzed the facts and the law and wrote what’s called a Report and Recommendation, which the magistrate submitted to the federal handling Carroll’s case. This procedure is a way of helping federal district court judges get through all the motions and other matters they have to decide a little more expeditiously; instead of starting from scratch, a judge only has to decide if he/she agrees with the magistrate’s Report and Recommendation.

In the Carroll case, the magistrate said the search of the Blackberry was a valid search incident to arrest because Carroll had the backpack with him when he was arrested. As I noted earlier, the scope of the search incident to arrest exception to the 4th Amendment warrant requirement encompasses things someone is carrying when they are arrested, like a backpack or a briefcase. The magistrate in this case found that the search incident exception applied to the search of the Blackberry because the Blackberry was in the backpack and Carroll had the backpack with him when he was arrested.

Carroll argued that the magistrate’s Report and Recommendation was wrong, and he won . . . a little bit. The federal district court judge held that he needed more evidence and more arguments on the law before he could decide this issue:

When a person is arrested, `it is reasonable for the arresting officer to search the person . . . to remove any weapons that the latter might seek to use to resist arrest or effect his escape.’ Chimel v. California, 395 U.S. 752 (1969). The Supreme Court has also found it `reasonable for the arresting officer to search for and seize any evidence on the arrestee's person . . . to prevent its concealment or destruction.’ . . .

[T]his and other courts have reached varying conclusions on whether searches of an arrestee's mobile phone is a lawful search incident to arrest, and if so, how far that lawful search may extend. Among the questions courts have considered are whether a mobile phone fits within the category of property intimately associated with an arrestee's person, how contemporaneous the search must be relative to the arrest, and whether the search is limited to a phone's dynamic memory. . . . Carroll voluntarily surrendered . . . and . . . brought his backpack, containing the Blackberry, to law enforcement offices. . . . Carroll had the opportunity to make a conscious choice about which of his effects were available to law enforcement at the time of his arrest. Neither Carroll nor the Government has developed this issue factually, nor has the issue been briefed. The Court will defer ruling on the motion to suppress the information resident in the Blackberry until an evidentiary hearing is conducted and the parties further brief this issue.

U.S. v. Carroll, supra.

I think this is an important issue. The search incident exception arose at a time when the only things someone had on their person or in the things they carried when they were arrested were pretty straightforward: a wallet, keys, other personal items, all stuff that only told officers a little bit about a person. Even an address book or a calendar only tells officers a little bit about the person. A Blackberry or a mobile phone can contain a LOT more information than any of these sources, and so can a laptop.

If this court finds – and other courts agree – that the search of a Blackberry is a valid search incident to arrest, then what about a laptop? If arresting officers can go through a Blackberry as part of a search incident to an arrest, can they go through the files on a laptop under the same rationale?