Invasion of Privacy, Outrage and the iPad

Three women who “are former employees of . . . Jeremiah Johnson and/or [his] law firm”, which apparently is/was in Kansas, sued him in federal court, alleging “claims of invasion of privacy, outrage and breach of fiduciary duty.”  Bashaw v. Johnson, 2012 WL 1623483 (U.S. District Court for the District of Kansas 2012).

The opinion only says a little about how they came to bring the suit, but according to a news story, the plaintiffs allege that “personal injury attorney” Johnson “encouraged” them (the opinion says he “required” them) to “wear `skirts and high heels’ and then surreptitiously placed an iPhone (or iPad) under their desks with a[n] . . . app called Cam-u-flage, `the best spy camera app to take pictures without anyone noticing.”

The opinion says Johnson used Cam-u-flage on “iPhone and iPad to conduct video surveillance of the area beneath a particular desk in the office such that [he] secretly obtained video recordings of [their] legs, lower torsos and undergarments.”  Bashaw v. Johnson, supra.

The news story says the women realized what was happening when one of them “found the camera under the desk.”  Bashaw v. Johnson, supra.  It says they were apparently “able to see and delete the photos”, after which they sued Johnson, claiming damages of $75,000 each. He responded by filing a counterclaim against them in which he alleged that the women, “ in violation of the [Computer Fraud and Abuse Act], accessed [his] iPhone and iPad in excess of their authorization and deleted data from those devices.”  Bashaw v. Johnson, supra. (I don’t have the counterclaim but since the story says the women “were able to see and delete the photos,” I’m assuming it’s based on their allegedly unlawful access to Johnson’s iPhone and/or iPad.)

As I’ve noted before, the Computer Fraud and Abuse Act [CFAA], which is codified as 18 U.S. Code 1030, is the general federal cybercrime statute.  It criminalizes accessing a computer without being authorized to do so, among other things.  And as I’ve also noted, § 1030 creates a civil cause of action for someone who has been injured by criminal conduct that violates the Act.  Section 1030(g) states, in part, that “[a]ny person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages. . . .”  That is what Johnson did, although he filed his 1030(g) action as a counterclaim, rather than as an original claim in a civil complaint. 

The three plaintiffs responded by filing a Rule 12(b)(6) motion to dismiss Johnson’s counterclaim. Bashaw v. Johnson, supra.  Rule 12(b)(6) motions are created by Rule 12(b)(6) of the Federal Rules of Civil Procedure, which are the rules that govern civil suits in federal court.  As Wikipedia explains, a Rule 12(b)(6) motion to dismiss is how

lawsuits with insufficient legal theories underlying their cause of action are dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion.

`While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

In his counterclaim, Johnson asserted that “one or more” of the plaintiffs violated the CFAA

accessing, without authorization or in excess of their authorization, [his] iPad, iPhone and one or more of [his] computers and deleting unspecified data from those devices. [Johnson] asserts that he has been damaged by the actions of plaintiffs and that the damages `would exceed’ at least $5000 in value. . . .

Bashaw v. Johnson, supra.

The plaintiffs’ Rule 12(b)(6) motion to dismiss the counterclaim argued that it “fails in at least two respects”:  Johnson did not “sufficiently allege the nature of his damages within the meaning of the CFAA” and he did not “sufficiently allege a qualifying `loss’ within the meaning of the CFAA”.  Bashaw v. Johnson, supra.

The federal district court judge began his analysis of their arguments by noting that under 18 U.S. Code § 1030(g),

a civil action may be brought only if the conduct `involves 1 of the factors set forth in subclauses (I), (II), (III), (IV), or (V) of subsection [18 U.S. Code 1030](c)(4)(A)(i).’ 18 U.S.C. § 1030(g).  In other words, a plaintiff alleging a violation under § 1030(g) must allege the conduct involved one of the following factors:

 (I) loss to 1 or more persons during any 1–year period . . . aggregating at least $5,000 in value; (II) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals; (III) physical injury to any person; (IV) a threat to public health or safety; [or] (V) damage affecting a computer used by or for an entity of the United States Government in furtherance of the administration of justice, national defense, or national security.

Bashaw v. Johnson, supra.

The judge noted that Johnson’s counterclaim stated claims against the three plaintiffs under § 1030(g) “for violations of § 1030(a)(2), (a)(4) and (a)(5).” Bashaw v. Johnson, supra.  He also noted that each of these three subsections of 18 U.S. Code 1030,

with some variation, prohibits accessing a . . . computer without authorization and obtaining information from the computer. According to the counterclaim complaint, each of these asserted violations are based on conduct (as required by § 1030(g)) involving a loss aggregating at least $5,000 in value.  

For each of these asserted violations, then, [Johnson] must allege a `loss’ within the meaning of the CFAA. In addition, subsection (a)(5) contains an express “damage” requirement such that [he] must also adequately allege `damage’ within the meaning of the statute for purposes of his subsection (a)(5) claim. . . .Thus, to state a claim under § 1030(g) for violation of § 1030(a)(5) based upon § 1030(c)(4)(A)(i)(I), a plaintiff must allege both `damage’ and a `loss’ aggregating at least $5,000 in value.

Bashaw v. Johnson, supra.

The judge explained that § 1030(e)(8) of the CFAA “defines the term `damage’ as `any impairment to the integrity or availability of data, a program, a system, or information.’” Bashaw v. Johnson, supra.  He also explained that in construing this term, court have found that “damage” refers to “`the destruction, corruption, or deletion of electronic files, the physical destruction of a hard drive, or any “diminution in the completeness or usability of the data on a computer system.”’“ TriTeq Lock, 2012 WL 394119 *5 (N.D. Ill. 2012). 

The judge then noted that Johnson 

conclusorily alleges in this counterclaim that he `has been damaged’ but he does not assert the nature of such damage. In his submissions on the motion, he claims that he suffered damages because `data was erased.’ No where in his submissions or his counterclaim complaint does [Johnson] identify the data that was allegedly erased.

This allegation, then, essentially parrots the statutory language and is insufficiently factual to frame plausibly the damages element of defendant's CFAA claim. . . . For this reason, [Johnson] cannot state a claim for relief under [18 U.S. Code 1030] subsection (a)(5).

Bashaw v. Johnson, supra. 

The judge also found that Johnson had failed to plead “a qualifying `loss’ for purposes of the CFAA. Bashaw v. Johnson, supra.  He noted that under 18 U.S. Code 1030, the

`term “loss” means any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.’

Bashaw v. Johnson, supra (quoting 18 U.S.C. § 1030(e)(11)).

The judge then explained that the “majority of courts have construed the term `loss’ to include only two types of injury -- costs incurred (such as lost revenues) because the computer's service was interrupted and costs to investigate and respond to computer intrusion or damage.” Bashaw v. Johnson, supra. 

He then applied this standard to Johnson’s counterclaim.  Bashaw v. Johnson, supra.  The judge found that in his counterclaim, Johnson

has not alleged that he suffered any `loss’ under the CFAA.

While he alleges that unspecified losses `would exceed’ $5,000 in value, he does not allege that he actually incurred losses in that amount. He does not allege or identify any investigative or response costs incurred as a result of the alleged CFAA violation and he does not allege any lost revenues or other losses incurred due to any interruption in service.

In his submissions, he contends that qualifying losses under the statute include `for example’ the prorated salaries or wages of employees who spent time restoring a backup of deleted data or recreating lost work, but he does not suggest that his employees performed these tasks or that he incurred costs relating to such tasks.

Bashaw v. Johnson, supra. 

The judge therefore held that

[b]ecause he has not alleged any loss under the statute, [Johnson] cannot maintain a CFAA claim for violations of any of the subsections identified in his counterclaim complaint. This claim is dismissed in its entirety.

Bashaw v. Johnson, supra. 

The judge dismissed Johnson’s CFAA counterclaim, which means that as of May 9, 2012 it was no longer part of this case.  Bashaw v. Johnson, supra.  The dismissal does not prevent Johnson from trying again, i.e, from filing another counterclaim in which he resolves the deficiencies in the initial one. 

Due Process, Overbreadth and Destruction

This post examines an issue that arose in a California juvenile court proceeding.  It began on May 17, 2010 when the San Joaquin County District Attorney filed a “juvenile wardship petition” pursuant to California’s Welfare and Institutions Code §602(a).  In re Mitchell W., 2012 WL 1155972 (California Court of Appeals 2012).

The petition “alleged that the minor”, Mitchell W., “had violated [California] Penal Code sections 422, criminal threats, and 242, battery. His mother, Lisa W., was the alleged victim on both counts.  In re Mitchell W., supra.  The opinion says that after his mother told Mitchell he could

not play video games because he was not attending school regularly, he struck her several times and repeatedly threatened to kill her. Lisa W. sustained swelling and bruises on her arm and pain to her hand. [Mitchell’s] conduct also endangered his seven-year-old sister, who was nearby.

In re Mitchell W., supra.  His mother told the authorities that Mitchell “had made similar threats before.”  In re Mitchell W., supra. 

On May 20, 2010, Mitchell admitted the charges and on July 7 the juvenile court declared him a ward of the court, “placed him on probation with a maximum period of confinement set at one year two months, directed him to follow all laws and court orders, and subjected him to unlimited search and seizure.”  In re Mitchell W., supra.  On September 21, the probation officer filed a probation violation petition, alleging that Mitchell “had repeatedly missed school and his mother had said he was `out of control.’” In re Mitchell W., supra.  On September 22, 2010, he admitted the violations and the court released him to his mother's custody. In re Mitchell W., supra. 

On November 18, 2010, police seized Mitchell’s computer and found

child pornography on it. [His] mother had caught [him] viewing child pornographic images on the computer two years prior and had admonished [him] about collecting such images. She had recently caught him again.

A court-ordered psychological evaluation of [Mitchell] stated that [he] had a history of watching child pornography on his computer. The evaluation also stated that [his] mother described [him] as manipulative and said [he] had stolen a credit card from her and used it to make online purchases.

[Mitchell’s] mother reported an incident that occurred in early February 2011 to the probation officer. On February 8, [he] was verbally abusive to his sister and kept increasing the volume of the television. . . . He refused to turn the volume down when [his] mother requested he do so, so [she] mother turned the television off and unplugged it.

[He] plugged the television back in. When his mother unplugged it again, [Mitchell] cornered [her] . . . and told her she did not want to find out what would happen if she disabled the television. . . . The police were called.

In re Mitchell W., supra. 

On February 14, 2011, the probation officer filed a second probation violation petition, “alleging [Mitchell’s] possession of child pornography and [his] mother's reports of [his] threatening behavior.” In re Mitchell W., supra.  The officer recommended that his computer “be seized and destroyed and that he be allowed computer and Internet access only under responsible adult supervision.”  In re Mitchell W., supra. 

On February 17, 2011, Mitchell admitted the violations in return for the State’s agreeing not to “ file a new petition based on the allegations underlying the February 14, 2011 violation of probation.”  In re Mitchell W., supra. 

On March 10 and March 17, 2011, the juvenile court heard argument on the State’s request for an order to destroy Mitchell’s computer.  In re Mitchell W., supra.  At the March 10 hearing, a deputy public defender, who was “filling in” for Mitchell’s assigned counsel, asked if “technicians could simply `erase the offending materials or files.’” In re Mitchell W., supra.  The attorney said Mitchell had told her that

there is a `file shredder application already on the computer’ and the material could deleted beyond recovery. [Mitchell] told the court that the file shredder application `overwrites it numerous times.’ Unpersuaded, the court ordered the computer destroyed, but stayed the order so [his] assigned counsel could argue the matter.

In re Mitchell W., supra. 

At the March 17 hearing, Mitchell’s assigned attorney told the court the computer at issue was a laptop.  In re Mitchell W., supra.  His attorney said it would make

more sense to remove the hard drive than to force [his] mother to pay to replace the computer, which the entire family used. Counsel said he or an investigator from his office could take the [laptop] to a computer store to have the illegal images removed. [He] cited no authority that would except him or his investigator from what would be possession of illegal material.

[He] further suggested the probation department could test the computer to confirm the material had been removed. Counsel contended that removing the hard drive would not only remove the criminal matter, but would serve `the rehabilitative purpose of the order and prevention of future crimes’ just as well as destroying the entire computer.

In re Mitchell W., supra. 

The prosecutor noted that the police department “routinely destroyed computers when `the instrument of the crime itself is a computer’” and argued that “crime should have consequences.”  In re Mitchell W., supra.  And he was reluctant to release a laptop containing child pornography “to anyone.”  In re Mitchell W., supra.   

The judge found that destroying the computer was in Mitchell’s “best interest because it was `part of [his] rehabilitative process,’ which included learning that `there had to be a consequence’ for his misconduct.”  In re Mitchell W., supra.  He reinstated the destruction order but stayed it pending appeal.  In re Mitchell W., supra. 

On appeal, Mitchell argued that the juvenile court “`abused its discretion by imposing an unconstitutional condition of probation which was not specifically tailored to meet [his] needs by ordering destruction of his entire computer.’” In re Mitchell W., supra.  The Court of Appeals began its analysis of his arguments by noting that juvenile court judges have “`broad discretion to fashion appropriate conditions of probation’” because their goal is to rehabilitate the child, rather than, as is true in adult criminal court, punish an offender.  In re Mitchell W., supra. 

It noted that a condition of juvenile probation will not be held invalid unless it “`(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality’”.   In re Mitchell W., supra (quoting In Re R.V., 171 Call. App. 4<sup>th</sup> 239 (2009)). The court found the laptop destruction order was valid because it was “carefully tailored to [his] offenses, will serve the `compelling state interest in [his] reformation and rehabilitation’ . . .  by limiting his opportunity to reoffend and impressing on him that misconduct can have serious consequences.”   In re Mitchell W., supra (quoting In re Frank V., 233 Cal. App.3d 1232 (1991)).

Mitchell admitted the “child pornography on the laptop was contraband the government could lawfully seize and detain,” but claimed the order “unconstitutionally deprived him of a property interest, his possessory interest in his computer, without due process of law.”  In re Mitchell W., supra.  He argued that “the juvenile court violated due process because it failed to determine that destroying the contraband required destroying his computer (which was not unlawful to possess), rather than simply destroying the hard drive.”  In re Mitchell W., supra. 

The Court of Appeals did not buy this argument. In re Mitchell W., supra.  It found, first, that Mitchell had forfeited this argument because his attorney “did not make a due process objection grounded on the theory of unconstitutional taking” in the juvenile court proceeding.  In re Mitchell W., supra.  As the Court of Appeals noted, first, a “constitutional claim may be forfeited by failure to raise it in the trial court” and “[such] is the case here.”  In re Mitchell W., supra. 

The court also explained that “even if the court's order might have posed a due process problem in an adult criminal case” Mitchell “cites no authority from the juvenile justice context to support his due process claim, and we know of no such authority.”  In re Mitchell W., supra.  And, finally, it found that there was no due process violation in this case because Mitchell received a hearing

on his assertion that the contraband could be destroyed beyond recovery without destroying the computer. Indeed, the juvenile court continued the matter specifically for that purpose and to allow assigned counsel to address the issue. 

However, counsel offered no testimony, evidence, declaration or even an offer of proof grounded on statements from a qualified technician who would be available to remove the hard drive. Nor did counsel explain how he or an investigator could legally possess a computer containing child pornography while transporting it to such a technician. Therefore, the court impliedly determined the issue adversely to the minor.

In re Mitchell W., supra (emphasis in the original). 

Finally, the Court of Appeals rejected Mitchell’s argument that the juvenile court’s order was “unconstitutionally overbroad because it is not reasonably tailored to his needs, which could have been satisfied by destroying the hard drive containing the unlawful matter and by the probation condition requiring that he use a computer only under parental supervision.” In re Mitchell W., supra.  It explained that there

is no requirement that the juvenile court impose less restrictive conditions when those conditions present less effective means to satisfy the underlying purpose. And nothing prevents the juvenile court from imposing two conditions of probation narrowly tailored to achieve the same purposes when neither condition, in and of itself, can ensure achievement of those purposes.

Here, the juvenile court could legitimately have been concerned that the search of [Mitchell’s] house did not turn up other data media that could be played in the computer, such as optical discs or flash drives, even if the original hard drive was destroyed. The prosecutor told the court that an optical disc drive containing child pornography had been found, but that does not mean other easily concealed media was not found.

In re Mitchell W., supra.  

The Court of Appeals also noted that “given the mobile nature of the laptop, the court legitimately could have concluded its destruction was necessary to prevent [Mitchell] from secretly using it, notwithstanding the mother's best efforts.”  In re Mitchell W., supra.  It therefore affirmed the juvenile court’s order, which presumably means the laptop has been or soon will be destroyed.  In re Mitchell W., supra.  

The California Court of Appeals – Third District heard this case. It, like the five Districts, assigns three-justice panels to hear and decide appeals.  One of the justices in this case wrote a short concurring opinion in which he concurred because

the minor was playing video games on the computer, which was interfering with his school attendance. This is reason enough to sustain the forfeiture of the entire computer, even if he had not been using it for viewing pornography.

In re Mitchell W., supra (Robie, J., concurring).

Escorts, the Flash Drive and Authentication

This post deals with a civil case, not a criminal one.  More precisely, it deals with the custody litigation between Lori and Frank Perry.  In re Marriage of Perry, __ N.E.2d __, 2012 WL 1622619 (Illinois Court of Appeals 2012). 

Frank and Lori were married on April 17, 2000, and at the time this case arose had “three minor children, Frank Jr., Michael and Christopher.”  In re Marriage of Perry, supra. Frank

is a fire inspector for the city of Chicago and works 10–hour shifts, starting at 7 a.m. and ending at 5 p.m., Mondays through Thursdays. Frank also works as an exam proctor for the college of the city of Chicago every Friday from between 2 and 5 p.m. and ending at 10 p.m., and on Saturdays beginning at 7 a.m. working all day. Lori has been a stay-at-home mother since the parties' marriage. . . .

 

In re Marriage of Perry, supra. 

“On or about February 15, 2011, Frank left the house because Lori threatened him, stating, `If I could kill you and get away with it I would.’” In re Marriage of Perry, supra. 

This apparently was not an unprecedented event in their marriage:

Lori had been physically violent with Frank in the past, and Frank felt it was in his best interest to leave. Frank spent two nights at his mother's house and then stayed in a hotel for two nights. Even though Frank left the house, he sent texts to Lori to try to resolve their problems. 

While Frank was out of the house, Lori changed the locks. According to Frank, he repeatedly asked for the opportunity to see the boys but his requests were denied. Lori prevented Frank from seeing the children for six weeks.

In re Marriage of Perry, supra. 

On March 3, 2011, Lori filed a petition for to dissolve the marriage. In re Marriage of Perry, supra.  On March 17, Frank filed his response.  In re Marriage of Perry, supra.  On March 15, Lori filed a motion for interim relief seeking: “(1) temporary custody of the children; (2) temporary child support; and (3) temporary exclusive use and possession of Frank's nonmarital home.”  In re Marriage of Perry, supra.  The court held a hearing on her petition that began on “July 27, 2011 and concluded on October 11.”  In re Marriage of Perry, supra.  The judge heard “testimony from three witnesses over four days of contentious hearings.”  In re Marriage of Perry, supra. 

Frank testified, among other things, that “ he believed Lori was working as an escort and maintained that her work negatively affected the children, including their schoolwork and relationship with Lori.”  In re Marriage of Perry, supra.  He also offered into evidence

a flash drive containing photographs of Lori which . . . he downloaded from a Web site called `Chix Escorts’ on the Internet offering escort services. Frank downloaded the pictures and the information offered on the Web site, which included an e-mail and Lori's cell phone number, onto the flash drive. Counsel for Lori objected to the flash drive based on relevance [and] foundation. . . .

Frank testified that he ran Lori's escort name, `April,’ in the . . . Google, found pictures of Lori on the Web site `Chix Escorts,’ and downloaded copies of the pictures onto his flash drive. . . . The court found the photographs were relevant and admitted them into evidence. There was no further ruling on the remaining objections. . . .

In re Marriage of Perry, supra. 

Lori testified in rebuttal that she did not

set up the Web site `Chix Escorts.’ Lori testified that one of the photographs was an old picture on Frank's cell phone, and she further maintained that all of the photos on the `Chix Escorts’ Web site were photos she had previously sent to Frank. Lori had had Frank's cell phone since Frank left the house, but she did not have it with her in court when she gave her rebuttal testimony.

In re Marriage of Perry, supra. 

On October 11, after hearing closing arguments from both sides, the judge denied Lori

the relief she sought in her motion and granted Frank temporary custody of the minor children and temporary exclusive possession of the house and allowed Lori 14 days to vacate the home. The court found both parties lied on the stand, but it held that on the issue of credibility, the court had to weight the testimony in a light most favorable to Frank. 

The court . . . found it could explain Frank's lies but not Lori's, `other than to attempt to gain an advantage in this litigation.’ The court specifically took issue with Lori's numerous trips and unexplained income during 2010, which the court inferred was due to her working as an escort. 

In re Marriage of Perry, supra. 

On October 21, Lori filed an emergency motion to stay enforcement of the judge’s order pending her appeal. In re Marriage of Perry, supra.  That same day, the judge granted her motion and entered an order staying the order of October 11, 2011.  In re Marriage of Perry, supra.  On December 7, the Court of Appeals entered an order granting Lori “temporary possession and custody of the minor children and temporary exclusive possession of the property”.  In re Marriage of Perry, supra.  It also ordered Frank to "pay $300 per week in 

temporary child support”. In re Marriage of Perry, supra. 

Lori’s appeal made its way through the system, with this opinion issuing on May 7, 2012.  In re Marriage of Perry, supra.  She raised several issues, but we’re only concerned with her argument that the lower court “erred in admitting the flash drive into evidence because Frank did not sufficiently authenticate and establish a foundation for the photographs”.  In re Marriage of Perry, supra. 

As Wikipedia explains, in law a foundation is

sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in the form of exhibits or testimony of witnesses. Material evidence is important evidence that may serve to determine the outcome of a case. . . . The type of preliminary evidence necessary to lay the proper foundation depends on the form and type of material evidence offered.

The lack of foundation is a valid objection that an adverse party may raise during trial.

The Court of Appeals began its analysis of this issue by noting that the standard of review it uses for issues like this is that “the admissibility of evidence rests in the sound discretion of the trial court, and that determination will not be reversed on appeal absent an abuse of discretion.”  In re Marriage of Perry, supra.  After reviewing the proceedings below, the court held that Lori had waived her objection to the lack of foundation for the photographs.  In re Marriage of Perry, supra.

At the hearing, Lori’s lawyer objected to the admission of the photographs “based on (1) relevance [and] (2) foundation”.  In re Marriage of Perry, supra.  The judge ruled they were relevant, allowed them into evidence and gave “Lori's counsel an opportunity to examine Frank regarding [them].”  In re Marriage of Perry, supra.  Her lawyer never

obtained a ruling from the court on her objection based on foundation. . . . `[A] party waives an objection where a ruling is not requested after the trial court fails to make one.’ Shields Pork Plus, Inc. v. Swiss Valley Ag Service, 329 Ill. App. 3d 305 (2002). . . . 

The long-standing rule is that `. . . to preserve an issue for review, an appellant must obtain either a ruling on the issue or a refusal to rule thereon from the trial court.’ In re Appointment of Special State's Attorney, 305 Ill. App. 3d 749 (1999).

In re Marriage of Perry, supra. 

The Court of Appeals also found that “any error in the court viewing and admitting the photos was invited by Lori's counsel”. In re Marriage of Perry, supra.  While her lawyer was cross-examining Frank on how he found and downloaded the photographs,

the court apparently inserted the flash drive and the following exchange between Lori's counsel and the court took place:

`MR. MIRABELLI: Your Honor, may I take a look at what you're looking at?

THE COURT: Right now I'm looking and it's bothering me. Are you suggesting that I open one of these, Mr. Mirabelli?

MR. MIRABELLI: Yes. Let's see what it is he says he downloaded.’

The court then proceeded to open the files identified as photos of Lori. The second photograph opened as `Chix Escorts’ and was a photo of a woman seminude in a tub, captioned `Sweet Little April.’ Frank identified `Sweet Little April’ as Lori. 

In re Marriage of Perry, supra.  The court explained that Lori could not object to the court’s viewing the photographs “when her counsel specifically requested the court to view them.”  In re Marriage of Perry, supra.  It also reiterated that Lori had waived her foundation objection by not obtaining a ruling on it.  In re Marriage of Perry, supra. 

But the Court of Appeals also noted that it could “decline to apply the rule of waiver and consider the issue on the merits where the case is a matter affecting child custody and the issue is an issue of first impression.”  In re Marriage of Perry, supra.  It declined to apply waiver to the foundation issue because this was a custody case and because “the issue involving foundation for the admission of electronic duplicates of photographs from a Web site which were saved onto a flash drive is a novel issue which has not yet been addressed by Illinois courts.”  In re Marriage of Perry, supra. 

The court found that Frank “laid a sufficient foundation and sufficiently authenticated the photographs as photographs of Lori to allow their admission into evidence.”  In re Marriage of Perry, supra.  It then addressed “whether Frank laid a sufficient foundation to establish that the photographs were copies of photographs from the `Chix Escorts’ site. In re Marriage of Perry, supra.  It noted that “[c]ontrary to Lori's assertions that Frank did not authenticate the relevant time of the photographs,” Frank testified that the photographs were a “fair and accurate representation of Lori” at the time he downloaded them because of her hair:  “Frank testified that at one time it was shorter and then she had added extensions to her hair, and the photographs were an accurate representation of the current length of Lori's hair.” In re Marriage of Perry, supra.  

The court explained that under Illinois Rule of Evidence 901, “the testimony of a witness that a matter is what it is claimed to be is sufficient to satisfy the requirement of authentication.”   In re Marriage of Perry, supra.  It noted that expert testimony is not necessary; “all that is needed is testimony” of a person “with personal knowledge of the photographed object, at the time relevant to the issues” and that “the photograph is a fair and accurate representation at that time.”  In re Marriage of Perry, supra.

The Court of Appeals found it was a “closer question” whether “Frank laid a sufficient foundation to establish that the photographs were copies of photographs from the `Chix Escorts’” site.  In re Marriage of Perry, supra.  It noted that “only one of the photographs on Frank's flash drive bore the logo for the `Chix Escorts’ Web site” and that Lori claimed “the pictures were old photos she had sent . . . Frank that were on his cell phone.” In re Marriage of Perry, supra.  It found that “at the hearing Lori raised a genuine question as to the authenticity of the original photographs” because none of them were screenshots of the

Web site, nor did they include the Internet address on the photos. Given the ability to manipulate such digital images, and given Lori's concerns regarding the ability of others to post pictures online, we cannot conclude there was a sufficient foundation that the photographs of Lori were from the `Chix Escorts’ Web site, and we cannot conclude that the admission of the photographs to prove Lori was specifically part of the online `Chix Escorts’ service was not an abuse of discretion.

In re Marriage of Perry, supra. 

But the Court of Appeals also found that any error in admitting the photographs for the purpose of establishing that Lori was

part of the `Chix Escorts’ online escort service was harmless. The court had other evidence before it that Lori was working as an escort and did not base its decision on the fact she was working for this particular escort agency. The court also had other evidence before it that granting temporary custody to Lori was not in the children's best interest.

In re Marriage of Perry, supra. 

For this and other reasons, it affirmed the order entered by the lower court.  In re Marriage of Perry, supra. 

Addendum - August 17, 2012:

The attorney for one of the parties informed me today that this opinion has been withdrawn, as you can see from this entry:

Posting Date 05/08/12

Filing  Date 05/07/12

Docket      Number 1-11-3054 NRel

Public Domain  Citation 2012 IL App (1st) 113054

Case name In re Marriage of Perry - Withdrawn 7/10/12

I cannot find a link to the order in question, but the court was ruling on Lori Perry's Motion to Advise Court of Voluntary Dismissal and Request for Alternative Relief.  The court granted that motion and also granted the "alternative relief requesting to vacate this Court's Opinion filed on May 7, 2012".  The lawyer "vehemently objected to the rationale of the opinion" examined in this post and therefore sought to, and succeeded in, having it vacated.

Property, Privacy and the Twitter Subpoena

On January 26, 2012, the New York County District Attorney’s Office sent “a subpoena duces tecum to . . .Twitter, Inc.”  People v. Harris, __ N.Y.S.2d __, 2012 WL 1381238 (New York City Criminal Court 2012).  The subpoena sought “user information including email address, and Tweets posted for the period of September 15, 2011 to December 31, 2011, for the Twitter account @destructuremal, . . . which is allegedly used by Malcolm Harris.”  People v. Harris, supra. 

According to this opinion, Harris “is alleged to have participated in a # OWS protest march on October 1, 2011”, as a result of which he, “along with several hundred other protesters, were charged with Disorderly Conduct ([New York Penal Law] § 240.20[5]) after allegedly marching on to the roadway of the Brooklyn Bridge.”  People v. Harris, supra.  On January 30, 2012,

after conferring with the District Attorney's office, Twitter informed [Harris] that the Twitter account, @destructuremal, had been subpoenaed.  On January 31, 2012, [he] notified Twitter of his intention to file a motion to quash the subpoena. Twitter then took the position that it would not comply with the subpoena until this court rules on the motion.

People v. Harris, supra. 

Harris then filed a motion “to quash the subpoena in his own right or to intervene in the proceedings to quash the subpoena.”  People v. Harris, supra.  The District Attorney’s office opposed both requests.  People v. Harris, supra.  In ruling on Harris’ motion, the Criminal Court judge addressed two issues:  whether Harris had standing to move to quash the subpoena and, if not, whether he should be allowed to intervene in proceedings to quash it.  People v. Harris, supra. 

As Wikipedia notes, in the law, In U.S. law, “standing” denotes “the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.”  The judge in this case began his analysis of the issue by noting that while New York courts have not yet decided whether a defendant in a criminal “has standing to quash a subpoena issued to a third-party online social networking service seeking to obtain the defendant's user information and postings”, this scenario can be analogized to the bank record cases

where courts have consistently held that an individual has no right to challenge a subpoena issued against the third-party bank. New York law precludes an individual's motion to quash a subpoena seeking the production of the individual's bank records directly from the third-party bank as the defendant lacks standing. . . .

In U.S. v. Miller, (425 U.S. 435[1976)], the U.S. Supreme Court held that the bank records of a customer's accounts are `the business records of the banks,’ and the customer `can assert neither ownership nor possession’ of [them]. In New York, the Appellate Division held that, `[b]ank records . . . belong to the bank. The customer has no proprietary or possessory interests in them [and] cannot preclude their production.’ (People v. Doe, 96 A.D.2d 1018 [1983]).

People v. Harris, supra. 

The judge then found that Harris had neither a proprietary nor a privacy interest in his Twitter account information. People v. Harris, supra.  As to the former, he noted that “[i]n order to register the @destructuremal account, Harris had to agree to Twitter’s Terms of Service, which provide, in part, that

`[b]y submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).’

People v. Harris, supra (citing https://twitter.com/tos).

 The judge then explained that

[e]very single time [Harris] used Twitter's services [he] was granting a license for Twitter to use, display and distribute [his] Tweets to anyone and for any purpose it may have. Twitter's license to use [Harris’] Tweets means that the Tweets [he] posted were not his. [Harris’] inability to preclude Twitter's use of his Tweets demonstrates a lack of proprietary interests in his Tweets.

People v. Harris, supra. 

For similar reasons, he also found Harris did not have a privacy interest in his tweets.  People v. Harris, supra.  The judge noted that “[p]art of the [Twitter] Terms agreement” stated that “`[t]he Content you submit, post, or display will be able to be viewed by other users of the Services and through third party services and websites.’” People v. Harris, supra.  He also noted that “Twitter’s Privacy Policy, which governs the collection and use of any information a user provides to Twitter”, says it is “`primarily designed to help you share information with the world . . .’ because, `[m]ost of the information you provide . . . is information you are asking [Twitter] to make public.’” People v. Harris, supra (citing http://twitter.com/privacy). 

The judge therefore held that because Harris “had knowledge that Twitter was to instantly distribute his Tweets to . . . essentially anyone with Internet access”, he had “no standing to move to quash the subpoena.”  People v. Harris, supra. 

He then took up Harris’ motion to intervene “in proceedings to quash” the subpoena issued by the District Attorney’s office.  People v. Harris, supra.  As Wikipedia explains, in the law,

intervention is a procedure to allow a nonparty, called intervenor (also spelled intervener) to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The basic rationale for intervention is that a judgment in a particular case may affect the rights of nonparties, who ideally should have the right to be heard.

Harris argued that he was entitled to intervene under either of two provisions of the New York Civil Practice Law and Rules [CPLR]: §§ 1012 and 1013.  People v. Harris, supra. 

CPLR § 1012, which governs intervention of right, states that “upon timely motion” a person “shall be permitted” to intervene in an action when (i) a statute confers an absolute right to do so, (ii) the “representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment” or (iii) the action “involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment.” 

CPLR § 1013, which governs permissive intervention, states that “upon timely motion” a person “may be permitted to intervene” when a state statute confers a right to intervene in the discretion of the court, or when the person's claim or defense and the main action have a common question of law or fact.

Harris argued, first, that he was entitled to intervene of right under the second option given in CPLR 1012 because “his interest is not protected because of Twitter's inaction and [he] would be bound by any judgment allowing the subpoenaed information to be delivered to the District Attorney.”  People v. Harris, supra.  The District Attorney’s office argued that § 1012 did not “do not apply to this case, as [Harris] will not be bound by the enforcement of the subpoena on a third party.”  People v. Harris, supra.

The judge agreed with the District Attorney’s office:

The Court finds [Harris] does not have intervention as of right. CPLR § 1012(a) states, `Upon timely motion, any person shall be permitted to intervene in any action . . . (2) when the representation of the person's interest by the parties is or may be inadequate and the person is or may be bound by the judgment. . . .’  In Vantage Petroleum, Bay Isle Oil Co. v. Board of Assessment Review of Town of Babylon, (61 N.Y.2d 695 [1984]), the [New York] Court of Appeals specifically ruled that an applicant for intervention is `bound’ by a judgment in an action, only when a judgment would be res judicata as against the applicant.

While [Harris’] interests may not be adequately represented because of Twitter's inaction, it is clear that [he] will not be bound by any of the principles of res judicata by any ruling in regards to the People's subpoena. [Harris] cannot be bound by the ruling granting the production of information that the People's subpoena seeks, because he is not a party and not in privity with any party in the underlying action. . . . There is no `judgment’ per se as well, the People have not submitted a plenary action seeking a final judgment. . . . This ruling is only to enforce the People's subpoena served upon Twitter.

People v. Harris, supra.

As noted above, Harris also claimed he qualified for permissive intervention under CPLR § 1013.  People v. Harris, supra.  More precisely, he argued that

common questions of law and fact as to the legality of the subpoena, what the subpoena seeks for production, and the proper use of and procedure to obtain the records sought, are present by [Harris’] claims in his motion to quash and the lack of a motion to quash by Twitter.

People v. Harris, supra.  The District Attorney’s office argued, in opposition, that “the action seeking the enforcement of the subpoena on Twitter does not share any common question of law or fact with [Harris’] disorderly conduct charge.”  People v. Harris, supra. 

Once again, the judge agreed with the District Attorney’s office. People v. Harris, supra.  He noted, first, that under CPLR § 1013 a judge can let non-party to intervene in a case when a statute gives the judge the discretion to do so or when “`the person's claim or defense and the main action have a common question of law or fact.’”  People v. Harris, supra.  And he noted that CPLR § 1013 also says that “`[i]n exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party.’” People v. Harris, supra. 

The judge then ruled in favor of the District Attorney’s office:

The court will not exercise its discretion to permit the defendant to intervene pursuant to CPLR § 1013. [Harris’] arguments lacks any authority to justify the notion that he has a right to challenge the subpoena because the information sought may adversely affect him. `. . . . [s]uch a broad and liberal rule would frustrate the very purpose of any investigation for such investigations always adversely affect someone and would not be necessary if they didn't.” (Matter of Selesnick, 115 Misc.2d 993, 995 [New York Supreme Court, Westchester County 1982] ).

People v. Harris, supra. 

He therefore ordered “that Twitter comply with the January 26, 2012 subpoena that was previously served on their offices within twenty days of receipt of this order”, which is dated April 20, 2102.  People v. Harris, supra. 

The judge also entered another order, which relates to a comment he included earlier in this opinion, when he denied Harris’ motion to intervene.  People v. Harris, supra.  He ended that portion of the opinion with the observation that “it should be noted that during oral arguments [on Harris’ motions] the People consented to allow the materials to be produced to the court for in camera inspection.”  People v. Harris, supra.  The judge therefore also ordered

that the materials be provided to this court for in camera inspection. The relevant portions thereof will be provided to the office of the District Attorney, who will provide copies to the defense counsel as part of discovery. . . .

People v. Harris, supra.