Button
ICAC home

ICAC Cybercrime Task Force

Caselaw

Miscellaneous

horizontal line


§ 6-1 Cable Communications Policy Act (CCPA)

United States v. Kennedy, 81 F. Supp. 2d 1103 (D. Kan. 2000).
The court declined to decide where a cable operator providing Internet services must look to determine its regulatory scheme. Holding instead, that "even if the government's attainment of defendant's subscriber information from [cable operator acting as an Internet service provider] violated the Cable Communications Policy Act, the statute affords [defendant] no suppression remedy."

top

§ 6-2 Child Pornography Prevention Act (CPPA)

United States v. Hall, 312 F.3d 1250 (11th Cir. 2002).
Defendant appealed from the District Court convicting him of distribution and receipt of child pornography by computer through interstate or foreign commerce, in violation of 18 U.S.C.S. § 2252A(a)(2). On appeal, the defendant argued that the district court's pre-trial determination that video taped evidence of a four-year old girl describing the defendant's actions with her was relevant and admissible, under Fed. R. Civ. P. 404(b) and 807 was erroneous and forced him to surrender several constitutional rights. The Court of Appeals noted that the videotaped interview of the child was never introduced during the jury trial and determined that the district court's pre-trial decision under Rule 404(b) was a non-reviewable advisory ruling. However, the Court of Appeals held that the District Court erred in failing to apply a four-level sentence enhancement under U.S. Sentencing Guidelines Manual § 2G2.2(b)(3)(2001), based on a government exhibit which the defendant sent via the Internet portraying an adult male vaginally penetrating a young girl, well under the age of 12. Although the United States Sentencing Guidelines Manual does not specify what constitutes materials that portray "sadistic or masochistic conduct or other depictions of violence" as prescribed in § 2G2.2(b)(3), the United States Court of Appeals for the Eleventh Circuit has found that an image that displays the subjection of a young child to a sexual act that would have to be painful is "sadistic" within the meaning of § 2G2.2(b)(3). The court determined that clearly the vaginal penetration of such a young child by an adult male would necessarily cause pain, and thus this image portrayed sadistic conduct.

United States v. Reilly, 2002 U.S. Dist. LEXIS 19564 (S.D.N.Y. 2002).
Pursuant to Fed. R. Crim. P. 32(e), defendant moved to withdraw his guilty plea entered on a single count of knowingly receiving child pornography in violation of 18 U.S.C.S. § 2252A(a)(2)(a). The defendant was indicted and allocuted to his guilt before the United States Supreme Court’s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The threshold issue was whether defendant made a prima facie showing of sufficient grounds to justify withdrawal of the plea. Defense counsel stated that defendant allocuted on the mistaken premise that the government could have proved its case by introducing evidence of his receipt of the material and proving that there were actual children depicted in the material without proving defendant's knowledge of the depiction of actual children. As made clear in Free Speech Coalition and United States v. X-Citement Video, 513 U.S. 64 (1994), a defendant in an 18 U.S.C.S. § 2252A prosecution is required to allocute that he knew the visual depictions were of actual minors. In view of defense counsel's letter stating that he did not advise defendant of this element and since defendant did not allocute to this essential element of the charge, the court was satisfied that defendant did not fully understand the crime to which he pled. Thus, the defendant's allocution was insufficient in that he did not acknowledge that he knew that the images he received were of actual children and his plea of guilty was vacated.

United States v. Lee, 57 M.J. 659 (A.F. Ct. Crim. App. 2002).
Defendant servicemember challenged a decision entered by the military judge at Goodfellow Air Force Base, Texas that found appellant guilty of possessing child pornography in violation of 18 U.S.C.S. § 2252A, made applicable to courts-martial through Unif. Code Mil. Justice Art. 134, 10 U.S.C.S. § 934. Defendant filed a motion to reconsider the decision to assess the impact of the Supreme Court's ruling in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Appellant contended that his conviction had to be set aside because it was based upon definitions of an offense later determined to be unconstitutionally overbroad in the case. In Free Speech Coalition, the Supreme Court found some of the language in 18 U.S.C.S. § 2256 defining child pornography unconstitutionally infringed upon free speech. Specifically, the Court found that the language of § 2256(8)(B), and § 2256(8)(D) were overly broad and, therefore, unconstitutional. Although the court found it was an error of law to consider within the definition of child pornography those sections that the Court had struck down, it was harmless beyond a reasonable doubt because neither of those definitions contributed to the verdict.

United States v. Sims, 220 F. Supp. 2d 1222 (D.N.M. 2002).
In a jury trial, the defendant was found guilty of, among other things, transporting material involving the exploitation of minors and receiving material involving the sexual exploitation of minors. During his trial, the defendant requested a jury instruction to advise the jury that the government had the burden of proving beyond a reasonable doubt that the visual depictions transported and received by the defendant actually involved real children. The government objected and the court denied the request. On appeal, the defendant filed a motion for a new trial and claimed again that the government had the burden of proving that the sexual depictions at issue involved real children and that the government had not met its burden of beyond a reasonable doubt in light of the United States Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), that the government must prove, as a requisite element, the use of actual children in the depictions of child pornography. The Court found that the Supreme Court decision issued after the defendant's trial would have provided guidance regarding the elements of the charged offenses and detailing the burdens of proof the government must meet. In light of this decision, the court believed that the proper remedy was to conduct a new trial, but the defendant failed to move the court for a new trial during the trial or within the deadline and thus his current motion for a new trial was denied.

United States v. Mason, 2002 CCA LEXIS 244 (A.F. Ct. Crim. App. 2002).
Defendant, an Air Force officer, was convicted, in accordance with his pleas, of violating
a lawful general regulation, conduct unbecoming an officer and a gentleman, and knowingly receiving child pornography that had been shipped in interstate or foreign commerce contrary to 18 U.S.C.S. § 2252A, in violation of Unif. Code Mil. Justice art. 92, 133, and 134, 10 U.S.C.S. §§ 892, 933, 934. On appeal, defendant's argument that he was not guilty of "storing" obscene materials on a government computer were rejected because it was sufficient that the materials were stored temporarily in a cache. The Court also held since the defendant plead guilty and in such stipulation said that all the images were of naked children, the ruling issued in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) declaring portions of 18 U.S.C.S. § 2252A unconstitutional did not affect the plea because there was no effort on the defendant’s part to get the “or appears to be language” in the plea agreement.

United States v. Appeldorn, 57 M.J. 548 (A.F. Ct. Crim. App. 2002).
Defendant serviceman pleaded guilty to knowingly receiving and possessing 19 computer images of child pornography in violation of the Child Pornography Prevention Act of 1996 (CPPA). After the defendant's guilty pleas, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the United States Supreme Court declared unconstitutional the provisions of the CPPA which expanded the definition of child pornography to include any visual depiction that appeared to be of a minor engaging in sexually explicit conduct and any sexually explicit image that conveyed the impression that it depicted a minor engaging in sexually explicit conduct. Based on this ruling, the defendant sought review asserting that his guilty plea was not provident since portions of the statute of conviction unconstitutional. The Military Appellate Court held, however, that defendant's guilty pleas to offenses involving actual child pornography were provident because the defendant admitted that he believed the persons depicted in the material he received and possessed were minor children, and the images admitted into evidence were not virtual child pornography or visual depictions of adults that appeared to be children. Thus, the unconstitutional portions of the CPPA were not a factor in the providence of defendant's pleas.

United States v. Bender, 290 F.3d 1279 (11th Cir. 2002).
The District Court convicted defendant for transporting, by computer, visual depictions
of a minor engaging in sexually explicit conduct, and possessing a computer disk containing images transported by computer which depicted a minor engaging in sexually explicit conduct. Defendant was sentenced to 160 months in prison under U.S. Sentencing Guidelines Manual § 2G2.2. On the defendant’s appeal, the Court of Appeals held that defendant was properly sentenced under § 2G2.2 as the evidence demonstrated that he was more than a mere possessor of pornography. In fact, the defendant had received and transmitted the child pornography and he admitted that people sent him numerous child pornographic images via the computer and that he was responsible for the trading of pictures on-line. Moreover, internet on-line account records showed that he had sent, via the Internet, child pornographic images to other on-line users. The Court of Appeals also held that the District Court properly applied the four-level enhancement under § 2G2.2(b)(3), as several of the pornographic photographs clearly depicted a young child being subjected to sexual acts that would have to be painful. Thus, defendant's conduct was sufficient to warrant the enhancement. Finally, under the version of § 2G2.2(b)(2) in effect at the time of sentencing, enhancement was warranted due to the fact that sufficient evidence was presented to support a finding that defendant distributed the child pornography expecting to receive a thing of value, other child pornography, and the conduct justified the imposition of the five-level enhancement under the guideline.

United States v. Tucker, 150 F. Supp. 2d 1263 (D. Utah 2001).
Defendant, who was on parole for sexual abuse of a child, visited computer web sites containing child pornography. The parties had stipulated that the images defendant viewed on the internet were mailed, or shipped or transported in interstate commerce. Further, defendant did not contest the fact that he viewed a number of depictions of child pornography on his computer. The court held that defendant had possession of the pornography. Specifically, defendant had control over the images he viewed on his computer since he could have detained them on his monitor and controlled them by, among other things, enlarging and manipulating the images. Moreover, defendant had taken the time to delete the image links from his computer cache file. Logically, defendant could not have destroyed what he did not possess and control. Indeed, the defendant's ability to destroy was definitive evidence of control. Finally, defendant had knowingly possessed the pornography because he had volitionally reached out for them. It was not a case of ignorance, mistake or accident. Defendant had paid a user fee to gain access to the web sites and received a password that had given him access to them.

United States v. Hilton, 2000 U.S. Dist. LEXIS 9220 (D. Me. 2000), aff’d in part, rev’d in part, remanded, 257 F.3d 50 (1st Cir. 2001).
In a prosecution brought pursuant to the Child Pornography Protection Act, the government was required to prove that: (1) the defendant knowingly possessed child pornography; (2) the material contains at least three images that qualify under the statute as "child pornography"; (3) the defendant knew that the material contained the images of child pornography; and (4) the images traveled in interstate or foreign commerce.

United States v. Vig, 167 F.3d 443 (8th Cir. 1999).
The court affirmed appellant father and son's convictions following a jury trial for
violating 18 U.S.C.S. § 2252(a)(4)(B) prohibiting the knowing possession of three or more books, magazines, periodicals, films, video tapes, or "other matter" containing any visual depiction of a minor engaging in sexually explicit conduct. Authorities had discovered numerous computer image files containing child pornography on the hard drives in appellants' shared computer. The first issue was the meaning of the phrase "other matter" and whether each appellant could be convicted under section 2252(a)(4)(B) when the visual depictions of children were saved in three or more computer image files that were located on only a single computer hard drive. Based on the plain, common sense meaning of the phrase "other matter," the court rejected appellants' argument that "other matter" referred to the physical medium containing the visual depictions, the computer hard drive; instead, the Court held that "other matter" encompassed computer image files. The second issue the court was confronted with was if there was sufficient evidence presented at trial to prove that the children portrayed in the pictures were real children. The defendants contended that since the only evidence offered at trial to show that the images were of real children were the pictures themselves and that with the advancements in computer technology has allowed the ease of producing computer-generated images that are life-like, the government failed to meet its burden of proof. Nevertheless, the Court held that the jury could draw its own conclusions.

United States v. Hilton, 167 F.3d 61 (1st Cir. 1999), overrruled in part, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
The Child Pornography Prevention Act (CPPA), 18 U.S.C. § 2252A, was held not to be unconstitutionally overbroad or vague. The defendant was charged with criminal possession of computer disks containing three or more images of child pornography, in violation of § 2252A(a)(5)(B) of the CPPA. The "appears to be" language the Act articulated to define child pornography was claimed by the defendant to be both overbroad and vague, and thus impinged on adult pornography protected by the 1st Amendment and was too subjective to be enforceable. The court held that the legislative history of the CPPA shows that the "appears to be" language was included as an effort to combat the proliferation of computer generated images that were created to "appear" as real children depicted pornographically. The court viewed the possibility of impermissible prosecutions for possession of an image which "appears to be" a minor, but is actually a "youthful-looking" adult, as unsustainable as grounds to deem the CPPA overbroad. The legislative history of the CPPA also guided the opinion of the court in declaring an objective standard for what "appears" to be a minor, thus eliminating the vagueness claim.

United States v. Nolan, 818 F.2d 1015 (1st Cir. 1987).
After a bench trial, the appellant was convicted on two counts of knowingly receiving through foreign mail visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C.S. § 2252(a)(2). The appellate court affirmed, holding that the evidence was sufficient to establish that the magazines contained photographs of minor children. In so ruling, the appellate court held that it was immaterial whether the children came from another country. Further, the prosecution was not required to produce expert evidence to establish that the reproductions were photographs and not drawings or some other type of images not dependent upon the use of actual subjects. Rather, it was within the range of ordinary competence for someone to determine that what was being viewed was a photograph rather than an artistic reproduction. Indeed, appellant presented no expert evidence that the pictures could have been produced by artificial means, much less that the costs of such technical means were low enough to have been practicable for the manufacture of pornographic magazines.

top

§ 6-3 Cybersquatting

Sporty’s Farm LLC v. Sportman’s Market, Inc., 202 F.3d 489 (2nd Cir. 2000).
First ruling on the Anticybersquatting Consumer Protection Act.

top

§ 6-4 Disclosure of Evidence

State v. Guthrie, 654 N.W.2d 201 (S.D. 2002).
Anticipating that the State would not have time to thoroughly examine the evidence against the Defendant for murdering his wife, Defense counsel failed to disclose the victim’s purported computerized suicide note, which was offered to exculpate the defendant, during the discovery period. After later analysis conducted by a computer specialist, it was determined that the suicide note was created several months after the victim’s death. The appellate court affirmed the trial court’s finding that defense counsel acted in bad faith by holding this evidence back from discovery.

United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995).
The government's refusal to allow the defendant to copy items of child pornography (evidence in the case), and in restricting his access to the evidence did not violate his due process or abridge his right to the effective assistance of counsel. Rather, the government's offer to make the items of child pornography available for the defendant's inspection was sufficient and reasonable.

top

§ 6-5 Due Process

City of Canton v. Harris, 489 U.S. 378 (1989).
In a municipality, the inadequacy of police training may be a basis for liability under 42 U.S.C. § 1983 where the failure to train employees amounts to a "deliberate indifference" to the rights of persons with whom the police come into contact.

top

§ 6-6 Entrapment: Federal Test

United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000).
When entrapment is properly raised, the trier of fact must determine (1) whether government agents induced defendant to commit the crime (created a special incentive for defendant to commit the crime — anything that materially alters the balance of risks and rewards bearing on defendant’s decision whether to commit the offense) and (2) whether the defendant was predisposed (willing to commit the offense prior to being contacted by government agents, and having the wherewithal to do so).

top 

§ 6-7 Entrapment: Raising Defense

United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000).
To raise entrapment (under federal law), a defendant need only point to evidence from which a rational jury could find that he was induced to commit the crime he was not otherwise predisposed to do. The burden then shifts to the government to prove beyond a reasonable doubt that the defendant was not entrapped.

top

§ 6-8 Entrapment: Predisposition and Time Frame

United States v. Poehlman, 217 F.3d 692 (9th Cir. 2000).
By the time a defendant actually commits a crime he will have become disposed to do so. However, the relevant time frame for assessing a defendant’s disposition comes before he has any contact with government agents. (For example, in a "traveler case," the question is whether there is evidence to support a finding that the defendant was disposed to have sex with minors prior to repeated, suggestive e-mail messages from the "mother" during a protracted online investigation.)

top

§ 6-9 Expert Witnesses

State v. Guthrie, 654 N.W.2d 201 (S.D. 2002).
The appellate court held that the fees of the State’s computer forensic expert, which amounted to $350 hour, were reasonable because the expert was highly qualified in computer forensics.

Taylor v. State, 93 S.W.3d 487 (Tex. App. 2002).
On appeal, the Defendant argued that the trial court's refusal to order the State to provide
him with a complete copy of the hard drive in question as “material physical evidence” for inspection requires reversal. Likening the situation to a drug case in which the Defendant has the right to have the contraband reviewed by an independent expert, the appellate court stated, “mere inspection of the images … is not the same as an inspection
of the drive itself (or an exact copy thereof). It is certainly not the same as an independent forensic examination of the contents of the hard drive by an expert.”

United States v. Lloyd, 269 F.3d 228 (3rd Cir. 2001).
The Third Circuit has ruled that a man convicted of planting a computer “time bomb” that crippled operations at New Jersey-based Omega Engineering Corp. is not entitled to a new trial on the basis of a juror prejudice. The ruling reinstates the verdict in which the Defendant was convicted on one count of computer sabotage. Computer experts were essential in recovering the evidence of the "time bomb".

United States v. Scott-Emuakpor, 2000 U.S. Dist. LEXIS 3118 (W.D. Mich. 2000).
Regardless of whether they qualify as "experts" under the federal evidence rules, agents may testify about what they did in examining a computer and the results of their examinations if it appears they had the skills necessary to conduct the examination and to determine what was on the computer drives.

top

§ 6-10 Evidence

United States v. Hilton, 2000 U.S. Dist. LEXIS 9220 (D. Me. 2000), aff’d in part, rev’d in part, remanded, 257 F.3d 50 (1st Cir. 2001).
The court held that images transported over the Internet are deemed to have "traveled in interstate commerce." Transporting photographs via a computer modem over telephone lines also falls within the stream of interstate commerce.

United States v. Tank, 200 F.3d 627 (9th Cir. 2000).
Chat room logs that a co-conspirator saved in the form of text files were admissible against the defendant (despite the co-conspirator’s having deleted dates, times, and non-sexual conversations) where the government made (1) an adequate foundational showing of the relevance of the printouts and (2) the requisite prima facie showing of authenticity (sufficient to allow a reasonable juror to find that the chat room log printouts were authenticated). Issues and arguments about the possible incompleteness or alterations of the logs bear on the government’s burden of proof and therefore go to the weight that may be given the evidence by the jury, not to its admissibility.

United States v. Ponce, 1993 U.S. App. LEXIS 7462 (9th Cir. 1993).
A printout made from a computer disk seized in a search of the defendant's home was held admissible on the grounds that the disk contained a drug ledger and was found in the defendant’s home. The printout was not hearsay because it was not an out-of-court statement "offered in evidence to prove the truth of the matter asserted." (citing Fed. R. Evid. 801(c)). The truth or accuracy of any of the entries in the ledger was immaterial.

top 

§ 6-11 Evidence Authentication

Kearley v. State, 843 So. 2d 66 (Miss. Ct. App. 2002).
A criminal defendant was convicted of sexual battery and appealed on several issues
including proper authentication of emails which he allegedly sent to the victim. The
appellate court held that the victim’s testimony that she had received and printed the emails on her computer was sufficient authentication under the rules of evidence, and the court upheld the conviction.

State v. Cook, 777 N.E.2d 882 (Ohio Ct. App. 2002).
Defendant appealed his conviction for possessing nude images of minors, claiming in part that the trial court erred in admitting materials, over the Defendant’s objection, that were generated from a "mirror image" of the Defendant’s hard drive. After a detailed discussion of the mirror imaging process, the authenticity of the data taken from the image, and the possibility for tampering, the appellate court found that the trial court properly admitted the evidence.

Harveston v. State, 798 So.2d 638 (Miss. Ct. App. 2001).
In a criminal burglary prosecution, the Court refused to allow in computer database print-outs under the State’s business records exception to the hearsay rule. The Court held that the State failed to meet its burden because “[T]here was no evidence offered as to the means by which the information…was compiled. The only testimony came from an investigating officer who limited his testimony to the fact that law enforcement officers
routinely make use of such information. [However, t]he reliability of the information in 'business records' is determined by the competence of the compiler of the information and not the extent of the consumer's reliance on information received from another source.”

United States v. Meienberg, 263 F.3d 1177 (10th Cir. 2001).
The government introduced print-outs of computerized records and the Defendant objected to these print-outs based on lack of authentication. The Court held that the government met its burden by presenting a witness who testified that the print-outs were a record of all transactions. The Court held that this was in accordance with Federal Rule of Evidence 901(b)(7).

Bowe v. State, 785 So.2d 531 (Fla. Dist. Ct. App. 2001).
The Court held that “an email ‘statement’ sent to another is always subject to the limitations of the hearsay rule.”

People v. Markowitz, 721 N.Y.S.2d 758 (N.Y. Sup. Ct. 2001).
In a larceny and possession of stolen property suit, the court admitted computer databases that indicated how much money should have been collected by the defendant toll-booth worker. The testimony of an employee of the company that prepared the databases was sufficient foundation for admission of the electronic records.

Broderick v. State, 35 S.W.3d 67 (Tex. App. 2000).
In child sex abuse prosecution, the court affirmed the trial court’s admission of a duplicate of defendant’s hard drive, in place of the original. The court concluded that the state’s best evidence rule did not preclude admission because the computer expert
testified that the copy of the hard drive exactly duplicated the contents of the hard drive.

United States v. Scott-Emuakpor, 2000 U.S. Dist. LEXIS 3118 (W.D. Mich. 2000).
To authenticate documents purportedly found on a computer, the government is not required to introduce them through testimony from "experts" under the federal evidence rules. A proponent need only offer some proof showing that the evidence is what the proponent claims it is. If the court is satisfied that the showing would allow a reasonable person to believe that the evidence is what it is purported to be, the evidence may be admitted, and it is then for the jury to decide what weight to give it. The authentication requirement may be met through the testimony of a witness who was present and observed the procedure by which the documents were obtained from the computer.

United States v. Bowers, 920 F.2d 220 (4th Cir. 1990).
Computer data consisting of IRS taxpayer data compilations is admissible as official records.

United States v. Catabran, 836 F.2d 453 (9th Cir. 1988).
Computer printouts are admissible as business records under the Federal Rules of Evidence 803(6), provided that proper foundational requirements are first established.

State v. Ben-Neth, 663 P.2d 156 (Wash. Ct. App. 1983).
Computer-generated evidence is hearsay but may be admitted as a business record provided a proper foundation is laid.

United States v. Vela, 673 F.2d 86 (5th Cir. 1982).
The court admitted computerized telephone bills under the Business Records exception where a telephone company employee laid the proper foundation for the reliability of the telephone bills record-keeping process. In describing the reliability of the computer generated documents, the court stated that the computerized reports “would be even more reliable than ... average business record(s) because they are not even touched by the hand of man.”

top

§ 6-12 First Amendment

United States v. Maxwell, 42 M.J. 568 (A.F.C.C.A. 1995), aff’d in part, rev’d in part, remanded, 45 M.J. 406 (C.A.A.F. 1996).
Private communications revealed as a result of a defendant’s criminal activities do not violate defendant’s 1st and 5th Amendment rights. "The First Amendment does not afford protection to indecent language under the circumstances of this case."

Lambert v. Polk County, 723 F. Supp. 128 (S.D. Iowa 1989).
The government cannot seize property of a citizen (in this case a videotape of a crime in progress) in violation of his basic constitutional rights and then continue the violation by not returning the property on the theory that they are bound to keep the videotape’s contents secret. The citizen would also suffer irreparable harm in not having the tape returned.

top

§ 6-13 Immunity

Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
If a prosecutor fabricates evidence during the preliminary investigation of an unsolved crime, he / she is protected only by qualified immunity. Whether or not absolute immunity applies is determined by the nature of the function performed, not by the role of the performer. Absolute immunity may apply to prosecutorial conduct that is "intimately associated with the judicial phase of the criminal process," citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Prosecutors have only qualified immunity for comments made to the media, because such comments have no functional tie to the judicial process.

top

§ 6-14 Jurisdiction

People v. World Interactive Gaming Corp., 714 N.Y.S.2d 844 (Sup. Ct. N.Y. County 1999).
The court decided that New York had subject matter jurisdiction despite the location of the online casino's servers in Antigua. New York Penal Law holds that if a person engaged in gambling is located in New York, then New York is the location where the gambling occurred. The court also held that federal anti-gambling laws applied because the Internet site creates a virtual casino within the user's computer terminal, which constitutes an illegal communication in violation of the Wire Act and the Travel Act.

top

§ 6-15 Obscenity

United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996).
"Community standards for obscenity" in a situation where a defendant was a member of the United States Air Force, is not based on "the nationwide community as a whole", but the United States Air Force community.

United States v. Maxwell, 42 M.J. 568 (A.F.C.C.A. 1995), aff’d in part, rev’d in part, remanded, 45 M.J. 406 (C.A.A.F. 1996).
Transmission of child pornography electronically by using an online computer service is a violation of 18 U.S.C. § 1465. Congress clearly intended to criminalize the transportation of obscene material in interstate commerce regardless of the means used to do it.

top

§ 6-16 Privacy Act

State v. Townsend, 57 P.3d 255 (Wash. 2002) (Bridge, J. concurring).
The principal issue the court resolved was whether a police officer violated a provision in Washington's privacy act when he saved and printed email and real time client-to-client ICQ messages between Defendant and a fictitious child. The court upheld the conviction and held that the act was not violated. In a concurring opinion, one judge further addressed the unique aspects of electronically created and stored email. “Technically, email messages are permanently recorded since ‘most email programs keep copies of
every message a user ever wrote, every message the user ever received, and every message the user deleted.’…Although some email services may offer the possibility of ‘shredding’ an email message, arguably the equivalent of actually deleting it, the email file may still be retrievable using certain software. ‘A deleted file is really not a deleted file, it is merely organized differently.’ ”

Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987).
Sending a letter containing information about an individual to that individual is not a "disclosure" within the meaning of the Act. Also, dissemination of information to a person who is already aware of the information is not a disclosure under the Act.

top

§ 6-17 Production of Evidence

In re the Application of Philip Lees, 727 N.Y.S.2d 254 (N.Y. Sup. Ct. 2001).
A rape Defendant submitted an ex parte motion asking that the victim and a third party be ordered to turn over their computers for inspection. Defendant sought to uncover an email in which the victim falsely claimed to have been raped on a prior occasion. The application of the Defendant was granted to the extent that he could show cause to the court.

top

§ 6-18 Privacy Interest

United States v. Kennedy, (D. Kan. 2000).
The CCPA and ECPA, by creating a civil remedy for violation of a statutory requirement, do not create a "class of protected privacy interests" (or Constitutional right of privacy) in the statutorily protected area. (Citing Scofield v. Telecable of Overland Park, Inc., 973 F.2d 874 (10th Cir. 1992).)

top

§ 6-19 Venue

United States v. Thomas, 74 F.3d 701 (6th Cir. 1996).
In a case prosecuted under federal obscenity laws, venue was found in the Tennessee district from which an officer downloaded images from a BBS operated in California. Although based on the premise that obscenity jurisprudence has held that venue in federal obscenity prosecutions lies in any district through which the material moves, this is an example of how venue is found in cases involving Internet transmissions. Though no binding precedent established as to Internet venue, illustrative of how other criminal provisions linked to Internet activity.

top

Terms of Use and Privacy   
  Copyright ©2005 Georgia Bureau of Investigation. All rights reserved.
Last Updated: 02/26/2009
Site Hosted by: Dreamhost  
Cybercrime Task Force