Computer Crime – Page 11 – Attorney Evan Brown

June 14, 2005 Computer Crime, Evidence

What does it mean to “possess” an image file?

In a case of first impression under Virginia law, the Virginia Court of Appeals has applied “familiar principles of constructive possession of contraband” to define “possession” in the context of computer files.

In the case of Kromer v. Commonwealth, the appellant challenged the sufficiency of the evidence put forward to convict him of unlawful possession of child pornography. Specifically, the appellant argued that the Commonwealth failed to prove that he knowingly possessed the illegal images contained on the hard drive of his computer. The Court of Appeals rejected the appellant’s arguments and affirmed the conviction.

The appellant had contended that the images were “hidden” on his computer, and that someone else could have downloaded them from the Internet. However, the court tipped its hat to the federal case of U.S. v. Tucker, 305 F.3d 1193 (10th Cir. 2002) to conclude that whether the appellant or someone else sought after the images was not relevant to the analysis. Instead, the relevant inquiry was whether the appellant knowingly possessed the images after they were downloaded.

In holding that there was sufficient evidence to show that the appellant had knowingly possessed the images, the court applied a “constructive possession of contraband” analysis. Under the “totality of the circumstances,” the trial court was correct in determining that the appellant knowingly possessed the illegal images.

To support a conviction based on constructive possession under Virginia law, the Commonwealth had to show (1) that the appellant was aware of the presence and character of the illegal images and (2) that the illegal images were subject to his dominion and control.

The appellant had stored the images in a KaZaA directory which was linked to a desktop shortcut. This provided sufficient evidence to show he was aware of the presence of the files. Furthermore, the descriptive file names would have put him on notice of the character of the images. Regarding the question of whether the appellant had control of the images, the court observed that the appellant had disallowed sharing of the contents of the KaZaA folder in which the images had been stored. Moreover, the copy of Windows XP on the computer was registered in the appellant’s name, and he had provided consent for the F.B.I. to search his residence and computer.

Kromer v. Commonwealth, — S.E.2d —, 2005 WL 1388056 (Va.App., June 14, 2005).

May 26, 2005 Computer Crime, Electronic Discovery, Privacy

Presence of encryption software relevant evidence in criminal conviction

Anyone who tracks court decisions related to the Internet knows that criminal cases involving improper conduct with a minor are quite common, and generally have little or no legal significance. A recent decision of the Court of Appeals of Minnesota in the case of State v. Levie, however, is worth noting in that the decision affirmed a controversial evidentiary ruling. The trial court judge had allowed into evidence the mere fact that the defendant had the encryption software PGP installed on his computer. The judge had determined that the presence of the software was relevant evidence to show that the defendant had engaged in improper conduct with a minor.

The decision is puzzling for a couple of different reasons. The forensic report prepared by the police revealed that nothing on the defendant’s computer had been encrypted. Furthermore, the police officer who prepared the forensic report admitted that PGP “may be included on every Macintosh that comes out today.” Given the evidence of widespread use of PGP and the lack of any evidence to show the defendant had used the encryption software in connection with any crime, one is left to wonder why the court would find it, as it stated, “at least somewhat relevant.”

Apparently, the court believed that the mere ability to conceal wrongdoing showed an actual intent to commit a crime. But such a conclusion is troubling. How is the mere presence of PGP on the defendant’s computer any different than him having a lock on his front door? Would the court have drawn the same conclusion regarding relevancy if the defendant was on trial for something less heinous, say, securities fraud?

[More coverage here.]

State v. Levie, 2005 Minn. App. LEXIS 476 (May 3, 2005).

April 21, 2005 Computer Crime

Court upholds police radio hacker’s conviction under Computer Fraud and Abuse Act

In the case of U.S. v. Mitra, The Seventh Circuit has upheld the defendant’s conviction under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, for using a powerful radio transmitter and computer hardware to intentionally interfere with a computerized radio “trunking system” that coordinated police radio and other emergency communications.

Rajib Mitra, already a convicted hacker, used radio hardware and computer gear to send out a powerful signal that blanketed all of the communication towers in Madison, Wisconsin used by the police, fire, ambulance and other emergency personnel. This blanketing prevented users of the city’s communications system from accessing the “control” channel, this disabling the entire communication network based on a “trunking system” that linked the entire city’s emergency personnel.

Mitra was charged under the Computer Fraud and Abuse Act (the “Act”), and went to trial in the U.S. District Court for the Western District of Wisconsin. A jury convicted him of two counts of intentional interference with computer-related systems used in interstate commerce. Mitra sought review of his conviction.

On appeal, the court held that even though the Act does not specifically address radio trunking systems, interference with such technology is included in the Act’s scope. Mitra had argued that Congress could not have intended such broad coverage, because the Act was drafted before trunking systems were brought to market.

The court rejected this argument, noting legislators “know that complexity is endemic in the modern world and that each passing year sees new developments.” Therefore, Congress can craft legislation in a general manner that will cover emerging technologies. Furthermore, and apparently dispensing with the notion of legislative intent, the court stated that “what Congress would have done about trunking systems, had they been present to the mind of any Senator or Representative, is neither here nor there.”

Mitra next argued that the statute could not rightfully prohibit his conduct, because the radio signals he sent did not cross state lines, and thus his actions did not involve interstate commerce. The court rejected this argument as well. It noted that although the system Mitra used was more powerful than the transmitter on the Huygens spacecraft that recently beamed back images from Saturn, the crucial inquiry was not whether Mitra acted in interstate commerce, but whether the affected computers and computerized systems were used in interstate commerce.

Having found the requirements of the Act met, the court upheld Mitra’s conviction. The question of whether his 96-month prison sentence was proper in light of the recent Booker decision was sent back to the district court for further proceedings.

U.S. v. Mitra, 2005 U.S. App. LEXIS 6717 (7th Cir., April 18, 2005).

March 10, 2005 Computer Crime, Litigation

Court tells ISPs they can’t have their servers back

In the case of Voicenet Communications, Inc. v. Pappert, 2005 WL 546645 (March 9, 2005), the Third Circuit has upheld the U.S. District Court for the Eastern District of Pennsylvania’s denial of injunctive relief that would have ordered government officials to return certain items of computer hardware to the technology companies from which they were seized in a criminal investigation. The court held that the plaintiffs had failed to demonstrate irreparable harm that would result from the government’s continued possession of the equipment.

Plaintiffs Voicenet and Omni provide access to Usenet, through servers called “arrays.” In 2003, state and local officials seized numerous arrays owned by plaintiffs after being informed that the software on the servers was being used to access illegal pornography. When the officials would not return the arrays, plaintiffs filed suit, claiming violations of their First Amendment rights, and seeking, among other things, a preliminary injunction that would order the return of the arrays.

The District Court denied injunctive relief and the Court of Appeals affirmed. Voicenet and Omni had argued that they and their customers would suffer irreparable harm if the court did not grant the preliminary injunction. The appellate court held that plaintiffs had not shown irreparable harm from being denied possession of the arrays, in part because the arrays could have been replaced for approximately $20,000. The fact that money damages could provide relief precluded an award of injunctive relief.

The court further held that the District Court properly denied injunctive relief that would have required the officials to return to plaintiffs the subscriber records residing on the servers. The officials had promised not to view the records without first notifying the plaintiffs, who could then seek injunctive relief to prevent such viewing. The plaintiffs had argued that giving such discretion to the officials contravened the holding of ACLU v. Reno, 929 F.Supp. 824 (E.D.Pa. 1996). The court in that case had explained that “the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors.” In this case, however, the court held that no prosecutorial discretion remained, as “the officers’ assurances were absolute.”

Voicenet Communications, Inc. v. Pappert, 2005 WL 546645 (March 9, 2005) (Not selected for official publication).