Computer crimes legal update

Richard Whidden

Executive Director

National Law Center for Children and Families

Expectations

ndash Overview of selected 2009 court casesbull What is possessionbull Discovery of contraband materialbull Search and Seizure warrant casesbull Forensics proceduresbull Introduce National Law Center

Courts ndash Federal Jurisdiction

US SupCt

Circuit Courts of Appeal

Federal District Courts

Courts ndash State Jurisdiction

StateSupCt

IntermediateAppellate

Courts

Trial Courts

Policy considerations

ndash Safeguard the physical and psychological wellbeing of a child

bull Compelling state interest

ndash Permanent record of abusendash Harm to child is exacerbated by distribution

bull Standard established before internet

Definitions

ndash 3 basic elementsbull A visual depictionbull Of a minorbull Engaged in

explicit sexual conduct

ndash Possession

Possession

ndash What do we mean by possession in the legal sense

bull Before the internet ndash Custody and control of an item or object

What does that mean in the digital age

Cache = Possession

ndash Mixed opinionsbull It is viewed bull But not downloaded

ndash Dominion (custody) or Control bull ldquoWhere a defendant lacks knowledge about the cache files and concomitantly

lacks access to and control over those files it is not proper to charge him with possession and control of the child pornography images located in those files without some other indication of dominion and control over the imagesrdquo - United States v Kuchinski 469 F3d 853 (9th Cir 2006)

ndash The Government must show knew contraband in cache

Tale of three statesndash Pennsylvaniandash Illinoisndash Texas

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Expectations

ndash Overview of selected 2009 court casesbull What is possessionbull Discovery of contraband materialbull Search and Seizure warrant casesbull Forensics proceduresbull Introduce National Law Center

Courts ndash Federal Jurisdiction

US SupCt

Circuit Courts of Appeal

Federal District Courts

Courts ndash State Jurisdiction

StateSupCt

IntermediateAppellate

Courts

Trial Courts

Policy considerations

ndash Safeguard the physical and psychological wellbeing of a child

bull Compelling state interest

ndash Permanent record of abusendash Harm to child is exacerbated by distribution

bull Standard established before internet

Definitions

ndash 3 basic elementsbull A visual depictionbull Of a minorbull Engaged in

explicit sexual conduct

ndash Possession

Possession

ndash What do we mean by possession in the legal sense

bull Before the internet ndash Custody and control of an item or object

What does that mean in the digital age

Cache = Possession

ndash Mixed opinionsbull It is viewed bull But not downloaded

ndash Dominion (custody) or Control bull ldquoWhere a defendant lacks knowledge about the cache files and concomitantly

lacks access to and control over those files it is not proper to charge him with possession and control of the child pornography images located in those files without some other indication of dominion and control over the imagesrdquo - United States v Kuchinski 469 F3d 853 (9th Cir 2006)

ndash The Government must show knew contraband in cache

Tale of three statesndash Pennsylvaniandash Illinoisndash Texas

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Courts ndash Federal Jurisdiction

US SupCt

Circuit Courts of Appeal

Federal District Courts

Courts ndash State Jurisdiction

StateSupCt

IntermediateAppellate

Courts

Trial Courts

Policy considerations

ndash Safeguard the physical and psychological wellbeing of a child

bull Compelling state interest

ndash Permanent record of abusendash Harm to child is exacerbated by distribution

bull Standard established before internet

Definitions

ndash 3 basic elementsbull A visual depictionbull Of a minorbull Engaged in

explicit sexual conduct

ndash Possession

Possession

ndash What do we mean by possession in the legal sense

bull Before the internet ndash Custody and control of an item or object

What does that mean in the digital age

Cache = Possession

ndash Mixed opinionsbull It is viewed bull But not downloaded

ndash Dominion (custody) or Control bull ldquoWhere a defendant lacks knowledge about the cache files and concomitantly

lacks access to and control over those files it is not proper to charge him with possession and control of the child pornography images located in those files without some other indication of dominion and control over the imagesrdquo - United States v Kuchinski 469 F3d 853 (9th Cir 2006)

ndash The Government must show knew contraband in cache

Tale of three statesndash Pennsylvaniandash Illinoisndash Texas

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Courts ndash State Jurisdiction

StateSupCt

IntermediateAppellate

Courts

Trial Courts

Policy considerations

ndash Safeguard the physical and psychological wellbeing of a child

bull Compelling state interest

ndash Permanent record of abusendash Harm to child is exacerbated by distribution

bull Standard established before internet

Definitions

ndash 3 basic elementsbull A visual depictionbull Of a minorbull Engaged in

explicit sexual conduct

ndash Possession

Possession

ndash What do we mean by possession in the legal sense

bull Before the internet ndash Custody and control of an item or object

What does that mean in the digital age

Cache = Possession

ndash Mixed opinionsbull It is viewed bull But not downloaded

ndash Dominion (custody) or Control bull ldquoWhere a defendant lacks knowledge about the cache files and concomitantly

lacks access to and control over those files it is not proper to charge him with possession and control of the child pornography images located in those files without some other indication of dominion and control over the imagesrdquo - United States v Kuchinski 469 F3d 853 (9th Cir 2006)

ndash The Government must show knew contraband in cache

Tale of three statesndash Pennsylvaniandash Illinoisndash Texas

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Policy considerations

ndash Safeguard the physical and psychological wellbeing of a child

bull Compelling state interest

ndash Permanent record of abusendash Harm to child is exacerbated by distribution

bull Standard established before internet

Definitions

ndash 3 basic elementsbull A visual depictionbull Of a minorbull Engaged in

explicit sexual conduct

ndash Possession

Possession

ndash What do we mean by possession in the legal sense

bull Before the internet ndash Custody and control of an item or object

What does that mean in the digital age

Cache = Possession

ndash Mixed opinionsbull It is viewed bull But not downloaded

ndash Dominion (custody) or Control bull ldquoWhere a defendant lacks knowledge about the cache files and concomitantly

lacks access to and control over those files it is not proper to charge him with possession and control of the child pornography images located in those files without some other indication of dominion and control over the imagesrdquo - United States v Kuchinski 469 F3d 853 (9th Cir 2006)

ndash The Government must show knew contraband in cache

Tale of three statesndash Pennsylvaniandash Illinoisndash Texas

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Definitions

ndash 3 basic elementsbull A visual depictionbull Of a minorbull Engaged in

explicit sexual conduct

ndash Possession

Possession

ndash What do we mean by possession in the legal sense

bull Before the internet ndash Custody and control of an item or object

What does that mean in the digital age

Cache = Possession

ndash Mixed opinionsbull It is viewed bull But not downloaded

ndash Dominion (custody) or Control bull ldquoWhere a defendant lacks knowledge about the cache files and concomitantly

lacks access to and control over those files it is not proper to charge him with possession and control of the child pornography images located in those files without some other indication of dominion and control over the imagesrdquo - United States v Kuchinski 469 F3d 853 (9th Cir 2006)

ndash The Government must show knew contraband in cache

Tale of three statesndash Pennsylvaniandash Illinoisndash Texas

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Possession

ndash What do we mean by possession in the legal sense

bull Before the internet ndash Custody and control of an item or object

What does that mean in the digital age

Cache = Possession

ndash Mixed opinionsbull It is viewed bull But not downloaded

ndash Dominion (custody) or Control bull ldquoWhere a defendant lacks knowledge about the cache files and concomitantly

lacks access to and control over those files it is not proper to charge him with possession and control of the child pornography images located in those files without some other indication of dominion and control over the imagesrdquo - United States v Kuchinski 469 F3d 853 (9th Cir 2006)

ndash The Government must show knew contraband in cache

Tale of three statesndash Pennsylvaniandash Illinoisndash Texas

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

What does that mean in the digital age

Cache = Possession

ndash Mixed opinionsbull It is viewed bull But not downloaded

ndash Dominion (custody) or Control bull ldquoWhere a defendant lacks knowledge about the cache files and concomitantly

lacks access to and control over those files it is not proper to charge him with possession and control of the child pornography images located in those files without some other indication of dominion and control over the imagesrdquo - United States v Kuchinski 469 F3d 853 (9th Cir 2006)

ndash The Government must show knew contraband in cache

Tale of three statesndash Pennsylvaniandash Illinoisndash Texas

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Cache = Possession

ndash Mixed opinionsbull It is viewed bull But not downloaded

ndash Dominion (custody) or Control bull ldquoWhere a defendant lacks knowledge about the cache files and concomitantly

lacks access to and control over those files it is not proper to charge him with possession and control of the child pornography images located in those files without some other indication of dominion and control over the imagesrdquo - United States v Kuchinski 469 F3d 853 (9th Cir 2006)

ndash The Government must show knew contraband in cache

Tale of three statesndash Pennsylvaniandash Illinoisndash Texas

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Tale of three statesndash Pennsylvaniandash Illinoisndash Texas

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Pennsylvania v Diodoro970 A 2d 1100 (Pa 2009)

bull 360 images in cachebull NEXT button bull Rapid and large quantity of images

bull ldquohellip(A)ccessing and viewing CP overthe internet constitutes control of such pornography (under PA law)rdquo

Cert Denied by US Sup Ct 10-2009

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Pennsylvania policy

ldquohelliprdquothat to allow individuals to intentionally access and view CP via the internet with impunity would make the statute toothlessldquoSuch a reading would also allow the purpose of this anti-CP legislation and the CP market to growrdquohellipldquoThe purpose of (PA law) is plainly to protect children end abuse and exploitation of children and eradicate the production and supply of CPrdquo

Diodoro at 1107 (internal citations omitted)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Illinois Cases 2009

ndash Scolarondash Josephitis

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

State v Scolaro910 NE 2d 126

(Ill App 1st 5-29-09)bull ∆ was listed as a subscriber to CP sitebull Knock and Talkbull Consent searchbull ∆ said viewed not savedbull ∆ said emails recrsquod and sentbull ∆ had a program ldquoEvidence Eliminatorrdquobull Exam found 689 images in unallocated space

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Does cache = possession in Illinois

ndash Scolaro first case for that statendash Did the ∆ reach out and control the images

bull Commonwealth v Simone 63 Va Cir 216 (2003)ndash Illinois adopts that standard

bull ldquo Did the defendant specifically seek out the prohibited images and did he have the ability to exercise dominion and control over these imagesrdquo Scolaro at 680

ndash In this case the search out by subscription with the ldquoEvidence Eliminatorrdquo program was sufficient to show possession

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

State v Josephitis209 Ill App LEXIS 784 (8-19-09)

bull Similar to Scolaro except the ∆ did not have the program and claimed to know about cache

forall ∆ argues that the mere viewing ne possessionbull He did not manipulate the images or actively download

ndash Only viewed via Internet

bull Favoritesbull ldquoDefendant and others who pay for access and view these images support an

industry which exploits the most vulnerable people in the world an industry which the statue seeks to destroy ldquo Josephitis at 28-29

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Assousa v Texas2009 Tex App LEXIS 3500

(5th Dist 5-21-09)

∆ 13 years in software engineer and manager

ndash Claimed not to know about cache

ndash Found in cache and Real Player historyndash CD of newsgroups and URLs

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Search and Seizure issues

ndash Stale probable causendash Voluntary consent ndash endsndash Scope from one crime to

anotherndash Work place computers

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

US v Gavegnano2009 US App LEXIS 844 (4th Cir 2009)

bull Government workplace computerndash No expectation of privacy

forall ∆ claimed that the chain of custody was faultyndash Judicial discretion to admit evidencendash ldquoChain of custody precision is not an lsquoiron clad requirementrsquo and a

lsquomissing link does not prevent the admission of real evidence so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material aspectrsquordquo Gavegnano at 8

ndash July call on whether government tampered with evidence

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

US v Stults575 F3d 834 (8th Cir 2009)

bull P2P case ndash LimeWirebull Got LimeWire ndash Donrsquot got a reasonable

expectation of privacybull ldquoOne who gives his house keys to all his friends

who request them should not be surprised should some of them open the door without knockingrdquo Stults at 17

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Stults warrant application

Describe P2P Describe how P2P used to disseminate CP Described agentrsquos experience and training in computer

usage and CP investigations Incorporated P2P investigation that formed PC IP address trace Recounted the shared file contents - CP

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

US v Alexander574 F3d 484 (8th Cir 2009)

bull Police investigate ∆ for secret recordings of women during sex

bull During investigation on adult ndash CP foundbull Investigator stopped his review of images

and got a second warrant for CPforall ∆ argued different formats eliminated PCforall ∆ depict adult women did not allow a

search for CP

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

US v Comprehensive Drug Testing Inc2009 US LEXIS 19119 (9th Cir 2009)

bull NOT A CP CASEbull Significant forensics case bull Plain View Doctrine Warrants bull Search protocolsbull How broad can government cast its electronic net

in searches

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

bull 9th Circuitndash Magistrates ldquoshouldrdquo waive reliance of plain view doctrine in

digital evidencendash Segregation and redaction by third party

bull If govrsquot does redaction computer personnel will not disclose any information outside the target of warrant

ndash Warrants must disclose actual risk of destruction ndash Govrsquot search protocol must uncover only the information for

which it has PC and only that info is examinedndash Non-responsive data must be destroyed keeping magistrate

informed about when it has done so and what it has kept

bull Dissent

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

BALCO Impact

bull ldquoTo require the government before every computer search to forswear the plain view doctrine which itself has its own constraints seems unwiserdquondash US v Farlow (US Dist Maine)12-3-2009

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Is this truebull Orin S Kerr Searches and Seizures in a Digital World

119 Harv L Rev 531 572 (2005) ([T]he [computer] forensics process is too contingent and unpredictable for

judges to establish effective ex ante rules)

Who is the NLC

Defending kids by supporting

ndashLaw Enforcement ndashProsecutors

wwwnationallawcenterorg

Upcoming seminars

San Diego

February 23-24

Tampa

March 17 - 18

Questions amp Thanks

• Expectations
• Courts ndash Federal Jurisdiction
• Courts ndash State Jurisdiction
• Policy considerations
• Definitions
• Possession
• What does that mean in the digital age
• Cache = Possession
• Tale of three states
• Pennsylvania v Diodoro 970 A 2d 1100 (Pa 2009)
• Pennsylvania policy
• Illinois Cases 2009
• State v Scolaro 910 NE 2d 126 (Ill App 1st 5-29-09)
• Does cache = possession in Illinois
• State v Josephitis 209 Ill App LEXIS 784 (8-19-09)
• Assousa v Texas 2009 Tex App LEXIS 3500 (5th Dist 5-21-09)
• Search and Seizure issues
• US v Gavegnano 2009 US App LEXIS 844 (4th Cir 2009)
• US v Stults 575 F3d 834 (8th Cir 2009)
• Stults warrant application
• US v Alexander 574 F3d 484 (8th Cir 2009)
• US v Comprehensive Drug Testing Inc 2009 US LEXIS 19119 (9th Cir 2009)
• Slide 24
• BALCO Impact
• Is this true
• Slide 27
• Slide 28
• Slide 29
• Questions amp Thanks

wwwnationallawcenterorg

Upcoming seminars

San Diego

February 23-24

Tampa

March 17 - 18

Questions amp Thanks

• Expectations
• Courts ndash Federal Jurisdiction
• Courts ndash State Jurisdiction
• Policy considerations
• Definitions
• Possession
• What does that mean in the digital age
• Cache = Possession
• Tale of three states
• Pennsylvania v Diodoro 970 A 2d 1100 (Pa 2009)
• Pennsylvania policy
• Illinois Cases 2009
• State v Scolaro 910 NE 2d 126 (Ill App 1st 5-29-09)
• Does cache = possession in Illinois
• State v Josephitis 209 Ill App LEXIS 784 (8-19-09)
• Assousa v Texas 2009 Tex App LEXIS 3500 (5th Dist 5-21-09)
• Search and Seizure issues
• US v Gavegnano 2009 US App LEXIS 844 (4th Cir 2009)
• US v Stults 575 F3d 834 (8th Cir 2009)
• Stults warrant application
• US v Alexander 574 F3d 484 (8th Cir 2009)
• US v Comprehensive Drug Testing Inc 2009 US LEXIS 19119 (9th Cir 2009)
• Slide 24
• BALCO Impact
• Is this true
• Slide 27
• Slide 28
• Slide 29
• Questions amp Thanks

Upcoming seminars

San Diego

February 23-24

Tampa

March 17 - 18

Questions amp Thanks

• Expectations
• Courts ndash Federal Jurisdiction
• Courts ndash State Jurisdiction
• Policy considerations
• Definitions
• Possession
• What does that mean in the digital age
• Cache = Possession
• Tale of three states
• Pennsylvania v Diodoro 970 A 2d 1100 (Pa 2009)
• Pennsylvania policy
• Illinois Cases 2009
• State v Scolaro 910 NE 2d 126 (Ill App 1st 5-29-09)
• Does cache = possession in Illinois
• State v Josephitis 209 Ill App LEXIS 784 (8-19-09)
• Assousa v Texas 2009 Tex App LEXIS 3500 (5th Dist 5-21-09)
• Search and Seizure issues
• US v Gavegnano 2009 US App LEXIS 844 (4th Cir 2009)
• US v Stults 575 F3d 834 (8th Cir 2009)
• Stults warrant application
• US v Alexander 574 F3d 484 (8th Cir 2009)
• US v Comprehensive Drug Testing Inc 2009 US LEXIS 19119 (9th Cir 2009)
• Slide 24
• BALCO Impact
• Is this true
• Slide 27
• Slide 28
• Slide 29
• Questions amp Thanks

Questions amp Thanks

• Expectations
• Courts ndash Federal Jurisdiction
• Courts ndash State Jurisdiction
• Policy considerations
• Definitions
• Possession
• What does that mean in the digital age
• Cache = Possession
• Tale of three states
• Pennsylvania v Diodoro 970 A 2d 1100 (Pa 2009)
• Pennsylvania policy
• Illinois Cases 2009
• State v Scolaro 910 NE 2d 126 (Ill App 1st 5-29-09)
• Does cache = possession in Illinois
• State v Josephitis 209 Ill App LEXIS 784 (8-19-09)
• Assousa v Texas 2009 Tex App LEXIS 3500 (5th Dist 5-21-09)
• Search and Seizure issues
• US v Gavegnano 2009 US App LEXIS 844 (4th Cir 2009)
• US v Stults 575 F3d 834 (8th Cir 2009)
• Stults warrant application
• US v Alexander 574 F3d 484 (8th Cir 2009)
• US v Comprehensive Drug Testing Inc 2009 US LEXIS 19119 (9th Cir 2009)
• Slide 24
• BALCO Impact
• Is this true
• Slide 27
• Slide 28
• Slide 29
• Questions amp Thanks