Justia Communications Law Opinion Summaries

Daoud, an 18-year-old American citizen, had an email conversation with undercover FBI employees posing as terrorists who responded to messages that he had posted online. Daoud planned “violent jihad” and discussed his interest in committing attacks in the U.S, using bomb-making instructions that he had read in Inspire magazine, an English-language organ of Al Qaeda, and online. Daoud selected a Chicago bar as the target of a bomb that the agent would supply. The agent told him the bomb would destroy the building and would kill “hundreds” of people. Daoud replied: “that’s the point.” On September 14, 2012, Daoud parked a Jeep containing the fake bomb in front of the bar. In an alley, in the presence of the agent, he tried to detonate the fake bomb and was arrested. In jail, he tried to solicit someone to murder the undercover agent with whom he had dealt. The government notified Daoud, under the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1801, that it intended to present evidence derived from electronic surveillance conducted under the Act. His attorney sought access to the classified materials submitted in support of the government’s FISA warrant applications. The government supplied a heavily redacted, unclassified response and a classified version, accessible only to the court with a statement that disclosure “would harm the national security.” The harm was detailed in a classified affidavit signed by the FBI’s Acting Assistant Director for Counterterrorism. The district judge ordered the materials sought by defense counsel turned over. In an interlocutory appeal, the Seventh Circuit reversed, stating that in addition to having the requisite security clearance the seeker of such information must establish need to know. View "United States v. Daoud" on Justia Law

Erdely was investigating online distribution of child pornography when he discovered a computer on a peer-to-peer network sharing 77 files that he suspected contained child pornography. With information available to anyone, he found the Internet protocol address (IP address) through which it connected to the internet. Searching publicly available records, Erdely determined that the IP Address was registered to a Comcast subscriber and obtained a court order. Comcast gave Erdely the Neighbor’s name and Pittsburgh address. Erdely executed a warrant. None of the Neighbor’s computers contained child pornography or the file-sharing software; his wireless router was not password-protected. Erdely deduced that the computer sharing child pornography was connecting without the Neighbor’s knowledge. With the Neighbor’s permission, Erdely connected a computer to the router for remote access. Later, while working in Harrisburg, Erdely learned that the computer was again sharing child pornography on the Neighbor’s IP address. Erdely determined the mooching computer’s IP address and MAC address, which belonged to an Apple wireless card. Erdely had not discovered any Apple wireless devices in the Neighbor’s home, so he decided to use a “MoocherHunter” mobile tracking software tool, which can be used by anyone with a directional antenna. Not knowing which residence the signal was coming from, Erdely proceeded without a warrant. From the sidewalk the MoocherHunter’s readings were strongest when aimed at Stanley’s apartment. Erdely obtained a warrant for Stanley’s home. When officers arrived, Stanley fled, but returned and confessed that he had connected to the Neighbor’s router to download child pornography. Erdely seized Stanley’s Apple laptop and recovered 144 images and video files depicting child pornography. Stanley was charged with possession of child pornography, 18 U.S.C. 2252(a). The district court denied a motion to suppress. The Third Circuit affirmed. Use of the MoocherHunter was not a search under the Fourth Amendment. View "United States v. Stanley" on Justia Law

Apple introduced the iPad in 2010. To send and receive data over cellular networks (3G), customers had to purchase a data contract from AT&T and register on an AT&T website. AT&T prepopulated the user ID field on the login screen with customers’ email addresses by programming servers to search for the user’s Integrated Circuit Card Identifier to reduce the time to log into an account. Spitler discovered this “shortcut” and wrote a program, the “account slurper,” to repeatedly access the AT&T website, each time changing the ICC-ID by one digit. If an email address appeared in the login box, the program would save that address. Spitler shared this discovery with Auernheimer, who helped him to refine the account slurper, which collected 114,000 email addresses. Auernheimer emailed the media to publicize their exploits. AT&T fixed the breach. Auernheimer shared the list of email addresses with Tate, who published a story that mentioned some names of those whose email addresses were obtained, but published only redacted email addresses and ICC-IDs. Spitler was in California. Auernheimer was in Arkansas. The servers t were physically located in Texas and Georgia. Despite the absence of any connection to New Jersey, a Newark grand jury indicted Auernheimer for conspiracy to violate the Computer Fraud and Abuse Act, 18 U.S.C. 1030(a)(2)(C) and (c)(2)(B)(ii), and identity fraud under 18 U.S.C. 1028(a)(7). The Third Circuit vacated his conviction. Venue in criminal cases is more than a technicality; it involves “matters that touch closely the fair administration of criminal justice and public confidence in it.”View "United States v. Auernheimer" on Justia Law

Elonis’s wife left their home with their children. Elonis began experiencing trouble at work at an amusement park, reportedly leaving early and crying at his desk. An employee Elonis supervised, Morrissey, claimed sexual harassment. In October Elonis posted on Facebook a photograph taken for his employer’s Halloween Haunt. The photograph showed Elonis in costume holding a knife to Morrissey’s neck. Elonis added the caption “I wish.” Elonis’s supervisor saw the posting and fired Elonis. Days later, Elonis began posting statements on Facebook about having “keys for the fucking gates … sinister plans for all my friends,” and, concerning his wife, “would have smothered your ass … dumped your body … and made it look like a rape and murder” that their son “should dress up as matricide for Halloween … head on a stick” and “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” Following issuance of a state court protective order, Elonis posted statements concerning shooting at his wife’s house, using explosives, and “I’m checking out and making a name for myself … hell hath no fury like a crazy man in a kindergarten class.” After being visited by federal agents, he posted statements about blowing up SWAT members. Elonis was convicted of transmitting in interstate commerce communications containing a threat to injure the person of another, 18 U.S.C. 875(c). The Third Circuit affirmed, rejecting an argument that he did not subjectively intend his Facebook posts to be threatening. A 2003 Supreme Court decision, Virginia v. Black, did not overturn its prior holding that a statement is a true threat when a reasonable speaker would foresee the statement would be interpreted as a threat. View "United States v. Elonis" on Justia Law

Clark was indicted under 720 ILCS 5/14-2(a)(1)(A) for having used an eavesdropping device to record a conversation between himself and attorney Thomas without her consent and having used a device to record a conversation between himself, Judge Janes, and Thomas while Janes was acting in the performance of official duties, without the consent of either. Defendant stated that he was in court and attorney Thomas was representing the opposing party; there was no court reporter nor was there any recording device, so he made recordings to preserve the record. He claimed he had a first amendment right to gather information by recording officials performing their public duties. The circuit court dismissed, holding that the statute is unconstitutional on substantive due process and first amendment grounds. The Illinois Supreme Court affirmed, reasoning that if another person overhears what we say, that person may write it down and publish it, but if that same person records our words with a recording device, even if it is not published in any way, a criminal act has been committed. The statute goes too far in its effort to protect individuals’ interest in the privacy of their communications and burdens substantially more speech than necessary to serve interests it may legitimately serve. It does not meet the requirements necessary to satisfy intermediate scrutiny.View "People v. Clark" on Justia Law

Defendant was charged with computer tampering in an unrelated case. The docket sheet, the judge’s half sheet, and the court call sheet for the arraignment date indicate that defendant was not in court and that the arraignment did not take place. Defendant’s efforts to have a court reporter change the transcript were unsuccessful. The court reporter referred defendant to her supervisor, Taylor. In a telephone conversation, Taylor explained that any dispute over the accuracy of a transcript should be presented to the judge. Defendant surreptitiously recorded three telephone conversations with Taylor and posted recordings and transcripts of the conversations on her website. Defendant eventually obtained a fraudulent court transcript. Defendant was charged with eavesdropping, (720 ILCS 5/14-2(a)(1), and using or divulging information obtained through the use of an eavesdropping device, 720 ILCS 5/14-2(a)(3). Defendant claimed am exception for “reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person … and there is reason to believe that evidence of the criminal offense may be obtained.” The state argued that the exception did not apply because the reporter accused of creating a forged transcript was not a party to the recorded conversations. After a mistrial, the court found the statute facially unconstitutional and unconstitutional as applied to defendant. The Illinois Supreme Court affirmed, applying intermediate scrutiny and finding the statutes overbroad as criminalizing a range of innocent conduct. The eavesdropping statute does not distinguish between open and surreptitious recording and burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy. The language of the recording statute criminalizes the publication of any recording made on a cellphone or other such device, regardless of consent. View "People v. Melongo" on Justia Law

Defendant was indicted on several charges, including third-degree burglary, third-degree theft, and third-degree receiving stolen property. Defendant filed a motion to suppress. The trial court found that defendant had a reasonable expectation of privacy under State law and that the police should have obtained a warrant before tracking defendant via cell-tower information from T-Mobile. Nonetheless, the court admitted the evidence under the emergency aid exception to the warrant requirement. Defendant pled guilty to third-degree burglary and third-degree theft and was sentenced in accordance with a plea agreement. The Appellate Division affirmed the sentence and later allowed defendant to reopen his appeal to challenge the suppression ruling. The Appellate Division affirmed on different grounds, concluding that defendant lacked a reasonable expectation of privacy in his cell-phone location information and that the police lawfully seized evidence in plain view. The panel did not consider the emergency aid doctrine. The Supreme Court granted defendant's petition review of the validity of defendant's arrest based on law enforcement's use of information from defendant's cell phone provider about the general location of the cell phone and the application of the plain view exception to the warrant requirement. The Court concluded that the New Jersey Constitution protects an individual's privacy interest in the location of his or her cell phone. Police must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement, to obtain tracking information through the use of a cell phone.View "New Jersey v. Earls" on Justia Law

Shannon pled guilty to possessing child pornography (18 U.S.C. 2252(a)(4)) and received a sentence of 46 months’ imprisonment followed by a lifetime of supervised release. About 13 months after he began his supervised release, Shannon’s probation officer filed a petition alleging that Shannon violated conditions of his supervised release by having a web camera connected to his computer without prior permission and by accessing several websites, including those with “teengal” and “teenplanet” in their domain names. The government proceeded only with respect to the web camera because it could not determine the exact ages of the persons in the websites Shannon viewed, but expressed its concern that Shannon viewed sexually explicit websites where the models were intended to depict teenage girls and that Shannon had at one point wiped his hard drive clean. The district court revoked Shannon’s supervised release despite his contention that the websites contained disclaimers that the sites did not actually depict any minors. The Seventh Circuit vacated, noting that the condition banning possession of any sexually explicit material was not restricted to material involving minors, nor was it limited to visual depictions, and that there were no findings or explanation for such a lifetime ban. View "United States v. Shannon" on Justia Law

Petitioner's son was charged with assault and battery on a person over 60 years of age and with resisting arrest. The petitioner is the alleged victim. The son unsuccessfully moved to suppress a recording made by a third party, allegedly in violation of the wiretapping statute, G.L. c. 272, 99. The recording includes statements made by the defendant and the petitioner. The motion was denied. Petitioner sought relief under G.L. c. 211, 3, on the ground that the introduction of the recording into evidence in the defendant's trial would violate her privacy rights. The Massachusetts Supreme Court affirmed. Nothing in G.L. c. 211, 3, or rule 2:21 grants a nonparty to a criminal case standing to obtain review of an interlocutory order. The Legislature has expressly provided a civil remedy, including compensatory and punitive damages as well as attorney's fees, for any aggrieved person whose oral or wire communications are unlawfully intercepted, disclosed, or used, or whose privacy is violated by means of an unauthorized interception. G.L. c. 272, 99 Q. The petitioner does not address this remedy or explain why it would not be adequate to vindicate her privacy interests. View "In re Wadja" on Justia Law

This case arose from a physical struggle between Defendant Angel Moreno, Jr. and two Holland police officers when the officers sought to enter Defendant's home without a warrant. As a result, Defendant was charged with resisting and obstructing a police officer and causing injury under MCL 750.81d. The issue before the Supreme Court was whether Defendant was properly charged after trial. It was determined that the officers entered his home illegally. Upon review, the Supreme Court concluded that MCL 750.81d did not abrogate Defendant's common-law right to resist illegal police conduct. As such, the Court instructed the trial court to grant Defendant's motion to quash the charges against him on the basis that the officers' conduct was unlawful.View "Michigan v. Moreno" on Justia Law