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1024px-EAS_Hall_SIT-300x200Starting this month, I have been teaching an innovative new class about computer crime and high-tech government surveillance at the Stevens Institute of Technology in Hoboken. The course covers legal developments over the last two decades that have shaped how the government investigates computer crimes, such as computer hacking and the distribution of child pornography, as well as conventional crimes like drug trafficking and fraud that have become more efficient by using new information technologies. The course syllabus can be found here.

The topics we will cover come directly from our hands-on work for clients at the Law Office of Zachary Margulis-Ohnuma over the past couple of years. They include:

  • border agents’ authority to search computer devices at the United States border without a search warrant or suspicion,
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On Monday, the New York Legislature passed a series of reforms that will significantly impact civil lawsuits and criminal prosecutions for sexual abuse of children. Senate Bill S2440, or the Child Victims Act, extends the statutes of limitations to allow victims who are abused before age 18 more time to file lawsuits — and more time for the police and prosecutors to bring criminal charges. Governor Cuomo is expected to sign the measure.

The Child Victims Act affects the law in three major ways:

  1. It gives victims until they turn 55 to file lawsuits against their abusers or institutions that allowed their abuse, notwithstanding the other limitations periods in the New York Civil Practice Law and Rules which used to impose overlapping time-bars on civil child sex abuse cases.
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The U.S. Sentencing Commission kicked off the new year with a comprehensive report analyzing data from federal sex crime cases. The report, which runs 81 pages plus a 62-page appendix of charts and graphs, contains some eye-opening conclusions. The most significant for child pornography cases is this: even though there is “little meaningful distinction between the conduct involved in receipt and possession offenses,” average sentences for receipt are much longer than sentences for possession. The Sentencing Commission has been calling on Congress to “align” the penalties for receipt and possession of child pornography since 2011. The effect on sentencing of the different child pornography offenses is shown in the following chart:

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The takeaway is something we clearly already knew: what you plead to matters. Average sentences for possession are lower than sentences for receipt — 26 months lower on average — even though the conduct is the same. Distribution convictions, which carry the same mandatory minimums as receipt, are much higher. Defendants and their attorneys must press prosecutors to permit them to plead to possession and not receipt or distribution. Even though receipt or distribution can be charged in the vast majority of cases, some prosecutors are open to pleas to possession, especially if the defense team can present mitigating circumstances.

The effect of statutory mandatory minimums is especially significant because the U.S. Sentencing Guidelines, which used to be binding on sentencing judges, are now merely advisory. As a result, judges increasingly impose below-Guidelines sentences in child pornography cases, which is illustrated in the following chart from the Commission’s report:

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Under the Sex Offender Registration Act, registered sex offenders must tell New York State about all “internet accounts with internet access providers” and “internet identifiers that such offender uses.” Does that mean you have to disclose your social media accounts?

Most police and the the State Division of Criminal Justice Services would have said yes. Police agencies routinely scour the internet looking for sex offenders who are on social media but have not properly disclosed their presence. People always thought hiding a social media account was a felony — failure to register under Corrections Law Sec. 168-t.

Turns out it is not.

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Under the regulations implementing New York’s Sex Offender registration act, a person who “has a history of drug or alcohol abuse” is considered at higher risk for re-offense, and can be assessed with points that lead to a higher risk level. In People v. Weber the defendant was found with bags of marijuana at the time of his arrest and on a prior occasion. The hearing court assessed him points in the drug abuse category, pushing him over the line into Level Two. Level Two requires publication of an offenders information on the internet and lifetime registration.

But in an opinion handed down yesterday, the First Department Appellate Division, disagreed. The People had to show that either that the defendant had a history of abuse or that the drugs were somehow connected to the crime at issue. The Appellate Division reversed the Level Two adjudication because “even assuming [the defendant] could be found to have been a marijuana user, such use was not established to be more than occasional social use, and thus would not warrant the assessment of points under the risk factor for drug abuse.” That put the defendant down to Level One, requiring twenty years of registration, but no internet notification.

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Former Congressman Anthony Weiner was just sentenced to 21 months in prison for sexting with a 15-year-old. At sentencing, his lawyer asked that he be sent to FCI Schuylkill in Pennsylvania. That seems to have been a mistake: Schuylkill is a medium-security prison, filled with violent offenders and replete with restrictive rules. Schuylkill has a satellite camp, but as a sex offender, Weiner is not eligible (he gets the “Sex Offender Public Safety Factor” and therefore must go to a secure facility). There are low-security federal prisons that would be far more pleasant and conducive to the year-and-a-half or so of introspective atonement that Weiner will endure while he waits to go to a halfway house. The New York Times wrote about Weiner’s placement in federal prison, but, unfortunately, just about everything in their story was wrong.

The bottom line is that “designation” to a particular federal prison is a complicated process with far-reaching consequences. Experiences in federal prison vary widely. Camps like the ones at Schuylkill and Otisville are unsecured and generally not unpleasant places to be. Contrast that with the “ADX” at Florence, Colorado, which is reserved for the most dangerous criminals in the United States and drives many of its residents mad. The Bureau of Prisons decides where you will go in the weeks after sentencing at a central facility in Grand Prairie, Texas. They rely on the Presentence Investigation Report (known as the PSR) for facts about you and plug those into a formula that determines your security level. It is essential that the information in the PSR is accurate as any mistake could change which facility you end up in. There is a small industry of experts who keep up with the daily changes in conditions within the Bureau of Prisons and can advocate for a particular designation. The process is laid out in this 108-page BOP policy.

The New York Times missed most of this in talking about Weiner, whose situation is not too different from many first-time federal offenders, including people convicted of child pornography. Being a former congressman and pledging himself to “a rigorous curriculum of rehabilitation and therapy” probably make no difference at all. Whatever his lawyer may have believed (and it does not seem like they thought about it beforehand), there is zero chance he would have been assigned to a prison in New York City: the three federal jails in New York are reserved for inmates who are awaiting sentencing or witnesses for the government, plus a small cadre of trusted inmates near the end of their terms who work in the local jails.

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Two huge illicit markets operating on the Dark Web, AlphaBay and Hansa, were shut down today after being infiltrated by the government for the past several weeks. The sites had claimed up to 200,000 users, 40,000 vendors and 350,000 listings for illegal drugs, stolen credit card information, hacked computer code, counterfeit goods and other illegal items. A Canadian citizen based in Thailand was arrested last month in connection with AlphaBay.

The Dark Web consists of websites accessible only though the Tor network, an easy-to-use, technically sophisticated way to communicate anonymously over the internet. The technology, much to the dismay of governments around the world, has become popular with political dissidents as well as criminals hiding their activities from law enforcement. The Dark Web is home to numerous high-traffic online marketplaces with few limits on what can be bought or sold. These businesses conduct transactions in BitCoin, Ethereum and other cryptocurrencies.

According to the Department of Justice press releasee, AlphaBay users bought and sold “deadly illegal drugs, stolen and fraudulent identification documents and access devices, counterfeit goods, malware and other computer hacking tools, firearms, and toxic chemicals throughout the world.”

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The conviction of Ross Ulbricht, the mastermind behind the Silk Road marketplace on the Dark Web, has given the Second Circuit a chance to explore how to apply the Fourth Amendment to the search and seizure of stored digital information.

The government seized and searched Mr. Ulbricht’s laptop. Ulbricht, backed by the National Association of Criminal Defense Lawyers, argued on appeal that the search violated what is known as the “particularity” requirement of the Fourth Amendment. Under the Fourth Amendment, all warrants must be supported by probable cause and “particularly describ[e] the place to be searched, and the persons or things to be seized.” The Framers adopted the requirement that a warrant describe in a particular manner both the place to be searched and what the government intends to seize as evidence of a crime to prevent “general warrants.” A general warrant is a warrant that grants government agents discretion to search any and all property owned by a criminal suspect in an unrestrained and exploratory manner. By contrast, the Fourth Amendment demands that agents tell the court, before searching a suspect’s property, where they plan to search, what they plan to seize, and how the place to be searched and the things to be seized relate to the charged conduct.

Systems with digital information present special challenges for agents attempting to describe the target of their search and for courts attempting to fashion warrants that don’t authorize agents to rummage through wholly irrelevant digital files. The appeals court in U.S. v. Ulbricht recognized that hard drives typically contain a wide range of highly sensitive information, such as “tax records, diaries, personal photographs, electronic books, electronic media, and medical data, records of internet searches, [and] banking and shopping information.” Second, as a practical matter, it is difficult—if not impossible in most cases—for the government to separate sensitive, private, or irrelevant information from information that is targeted before they conduct an examination of a digital device. Often, agents must seize a suspect’s entire computer system, or gain access to a suspect’s entire email account, before they can determine if it contains evidence relevant to their investigation.

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In a decision that could have a wide-ranging effect on people convicted of child pornography offenses, the Second Circuit last month struck down a 225-month sentence imposed on a man convicted of having illegal material on his laptops and a thumb drive as he tried to drive into Canada. Joseph Jacobs was 39 years old and headed to his parents’ vacation home in Quebec when Canadian officials stopped him. He failed to show up for court in Canada, so charges were brought in the U.S. for “transporting” his personal collection of child pornography, which carries a maximum sentence of twenty years in prison. Other than that, his conduct was not remarkable: there was no evidence he produced child pornography, shared illegal photos, used a file sharing system, or tried to solicit a child. What he did do, though, was annoy the sentencing judge. He testified at his own trial and lied, then was rude and obnoxious at the sentencing hearing, showing no empathy for the victims or regard for the legal system.

Still, the appeals court said that a sentence near the statutory maximum was far too high in these circumstances: “A sentence of 225 months for a first-time offender who never spoke to, much less approached or touched, a child or transmitted explicit images to anybody is unreasonable.” The opinion provided several reasons for the panel’s decision which could be used in other cases. It noted Jacobs was already 39 at the time of the crime and that recidivism is lower in offenders that old, as compared to younger offenders. It provided statistics from the U.S. Sentencing Commission showing that 225 months was longer than almost all child pornography possession sentences. It reiterated the holdings and reasoning of U.S. v. Dorvee, which had found that the main sentencing guideline for child pornography was “irrational” and “eccentric” because its many enhancements (“specific offense characteristics” in Guidelines terms) were present in virtually every case. It noted that since Dorvee, that concern had only become stronger because the Sentencing Commission had since “effectively disavowed” the flawed guideline and “the latest statistics on the application of sentencing enhancements confirm that the enhancements Jenkins received under this Guideline are all-but-inherent.”

These are powerful words coming from the appeals court that oversees all sentencing in the Southern and Eastern District of New York. Throwing out a sentence based on “substantive reasonableness” is rare — it happened last year in another child pornography case, but that was a summary order with little precedential weight. People facing sentencing on child pornography charges would be well advised to carefully consider the arguments presented by the panel in U.S. v. Jacobs and apply them to their own cases.

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United States Attorney General Jefferson Sessions put out a tragic new policy today that, if it is followed, will ruin countless lives through the unyielding weight of the federal law. Under the policy, which is outlined in this memorandum “for all federal prosecutors,” the government will “charge and pursue the most serious, readily provable offense.” This means U.S. attorneys no longer exercise discretion, but instead will pursue people with the highest penalties, i.e. the longest Guidelines sentences and the harshest mandatory minimums, that they can. The new policy is a sea change, especially in drug cases, where prosecutors were previously directed to seek mandatory minimum sentences only against the most serious offenders (in case there was any confusion, Attorney General Sessions specifically rescinded that policy, known as the Holder Memorandum).

In child pornography cases, the new policy means that virtually all offenders may be charged with a mandatory minimum sentence of five years for “receipt” of illegal child pornography. While fraud cases generally do not carry mandatory minimums, it may mean that more defendants are charged with aggravated identity theft, which carries a two-year mandatory minimum sentence consecutive to any other sentence imposed. If individual prosecutors do not charge these “most serious, readily provable” offenses, they will have to get approval from the U.S. attorney for the district or an assistant attorney general, or their designee. Reasons not to charge must be “documented in the file.”

Defenders of over-criminalization in the federal system point to prosecutorial discretion as a counterweight to the thousands of acts that Congress has defined as federal offenses. Prosecutors, they argue, need to be able to bring serious charges in order to obtain cooperation from defendants and to force fair guilty pleas. But the Sessions memorandum, if read literally, would seem to turn that approach upside down: it directs prosecutors to charge as harshly as possible, no matter how extreme or unusual the law is. Of course, the U.S. Department of Justice has a long tradition of decentralization, leaving many crucial decisions and policies to local U.S. attorneys. Again, that ought to be a bulwark against overreaching under the federal criminal code. But the Trump administration seems intent on breaking down many of the customs that have kept the federal system, on balance, relatively fair. If the Sessions memo is followed, it spells tragedy for families gathered up in its broad, thoughtless net.

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