Articles Posted in Crime and Technology

https://www.zmolaw.com/news/wp-content/uploads/2019/09/Screen-Shot-2019-09-29-at-10.33.38-PM-300x235.pngThe past week was one of extraordinary revelations relating to foreign policy and corruption at the top of the government of the United States. The public got to see two documents, just months after they were created: first, the “TELCON” or transcript of a phone call between President Donald Trump and Ukrainian President Volodymyr Zelenskyy that took place on July 25; then, twenty-four hours later, a detailed letter from an unnamed whistleblower to congressional oversight committees accusing the president of self-dealing that sounds like treason — soliciting foreign interference in American elections as a condition of military aid.

The documents read like filings from a criminal trial. Here is one defense lawyer’s perspective.

The letter, which is referred to as the whistleblower’s complaint, resembles an affidavit in support of a search warrant or a criminal complaint in federal court. It is, in effect, sworn to and signed by a witness — a law enforcement officer in court, probably a CIA or foreign service officer here — but written by a lawyer. As the New York Times pointed out, the whistleblower complaint is unusually well written: right to the point, active verbs, clear sourcing. It incorporates law as necessary, but does not let legalese or George Orwell’s tricks-of-the-trade get in the way of clear communications. At the very outset of a federal criminal case, an experienced lawyer has a sense of how strong the government’s case is based on whether the criminal complaint reads like this (criminal complaints are used in federal court to establish probable cause for an arrest; to proceed to trial, the government must then obtain an indictment, which is voted on by a grand jury but does not spell out the basis for the probable cause). Many complaints are vague, verbose and fall back on the passive voice. Those linguistic weaknesses frequently cover holes in the evidence that become more apparent as the case develops.

Twelve federal appeals courts have said that the FBI acted in good faith when they used a Virginia warrant to search thousands of computers around the world in the controversial Playpen child pornography case. Our office last week asked for a special hearing in the Second Circuit to challenge that conclusion, with a series of simple arguments that, somehow, the appeals courts keep missing – including a Second Circuit panel that ruled on the warrant last month.

Click here for a redacted version of our appellate brief and here for our Petition for Initial Hearing En Banc, an unusual request effectively required by the Second Circuit’s August ruling.

The logic is simple and the stakes are high.

Federal Child Pornography Lawyer Discusses YouTube Algorithm | Law Office of Zachary Margulis-OhnumaAn article in today’s New York Times suggests that there is an “open gate for pedophiles” on YouTube because of the way the video hosting service suggests videos to users.

If you look at one video of a partially clothed child on YouTube, the service’s algorithm will send you to more and more videos that are similar, the Times reports.

That has the effect of turning harmless videos of children into “sexualized imagery.”

Judge Raymond Dearie of the Eastern District of New York ruled yesterday that ZMOLAW client Adamou Djibo is entitled to a new trial because the government wrongfully withheld thousands of pages of relevant information from a cooperating witness’s cell phone. The reversal follows a remand from the Second Circuit: the appeals court directed the trial court to permit Djibo time and public funds to obtain a full translation of the material, which turned out to contain messages in Swahili that undercut the government’s theory that Djibo was the mastermind behind a ring that smuggled 100 kilos of heroin from Africa.

The government’s main evidence was the testimony of cooperating witness Stanley Walden, who struck a deal to testify against Djibo shortly after being stopped flying in to JFK with more than six kilos of low-grade heroin in a secret compartment in his suitcase. Walden protested that the drugs were not his, but belonged to Djibo and that he was just a courier. Text messages on his phone in English appeared to corroborate his claim, and the feds arrested Djibo as he boarded a flight to London a few weeks later.

The government handed over the English-language texts with Djibo, but nothing else from Walden’s phone, despite repeated requests many months before trial. Not relevant, said AUSA Karen Koniuszy. Texts on Djibo’s phone were suppressed because the border agents illegally searched it when he was stopped — but that’s another story.

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Imagine you are met on the tarmac getting off a plane at JFK Terminal Two by armed customs officers. They tell you to come with them. They drive you to a secure area in Terminal Four, where foreigners are “processed” — i.e detained until they are admitted into the U.S. or sent to immigration custody. At Terminal Four, the officers do a normal customs search, then ask you to wait in a windowless room. Plainclothes investigators enter and tell you that they are going to search your cell phone and iPad. “No you are not,” you say. “I have a Fourth Amendment right to be free of unreasonable searches and seizures.” They respond that the “protection of the Fourth Amendment does not apply at the U.S. border.” They give you a “choice” — you can leave, but you have to leave your cell phone and iPad behind to be searched. Or you can give them your passcodes and, if they don’t find anything on your devices, you can be on your way. You give them the passcodes. They find pictures they believe are child pornography — they are not — and take you away in handcuffs.

Is this a “routine” border search, or something else? Have your Fourth and Fifth Amendment rights been violated?

Those are questions that principal attorney Zachary Margulis-Ohnuma will argue tomorrow before a panel of judges at the New York Supreme Court Appellate Division, Second Department. The ACLU and Electronic Frontier Foundation argued in an amicus brief that, under these circumstances, a warrant based on probable cause is required to search the devices. The state believes the search was proper because a federal agent had some vague notion that a house associated with a family member of the defendant was at some point in the past used to download child pornography. We’ll argue that more is needed to justify a search of electronic items at the border, just like a warrant was required to search a cell phone incident to arrest in the 2014 Supreme Court case Riley v. California. Moreover, under these circumstances the provision of the passcodes was not a voluntary act but was the product of coercion, and thus information derived from the passcodes cannot be used against the defendant under the Fifth Amendment.

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,

photo_55295_20151127-300x236Your phone constantly tracks and records its location and transmits the information to your wireless carrier. Most phone companies keep that data — known as “cell site location information” — for up to five years. And until last week, it was pretty much available to the government for the asking.

Think for a moment what that means. If you went to a psychiatrist, a divorce lawyer, an AA meeting, a yoga class, or a 1980s dance party in the last five years, any policeman in the country could find out about it just by asking the phone company where your phone was at a given moment in time. It is as though the government placed permanent tracking devices on all of us. True, under federal law, the police had to ask for a court order under the Stored Communications Act based on a showing that the cell site data was “relevant and material to an ongoing investigation.” But that is a ridiculously low standard: pretty much anything an investigator wants to see can be tied to an investigation one way or another. Orders under 18 U.S.C. Section 2703(d) were, in practice, routinely granted by both state and federal courts.

All that changed last Friday when a fractured Supreme Court ruled in Carpenter v. U.S. that grabbing cell site data constitutes a search under the Fourth Amendment. That means that use of cell site data must be reasonable. For police investigations, a search is only reasonable if it is based on a search warrant supported by probable cause. Probable cause, the Court explained, is something more than the low standard in Sec. 2703(d): “relevant and material” just means cell site evidence “might be pertinent to an ongoing investigation,” whereas probable cause requires a “quantum of individualized suspicion” before police can start rummaging. So a Section 2703(d) subpoena is not enough to support obtaining cell site data. Mr. Carpenter’s conviction, based in part on cell site location data showing his phone was near several stores at the time they were robbed, was thrown out.

Last week, President Trump signed legislation that expands criminal liability for people who own or operate online platforms that “promote or facilitate” not only sex trafficking, but virtually any consensual sex work. The new law, which amends Section 230 of the Communications Decency Act (“CDA”), is commonly referred to as the “Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”), or by its Senate name, the “Stop Enabling Sex Traffickers Act (SESTA).”

The FOSTA-SESTA amendment to the CDA is fairly short, but raises questions about how it will be enforced by prosecutors and plaintiffs’ attorneys granted a private right of action under the law. Under the new law:

  1. Anyone who “owns, manages, or operates” an online platform or “conspires or attempts to do

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.”

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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