Can the police force you to give up the Password to your phone?

iPhonePassword

Can Police Force You to Give Up iPhone Password?


“we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones “

 

A court in Florida just ruled that a defendant could be forced to provide the password to his iPhone. A distinction is important – they got a search warrant. Without a warrant, the case may have been decided in favor of protecting the phone owner’s privacy. The phone had a cracked screen and had been allegedly used to take photographs that would have been useful in the prosecution of the phone’s owner. You can review a typical  iPhone Search Warrant here. At the bottom of this article are numerous other articles we have written on this topic.


Right to Remain Silent

 

Usually, we think that we have a right not to incriminate ourselves. However, this Florida Court in the Tampa Bay area ruled that providing the password did not constitute testimony against one’s self. In a convoluted 19-page ruling the court found that while there may be evidence of a crime, providing the passcode was not testimonial.

Here are some excerpts from the iPhone Court’s ruling.


“That an accused may be “forced to surrender a key to a strongbox containing incriminating documents,” but he cannot “be compelled to reveal the combination to his wall safe,” Doe, 487 U.S. at 219 (Stevens, J., dissenting), is another often repeated quote. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 210 n.9; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. Despite the many cases referencing the quote, we have found none that provide details of “surrender[ing] a key.” We question whether identifying the key which will open the strongbox—such that the key is surrendered—is, in fact, distinct from telling an officer the combination. More importantly, we question the continuing viability of any distinction as technology advances. See Fisher, 425 U.S. at 407 (“Several of Boyd[ v. United States, 116 U.S. 616 (1886)]’s express or implicit declarations have not stood the test of time.”). In that respect, we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number . . . . ”


“In this case, the communication was sought only for its content and the content has no other value or significance.11 By providing the passcode, Stahl would not be acknowledging that the phone contains evidence of video voyeurism. See Doe, 487 U.S. at 215. Moreover, although the passcode would allow the State access to the phone, and therefore to a source of potential evidence, the State has a warrant to search the phone—the source of evidence had already been uncovered. See id. Providing the passcode does not “betray any knowledge [Stahl] may have about the circumstances of the offenses” for which he is charged. See id. at 219 (Stevens, J., dissenting). It does not implicitly “relate a factual assertion or disclose information.””


“The Fifth Amendment privilege against self-incrimination has been held to apply not only to verbal and written communications but also to the production of documents, usually in response to a subpoena or summons, because the act of production itself could communicate incriminatory statements. See Fisher, 425 U.S. at 410. The courts that have addressed the Fifth Amendment implications for providing decryption keys and passcodes have largely applied the act-of-production doctrine and the foregone conclusion exception. See, e.g., Sec. & Exch. Comm’n v. Huang, No. 15-269, 2015 WL 5611644, *1 (E.D. Penn. Sept. 23, 2015); United States v. Fricosu, 841 F. Supp. 2d 1232, 1235 (D. Col. 2012); In re Grand Jury Subpoena to Boucher (In re Boucher), 2:06-MJ-91, 2009 WL 424718, *2-3 (D. Vt. Feb. 19, 2009); Gelfgatt, 11 N.E.3d at 612; Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014). But see United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (concluding that providing the password was testimony protected by the privilege against self-incrimination).”


“Invoking the privilege still requires the accused to establish compulsion, a testimonial communication, and incrimination. And as we have said, in this case compulsion and incrimination are not at issue, leaving only the testimonial element. Testimonial elements of production include (1) the existence of the documents, (2) the accused’s possession or control of the documents, and (3) the authenticity of the documents. Hubbell, 530 U.S. at 36.”


” “The difficult question whether a compelled communication is testimonial for purposes of applying the Fifth Amendment often depends on the facts and circumstances of the particular case.” Doe, 487 U.S. at 214-15. Here, the trial court rested its determination that producing the passcode would be testimonial exclusively on the concept that production would require “the use of the contents” of Stahl’s mind. The phrase “the contents of the accused’s mind” has often been repeated in cases discussing the privilege. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 211; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. And although the trial court correctly quoted the Eleventh Circuit’s statement in In re Grand Jury, that “[t]he touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact,” 670 F.3d at 1345, the trial court did not consider the law as stated in Hubbell and Doe—that the contents of the accused’s mind must be “extensive[ly] use[d]” in creating the response, Hubbell, 530 U.S. at 43, or must “relat[e] him to the offense,” Doe, 487 U.S. at 2013.10 That is, “it is not enough that the compelled communication is sought for its content. The content itself must have testimonial significance.” Doe, 487 U.S. at 211 n.10 (emphasis added) (first citing Fisher, 425 U.S. at 408; then citing Gilbert v. California, 388 U.S. 263, 267 (1967); and then citing United States v. Wade, 388 U.S. 218, 222 (1967)). ”


“Although the phrase “the use of the contents of the accused’s mind” has been used in act-of-production cases, we note that the case cited by the Eleventh Circuit for its proposition that the use of the contents of the accused’s mind is the touchstone of whether an act of production is testimonial does not so hold. Curcio v. United States, 354 U.S. 118 (1957), provides that there “is a great difference” between compelled production of documents and compelled testimony, specifying that testifying as to the location of documents “requires him to disclose the contents of his own mind.” Id. at 127-28. ”

Source: STATE OF FLORIDA v AARON STAHL Case No. 2D14-4283  Opinion filed December 7, 2016.

Previous Coverage of Cell Phone Searches

 

www.centrallaw.com/tag/cellphone/
Dec 3, 2015 Search Warrant for an Abandoned Cell Phone. Police search lost cell phone – The cops waited 23 days to get a search warrant. A Florida Court …
www.centrallaw.com/search-warrant-i-phone-cell-phone-florida-attorney/
Jul 17, 2010 Search Warrant for a Cell Phone? Tell Me Your Story Toll Free 1-877-793-9290 or Click the Call Me Button to Your Right at the top of this page.
www.centrallaw.com/search-warrant-for-cell-phone-handset-required-florida- supreme-court-says/
May 2, 2013 Search Warrant for Cell Phone Handset Required – Florida Supreme Court Says a police officer is not authorized to search through …
www.centrallaw.com/defense-attorney-on-cell-phone-search-evidence- suppressed/
Apr 27, 2011 Criminal Defense Attorney / Lawyer notes a recent Cell Phone Search ruling on a Motion to Suppress Evidence, filed pursuant to Rule 3.190(h), …
www.centrallaw.com/police-search-lost-cell-phone/phone/
Dec 3, 2015 Search Warrant Cell Phone. Search of Lost Cell Phone. What happens when you lose a cell phone and it has illegal material on it?
www.centrallaw.com/cell-phone-searches-supreme-court-to-rule-on-warrant- requirement/
Jan 21, 2014 One friend has said, “Wow, the Supremes are taking a serious look at cell phone searches! There’s been talk for a while now about the …
www.centrallaw.com/cell-phone-search-incident-to-arrest/
May 6, 2011 One Florida court has just ruled in a 33 page opinion that pictures in a cell phone obtained from a suspect who had been arrested were …
www.centrallaw.com/search-warrant-cell-phone-update/
May 21, 2013 Wurie, Cell Phone, Search, Warrant. Florida Criminal and DUI Defense Attorney notes a Federal Court has lined up with the Florida Supreme …
www.centrallaw.com/cell-phone-and-gps-location-data-in-criminal- prosecutions/
Dec 15, 2011 Board Certified Criminal Trial Lawyer at Law Office of W.F. ”Casey” Ebsary, Jr. notes recent developments in Cell Phone Location Data used in …
www.centrallaw.com/cell-phone-tower-data-admissible/
Sep 11, 2010 Historical cell phone records of the tower sites used by a defendant were deemed admissible and efforts to suppress the records were for …

Computer Hacker Guilty of Intrusions – Computer Forensics E Discovery

Defacing Websites

“The United States Attorney’s Office for the Northern District of California announced that [a man from] Pleasant Hill, California, pleaded guilty today in federal court in Oakland to hacking into government computers and then defacing government websites with material illegally obtained from those intrusions.

He pleaded guilty to each count of a five-count indictment charging computer crimes in violation of 18 U.S.C. 1030. In pleading guilty, [the man] who is known as one of the members of the self-titled hacking group called ‘The Deceptive Duo,’ admitted that he unlawfully accessed computer systems of various federal agencies in April 2002, including the Department of Defense’s Defense Logistic Information Service (DLIS), the Office of Health Affairs (OHA), and NASA’s Ames Research Center (ARC). In particular, [the man] admitted that he: Gained unauthorized accessed to DLIS computers in Battle Creek, Michigan, for the purpose of obtaining files that he later used to deface an OHA website hosted on computers in San Antonio, Texas. “

Computer Crimes Experts, Mobile Phones, Devices, and SD Card Storage

Computer Crimes Experts Cell Phone SD Forensics

Computer Crimes Experts, Cell Phones and SD cards

Recently I reviewed a computer crime case where the dates on files on an SD card seized by the police, examined by the police computer forensic laboratory, and by a defense expert in computer forensics showed some unusual patterns in the dates of files that allegedly contained contraband. Those files on the SD-card were later the basis of criminal charges and an arrest. There were claims of evidence spoliation. “Spoliation” is a fancy word for tampering. Sometimes a Computer Crimes Experts can come in handy. During a lengthy interrogation by the Prosecutor there were some answers given that may apply to virtually any cases involving data stored on a mobile phone SD card.

Questions and Answers from Computer Crimes Expert testimony on SD Storage Devices in Mobile Devices

 

What are hash values in SD cards and stored files?

 

“These are the hash values of that. That is a method that I use to be able to correlate that picture with the picture on the SD cards, things like that; but it’s a fingerprint. Every file has a unique fingerprint.”

What is the creation date on a file stored on an SD card?

 

“I have seen instances where if a file was moved to another system, the creation date is what the current date is of that system. Because, as far as that system’s concerned, hey, it was created on my system today.”

What about iPhone, where there are no SD storage devices?

 

“For example, with iPhone being a proprietary system, you’re — you’re talking about something that’s an encrypted system and we constantly stay abreast . . . . “-

Do both police and forensic examiners use Cellebrite?

 

“[W]e — as a company, in general, stay abreast of that, the changes there, as I’m sure your group has the same — same challenges. With that, we’re — we ‘ re always challenging our vendors. There’s three primary vendors we use, including Cellebrite, which you guys use, as well. But challenging them to stay abreast of it.”

What is the job of a computer forensic examiner in case involving cell phone data and SD storage devices?

 

“To look at it with the eyes of a computer forensic expert to determine whether the evidence being portrayed was accurate or if there was evidence being omitted or not looked at from a different way and we all know that when you’re looking at it from a prosecution point of view, you look at evidence from that angle. If you’re looking at it from a defense point of view, since I work both sides, I know I’m going to look at the evidence differently in cases because in one you’re trying to find underlying causes one way or another. So I felt my job in this was to look at the evidence to determine whether or not everything was being described accurately and completely.”

Are there different types of files stored on mobile device SD cards?

 

“When you talk about system files, it’s a little bit more complex. The system does many, many things to make your life work better on a computer. And storage locations could be temporary areas; the system just uses and works with. That’s very beneficial to us in a forensic area because that can be very telling as far as how the system was used, what the system is doing, who’s doing what and what’s automatic, what’s not, what’s user initiated, what’s system initiated, all that is good. You can tell that from the temporary areas. There’s also caching areas.”

What are Cache files on an SD card?

 

“Caching areas are when the computer does something and then it goes and does something else, it caches it out, caches something back in; that’s very telling of what’s going on in the system to us. Who initiated, whether it’s automatic, whether it’s deliberate, stuff like that. There is allocated resources, unallocated resources, deleted areas; there’s just a — just a plethora of stuff that the system does and there’s a lot of different storage locations. Now the ones that I’m focusing in on, for this particular case and this particular report, are the ones that, you know, give us telltale sign of something. And I would have to read it real quick here to know what we’re getting at. I was hoping you were going to ask something specific in here, but that’s basically an overview of what storage locations are.”

What is the significance of where files are stored on an SD Card?

 

“So storage locations, I gave you an example to help you understand how storage locations work, the difference between pictures and documents, stuff like that. The system is the same way. It does certain things, it will store them in different places. The other key point here then, also is that in — when you’re talking about the system storage locations, they’re not accessible by the user. These are areas that obviously if the user could access those, you could — you could destroy your system. But these are typically areas that are not accessible by the user. By us, yes, from a forensic point of view.”

Why are system storage files important?

 

“Because, depending on how the device acquired a particular piece of information, whether it be media or text or whatever, how it was — how it came to exist on the phone matters. And system storage can help us to determine that.”

Can date meta data on an SD storage device used on a phone be altered?

 

“I’ve seen people fool that and they’ll put a cell phone in a shield bag in which case it doesn’t make connection; and there is an app, I think, that can change the date. So there’s people that could do things like that but in these particular cases, these were active and that’s really not the issue that I want to get into. The problem is that depending on the software use or how things come about — and it’s called a feature. And there’s a feature that when you take a file and you put it onto a system, that it maintains the original creation date that that particular, let’s say photograph you made, was maintained. And it’s a feature because you want to know that the Christmas of 2004 occurred on December of 2004, not when you happened to move it over there. So it is a feature of something. But then there are some operations when you move things over, and I’ve seen it before because I’ll see stuff come to be on a system, and they’re milliseconds apart, the creation date. And I know that those were — that was a copy operation performed.”

“You plug in the SD card and the metadata is put on the SD card. Last access date in — in doing the correlation was — would be updated on the phone, as well. But let’s say, for instance, if you put
an image, a brand new image on there, and the creation date was last year and you put another image on there, maybe you copied three images and the way you copied it it happened to pick up the date of the computer which was, you know, maybe you changed the date of the computer and you wanted to show it to be last month. Then when you take that SD card and you plug it in the phone, you’re going to see one image with that date from last year as a create date and then you’re going to see three images, milliseconds apart, that are from last month. What I’m saying is that the phone becomes slave to the SD card as far as the metadata –“

Can computer crimes experts discover data files placed on a mobile device without the user’s knowledge?

 

“[J]ust realize that when I’m talking about the push, that the technology is there, that the . . . potential is there for stuff to be pushed on your computer. And of course, the user is oblivious to all this going on. And that’s why you could actually go to a website that had unfortunate information on it and your computer now is a recipient of that information and you, the user, are none the wiser.”

“Sometimes the user doesn’t even know they went somewhere. Sometimes in — in this world of malware and viral attacks and exploitation of compu — of people’s identities, there’s a lot of times — like, and I use the term unfortunate, is if you do a search, one thing these search engines do not do is assess where it’s going to take you and you could click on something and then it could actually take you to a site that doesn’t display anything but it certainly puts stuff on your computer and then redirects you to something else to show you what you think you wanted to see. There’s a lot of smoke and mirrors going on behind the scenes that the user’s not aware of. That’s the push technology I’m
talking about . . . .”

“Whether or not you saw it, whether or not you meant to go there, that’s — that does not — those two statements don’t come into play when it comes to push. . . . Push includes whatever the — and I’ll call it malicious in some cases, but whatever the site, or whatever the originating prospect that might be. It could be a server, it could be a site, it could be almost anything. Whatever it is, it will push on there
and I can’t tell you what that will be. In — I can tell you in general what it is. In general it’s thumbnails.’

“The fact that Windows does that, is a feature to allow you to operate better. But how many times have we heard about there being a hole, an exploited hole in Windows that Microsoft had to go in
and patch with a new release or with — with a new update they patched this hole or they discovered this — this whatever was open and they come in. You take a feature on something and you get a
website that exploits that feature, I think you kind of then answered your question because then okay, well whose fault is it? Well, it’s a feature of Windows to do this. But they’re — the reason it was written was to optimize web browsing, that’s it. Now to push big stuff on there, and push other stuff on there, when people are taking it to its limit and exploiting it and doing the wrong thing, then I’d say it’s the fault of the site.”

Attorney Online Reviews and Internet Libel in Florida

Online Reviews Internet Libel

Punitive damages of $350,000

A Florida lawyer has won an appeal in a case involving internet libel and online reviews of the attorney. The case involves divorce and allegations made in reviews that are quoted in the complete opinion of the The Fourth District Court of Appeal in West Palm Beach, Florida.The online reviews “contained allegations that [lawyer] lied to [client] regarding the attorney’s fee. Two of the reviews contained the allegation that [lawyer] falsified a contract. These are factual allegations, and the evidence showed they were false. ” The court entered judgment in favor of [attorney] and awarded punitive damages of $350,000.”

Excerpt from Internet Libel Case With Punitive Damages of $350,000

 

 

“Both … admitted to posting the reviews on various internet sites. The evidence showed that … had agreed to pay her attorney the amount reflected on the written retainer agreement—$300 an hour . . . . [B]oth admitted at trial that [attorney] had not charged . . . four times more than what was quoted in the agreement. The court entered judgment in favor of [attorney] and awarded punitive damages of $350,000.”

Complete Opinion of the Court in Attorney Online Review and Internet Libel Case in Florida

 

 

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

COPIA BLAKE and PETER BIRZON,
Appellants,

v.

ANN-MARIE GIUSTIBELLI, P.A., and ANN-MARIE GIUSTIBELLI, individually,
Appellees.

No. 4D14-3231

[January 6, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 12-22244 (12).

Copia Blake, Kansas City, MO, and Peter Birzon, Weston, pro se.

Ann-Marie Giustibelli, Plantation, for appellees.

CIKLIN, C.J.

After a non-jury trial, the trial court awarded the appellee, attorney Ann-Marie Giustibelli, damages in this libel and breach of contract case. In their initial brief on appeal, the appellants, Copia Blake and Peter Birzon, raised five issues. After briefs were filed and the court spent considerable time entertaining the issues raised, Birzon filed a notice that he and the appellee had settled the matter and that he was withdrawing his appeal. Blake did not join in the notice. We note that even if she had, we would not have dismissed the appeal. One issue Blake and Birzon raised involves the application of free speech protections to reviews of professional services posted on the internet. We affirm in all respects, but this issue merits discussion as it presents a scenario that will likely recur, and the public will benefit from an opinion on the matter. See Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245, 248-49 (Fla. 4th DCA 2011) (recognizing that appellate court has discretion to retain jurisdiction over an appeal after it has been voluntarily dismissed, particularly where “the case presents a question of public importance and substantial judicial labor has been expended” (quoting State v. Schopp, 653 So. 2d 1016, 1018 (Fla. 1995))).

Attorney Giustibelli represented Copia Blake in a dissolution of marriage proceeding brought against Peter Birzon. After a breakdown in the attorney-client relationship between Giustibelli and her client, Blake and oddly, Birzon as well, took to the internet to post defamatory reviews of Giustibelli. In response, Giustibelli brought suit, pleading a count for libel. She also brought counts for breach of contract and for attorney’s fees, alleging that Blake still owed her money related to the divorce representation.

Blake’s and Birzon’s posted internet reviews contained the following statements:

This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible horrible experience. Use anyone else, it would have to be a better result.

**********

No integrity. Will say one thing and do another. Her fees outweigh the truth. Altered her charges to 4 times the original quote with no explanation. Do not use her. Don’t mistake sincerity for honesty. In her case, they’re not at all the same. Will literally lie to your face if it means more money for her. Get someone else. . . . Anyone else would do a superior effort for you.

**********

I accepted an initial VERY fair offer from my ex. Mrs. Giustibelli convinced me to “crush” him and that I could have permanent etc. Spent over a year (and 4 times her original estimate) to arrive at the same place we started at. Caused unnecessary chaos and fear with my kids, convinced me that my ex cheated (which he didn’t), that he was hiding money (which he wasn’t), and was mad at ME when I realized her fee circus had gone on long enough and finally said “stop[.]” Altered her fee structures, actually replaced original documents with others to support her charges and generally gave the kind of poor service you only hear about. I’m not a disgruntled ex-wife. I’m just the foolish person who believes that a person’s word should be backed by integrity. Not even remotely true in this case. I’ve had 2 prior attorneys and never ever have I seen ego and monies be so blatantly out of control.

Both Blake and Birzon admitted to posting the reviews on various internet sites. The evidence showed that Blake had agreed to pay her attorney the amount reflected on the written retainer agreement—$300 an hour. Blake and Birzon both admitted at trial that Giustibelli had not charged Blake four times more than what was quoted in the agreement. The court entered judgment in favor of Giustibelli and awarded punitive damages of $350,000.

On appeal, Blake and Birzon argue that their internet reviews constituted statements of opinion and thus were protected by the First Amendment and not actionable as defamation. We disagree. “[A]n action for libel will lie for a ‘false and unprivileged publication by letter, or otherwise, which exposes a person to distrust, hatred, contempt, ridicule or obloquy or which causes such person to be avoided, or which has a tendency to injure such person in [their] office, occupation, business or employment.’” LRX, Inc. v. Horizon Assoc. Joint Venture ex rel. Horizon-ANF, Inc., 842 So. 2d 881, 885 (Fla. 4th DCA 2003) (quoting Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 803 (Fla. 1st DCA 1997)).1
1 Statements of pure opinion are not actionable. Morse v. Ripken, 707 So. 2d 921, 922 (Fla. 4th DCA 1998). However, “there is no constitutional value in false statements of fact.” Id. (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)). If a factfinder “were to conclude that any of the [assertions of fact] in the [publication] were false, [this] would allow the [factfinder] to disregard the pure opinion defense.” LRX, 842 So. 2d at 886.

Here, all the reviews contained allegations that Giustibelli lied to Blake regarding the attorney’s fee. Two of the reviews contained the allegation that Giustibelli falsified a contract. These are factual allegations, and the evidence showed they were false.

As part of their “free speech” claim, Blake and Birzon point out that the judgment references defamation “per se.” They argue that libel per se no longer exists as a legal concept after the decision by the United States Supreme Court in Gertz, 418 U.S. 323 (1974). “[A] publication is libelous per se, or actionable per se, if, when considered alone without innuendo: (1) it charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his trade or profession.” Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953); see also Shafran v. Parrish, 787 So. 2d 177, 179 (Fla. 2d DCA 2001) (“When a statement charges a person with committing a crime, the statement is considered defamatory per se.” (citation omitted)). In Gertz, the Court held that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Gertz, 418 U.S. at 347. After Gertz, the Florida Supreme Court recognized that, with respect to a libel action against the media, it is no longer accurate to say that ‘“[w]ords amounting to a libel per se necessarily import damage and malice in legal contemplation, so these elements need not be pleaded or proved, as they are conclusively presumed as a matter of law.’” Mid-Fla. Television Corp. v. Boyles, 467 So. 2d 282, 283 (Fla. 1985) (quoting Layne v. Tribune Co., 146 So. 234 (1933)). Thus, after Gertz, in libel cases involving media defendants, fault and proof of damages must always be established.

Notably, the instant case does not involve a media defendant. Libel per se otherwise still exists in Florida. See Lawnwood Med. Ctr., Inc. v. Sadow, 43 So. 3d 710, 727-29 (Fla. 4th DCA 2010) (containing discussion of the presumption of damages that applies in defamation per se cases); Perry v. Cosgrove, 464 So. 2d 664, 666 (Fla. 2d DCA 1985) (reversing trial court’s grant of a motion to dismiss a libel per se action brought by a former editor of a newspaper against his supervisor, who had written a letter to a reader suggesting that the editor was fired for reasons that were shameful); Owner’s Adjustment Bureau, Inc. v. Ott, 402 So. 2d 466, 470 (Fla. 3d DCA 1981) (concluding that statements in a letter amounted to libel per se as a matter of law).

As to the remaining arguments raised on appeal, we decline to
address them as they are not sufficiently briefed, not preserved, or lack merit.

Affirmed.

MAY and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

Instagram Hacking Not a Computer Crime Says Court in Florida

Instagram Hack Computer Crime

Instagram Hack Not a Computer Crime in Florida

Is Hacking an Instagram Account always a Crime in Florida?

A guy in Florida was convicted of unauthorized computer use. the court reversed his conviction. The guy “logged into his ex-girlfriend’s Instagram account and posted nude photographs of her without her permission.”  The prosecutor claimed that constituted a violation of section 815.06(1)(a), Florida Statutes (2013).

What is Hacking a Computer Network in Florida?

 

Section 815.06 makes it illegal under Florida computer law and states “[w]hoever willfully, knowingly, and without authorization [a]ccesses or causes to be accessed any computer, computer system, or computer network . . . commits an offense against computer users.”  § 815.06(1)(a), Fla. Stat. (2013).

The court reversed the conviction and focussed on three defintions in the law:

  • “Computer” means an internally programmed, automatic device that performs data processing
  • “Computer network” means any system that provides communications between one or more computer systems and its input or output devices, including, but not limited to, display terminals and printers that are connected by telecommunication facilities.
  • “Computer system” means a device or collection of devices, including support devices, one or more of which contain computer programs, electronic instructions, or input data and output data, and which perform functions, including, but not limited to, logic, arithmetic, data storage, retrieval, communication, or control. The term does not include calculators that are not programmable and that are not capable of being used in conjunction with external files. § 815.03, Fla. Stat. (2013).
The state failed to prove that Instagram was a Computer, computer system, or “computer network. The winning argument was that an Instagram account does not fall within any of these statutory definitions.

Instagram Hack Case Excerpt:

“The plain language of the statutory definitions of “computer,” “computer system,” and “computer network” refer to tangible devices, not the data and other information located on the device. Thus, to prove a violation of section 815.06(1)(a) the State must establish that the defendant accessed one of the listed tangible devices without authorization, not that the defendant accessed a program or information stored on the device without authorization. See Rodriguez v. State, 956 So. 2d 1226, 1230 (Fla. 4th DCA 2007) (reversing conviction under section 815.06 because evidence only established that the defendant accessed a “computer function” that he was not authorized to access).”

“Here, the charge against Appellant was based only on the unauthorized access of his ex-girlfriend’s Instagram account, not the computer server on which the account is presumably located. We say “presumably” because the only evidence in the record explaining what Instagram is was the ex-girlfriend’s testimony that it is a form of social media and “a place where you post pictures [and] your friends get to see it.” Nothing in the record establishes or explains how accessing an Instagram account works from a technological perspective, leaving unanswered whether or how Appellant’s actions amounted to accessing a specific computer, computer system, or computer network. Accordingly, in this case, the State failed to provide the necessary evidentiary foundation to prove that Appellant’s actions violated section 815.06(1)(a).”

Revenge Porn Statute Section 784.049, Florida Statutes

 

The court conclude a revenge porn prosecution under Section 784.049, Florida Statutes, that specifically prohibits the publication of sexually-explicit images of a person on the Internet without his or her consent is now a tool prosecutors can use. The court noted the new revenge porn statute was needed because “Florida law does not specifically prohibit posting pictures of a nude adult person on the Internet for viewing by other adults if the picture was taken with the knowledge and consent of the person”.

Source: Crapps v State, CASE NO. 1D14-4569 (Fla 1st DCA Dec 8, 2015).https://edca.1dca.org/DCADocs/2014/4569/144569_DC08_12082015_090851_i.pdf

 

Spend 600 Months In Prison When Police Search Lost Cell Phone

Search Warrant Cell Phone

Search of Lost Cell Phone

What Happens When Police Search Your Lost Cell Phone That Has Illegal Material On It?

 

The story begins in a Walmart in Florida. The owner lost their phone at Walmart. After he left the phone, it was found, and the owner agreed to pick it up from the store. The owner of the phone failed to pick the phone up from the store. The store manager looked at the phone in an effort to find a photo of the owner. When the manager found contraband on the phone, she called the cops – police search lost cell phone.

Search Warrant for an Abandoned Cell Phone

 

Police search lost cell phone – The cops waited 23 days to get a search warrant. A Florida Court ruled that this did not constitute an unreasonable delay to obtain a search warrant. First, the court found that the defendants had hoped the store manager would not report the materials found on the phone to the police. Second, the phone owner had filed an insurance claim and replaced the phone with the exact same model. The decision to not retrieve the phone from the store, coupled with the filing of an insurance claim, and replacing the phone with the same model constituted an abandonment of ownership of the phone. Search and seizure law requires that those who challenge a search and seizure must have standing to challenge the search. In this case, the phone owner had no standing to challenge the search, the phone and any rights the owner had to challenge the search and seizure were gone. The court also addressed the Private Search Doctrine that supports searches by citizens, that otherwise might be illegal if performed by the police or the government.

Sentenced to 600 Months in Federal Prison

 

By the way, the court found that a 600 month sentence for the materials found on the phone was just fine. The phone owner entered a written plea agreement and the sentence was a possible outcome that while it was as harsh as the judge could impose, it was within the terms of the plea agreement.

Case Excerpts

 

“When Vo [store manager] failed to meet Sparks [phone owner] with the phone as the two had previously agreed,  Defendants knew how to find Vo to get their phone back. But Defendants did not return to their Walmart store and look for Vo. Nor did they ask for Walmart’s assistance in obtaining their phone, found in its store, by its employee. They also did not file a report with Walmart or the police complaining that Vo would not return their phone, despite their requests. Instead, they made a conscious decision to stop pursuing the phone, even though they knew how to get it back with reasonable effort. That decision—whether because Defendants hoped that Vo would not report them if they did not continue to seek the phone or because Defendants simply thought recovery of the phone was not worth their reasonable effort—can be viewed only as a deliberate decision to abandon the phone. Because Defendants abandoned their phone within three days of having lost it, they lack standing to challenge law enforcement’s 23-day delay between recovering the phone and obtaining a search warrant to search it.”

The Private-Search Doctrine

 

“The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. The protection the Fourth Amendment affords, however, extends to governmental action only; “it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S. Ct. 2395, 2404 (1980) (Blackmun, J., dissenting)). So once an individual’s expectation of privacy in particular information has been frustrated by a private individual, the Fourth Amendment does not prohibit law enforcement’s subsequent use of that information, even if obtained without a warrant. Id. at 116, 104 S. Ct. at 1656; see id. at 117, 104 S. Ct. at 1658-59.”

Read Complete Opinion Here: http://media.ca11.uscourts.gov/opinions/pub/files/201412143.pdf

Read More About Search And Seizure of A Cell Phone Here.

Read Even More About Search And Seizure of A CellPhone Here.

Facebook Liability

Facebook Civil Lawsuit Libel

Parents held liable for children’s facebook activity? #facebook #lawsuit #libel

A court of appeals has just put parents on the hot seat for libel when they ruled parents can be held accountable for a child’s activities on the social media site facebook. The distinction the court made centered upon the parent’s failure to remove or investigate the activity, even though school officials had disciplined the student. #Lawsuit #facebook #libel

“parents are not held responsible for the acts of their children, but instead for inadequately controlling their children.”

Liability arose when the adults did not tell the kid to delete the page and made no effort to determine whether the false and offensive information allegedly posted by the child could be corrected, deleted, or retracted. The Court found, “Parents may be held directly liable, however, for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others.”

Important: Once aware of the activity, parents should investigate and take corrective action.

 

Under Florida law parents are already strictly liable for the actions of minor children in operating automobiles says our source, Board Certified Civil Trial Lawyer, Alan Wagner of Tampa, Florida. Florida law also provides for criminal liability of parents for failing to have children attend school. Liability can also arise from storing or leaving a loaded firearm within easy access to a child. The Stetson Law Review has published an article on parental responsibility statutes. The legal scholar noted “[U]nder parental responsibility statutes, parents are not held responsible for the acts of their children, but instead for inadequately controlling their children.”

Alleged Facts on facebook Libel Lawsuit Case

 

Here are the facts, straight from the Court with the names of the parties deleted. ” In early May 2011, [XXXXX], who was 13 years old, and his friend, [YYYYY], agreed to have some fun at a classmate’s expense by creating a fake Facebook page for that person. [XXXXX] selected [ZZZZZ], a fellow seventh-grader, as their target, and [YYYYY] agreed. [YYYYY] , posing as ZZZZZ, created a Yahoo e-mail account to use to create a new Facebook account, and gave that information to [XXXXX]. On May 4, using a computer supplied by his parents for his use and the family Internet account, [XXXXX] posed as [ZZZZZ] to create a new Facebook account, using the Yahoo e-mail address and the password[YYYYY] supplied. For the profile photo, [XXXXX] used a photo that he had taken of [ZZZZZ] at school, after altering it with a “Fat Face” application. “

“The unauthorized profile and page remained accessible to Facebook users until Facebook officials deactivated the account on April 21, 2012, not long after the [alleged victim’s]  filed their lawsuit on April 3, 2012. During the 11 months the unauthorized profile and page could be viewed, the [parents] made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that [the child] was charged with electronically distributing. “

Complete Opinion of the Court Finding Facebook Parent Liable

Video of Law School Professor and W.F. Casey Ebsary Jr on Facebook Liability Issue


Previous  Facebook Articles on Centrallaw

Need To Know Facebook Personal Information Disclosures!

www.centrallaw.net/2014/07/facebook-account-information-court.html
Facebook Circuit Trial Court Order was too intrusive says FloridaCourt

Feds on Facebook | Social …

www.centrallaw.net/2010/10/criminal-defense-attorney-feds-on.html
We believed that the feds watch Facebook, MySpace, Twitter, Flickr and

Courts and Social Media | facebook

www.centrallaw.net/2010/10/criminal-defense-and-social-media.html
Finally an experienced federal defense attorney noted, “The [NLJ] article’s suggestion that defendants use Facebook as a sentencing resource ..

The Web Mob a/k/a La Cosa Webstra

Millions of stolen credit card numbers and other personal identification information are available for less than ten dollars according to experts at Baseline magazine and the United States Department of Justice. Unlike Michael Corleone’s crew, these mobsters exist solely in cyberspace. Phishing expeditions are their forte, with estimates of between 75 and 150 million scam emails sent daily.

Virtual Hit Men

Recently one large data collector was hit by mobsters who stole or accessed nearly 150,000 consumer records, credit reports, and Social Security numbers. This gang hides behind digital aliases, screen names, and nicknames. To punish wayward gang members, enforcers will publish the true names and identifying information of formerly anonymous transgressors on websites. Supplying the rat’s true identity to law enforcement virtually assassinates the individual in cyberspace.

The Secret Service recently tracked down one such gang. With 28 arrests, 19 indictments, and 4,000 gang members, the Government has penetrated one of the largest, if not the largest known web mob. Again, unlike secret meetings of the heads of the families, the web mobs met in web based discussion forums where they discussed and attempted to perfect the stealing and the forging of bankcards, and a myriad of other personal identification documents. They cloak their identities and encrypt their communications.

Web Mob Busted

Agents with the Secret Service staged synchronized raids on several gang members. Since word travels fast in cyberspace, they simultaneously knocked on dozens of doors across the country while the gang members were chatting and plotting in a web-based forum. By moving in concert, they captured the capos before they could compromise further investigation by publicizing the bust and/or destroying computer records of their dark deals. Eventually the agents took control of the mob’s website and posted a warning on their homepage to those not yet busted – “Contact your local United States Secret Service field office before we contact you!!!”

In the digital equivalent of a bunch of televisions falling off Tony Soprano’s truck, batches of credit card data were falling off electronic trucks and onto the hard drives of gang members. They tested batches of purloined information to grade and evaluate the data for accuracy and to determine whether or not the card numbers were cancelled or valid. Testing of the data consisted of illicit entry into a retailer’s computer and running a series of nominal charges for each card number to see if the charges were approved or declined. Once tested and graded, the data is sold to the highest bidder on clandestine websites.

Bottom Line

According to the Secret Service, a credit card with a $10,000 limit would sell for between $1 to $10 dollars or more. E-mail addresses and associated personal identification information are cheaper – they go for a few cents each. From high school dropouts to post graduate students of Information Technology, cyber criminals now use the illusion of anonymity and take unrestricted license with confidential information housed on the world’s computer networks.

Authors: W.F. “Casey” Ebsary, Jr., CentralLaw.com and Albert Lucas, B.A. Mathematics

Tech Wreck

We are inundated with technologies designed to more effectively communicate. Some have caused users to defectively communicate. Misuse yields communications breakdown or even worse – death by PowerPoint®. With 400 Million Copies of Microsoft Office® and millions of PowerPoint® Presentations every day, one commentator, Dave Paradi surveyed and found several annoying elements in the bane of boardroom and courtroom technologies, PowerPoint®. Lest you not be familiar with potential side effects of poorly executed digital slideshow software, be assured watching slides from industrial safety filmstrips is more bearable than the painful boredom from this assassin of effective messaging from Microsoft®.

The survey found that speakers reading slides, flying text across the screen, and annoying use of sounds were some reasons for disdain for the technology. To that list add the users’ tech timeouts when the software or the hardware fails to display the desired show. With prices tumbling on hardware, including cheap projectors and notebook computers, expect the visual delirium to continue until audiences stand up and complain, walk out, or fall asleep during these moments of mediocrity.

Combining the laser pointer with the video projector can exponentially increase the risk of midday narcolepsy in the jury box or the seminar room. Actually, since the searing red dot of the laser pointer resembles the laser sight on the SWAT team’s M-16, some might claim it to be a useful device for waking up bored audience members or jurors. Jurors know that labels on laser devices warn of eye damage. Use of the powered pointer might actually keep them on the edge of their seats protecting themselves from blindness and more importantly not hearing a word said.

We revel in new technologies but hope their use will help, not distract and bore the audience. To that end, make sure that use of presentation technology serves and does not supplant. Evaluate each tool and ask a few simple questions: Does this technology work? Do you know how to work it? Is the technology really necessary to convey the message? Does it distract from the message? Is the technology persuasive? New technologies will emerge. Each must be reviewed by asking these questions.

In a culture where computer-generated scenes can appear real, just because it was on the television or the big screen projector doesn’t necessarily mean that the audience is convinced that either a droid army saved the universe; or that your side of the case should prevail.

Authors: W.F. “Casey” Ebsary, Jr., CentralLaw.com and Jodi Ann Baudean, Master of Science in Civil Engineering

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