Computer crimes Category Archives — Court-Martial Trial Practice Blog Published by International Military Lawyer

Another bad day at CAAF for the Fourth Amendment.

May 7, 2023 | The Law Office of Philip D. Cave

Two recent decisions of CAAF condone unlawful or bad practices when OSI, CID, NCIS, and CGIS search cellphones; United States v. Shields and United States v. Lattin. As a result, the MCIOs are unlikely to change their unlawful or bad practices. More than sloppy police work gets two passes because the military appellate courts think suppression of evidence won’t change that behavior–and the accused is a bad person. Military defense lawyers need to be fully aware of the issues whenever evidence from an accused’s cellphone comes up in evidence.

The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.

In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.

Army online conduct guidance

May 25, 2019 | The Law Office of Philip D. Cave

The very foundation of what we do depends on trust, and trust depends on the treatment of all Soldiers with dignity and respect by fellow Soldiers and leaders. Without this, our profession is placed in jeopardy, our readiness suffers, and our mission success is at risk.

The sentiment conveyed above is enduring; it epitomizes core Army values. In an age where electronic communication is commonplace, it is critical to ensure that dignity and respect is maintained offline and online. A harmful communication sent from behind a screen does not trivialize the behavior; the consequences of carrying out acts which flout Army values are the same regardless of the domain—cyber or face-to-face—in which those acts occur.

“It is relatively easy to hurt others when their suffering is not visible and when causal actions are physically and temporally remote from their effects.”2 This is a key reason why Army leaders need to understand how to manage online misconduct. To carry out their responsibilities, leaders need unambiguous and comprehensive regulatory tools at their disposal which they can apply consistently and confidently.

Private internet speech is unlawful if an officer in the AF

October 15, 2018 | The Law Office of Philip D. Cave

11 October 2018. Orders Granting Petition for Review

No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.

Novelty but not fun to the Appellant

August 9, 2018 | The Law Office of Philip D. Cave

As this case demonstrates, the novelty of an assimilative charging decision under Article 134 often wears off during the course of an appeal,

Says ACCA in a footnote to United States v. Meredith, 7 August 2018.

Specification 1 of Charge II alleged appellant violated the Computer Fraud and Abuse Act (CFAA), 10 U.S.C. § 1030, by obtaining the sex videos from HN SS’s and KS’s computer. We agree with the parties that the evidence for the Article 134 offense assimilating the CFAA, specifically, 18 U.C.S. § 1030(a)(2), was legally and factually insufficient.

Are searches of a suspects cellphone too broad

December 21, 2016 | The Law Office of Philip D. Cave

We have all been there.

The unsophisticated suspect consents to the taking a search of their cell phone or computers.

Or, the MCIO get a search authorization.

Check the warrant

September 18, 2016 | The Law Office of Philip D. Cave

Check the warrant, or in the military the search authorization.

The recent decision of the Army Court of Criminal Appeals in a government appeal tells you why it’s important to check the warrant.

In United States v. Gurzynski, the court had before it a government appeal of a military judge’s decision to suppress evidence of a computer media search.

Private search of computers

December 3, 2015 | The Law Office of Philip D. Cave

How many times do we see the private search as an issue. The upset spouse searches the computer to find evidence of infidelity, the Sailor’s friend or roommate comes across contraband CP on a computer and looks further, etc., etc., etc.

A responsible law enforcer would take the information to get a search warrant or command search authorization. But that doesn’t always happen. What does happen is that the law enforcer or someone in command goes and looks for themselves. The question then becomes whether that is a search or is it a continuation of a private search. If a private searcher shows the law enforcer exactly what they saw and that alone, there may not be an unlawful search. But what happens if the law enforcer does more than strictly replicate what the private searcher did. So Orin Kerr has some information for us in the Washington Post.

[T]he 11th Circuit handed down a new computer search decision,United States v. Johnson, that both sharpens and deepens the circuit split on how the private search doctrine of the Fourth Amendment applies to computers. Johnson isn’t a likely candidate for Supreme Court review. But it does leave the private search doctrine in computer searches ripe for Supreme Court review in other cases working their way through the courts.

Worth the Read

July 16, 2015 | The Law Office of Philip D. Cave

New Developments in Criminal Law: Child Pornography and Appellate Review, by MAJ Jeremy Stephens.

THE ABUSE OF DISCRETION STANDARD OF REVIEW IN MILITARY JUSTICE APPEALS, by COLONEL JEREMY STONE WEBER.

CP distribution?

September 4, 2014 | The Law Office of Philip D. Cave

Prof. Berman at sentecing law and policy invites our attention to an interesting new decision from the Third.

US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) .

We all of us have an a client who is charged with distribution of CP because they were using a P2P program such as Limewire, and where the automatic settings placed information in the “shared” folder. Because the information is in the shared folder it is accessible to others who search Limewire and come across it. Actually many clients have been caught through the FBI or some other enforcement agency trolling Limewire for such information.

A broader definition of CP?

May 31, 2014 | The Law Office of Philip D. Cave

In United States v. Blouin, ARMY 20101135 (A. Ct. Crim. App. 28 May 2014), the court has, in my view, taken a broader view of what qualifies as CP for the purpose of a guilty plea. However, the court is not taking an unknown or unvisited trail.

Blouin was charged with possessing CP in violation of 18 U.S. Code Sec. 2256(8), to which at trial he plead guilty.

As is common in these type of cases, the prosecution threw up a whole bunch of alleged (173 to be exact) CP images, without really understanding what they were doing. And they compounded this with offering 12 images as a “sample.” This caused the military judge to reopen providency, because he found only three of the images were likely CP.