Posted On: January 27, 2009

Fort Lauderdale Cyber Crime Attorney on Protecting Your Personal Data

An unusual story caught my eye this morning on Apparently, a man from New Zealand bought an mp3 player from a thrift store in Oklahoma, only to discover that the player was pre-loaded with confidential U.S. military files. The information on the player included long lists of soldiers' names, contact information and Social Security numbers; mission briefings; and lists of equipment sent to war zones. The military is still investigating whether the information truly is top secret, but the man who bought the player told CNN that he'd be happy to return it if asked to do so.

Fortunately, the story suggests that the man isn't being prosecuted for this security breach (if there is one). But as a cyber crime criminal defense lawyer in South Florida, I can easily imagine ways in which he could have been. For one thing, unauthorized possession of classified information could be considered an espionage crime, particularly since the man is a foreign national. Just speaking to the New Zealand or U.S. press about it could trigger further spying charges, whose penalties include decades in prison, confiscation of any property the government believes is related and certain revocation of any visa issued to this man.

Even devices that don't come pre-loaded with classified information may still cause problems for unwitting buyers. For example, possessing a long list of names and Social Security numbers could trigger identity theft charges brought by a prosecutor who doesn't believe the information really came with the player. Or, let's say the man found child pornography on the player. Merely possessing child pornography is a crime, and authorities are generally unsympathetic to people they believe are child sex offenders. All of this could add up to a wrongful prosecution and possible criminal conviction, which would then trigger the same immigration problems and potential federal and Florida asset forfeiture.

As a Miami cyber crime defense lawyer, I find that most of my clients and colleagues don't realize how hard it is to truly erase things from a data drive, even a small flash drive like this mp3 player (which is basically a "memory stick" with headphones). Even reformatting a hard drive doesn't truly erase files, which can be found and restored by computer experts. To completely obliterate data that could constitute a security breach, experts recommend several rounds of formatting, overwriting with meaningless data and reformatting. Even better is physically or magnetically destroying the disk.

In fact, the U.S. military has standards for erasing drives containing classified information -- standards that must not have been followed in this case. I am glad that so far, no innocent people are being prosecuted as a result.

Posted On: January 22, 2009

South Florida Criminal Lawyer Feature's the Bielski Brother's

In honor of the nationwide opening of the movie Defiance, staring Daniel Craig, and my impending nuptials to the grand niece of the Bielski Brother's here is history we cannot forget.

South Florida Criminal Defense Attorney. Miami Criminal Defense Lawyer. Fort Lauderdale Criminal Defense Attorney. Cyber Crime Defense Lawyer. Miami Cyber Crime Defense Attorney. Miami Criminal Defense Attorney.

Posted On: January 21, 2009

South Florida Cyber Crime Lawyer Revisits Sexting and Child Pornography Debate

About a month ago, I posted to this blog about "sexting," the media's name for the practice among teenagers of sending naked or near-naked pictures to one another in text messages. More recently, I actually spoke to a writer for Wired, in my capacity as a Miami cyber crimes defense attorney, on the subject. I haven't seen those quotes online yet, but I did notice that the magazine's Threat Level blog has picked up on the story. In a post from Jan. 15, the blog interviews online privacy experts about the rash of prosecutions for teens caught sending naked pictures of themselves.

The most recent case cited by the blog is the prosecution of six teenagers in Pennsylvania. Pittsburgh's WPXI reported Jan. 13 that three girls, ages 14 to 15, voluntarily took naked or near-naked self-portraits with their phones, then sent them to three boys ages 16 to 17. They were caught after a teacher confiscated one of the phones. The boys are charged with possession of child pornography, and the girls are charged with possession as well as manufacturing and distributing child pornography. As the Wired piece notes, this makes the girls simultaneously the victims and the perpetrators of the alleged crime -- a nonsensical situation.

More importantly, as the article also notes, child pornography laws were never intended to protect teens from their own sexual curiosity or consensual behavior with each other. Laws against making, possessing or distributing child pornography were intended to protect children and teens from adults who use force or age to exploit them. Consensual sexual behavior among teenagers is a controversial subject, but every state, including Florida, has laws that distinguish between that behavior and actual rape or sexual assault. No such distinction is written into Florida child pornography laws, perhaps because they are relatively new.

Teenagers should absolutely be aware that there could be serious consequences when they post inappropriate pictures of themselves online. But given the harsh penalties carried by child pornography statutes -- including lifelong sex offender registration requirements in many states -- criminal prosecution seems like overkill. Putting kids in jail doesn't protect them or other kids from sexual predators. As a Fort Lauderdale cyber crime criminal lawyer, I would support efforts by lawmakers to modify state and federal child pornography laws to reflect that.

Posted On: January 13, 2009

Fort Lauderdale Cyber Crime Defense Lawyer on Handheld Devices and Unreasonable Searches

If you were pulled over while driving, would the police officer be legally permitted to look through your iPod, Blackberry or other handheld device? That’s the question posed by CNET’s Police Blotter report Jan. 12. And according to the article, it's not just an idle question posed by South Florida cyber crime attorneys like me. Two different federal courts -- one here in Florida -- have already examined the question and come to different answers.

In the first case, a Georgia police officer was sent to investigate complaints about a parked truck. He spotted crack cocaine inside the truck and arrested its driver, then immediately looked through the driver's mobile phone. He found "lewd images" of an apparently teenaged girl and charged the man with possession of child pornography. At trial, the man's attorney argued that the phone search violated the man's Fourth Amendment right to freedom from unreasonable searches and seizures. The judge ruled that it did not -- and thus, the evidence could be used at trial.

A man here in South Florida had better luck. He had been arrested for trying to buy drugs from an undercover DEA agent. The arresting agent waited until the booking process to look through the man's phones (he had two), where he found text messages he photographed as evidence. The agent testified in court that this was standard practice intended to find evidence of crimes, but the federal judge in that case found that claim not credible and did not allow the messages to be used as evidence at trial. It is worth noting that the judge may have allowed the search during the arrest, since it is established that warrantless searches are legal when they are "incident to a lawful arrest."

In fact, as the article notes, officers may legally search a person's physical papers, photographs and diaries during an arrest. The question is whether handheld devices fall into that category or should be treated as a new category of information altogether, one that requires a search warrant. After all, the amount of information stored on a 40-gigabyte iPod would produce more than 11,000 pounds of paper if printed out. When the "incident to a lawful arrest" exception to the Fourth Amendment was created, nobody anticipated that people might be arrested with these huge amounts of information on their persons. Once again, technology has outpaced the law.

The Fifth U.S. Circuit Court of Appeals has already addressed this issue, ruling that police may search phones. However, that opinion applies only to states within the Fifth Circuit, and we Floridians are in the Eleventh Circuit. And the Florida Department of Law Enforcement has told officers to get a warrant to search cell phones. Nevertheless, as a Miami cyber crimes defense lawyer, I suggest to my clients that they make sure their phones and other handheld devices don't contain anything that might interest a police officer, regardless of whether they think they might be arrested. A DUI or a drug possession charge is already bad news; the last thing anyone needs is a Florida cyber crime charge on top of it.

Posted On: January 6, 2009

Miami Defense Lawyer on Underage Sex Charges in Florida

The South Florida Sun-Sentinel reported Jan. 3 that a former teacher in Coral Springs has been jailed for having a sexual relationship with a 16-year-old student. The teacher, who is 41, is accused of having a consensual sexual relationship with the girl that lasted more than a year. In fact, both the teacher and the student had been questioned in late 2007 and early 2008 about their relationship, but both denied any impropriety. The teacher, whose South Florida criminal defense attorney wasn’t questioned by the paper, has been jailed on five counts of sexual battery.

As a Fort Lauderdale defense attorney myself, I thought this was a good example of how confusing Florida sex crime laws can be. Florida law does not exactly discuss rape; what could be charged as rape elsewhere might be called sexual battery here. That includes statutory rape -- sexual conduct with a consenting person who is nonetheless too young to legally consent. In many other states, sexual battery is unwanted sexual touching that doesn’t meet the definition of rape. Perhaps most importantly in the present case, Florida’s sexual battery law specifically prohibits sexual relationships between someone under 18 and someone who is “in a position of familial or custodial authority” over the younger person.

Furthermore, our age cutoffs are complex. In general, any sexual conduct with someone under age 15 is illegal, and any non-consensual sexual contact with someone of any age is illegal. And of course, a consensual relationship between two people age 18 or over is not a crime. However, if the younger person in a consenting relationship is 16 or 17, the conduct is legal if and only if the older person is under the age of 24. Furthermore, age is not relevant if both parties are under 16. That is, a 13-year-old and a 14-year-old could both be criminally charged for having a sexual relationship with one another. If convicted, they could be required to register as sex offenders for the rest of their lives, unless they petition successfully for removal under Florida's "Romeo and Juliet" law.

As you can see, Florida law on sex-related offenses can be confusing. In high-profile cases, this is complicated by the fact that many offenders are convicted in the “court of public opinion” before they ever see the inside of a courtroom. As a criminal defense lawyer in South Florida, I cannot stress enough how important it is to get an attorney early in the process to help avoid the embarrassment and very real damage a sex charge, however unfounded, can cause to clients’ cases and lives.