Category Archives: Criminal Liability

Destroyed Reputations – Brought to you by Facebook/MySpace

00309100 It's nothing new for me to warn about social networking, linking you to the latest example of someone who was done in – legally speaking, of course – by their own postings.  But I gotta say, I've never seen it done quite the way this L.A. Times article does it.

Here are the facts; a man and a woman were in a private residence.  Another male, a bail bondsman, entered through an unlocked sliding-glass door, an argument ensued and the bondsman was shot and killed.  Now, follow the progression of the article.  The 'authorities', if you will, provided virtually no information.  But the 'Times examined the Facebook & MySpace pages of all three individuals involved.  Then, like assembling some sort of puzzle, they used excerpts from each to update the original piece.

The result?  Although the article doesn't speculate, the innuendo is clear; the selected posts suggest that the woman was caught with one man by the other, resulting in his murder.  But how do we know this?  Where are the facts?

The story is located in a section called "L.A. Now", which is described as "the Los Angeles Times’ news blog for Southern California."  In their defense, I suppose they would say that as bloggers, they're not subject to the same journalistic standards as their 'official' newspaper.

But I'll tell you, this reads like a gossip article from a supermarket tabloid.  It also illustrates how three separate people, innocently posting on their social networks, had their personal lives invaded in a way none of them could have ever anticipated.  Yes, I know one of them is dead, but he had two children – and possibly other family members – who will be affected by the publicity.

Shame on you, L.A. Times.

The Password is ‘P-R-I-S-O-N’

J0387776 This is my 200th post.  Thanks to all the readers out there who've kept this thing going!

This is the bizarre story of a San Francisco network engineer, working for the Department of Technology, who faces two-five years in prison for withholding passwords from the City.  I don't consider this a California story, though; this could happen anywhere.  Follow the link for details, but I'm not posting this to debate his actions or motives (which are somewhat suspect), but to pose a question for the IT people out there; could you envision a legitimate situation where a superior demands a password and you're not sure whether you should surrender it?  How about if there's litigation underway and an e-discovery attorney like myself requests access?

The reason I bring this up is, I was faced with this very scenario once, and although it may seem like the answer is easy, let me assure you, it isn't.

I was the head email consultant in Los Angeles for a world-wide conglomerate, but I reported directly to the domestic CIO, not the world-wide CIO, who was based in New York.  Our CEO & CIO were called to New York for a meeting with the world-wide group.  I received a call from my CIO's subordinate, an Executive Vice President, who informed me that our CEO was being fired, that I was not to ask any questions nor seek confirmation from anyone else, and that I was to immediately disable my CEO's password and supply it to him.

So, I'm being asked by an executive two-levels below the CEO to disable the CEO's password, on his word alone; nothing in writing.  And if it so happens there are political games going on – which occurred frequently at the company – this would result in my firing, at minimum.  "Trust me", he said.

Would you?  I made my decision purely on the good faith of what I was being told, then
hoped I hadn't made the wrong choice.  Luckily, I hadn't.

Unfortunately, the relief didn't last long.  The former CEO sued the company for $66 million shortly thereafter.  Yes, crazy things like this do happen…this is why E&O insurance exists.

Stunning Development in Law Enforcement Video Capture

J0439247 I'm wearing my criminal law hat this morning.  The maker of Taser guns has developed a new digital video-capture system that allows a patrol officer to record real-time events using a camera device that fits over his or her ear.

Let's dispense with the obvious theoretical issues that can't easily be addressed in a blog post; misconduct, engaging/disengaging the system at inappropriate times, moral questions, etc.  I'd like to focus on the technology itself.

The data is uploaded to a cloud, specifically the data warehouse evidence.com, so there are the usual security aspects to deal with, but considering I recently covered a criminal case where spoliation sanctions occurred because videotape of an arrest wasn't retained, systems of this type are likely to become more prevalent.

Of course, these devices don't come cheaply, but I learned something I didn't know; an officer-involved shooting may generate $250,000 to $300,000 in evidence collection costs.  Maybe it makes a lot of sense for high-crime departments.

I don't think I need to state the obvious pros and cons (and I suppose in this case, 'cons' is a double-entendre), but if it were me, I'd prefer that a video recording was being created.  It tends to keep people 'honest' – no matter which side of the gun you're on.

e-Discovery: It’s a Gas!!!

J0433096 Tasers.  Up until now, I'd say that's the most unusual device to make an appearance in an e-discovery case (at least the ones I've reviewed).  Now, we can add one more potential device; gas pumps.  From Utah comes this story of crooks who have embedded credit/atm card skimming devices in 180 gas pumps throughout the state.

I can't really think of much to add, except to speculate on what happens when the criminals are eventually caught.  Will they receive regular or premium jail time?

Facebook Faux Pas: “Drunk (and Stupid) in Florida”

J0321163 At this point, I'm about ready to throw in the towel and start a "Social Networking Idiot of the Month" post.  I try not to get into the habit of using strong verbiage like this too often, but really…

A drunk-driving 17-year-old was involved in a vehicle crash that killed her 20-year-old passenger.

Quoting directly from the The Buffalo News article:

"The Buffalo News has learned that Sullivan went to Florida a month after the crash and
posted a photo on her Facebook Web page captioned, "Drunk in Florida."" (italics/bold added).

The judge found this conduct troubling, sentenced her to six months in jail and stated that posting the Facebook photo was the reason.

No further comment is necessary, especially since it would contain more strong verbiage…

[As much as I don't like to overuse 'dark humor' for something as egregious as this case, nevertheless, I have to pose the question:  How many of you clued-in to my 'half-a-brain' illustration?]

The Verdict is In: Social Networking is a Drug, and Facebook, Twitter, et al, are Enablers

J0321155 I'm rarely surprised by the things I read.  However, while reading an article on Time.com about something I've covered several times, jurors using PDAs during trials, a portion of the last paragraph floored me:

"The temptation to hop online is so great, and the habit so ingrained,
that, as Keene notes, a burglar in Pennsylvania ended up getting caught
because he stopped to look at his Facebook page on the victim's
computer, leaving an online trail for the police to follow."

Granted, assuming the burglar wasn't an IT expert, he wouldn't know he was leaving an online trail, but you'll recall I also posted about a felon who boasted on MySpace about committing a murder.

Maybe I've been discounting the possibility that there is a positive side to social networking.  After all, we know that most people can't keep their mouths shut, and in fact, if all bad-actors simply didn't talk (the opposite of what we always see on TV, where everybody talks and talks and talks before asking for a lawyer) the reality is, a much lower percentage of crimes would be solved.

I'm curious, going forward, to see if we start experiencing a marked increase in crimes being solved through this type of evidence.  It's something to watch in 2010.

Case Got Your Tongue? Geek vs. Geek, Hyper-Activity & ‘You’d Better be Dying!’

I'm sure 'yule' (pardon the pun) welcome this opportunity to suspend Xmas shopping for a moment so you can read my last summary of interesting cases for the year.  Folks, I can only say the latest crop borders on the bizarre.  I have two civil and one criminal case for you.

United States Gypsum Co. v. Lafarge North America Inc., 2009 U.S. Dist. LEXIS 99773 (N.D. Ill. Oct. 27, 2009)

"Plaintiff's computer forensics expert was allowed to testify regarding
steps taken by plaintiff to protect its electronically stored trade
secrets, and defendant's computer forensics expert was allowed to
provide his opinion concerning "intrinsic weaknesses" he perceived in
the reports of plaintiff's expert. However, both experts were barred
from offering opinions as to intent of the parties in handling
electronic information."

So, here's what happened.  Both Plaintiff and Defendant attempted to bar the others' expert from testifying.  Instead, the court allowed both experts to testify.  Whoops!  By the way, for the non-lawyers out there, it's entirely normal and customary – in certain instances – for experts to testify but not be allowed to express an opinion (conclusion).  Depending upon the circumstances, the court will leave that to the jury.

Wixon v. Wyndham Resort Development Corp., 2009 U.S. Dist. LEXIS 86337 (N.D. Cal. Sept. 21, 2009).

Score one for good-faith.  What attorney among us hasn't dealt with an adversary who attempts to use every technicality in the book to delay, deny, obfuscate, etc.?  Of course, if you are one of those adversaries, shame on you, but in this case, the court saw right through it and enforced the 'spirit' of the agreement made between the parties.

Zawada v. United States, 2009 U.S. Dist. LEXIS 101368 (N.D. Ind. Oct. 29, 2009).

"A request for court appointment of a computer forensics expert in a
motion by a defendant seeking review of his sentence was denied because
the defendant was not seeking to set aside a death sentence."

Like I said…bizarre…

Everyone, I wish you all the best!  Please, take care out there this holiday season.  Your continued support and feedback is what motivates me to keep on blogging!

This is Just Plain Scary…

WarGames200 …to the point that I didn't even want to come up with a catchy title.  Just read the lead-in to this story from the Associated Press:

"Of all the sinister things that Internet viruses do, this might be the
worst: They can make you an unsuspecting collector of child pornography."

Look, I'm not naive.  The 'I didn't do it' defense is as common as apple pie.  That's not the point.  The point is, sometimes it's true.  I touched briefly on child porn issues a couple of times and I'm the first to admit; I don't even want to discuss it.  [Note to the attorneys out there – especially if you're dealing with the state of California – I recommend you familiarize yourself with the Tecklenberg case (warning: link opens 28-page pdf).]

But this story is a cautionary tale about several things that directly affect us, not the least of which is, clicking on unfamiliar sites and/or looking at adult porn (legal, but this is how a child-porn virus may be planted on your PC).  People do this every day – at the office

What about on the 'detection' side of things (proper virus software, proper firewall software and/or hardware)?  Are you aware it's estimated that 70% of corporate PCs contain pornography?  Are you aware that someone in the IT department can look at a report of every Internet location any PC visits?  What happens if porn is detected on a company PC?  What happens if child-porn is detected on a company PC?  What happens if that PC is yours?

How are you going to prove, "I didn't do it?" 

One of my favorite movies is, WarGames.  It's a favorite because of a two-sentence conclusion delivered near the end of the film by the talking computer, Joshua: "A strange game. The only winning move is not to play."