Crime in the Suites: An Analyis of Current Issues in White Collar Defense
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Apr 29
2013

DOJ Notice Hints at a Sentencing Deal With Former Enron Exec Jeffrey Skilling

Justice may or may not be blind; but she can buckle under pressure. It may take years, millions of dollars and armies of attorneys, but if you have the resources to test her mettle, you too may tip the balance in your favor.

Almost seven years after his conviction on fraud and other charges, former Enron executive Jeffrey Skilling may finally be succeeding in his effort to cut down his prison sentence that was originally set at more than 24 years. His investment in his battle is nothing short of impressive. He apparently spent some $70 million on his defense in the underlying trial that ended in 2006 … and that doesn’t include the subsequent seven years of activity, which involves more than 1300 docket entries as of March 2013.

Skilling’s persistence may be paying off. The Department of Justice recently issued a notice on a proposed sentencing agreement with Skilling. (The notice provided that victims have until April 17, 2013, to express their views on the prospective agreement. No further timetables have been officially set.)

It may seem surprising that the Justice Department would consider entering a sentencing agreement with someone who has already been convicted and sentenced and is serving time. But this is a product of Skilling’s aggressive efforts since his conviction, which have resulted in several appearances before the U.S. Court of Appeals for the Fifth Circuit and in one successful trip to the U.S. Supreme Court.

In 2009, the Fifth Circuit vacated Skilling’s sentence – which is where the recently announced sentencing agreement comes into play. In 2010, the Supreme Court ruled that one of the legal theories behind Skilling’s conviction (the honest-services fraud theory) was unconstitutionally vague and remanded the case to the Fifth Circuit to decide whether any of the charges should be invalidated.

After more yo-yoing between courts (the Fifth Circuit upheld the conviction in 2011, the Supreme Court declined to hear a second subsequent appeal in 2012, and Skilling renewed his request for a new trial based on new evidence after the failed Supreme Court appeal), the Justice Department may be raising a white flag of sorts and opting to settle upon a sentence that is mutually acceptable to Skilling and prosecutors. The DOJ may be unwilling to spend more public resources on a man who won’t go away until he gets his way.

It is hard to say what the sentencing agreement will provide. We previously opined that in resentencing, the judge could sentence Skilling to somewhere between 15 and 30 years under the sentencing guidelines. Obviously a more stringent sentence than the previous 24-year sentence is not going to be the result of the prospective agreement between Skilling and the DOJ. Regardless of the terms, the agreement will need to be approved by the sentencing judge. And he will invariably have to balance, along with the scales of justice, the public outcry if the sentence is too light and the costs of continuing to do battle with Skilling.

Ifrah Law is a leading white-collar criminal defense firm that focuses on financial services.

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Financial Services
Apr 24
2013

Latest U.S. Efforts to Prosecute Trade Secret Theft Hit a Few Snags

Earlier this year, the Department of Justice announced an initiative to step up its enforcement of trade secret theft. In a February 20 press conference, Attorney General Eric Holder announced that the Obama administration aimed to make it a top priority to prosecute intellectual property crimes. At the press conference, the DOJ unveiled a report titled, “Administration Strategy on Mitigating the Theft of U.S. Trade Secrets,” which focuses largely on how to prevent and remedy trade secret theft by foreign governments and foreign corporations.

Only two days later, however, a development in one of the DOJ’s highest-profile trade secrets cases demonstrated the difficulties of prosecuting foreign defendants. On February 22, a federal judge in the Eastern District of Virginia determined that, despite eight attempts, the DOJ had not properly served Kolon Industries Inc, a South Korean company accused of stealing trade secrets from duPont, a U.S. company. The DOJ’s criminal case follows a civil trial that returned a $919.9 million judgment against Kolon for stealing 149 trade secrets related to Kevlar, a synthetic fiber used in body armor. Kolon used those trade secrets to create its own competing fabric, Heracron.

The difficulties the DOJ encountered in bringing the overseas perpetrators to justice is especially relevant because the report indicates that most secret theft is committed by foreign nationals, especially in China. According to the report, “Chinese actors are the world’s most active and persistent perpetrators of economic espionage. US private sector firms and cybersecurity specialists have reported an onslaught of computer network intrusions that have originated in China, but the [intelligence community] cannot confirm who was responsible.” The vast majority of cases highlighted in the report involve Chinese nationals or Chinese firms.

The difficulties in bringing foreign nationals to justice only emphasize the need for corporations to take stronger precautions to prevent their trade secrets from being stolen in the first place. The “Administration Strategy” document recognized this need and proposed that companies work cooperatively to develop best practices for trade secret protection in areas such as research and development compartmentalization, information security policies, physical security policies, and human resources policies.

The “Administration Strategy” document notes that companies suffering from trade secret theft may be hesitant to come forward for fear of how it could affect the company and its stakeholders. However, the document encourages them to do so, both in order to bring the perpetrator to justice and to allow the government to collect information that could help to identify patterns in trade theft and prevent similar events in the future.

The DOJ has demonstrated its commitment to trade secret enforcement by continuing to pursue the Kolon case despite the February setback. The DOJ filed a superseding indictment on March 19 and must now serve Kolon in accordance with the judge’s February 22 order. Given the fanfare with which the DOJ announced its trade secret agenda, there is no doubt that the government will continue to doggedly pursue this and other trade secret cases.

We support the DOJ’s effort to protect corporate trade secrets so that companies can benefit from the innovation that they work so hard to develop. As always, we also remain on the lookout for indications of overzealous prosecution in instances where it does not appear that confidential proprietary information has been stolen.

Ifrah Law is a leading white-collar criminal defense firm that focuses on online piracy.

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Online Piracy
Apr 19
2013

Court to Rule on Exceptions to Warrant Requirement for GPS Tracking

The U.S. Court of Appeals for the 3rd Circuit is set to become the first federal appellate court to answer the question left open by the Supreme Court in United States v. Jones. Last year, the Court held in Jones that a Fourth Amendment “search” occurs, and a warrant is required, when a GPS tracking device is attached by law enforcement to a person’s vehicle and then used to track its movements. The Court did not consider when, if ever, that type of search would be exempt from the Constitution’s warrant requirement.

Last month, the 3rd Circuit heard oral arguments on that question. It is expected to issue its decision later this year.The appeal relates to the prosecution of Harry, Michael, and Mark Katzin — three brothers charged with the burglary of a Rite Aid pharmacy in Pennsylvania. In 2009, authorities began investigating a rash of pharmacy burglaries in the Northeast. Most of the crimes targeted Rite Aid stores and appeared related because each occurred after someone had cut the wires to the pharmacy’s alarm system. Eventually, authorities identified Harry Katzin as a person of interest. He had been implicated in suspicious activities involving other Rite Aid pharmacies and was known to keep electrician’s tools, gloves and ski masks in his van.

Initially, agents physically tracked Katzin’s movements. Then they decided more comprehensive surveillance was needed, so they attached a GPS tracking device to Katzin’s bumper and waited. Two or three days later, the tracking device showed that the van had stopped at a Rite Aid store in Hamburg, Pa. After the van left, one agent drove to the store to confirm it had been burglarized while state troopers followed the van onto the highway. When the burglary was confirmed, troopers stopped the van and arrested the Katzins. Only then did authorities obtain a search warrant, which led to their discovery of merchandise from the Rite Aid store, parts of the pharmacy’s alarm system, and Schedule II drugs.

In April 2011, the brothers were charged with pharmacy burglary and possession of Schedule II drugs with intent to distribute. They filed a pretrial motion to suppress the evidence found in the van. At that time, neither the 3rd Circuit nor the Supreme Court had decided whether the attachment and use of an external GPS tracking device constitutes a Fourth Amendment search. In early 2012, the Jones Court made clear that it does. Applying Jones, the trial judge granted the Katzins’ motion, and the government appealed.

On appeal, the government argues that the search in question, i.e., the attachment and use of the GPS device, falls within one of two exceptions to the warrant requirement. Under the “reasonable suspicion” exception, a warrantless search may be conducted under limited circumstances if the minimal intrusion on the individual’s privacy is outweighed by a legitimate government interest. In this case, the government contends, the “trespass” to Katzin’s van was minimal because it involved the placement of a magnetic GPS device on the bumper. Subsequent monitoring of the device was minimally intrusive because it revealed only the location of the van — information that could be obtained by physical surveillance. In the government’s view, these minimal intrusions were outweighed by the government’s interests in investigating crime.

The government also argues that the search falls within the “probable cause” exception. Under that exception, officers may conduct a warrantless search of an automobile if there is probable cause to believe it contains contraband or if exigent circumstances make a warrant application impractical. The government claims that no warrant was required in this case because officers had probable cause to believe that Katzin would use his van to burglarize another Rite Aid pharmacy.

The Katzin brothers counter that neither exception applies. First, the “reasonable suspicion” exception does not apply because the officers installed the device without a reasonable, articulable suspicion that criminal activity was afoot at the time of installation. Instead, the officers proceeded on a hunch that turned out to be right. The Constitution requires more than that.

The “probable cause” exception does not apply because, when the officers installed the device, they had no reason to believe there was contraband in the van or that the van was readily mobile, which might have made a warrant application impractical. As the Katzins point out, the officers attached the device in the dead of night on a deserted street. If the officers had evidence to support probable cause under those circumstances, they should have applied for a warrant.

Our sense is that the trial court will be upheld. The Fourth Amendment’s baseline requirement is that searches be conducted pursuant to a valid warrant supported by probable cause. These facts do not appear to support an exception. As the trial judge noted, the government argues for application of the “reasonable suspicion” exception based on its general interest in efficient law enforcement. The government did not prove that the special needs of this case required the warrantless intrusion visited on the defendants.

Likewise, the government argues for application of the “probable cause” argument based on the officers’ general suspicion that Katzin would use his van to commit a crime in the coming days, weeks, or months. The government did not prove that the officers had probable cause to believe that a crime was in progress when the device was attached. If courts do not hold the line on these exceptions, the Fourth Amendment will be eviscerated.

Ifrah Law is a leading white-collar criminal defense firm that focuses on a variety of practice areas. View all.

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Apr 12
2013

Are Investors Lining Up Behind Another and Better Bitcoin?

We have written previously about Bitcoin, the new form of “peer-to-peer” currency whose proponents expect to be a game-changer in the world financial markets. It’s not clear yet what Bitcoin’s ultimate destination will be, as the currency has had a lot of scrutiny, and undergone a tremendous amount of volatility, lately.

In a recent 24-hour period, the value of a single Bitcoin on the largest Bitcoin exchange, Mt. Gox, was high as $266 and as low as $105. It’s hard to sustain a business model with that incredibly high volatility factor.

However, according to TechCrunch, angel investors and venture capitalists remain “hungry to invest in the ecosystem surrounding the decentralized digital currency.” In other words, investors want to create a different, and possibly superior, Bitcoin.

That currency is known as OpenCoin, which wants to create a decentralized global currency yet prefers to stay away from the moniker of “another Bitcoin.” The company behind OpenCoin has raised an undisclosed amount of venture-capital money to expand the open-source code behind Ripple, which is a virtual currency and payment system that aims to make it easy and affordable for anyone to trade any amount in any currency.

OpenCoin hopes to clear its transactions within minutes; to handle dollars, euros, and other currencies seamlessly; and to solve BitCoin’s security issues.

Some observers think OpenCoin has a greater chance of success than Bitcoin because it has been carefully conceived rather than just springing up from the minds of a few hackers, and because it doesn’t have a history of volatility and of facilitating illegal payments.

But it’s still a very long way before any of these artificial currencies catches on. We will be watching them carefully. We hope that financial regulators, both in the United States and world-wide, realize that these currencies can do a great deal of good, and that the Treasury Department doesn’t conclude that they are nothing more than vehicles for money laundering. Treasury’s recent announcement that dealers in Bitcoin-like currencies must obey money-laundering laws seems like an acceptably moderate approach.

Ifrah Law is a leading white-collar criminal defense firm that focuses on financial services.

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Financial Services
Apr 10
2013

SEC ‘Likes’ Public Company Disclosures on Facebook and Other Social Media

Last December, we wrote about the U. S. Securities and Exchange Commission’s issuance of so-called “Wells” notices indicating that the agency was considering whether to bring enforcement proceedings against Netflix and its CEO, Reed Hastings. The SEC’s ire was aroused by a posting by Hastings on his personal Facebook page about Netflix’s success. The agency was concerned about whether such statements in social media complied with disclosure requirements known as “Regulation Fair Disclosure” or “Reg FD.”

In general, Reg FD requires that, when an issuer discloses material, nonpublic information to certain individuals or entities – generally, securities market professionals such as stock analysts or holders of the issuer’s securities who may well trade on the basis of the information – the issuer must make public disclosure of that information. The purpose of these restrictions is to prevent issuer companies from disclosing material information preferentially to certain traders or securities market professionals.

On April 2, 2013, the SEC issued a report that made clear that companies that use social media outlets like Facebook and Twitter to announce key information are in compliance with Reg FD so long as investors have been alerted about which social media will be used to disseminate such information. In approving the use of social media (with the stated proviso), the SEC reinforced that Reg FD applies to the use of what it characterized as “emerging means of communication” the same way that it applies to company websites, and referenced the SEC’s 2008 guidance regarding the use of websites.

The SEC’s conclusion should be no surprise. On the one hand, it reinforces the widely recognized and increasing use of social media as a source of information by a growing segment of the population. On the other hand, it serves as a reminder to companies that they need to make sure that all investors know and have access to the channels that the companies use to issue important information.

The likelihood, for now, is that companies will continue to use a variety of means to issue information to the public – including social media, websites and more old-school methods such as press releases. But the acceptance of social media as an appropriate means of disclosure for publicly owned companies is an important step forward in the evolution of social media from a means of friendly banter to an important information channel for businesses and investors alike.

Ifrah Law is a leading white-collar criminal defense firm that focuses on financial services.

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Financial Services
Apr 09
2013

What’s at the Bottom of the ‘Robosigning’ Scandal?

The problematic practice of robosigning – whereby banks and other lenders improperly foreclosed on properties through formulaically processing foreclosure documents – has been much in the news over the past couple of years. The feds have been investigating banks and individuals; state attorneys general have joined forces in pursuit of robosigners; and, unsurprisingly, there have been a number of class actions filed by consumers whose homes were foreclosed.

The fallout of these actions has been somewhat inconsistent. On the settlement side, banks and individuals are facing hefty penalties: Bank of America, JPMorgan Chase, Wells Fargo, Citigroup, and Ally entered into a massive $25 billion settlement with the Justice Department and state attorneys general (of 49 states) in early 2012. The mortgage servicing firm, Lender Processing Services (LPS), recently entered into a $120 million settlement with a coalition of state attorneys general (of 45 states). A founder of one of LPS’s subsidiaries, Lorraine Brown, pleaded guilty to federal conspiracy charges and Missouri state charges and faces not less than two years imprisonment.

Those defendants who have not settled may be faring better. In early March, a Nevada district judge threw out an entire case against two title officers of LPS who faced more than 100 felony counts. (The judge’s ruling was not merits-based but rather based upon prosecutorial misconduct.) A New Jersey federal judge recently dismissed a putative class action against Bank of America, noting the plaintiff’s failure to prove that robosigning constituted fraud.

Part of the challenge for cases that don’t settle out may be proving damages to homeowners who lost their homes: If a home was foreclosed on deadbeats, where are the damages in rapid-fire paper pushing? Some banking experts have found that, between 2009-2012, mortgage servicers created some 800,000 foreclosures that could have been avoided through loan modification programs. And foreclosure practices at BofA and Morgan Stanley subsidiaries were found to have violated the Servicemembers Civil Relief Act, which provides active servicemembers financial protection in matters such as civil proceedings, income tax disputes and foreclosures. But these two categories are only a small subset of foreclosures, which have amounted to between one million and four million each year for the last six years.

One lesson from these matters may be that settling is not always the best option. But another take-away that hasn’t come up is how banks and mortgage servicers got into the practice of robosigning in the first place. The issue faced by the banks and lenders was a glut of foreclosures and a related mountain of paperwork to process those foreclosures. How could they effectively address the problem and the dead weight on their ledgers? The answer was to institute an efficient, and automated, process. The problem with automation, though, is a lack of oversight or subjective inquiry – the very purpose behind much of the required foreclosure documents.

While the banks and processors are certainly to blame for false certifications and notarizations, their actions are not as nefarious as many make them out to be. How often are we all guilty of “robosigning” the terms and conditions for a new software program or credit card application? How often do we read all the new disclosures that financial institutions are required to send with each statement or loan request? Part of the problem is that we are faced with a mass of disclosures resulting from both regulation and excess litigation. The information overload is part of what has played out in the robosigning scandal.

The Government Accountability Office just released a report criticizing the Federal Reserve’s review of the robosigning matter, saying that the review itself has become cumbersome and inconsistent. The only problem is that there is no realistic resolution to the problem. Until we can devise a way to be both thorough and totally efficient in processing information, we will inevitably face new versions of the robosigning scandal.

Ifrah Law is a leading white-collar criminal defense firm that focuses on financial services.

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Financial Services
Mar 29
2013

Judge Strikes Down FBI’s Use of ‘National Security Letters’

In a recent decision, U.S. District Judge Susan Illston of the Northern District of California struck down the FBI’s use of National Security Letters (NSLs) as unconstitutional. Unbeknownst to most Americans, the FBI has been issuing thousands of NSLs every year. The letters demand that recipients, such as banks and telephone companies, provide customers’ information such as their transactional records, phone numbers dialed, and email addresses mailed to and from. This doesn’t involve the content of the phone calls or emails but does involve the names of addressees or participants. One reason most Americans didn’t know about these letters is because more than 95 percent of them contain gag orders, barring the recipient from disclosing their content or even their existence.

This case began nearly two years ago, in May 2011, when a nonprofit advocacy group, the Electric Frontier Foundation (EFF), filed suit on behalf of an unnamed telecom company that had received an NSL. In defense of the NSLs, the government argued that this level of secrecy is necessary to protect the nation against potential security threats. NSLs were designed in the 1970s as a means to gather information on suspected foreign spies during terrorism and espionage investigations. However, the Patriot Act greatly expanded their reach to allow the FBI to secretly compel companies to provide data on American citizens.

The constitutionality of NSLs is dubious for two distinct reasons. Not only does the nondisclosure clause infringe on their recipients’ free speech, but, unlike a standard subpoena or search warrant, the NSLs do not have to be authorized by a judge. Accordingly, Illston concluded that NSLs and their nondisclosure provisions violate the First Amendment and separation of powers principles, and she ordered the FBI to stop issuing NSLs and cease enforcing all gag provisions. That said, we are uncertain whether Illston’s order will ever go into effect. Due to the gravity of the First Amendment and national security issues at stake, Illston issued a 90-day stay, giving the government time to appeal her decision to the U.S. Court of Appeals for the 9th Circuit.

Although the lawsuit was filed anonymously, various media sources have suggested that the unnamed defendant may be Credo Mobile, a phone provider that supports progressive causes. The day after the ruling was released, Credo’s CEO Michael Kieschnick released the following statement:

“This decision is notable for its clarity and depth. From this day forward, the US government’s unconstitutional practice of using national security letters to obtain private information without court oversight and its denial of the first amendment rights of national security letter recipients have finally been stopped by our courts.”

According to Matt Zimmerman, an EFF attorney, the NSL gags “have truncated the public debate on these controversial surveillance tools,” and his unnamed client “looks forward to the day when it can publicly discuss the issue.”

As we await the higher court’s ruling, which we hope leaves Illston’s decision in place, one thing has already been accomplished of a positive nature. A federal district judge has shined some light on a little-known and highly dubious federal law enforcement technique.

Ifrah Law is a leading white-collar criminal defense firm that focuses on data privacy.

Mar 21
2013

N.J. Sets Up Regulations for Fantasy Sports Competitions in Casinos

On March 19, 2013, the New Jersey Office of the Attorney General, Division of Gaming Enforcement (DGE), announced that it has adopted temporary regulations authorizing the state’s casinos to offer fantasy sports tournaments to their patrons. The regulations permit casinos, on their own or in partnership with fantasy sports providers, to offer fantasy sports tournaments or contests.

The temporary regulations will remain in effect for a period of 270 days. During that time, the DGE will propose the regulations for final adoption. The text of the regulations could change from their current form to the form that is eventually adopted. The regulations will become effective on April 22, 2013. The minimum age for participation in fantasy sports tournaments at casinos is 21. Full text of the temporary regulations is available here.

A fantasy sports tournament is a simulated game in which a player manages an imaginary sports team and competes for a monetary prize against teams managed by other players. Since fantasy sports involve considerable skill in the selection of teams and players, they are widely considered not to constitute gambling. Fantasy sports can involve season-long or single-day tournaments.

The New Jersey temporary regulations clearly define that all prizes and awards must be made known to all participants prior to the start of the tournament. The winning outcome of a fantasy sports tournament shall reflect the relative skill of the participants and the outcome cannot be determined solely on the performance of any individual athlete or on the score, point spread, or performance of any single real world team or combination of teams.

The temporary regulations authorize casinos to utilize the casino cage to accept entry fees and pay out winnings from fantasy sports tournaments in the casino. Under the temporary regulations, fantasy sports are not considered to be gambling under state law. Therefore, revenue generated from these games is not subject to the same taxes as revenue generated from table games and other games offered in casinos.

This announcement on fantasy sports is part of a flurry of activity in New Jersey dealing with the state’s gaming industry. Last month, New Jersey became the third state to legalize online gaming within its borders, and games could be online by the end of the year. Earlier this month, a federal judge in New Jersey struck down the state’s sports betting law and the decision has been appealed by the state to the U.S. Court of Appeals for the Third Circuit.

We are very happy to see New Jersey add fantasy sports offerings in its casinos. This will be a boost for the state as well as for patrons who will soon be able to play these games in casinos.

Ifrah Law is a leading white-collar criminal defense firm that focuses on igaming.

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Mar 19
2013

Treasury Department: Bitcoin Dealers Are Regulated Under Money-Laundering Laws

Timothy Lee at Forbes magazine has reported today that the Financial Crimes Enforcement Network (FinCEN), a branch of the Treasury Department, has issued new guidelines on the legal status of Bitcoin under U.S. money laundering laws. Essentially, Bitcoin dealers have now been placed under the nation’s anti-money laundering regulations and must comply with those rules.

Lee notes that Bitcoin exchanges, which exchange Bitcoins for conventional currencies, and most Bitcoin “miners,” which process Bitcoin transactions, must now register as Money Services Businesses (MSBs) under the Treasury regulations. Ordinary users of Bitcoins need not register.

Bitcoin is a peer-to-peer network that exchanges the virtual currency in a largely unregulated environment. Lately, Bitcoins have become acceptable for a number of types of transactions, and some see them as a currency of the future that transcends national borders.

Lee argues that the Treasury action is actually not a bad thing for Bitcoin’s future.

“FinCEN is clearly trying, in its somewhat bumbling way, to squeeze a square technological peg into its round regulatory hole. Reading between the lines, FinCEN is saying that if Bitcoin-based businesses fill out some paperwork and collect some information about their customers, then they’ll be left alone,” Lee writes.

Given the existence of U.S. anti-money-laundering statutes, Lee adds, “FinCEN’s guidance is probably the best Bitcoin fans could have hoped for: it sends a clear sign that America’s anti-money laundering regulators do not consider the currency a threat and isn’t going to try to force it to change or shut down.”

We tend to agree. There needs to be a balance between enforcing the money-laundering laws (which are designed as a tool against terrorism and other serious wrongdoing) and permitting the free exchange of commodities and currency. It appears that the Administration, so far, is striking the correct balance.

Ifrah Law is a leading white-collar criminal defense firm that focuses on financial services.

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Financial Services
Mar 11
2013

Court: Data on Unsecured Network May Qualify for 4th Amendment Protection

The vast increase in the use of wireless data networks has led to new legal issues regarding network users’ right to privacy. A recent opinion issued by the U.S. District Court for the District of Oregon indicates that, under some circumstances, individuals on an unsecured wireless network have a reasonable expectation of privacy entitling them to Fourth Amendment protection. As a result, police officers must obtain a warrant prior to accessing files on that network.

In United States v. Ahrndt, defendant John Henry Ahrndt moved to suppress evidence that a police officer obtained by accessing Ahrndt’s wireless home network and opening files without a search warrant.

In February 2007, one of Ahrndt’s neighbors connected to Ahrndt’s unsecured wireless internet network. When she opened her iTunes program, she was able to see “shared” files from Ahrndt’s iTunes and LimeWire accounts, and saw a number of titles indicative of child pornography.

The neighbor did not open any of the files, but called the police to report what she saw. A deputy came to her house and she showed him the file names as she had seen them. The deputy asked her to open one of the files. When she did, it opened an image of child pornography.

The deputy questioned the neighbor about whom the unsecured wireless network might belong to. She indicated that the network had been available since she moved into the building, and at the time Ahrndt’s home was the only other one that was occupied. The police ran the license plate of a car parked outside of the home and identified it as belonging to Ahrndt, a convicted sex offender.

Using a general description of what the neighbor and deputy recalled seeing in the list of file names, the police applied for and received a search warrant to access the wireless network again in order to get an IP address. The police then served a summons on the Internet provider. The provider disclosed that Ahrndt was the subscriber in question.

Using that information, the police obtained a search warrant for Ahrndt’s home. They ran a forensic search of his computer and identified images of child pornography in various folders. The forensic report did not mention either iTunes or LimeWire.

In considering the motion to suppress the evidence obtained through the initial warrantless search, the court concluded that it would have been appropriate for the deputy to view the titles of the files without a warrant, since a private party (the neighbor) had already viewed those files and told the police about them. However, the court concluded that it was a violation of Ahrndt’s Fourth Amendment rights for the police to instruct the neighbor to open the file, which she had not previously done. The opened image was no longer within the purview of private search, but a government search.

The court also found that Ahrndt’s privacy expectations were not eliminated by accessing an unsecured wireless network. There was no evidence that Ahrndt had intentionally enabled sharing for those files; rather, the default setting of the LimeWire program enabled sharing. It was Ahrndt’s reasonable belief that those files were contained only on his hard drive, and not shared on a public network. The court said that “[i]n short, the government does not dispute a person has a reasonable expectation of privacy in the files on his home personal computer.”

The court concluded that, lacking specific file names and a description of images, a magistrate would not have found probable cause to issue a search warrant. The only evidence that the police viewed lawfully was the file names, which the neighbor and deputy could not remember with specificity. Since the “partial recollections and characterizations” were too general to support a warrant, all related evidence from the unlawful search must be suppressed.

The court came to the right conclusion on this one. Our reliance on the Internet has become such that what is on our computers is as personal and private as the inside of our homes. The government is no more entitled to search our computer without probable cause than to search our homes. This case does not represent a free pass to intentionally share information on wireless networks and then assert Fourth Amendment rights when the government comes knocking. Rather, it is only that information to which an user has a reasonable expectation of privacy—such as files that he is not aware are accessible to others—that is protected against the government’s unlawful search and seizure.

It’s easy to see how this has implications for potential white-collar cases: the government might try to use financial information unintentionally made available to a neighbor through an unsecured network as a basis to initiate a financial fraud investigation. We hope that the courts will rely on this case and suppress any evidence obtained as a result of this type of unlawful search.

Ifrah Law is a leading white-collar criminal defense firm that focuses on data privacy.

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About Ifrah Law

Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.

Ifrah Law focuses on federal criminal defense, government contract defense and procurement, healthcare, and financial services litigation and fraud defense. Further, the firm's E-Commerce attorneys and internet marketing attorneys are leaders in internet advertising, data privacy, online fraud and abuse law, iGaming law.

The commentary and cases included in this blog are contributed by founding partner Jeff Ifrah, partners Michelle Cohen, David Deitch, and associates Rachel Hirsch, Jeff Hamlin, Steven Eichorn, Sarah Coffey, Nicole Kardell, Casselle Smith, and Griffin Finan. These posts are edited by Jeff Ifrah. We look forward to hearing your thoughts and comments!

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