Law 759 Computer Crime, Spring 2018

Jump to: Lesson 9 on 2/21/18.

Assignment for Lesson 0 online to be completed anytime: View presentation here.

Technology, Terminology, and the Nature of Cyberspace -- a background presentation by Professor Snyder.

Assignment for Lesson 1 on 1/17/17: Pages 1 to 29.

Chapter 1. Introduction (p. 1)

A. Overview of Computer Crime Law (p. 1)

B. Comparing Physical Crimes and Computer Crimes (p. 3)

Notes and Questions (p. 4)

Chapter 2. Computer Misuse Crimes (p. 9)

A. Why Punish Computer Misuse? (p. 9)

United States v. Swartz (p. 10)

Notes and Questions (p. 11)

B. Property Crimes as a Response to Computer Misuse (p. 14)

United States v. Seidlitz (p. 16)

Notes and Questions (p. 19)

State v. McGraw (p. 23)

Notes and Questions (p. 25)

[Class did not meet as scheduled on 1/22/18.]

Assignment for Lesson 2 on 1/24/18: Pages 30 to 54 plus 18 U.S.C. §1030.

C. Unauthorized Access Statutes. 30)

1. Introduction to Unauthorized Access Statutes (p. 30)

2. What Is Access? (p. 32)

State v. Riley (p. 34)

Notes and Questions (p. 36)

3. What Is Authorization? The Case of Code-Based Restrictions (p. 39)

United States v. Morris (p. 42)

Notes and Questions (p. 47)

Assignment for Lesson 3 on 1/29/18: Pages 54 to 83.

4. What Is Authorization? The Case of Contract-Based Restrictions (p. 54)

United States v. Nosal (p. 55)

Notes and Questions (p. 64)

Handout on Nosal.

5. What Is Authorization? The Case of Norms-Based Restrictions (p. 72)

EF Cultural Travel BV v. Zefer Corp (p. 73)

Notes and Questions (p. 77)

Assignment for Lesson 4 on 1/31/18: Pages 83 TO 107.

Supplemental materials:

  • Sample § 1030(a)(2) & (c)(2)(B)(ii) indictment joined with identitiy theft and wiretapping.
  • Sample § 1030(a)(2) & (c)(2)(B)(ii) indictment with drug conspiracy.
  • Sample § 1030(a)(2) Conspiracy indictment.
  • Sample Magistrate Findings and Recommendations on definition of "Exceeds Authorized Access"

D. 18 U.S.C. § 1030(a)(2) and Its Felony Enhancements (p. 83)

1. 18 U.S.C. § 1030(a)(2) Misdemeanor Liability (p. 84)

2. 18 U.S.C. § 1030(a)(2) Felony Liability (p. 88)

United States v. Batti (p. 89)

Notes and Questions (p. 93)

E. 18 U.S.C. § 1030(a)(4) and Computer Fraud Statutes (p. 97)

United States v. Czubinski (p. 100)

Notes and Questions (p. 106)

Assignment for Lesson 5 on 2/5/18: Please review pages 97-107 and read pages 107 to 143.

F. 18 U.S.C. § 1030(a)(5) and Computer Damage Statutes (p. 107)

1. 18 U.S.C. § 1030(a)(5) Misdemeanor Liability (p. 108)

United States v. Carlson (p. 109)

Notes and Questions (p. 113)

2. 18 U.S.C. § 1030(a)(5) Felony Liability (p. 120)

United States v. Middleton (p. 122)

Notes and Questions (p. 127)

United States v. Sablan (p. 133)

Notes and Questions (p. 136)

G. Hacking Back 141 Notes and Questions (p. 143)

Assignment for Lesson 6 on 2/12/18: Please read pages 143 to 145 plus rveiew CFAA naterial plus prepare from HANDOUT for in-class debate on hackback. Assigned roles for the in-class exericise are here.

Assignment for Lesson 7 on on 2/14/18: please read pages 145 to 174.

Supplemental materials:

        • News account of EEA hung jury.
        • News account of first-ever EEA conviction.

 

Chapter 3. Traditional Crimes (p. 145)

A. Economic Crimes (p. 145)

1. Property Crimes (p. 146)

People v. Johnson (p. 146)

Notes and Questions (p. 150)

United States v. Aleynikov (p. 152)

Notes and Questions (p. 156)

2. The Economic Espionage Act (p. 161)

United States v. Genovese (p. 161)

Notes and Questions (p. 165)

United States v. Agrawal (p. 166)

Notes and Questions (p. 171)

Assignment for Lesson 8 on on 2/19/18: pages 174 to 198 plus Counts 3-8 of INDICTMENT.

3. Identity Theft and Access Device Fraud (p. 174)

United States v. Barrington (p. 175)

Notes and Questions (p. 180)

4. Copyright Law (p. 182)

a) Introduction (p. 183)

David Goldstone—Prosecuting Intellectual Property Crimes (p. 183)

Notes and Questions (p. 186)

b) The Willfulness Requirement (p. 188)

United States v. Moran (p. 188)

Notes and Questions (p. 194)

Assignment for Lesson 9 on on 2/21/18: please read pages 198 to 226.

c) Total Retail Value (p. 198)

United States v. Armstead (p. 198)

Notes and Questions (p. 205)

d) Intent to Profit (p. 205)

United States v. Shabazz (p. 206)

Notes and Questions (p. 207)

e) Prosecutorial Discretion (p. 210)

United States Department of Justice—Illegal "Warez" Organizations and Internet Piracy (p. 210)

Notes and Questions (p. 213)

B. Crimes Against Persons.214)

1. Threats and Harassment (p. 215)

a) Statutory Issues (p. 215)

Elonis v. United States. 217)

Notes and Questions (p. 225)

b) Constitutional Limits (p. 226)

United States v. Carmichael (p. 228)

Notes and Questions (p. 236)

c) Revenge Porn Laws (p. 245)

State v. Van Buren (p. 245)

Notes and Questions (p. 247)

2. Invasion of Privacy Crimes (p. 248)

C. Vice Crimes (p. 249)

1. Internet Gambling (p. 250)

Ronald J. Rychlak—Legal Problems with On-Line Gambling (p. 250)

Notes and Questions (p. 253)

United States v. Cohen (p. 255)

Notes and Questions (p. 260)

2. Obscenity (p. 264)

Miller v. California (p. 264)

Notes and Questions (p. 270)

United States v. Extreme Associates, Inc. (p. 276)

Notes and Questions (p. 279)

D. Child Exploitation Crimes (p. 283)

1. Child Pornography (p. 284)

a) Introduction (p. 284)

b) The Proxy Rationale (p. 285)

c) 18 U.S.C. § 2252 (p. 287)

d) 18 U.S.C. § 2252A and 18 U.S.C. § 2256 (p. 288)

e) Statutory Elements of 18 U.S.C. §§ 2252 and 2252A (p. 289)

United States v. Shaffer (p. 289)

Notes and Questions (p. 292)

Barton v. State (p. 299)

Notes and Questions (p. 302)

f) Constitutional Issues (p. 314)

Ashcroft v. Free Speech Coalition (p. 314)

Notes and Questions (p. 320)

United States v. Marchand (p. 323)

Notes and Questions (p. 331)

2. Traveler Cases and Entrapment (p. 333)

State v. Davies (p. 335)

Notes and Questions (p. 341)

Chapter 4. Sentencing (p. 345)

A. Are Computer Crimes Different? (p. 345)

Neal Kumar Katyal—Criminal Law in Cyberspace (p. 345)

Notes and Questions (p. 347)

United States v. Lee (p. 351)

Notes and Questions (p. 356)

B. Sentencing in Child Pornography Cases (p. 360)

Notes and Questions (p. 367)

C. Sentencing in Computer Misuse Cases (p. 369)

United States v. Stratman.374

Notes and Questions (p. 378)

D. Supervised Release and Probation Restrictions (p. 384)

United States v. Duke 384

Notes and Questions (p. 387)

Chapter 5. The Fourth Amendment (p. 389)

A. The Requirement of Government Action (p. 390)

United States v. Jarrett (p. 391)

Notes and Questions (p. 397)

B. Defining Searches and Seizures (p. 401)

1. Searches (p. 401)

a) Introduction to Fourth Amendment "Searches" (p. 401)

b) Searches of Stand-Alone Computers (p. 405)

United States v. David (p. 405)

Notes and Questions (p. 408)

c) Searches in the Network Context (p. 414)

United States v. Forrester (p. 425)

Notes and Questions (p. 428)

United States v. Warshak (p. 434)

Notes and Questions (p. 439)

2. Seizures (p. 445)

United States v. Jefferson (p. 447)

Notes and Questions (p. 451)

C. Exceptions to the Warrant Requirement (p. 454)

1. Search Incident to Arrest (p. 454)

Riley v. California (p. 454)

Notes and Questions (p. 465)

2. Exigent Circumstances (p. 467)

United States v. Trowbridge (p. 468)

Notes and Questions (p. 472)

3. Consent (p. 477)

a) Scope of Consent (p. 477)

United States v. Al-Marri (p. 477)

Notes and Questions (p. 481)

b) Third-Party Consent (p. 488)

United States v. Buckner (p. 488)

Notes and Questions (p. 490)

c) Apparent Authority (p. 494)

United States v. Andrus (p. 494)

Notes and Questions (p. 500)

4. Border Searches (p. 503)

United States v. Cotterman (p. 503)

Notes and Questions (p. 514)

5. Government Workplace Searches (p. 518)

Leventhal v. Knapek (p. 519)

Notes and Questions (p. 526)

D. Searching and Seizing Computers with a Warrant (p. 528)

1. Probable Cause (p. 530)

United States v. Griffith (p. 530)

Notes and Questions (p. 536)

2. Particularity (p. 542)

United States v. Ulbricht (p. 542)

Notes and Questions (p. 548)

3. The Physical Search Stage (p. 555)

United States v. Hill (p. 556)

Notes and Questions (p. 560)

4. The Electronic Search Stage568)

United States v. Williams (p. 568)

Notes and Questions (p. 572)

5. Ex Ante Restrictions on Computer Warrants (p. 578)

In re Application For A Search Warrant To Seize and Search Electronic Devices From Edward Cunnius (p. 579)

Notes and Questions (p. 587)

6. Encryption (p. 596)

a) Fourth Amendment Issues (p. 596)

b) Fifth Amendment Issues (p. 599)

In re Subpoena Duces Tecum (p. 601)

Notes and Questions (p. 607)

c) The All Writs Act (p. 613)

United States v. New York Telephone Company (p. 614)

Notes and Questions (p. 618)

Chapter 6. Statutory Privacy Protections (p. 621)

A. The Wiretap Act (p. 626)

1. The Basic Structure (p. 626)

O'Brien v. O'Brien (p. 626)

Notes and Questions (p. 630)

2. The Consent Exception (p. 639)

Griggs-Ryan v. Smith (p. 640)

Notes and Questions (p. 643)

3. The Provider Exception (p. 648)

United States v. Auler (p. 648)

Notes and Questions (p. 652)

McClelland v. McGrath (p. 655)

Notes and Questions (p. 657)

B. The Cybersecurity Act of 2015 (p. 659)

Notes and Questions (p. 661)

C. The Pen Register Statute (p. 661)

In re Application of the United States of America (p. 663)

Notes and Questions (p. 670)

D. The Stored Communications Act (p. 675)

1. The Basic Structure 676 Notes and Questions (p. 683)

2. Compelled Disclosure Under § 2703 (p. 691)

United States v. Weaver (p. 691)

Notes and Questions (p. 695)

3. Voluntary Disclosure Under § 2702 (p. 703)

Andersen Consulting LLP v. UOP (p. 704)

Notes and Questions (p. 706)

Jayne v. Sprint PCS (p. 707)

Notes and Questions (p. 710)

E. Problems (p. 718)

Problem One (p. 718)

Problem Two (p. 719)

Problem Three (p. 719)

Chapter 7. Jurisdiction (p. 721)

A. Federal Power (p. 721)

1. Constitutional Limits (p. 722)

United States v. Jeronimo-Bautista (p. 723)

Notes and Questions (p. 728)

2. Substantive Statutory Limits (p. 729)

United States v. Kammersell (p. 729)

Notes and Questions (p. 732)

3. Procedural Limits (p. 735)

a) National Versus Local Court Orders (p. 735)

b) Venue for Federal Prosecutions (p. 739)

United States v. Auernheimer (p. 739)

Notes and Questions (p. 746)

B. State Power (p. 746)

1. Substantive Limits (p. 747)

American Library Association v. Pataki (p. 747)

Notes and Questions (p. 755)

2. Procedural Limits (p. 760)

State v. Reid (p. 761)

Notes and Questions (p. 767)

C. International Computer Crimes (p. 774)

1. United States Substantive Law (p. 774)

United States v. Ivanov (p. 774)

Notes and Questions (p. 780)

2. Statutory Privacy Laws (p. 784)

Microsoft Corporation v. United States (p. 785)

Notes and Questions (p. 791)

3. The Fourth Amendment Abroad (p. 792)

United States v. Barona (p. 793)

Notes and Questions (p. 800)

4. Mutual Legal Assistance and International Treaties (p. 807)

In re Request from the Russian Federation Pursuant to the Treaty Between the United States of America and the Russian Federation (p. 807)

Notes and Questions (p. 813)

Council of Europe—Convention on Cybercrime (p. 818)

Notes and Questions (p. 824)

5. Foreign Computer Crime Law (p. 827)

Rex v. Bow Street Magistrates' Court (p. 827)

Notes and Questions (p. 833)

Chapter 8. National Security (p. 835)

A. The Fourth Amendment (p. 835)

United States v. United States District Court (p. 836)

Notes and Questions (p. 845)

United States v. Mohamud (p. 852)

Notes and Questions (p. 858)

B. The Foreign Intelligence Surveillance Act (p. 858)

Notes and Questions (p. 863)

C. Use of FISA Evidence in Criminal Cases (p. 867)

United States v. Squillacote (p. 868)

Notes and Questions (p. 874)

 

Below here is a work in progress.

 

Assignment for Lesson * on 2/2/17: Pages 136 to 168.

Supplemental materials:

    • News account of EEA hung jury.
    • News account of first-ever EEA conviction.

 

Assignment for Lesson 10 on 2/21/17: Read pages 231 to 260.

Supplemental materials:

Assignment for Lesson 13 on 3/2/17: Please read pages 314 to 327.

2. Traveler Cases and Entrapment (314)

State v. Davies (316)

Notes and Questions (324)

Supplemenatl resources:

Handout on Tyree case

7th Cir. child pornography jury instructions

5th Cir. child pornography jury instructions

WCS entrapment study guide

Poehlman case

 

Supplemental Resource: Online presentation summarizing Fourth Amendment in cyberspace.

3. Search Incident to Arrest (Supp. 185-198)

Riley v. California in Supplement at page 185.

Schlossberg v. Solesbee (445)

Notes and Questions (450)

Assignment for Online Lesson 19 to be completed anytime before 4/27/17: Follow this link.

 

Assignment for Make-up Lesson 23, please view video of completed simulation, here.

Follow this link for the 2016 assignment. Video of completed simulation, click here. #ApplevsFBI

Relevant pleadings include:

  • Attachment to warrant for San Bernardino killer's iPhone 5c
  • Order Compelling Apple, Inc. to Assist Agent's in Search of iPhone
  • Government Motion to Compel Apple to Comply with Court Order
  • APPLE INC'S MOTION TO VACATE ORDER COMPELLING APPLE INC. TO ASSIST AGENTS IN SEARCH, AND OPPOSITION TO GOVERNMENT'S MOTION TO COMPEL ASSISTANCE
  • Reply in Support of Motion to Compel and Opposition to Apple Inc.'s Motion to Vacate Order
  • Apple Inc.'s 3/15/16 Reply to Government's Opposition to Apple Inc.'s Motion to Vacate Order Compelling Apple Inc. to Assist Agents in Search
  • order in IN RE ORDER REQUIRING APPLE, INC. TO ASSIST IN THE EXECUTION OF A SEARCH WARRANT ISSUED BY THIS COURT [in Brooklyn Drug Case]

 

 

 

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