Is reading email from another person's account a crime?

A Michigan DA is charging a man, Leon Walker, with unlawfully reading his then-wife's email, which showed she was having an affair with a man who once had been arrested for beating her in front of her son. Walker then gave the emails to her first husband, the child's father, to protect the boy. Most defense lawyers are commenting that they have never seen anyone charged before in these circumstances. Civil penalties may be justified, but as Walker's lawyer remarked; "This is a hacking statute, the kind of statute they use if you try to break into a government system or private business for some nefarious purpose. It's to protect against identity fraud, to keep somebody from taking somebody's intellectual property or trade secrets. I have to ask: 'Don't the prosecutors have more important things to do with their time?'

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Email tracing: Finding out who is behind anonymous email accounts

Over the past few years, we have seen increasing numbers of cases involving requests to trace anonymous email accounts. Yahoo, Hotmail, Gmail, and countless other firms offer these sorts of free and anonymous accounts. Sometimes, the email headers have information that can help identify a city from where the emails were sent.

But increasingly, different databases are aggregating data in such a way that we can tie an IP address from the harassing email to a physical address; and then, using a 3rd database, confirm who resides at such an address and was likely the sender of the harassing emails. This is due to the practice of certain companies that log IP addresses and link them to physical addresses of customers who order items on the internet (and then sell the data to 3rd parties). As time passes, these databases are growing exponentially in power and scope--the Matrix of movie fame.

Following up with in-person interviews of the individuals, serving them a subpoena or summoning them to court usually solves the problem.

Film "Conviction" getting excellent reviews

The film "Conviction", which details Betty Anne Waters' odyssey to free her wrongfully convicted brother Kenny Waters, has received excellent reviews. Our investigation in a later civil case led to evidence that allowed the The Estate of Kenneth Waters to settle a civil rights case against The Ayer Police Department, Officer Nancy Taylor, and other Ayer police officers, for $3.4 million.

Kenneth Waters was wrongfully arrested and convicted. He served 18 years of a life sentence for the 1980 murder and armed robbery of Katharina Brow. Waters was released from prison after DNA evidence had revealed the blood of an unknown person at the murder scene. His sister, Betty Anne Waters, had put herself through law school in order to represent one client: her brother. She located the biological evidence and worked to have it subjected to DNA testing.

The Waters case alleged that the Ayer Police and Taylor's deliberate bad-faith suppression of favorable evidence led to his conviction – including suppression of evidence that Waters was not the source of the perpetrator’s bloody fingerprint on a piece of a toaster on the dining room floor; as well as suppression of Waters’ time card from work, which cemented his alibi. Taylor was also accused of used coercive and suggestive tactics to manufacture falsely incriminating statements from witnesses Brenda Marsh and Roseanna Perry.

DAs: We didn't know cops work on our cases.

At the State House last week, several Massachusetts district attorneys tried to convince a skeptical crowd that their budget, in which they left out a $1.4 billion dollar investigative item (ie., the police who investigate their cases) was underfunded compared to the budget for public defenders. They did not make the same mistake when presenting the CPCS/public defender budget.

Judge for yourself when the DAs try Fuzzy Math 101 again at the Indigent Defense program at Suffolk Law School at 7:30 AM on Monday, November 22, 2010.

Interviews with federal agents

As we await a verdict in a federal case, the venue brings to mind the fact that most people do not realize the unique perils of being interviewed by federal agents. It is a crime to tell a lie to any agent of federal government. The official report of the interview will be an FBI Form 302, which is an agent''s subjective report of the interview. Even a minor change you make in a later recollection of events, something we all do every day as we have conversations about past events, can subject you to a Section 1001 charge. You may be charged even if the government is not misled by the lie, if the lie is only to cover up an embarrassing fact unrelated to the investigation, and whether it comes in an informal interview or under oath.

Title 18, United States Code, Section 1001 makes it a crime to: knowingly and willfully make any materially false, fictitious or fraudulent statement or representation in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States. The lie does not have to be made to an employee of the government so long as it is "within the jurisdiction" of the (rather enormous) federal government. The falsehood must be "material" and this requirement is met if the statement has the "natural tendency to influence or [is] capable of influencing, the decision of the decision-making body to which it is addressed."

And to top off the absurdity: federal agents can lie to you during an interview. And that is no joke.

Easiest way to see federal agents wilt in bright sunlight is to agree to an interview-- but only if you are allowed to tape record the interview (caveat: do not tape conversations without permission as it may open other cans of worms). Typically, agents are instructed to not participate in recorded interviews, despite the overwhelming imbalance between the parties. A bit wimpy, in my opinion.

Bimbo Bakeries crumbles opposition in trade secret case

A recent PA case, Bimbo Bakeries v. Botticella, the Third Circuit held that if the facts show a “substantial threat” of misappropriation, an employer may be able to obstruct mobility of former employees -- even in the absence of a non-compete agreement.

Botticella was a senior executive at Bimbo Bakeries, the maker of Thomas’, Entenmann’s, and Boboli brands. He was se to move to a competitor, Hostess. While he had signed an agreement to never disclose Bimbo’s proprietary information, he had not signed a non-compete. Nonetheless, despite the public interest in employees' freedom to work where they please, the court held that Bimbo could stop Botticella from working in light of evidence that he was copying files from his laptop to external devices prior to leaving Bimbo (he claimed he did so only to practice his computer skills; the court squashed this cupcake argument).

Thus if a solid forensic and background investigation shows a “substantial threat” of misappropriation, the employee is left with crumbs.

Old news becomes new again depending on who won

Interesting note showing the national media misreporting the ongoing controversey in GPS privacy cases: "Media discovers August 27th that Pineda-Moreno was decided January 11th"

Supreme Ct. ready to settle GPS surveillance - privacy issue?

The 4th Amendment right to be free from unreasonable searches by the government continues to clash with technology as judges seem to be deciding cases, not on any objective standard, but more on former Justice Potter Stewart's hopelessly subjective "But I know it when I see it" standard.

Latest case is United States v. Maynard, where a Washington DC court struck down a man's conviction in a drug case on the grounds the police unlawfully tracked his movement with a GPS device for 24 hours per day--a device installed without a warrant. Thus the court contradicted decisions GPS-related cases by appellate panels in Chicago, St. Louis and San Francisco.

Courts have held that the Fourth Amendment does not cover surveillance of a suspect because people have no expectation of privacy for actions exposed to public view. But the DC appeals court held that people expect their overall movements to be private because most people see only isolated moments of someone's life. Contrast that to a police department’s GPS technology that inexpensively tracks someone’s comings and goings for weeks at a time: "A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individual or political groups — and not just one such fact about a person, but all such facts.”

In other privacy cases, courts have recognized that aggregating information can lead to practices that, without technological improvements, are not a burden on privacy (for example, state databases that aggregate criminal records may have limited access, even while each court docket is considered public record).

SJC melts old snow/ice accumulation standard

The SJC in Papadopoulos v. Target Corp abandoned the bizarre Mass. distinction between "natural and unnatural accumulations of snow and ice" which had constituted an exception to the general rule of premises liability that a property owner owes a duty to all lawful visitors to use reasonable care.

The new standard: "We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk. … If a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a railing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger.

Bottom line: start shoveling.

Governor Patrick signs CORI Reform

The new Criminal Offender Record Information law (CORI) prohibits employers from asking on an “initial written application form” about an applicant’s “criminal offender record information,” which includes information about criminal charges, arrests, and incarcerations. The term “initial written application" in the new text may allow employers to continue to question applicants about felony and certain misdemeanor convictions later in the process. Moreover, the law does not address classic court docket research conducted by investigators.

1982 Lowell arson conviction may be reconsidered

The Boston Globe did a piece on flaws in an arson investigation that led to the conviction of N&A INC client Victor Rosario. An appeal is being filed.

Real CORI reform

The movement to "reform" CORI by making record sealing easier and restricting public access sounds wonderful. But it ignores the fundamental problem with the database. Those who know public records in Massachusetts understand that CORI--which has never been accessible in full by the public except to those who order their own report--has always been a misleading source of criminal record data. CORI can be difficult to understand and does not contain any case background information. Moreover, it is based on records that have been considered public for decades. A federal judge came close in one case to overturning the CORI law by deeming the information to be essentially computerized records of court dockets, which have traditionally been open public records.

Instead of telling businesses how to hire, we should allow businesses to gather as much information as they deem necessary--many of them routinely make better judgments than elected officials. More to the point: businesses will continue to hire investigators to check public court documents to gather the information they need to run their businesses.

Sarbanes-Oxley whistleblower protects employees of mutual fund 

Another Massachusetts first: Last week, a federal district court judge ruled that whistleblower protections under Sarbanes Oxley apply to employees of private firms that operate and advise mutual funds--the first time such provisions have been applied in this manner. Good discussion here on the case involving Fidelity.

Massachusetts Wiretap Act Governs Out of State Telephone Recording Massachusetts Wiretap Act Governs Out of State Telephone Recording

A Massachusetts Superior Court judge ruled in In Heffernan v. Hashampour that the state Wiretap Act applies when a party outside of Massachusetts secretly records a telephone call to a party in this state. Thus Massachusetts continues to provide its citizens with protection (some say over-protection) from secretive audio recordings. The flip side of this protection can be seen in the case of Simon Glik, who was arrested for video recording police officers making an arrest near Boston Common in 2007. The criminal charges were dropped and Glik has filed a civil rights lawsuit against the City of Boston and three Boston police officers, arguing that public space is not covered by the wiretap law (ie. there is no expectation of privacy in a public place).

The new problem with DNA testing

Washington Monthly has a great piece on how DNA evidence is turning out to be unreliable in certain situations. As the article notes: "Where the DNA is often incomplete or degraded, and there are few other clues to go on, the reliability of DNA evidence plummets—a fact that jurors weighing such cases are almost never told." A lot of science is covered-- worth the effort to read closely.

Supreme Court Affirms: Client Michael O'Laughlin Is A Free Man

Yesterday, the U.S. Supreme Court denied a petition for a writ of certoriari filed by the Commonwealth, thus letting stand the order by the First Circuit Court of Appeals freeing client Michael O'Laughlin and affirming his innocence.

Thus ends Michael's nine year odyssey of imprisonment.

Lack of due diligence in Massachusetts Ponzi scheme

The numerous Ponzi schemes unearthed in 2009 highlight the point that some very sophisticated investors skipped basic steps in conducting due diligence. Lawyer Jay L. Fialkow and his partner, Jeffrey P. Ross, a Boston businessman, are facing civil charged filed by Massachusetts Secretary of State for failing to register as dealers-dealers or investment advisors while referring clients to Richard L. Elkinson, who the SEC has charged with running a Ponzi scheme. The SEC complaint alleges that Elkinson, of Framingham, Massachusetts, lured 130 investors to invest $28 million with him through his d/b/a Northeast Sales. Ross and Fialkow allegedly referred clients to Elkinson (they dispute that charge, and claim they merely introduced clients to Elkinson). Ross and Fialkow earned $319,000 in commissions from Elkinson, according to Mass SOS filings.

The Boston Globe highlights red flags: "In 1992 Elkinson declared bankruptcy, and court filings reflected a man with virtually no assets, and just $600 in a bank account. When Fialkow and Ross visited Elkinson at his office, they found a sloppy desk in a bedroom of his Framingham home, with a computer and a few papers that looked like contracts. Elkinson would call Ross and Fialkow’s office daily, asking if they had raised new money for him. The pair never received tax forms from Elkinson reporting their investment gains, as required by law, according to regulators. And a cursory check of public filings would have revealed that Elkinson never submitted incorporation papers for his company, Northeast Sales."

A Jan. 2006 letter to a CPA firm from the RossFialkow firm noted that Elkinson had earned 9-13% per contract, which ran 6 to 10 months--a tidy rate of return that sounds too good to be true.


Change Blindness - Why Witnesses Get it Wrong

Fascinating video regarding people's inability to notice differences in their surroundings. In this experiment, 75% of the people fail to notice that a different person is now in front of them. For those who study wrongful convictions, a growing field of research shows that eyewitness identification is deeply flawed.

Sealing federal records

Reporter Michael Doyle did a nice summary of a year-long study by Tim Reagan and George Cort for the Federal Judicial Center on the practice of sealing federal cases.

Sealing federal records apparently is justified for almost any reason under the sun. Doyle notes the report findings: "There was one (criminal) case sealed because the defendant had a high profile. According to the judge, 'it seemed a good idea at the time.' Another reason for sealing: "A person of influence failed to respect the authority of an officer on federal land." Four civil cases were sealed to protect the reputation of doctors.