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Kane County Bar Association Computer Forensics And Defending A Criminal Case 021909
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A View From The Defense Perspective The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World February 19, 2009 - Geneva, IL DEFENDING A COMPUTER CRIME CASE The Chval…
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- A View From The Defense Perspective The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World February 19, 2009 - Geneva, IL
- DEFENDING A COMPUTER CRIME CASE The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- CHALLENGING GOVERNMENT EVIDENCE PRESENTING DEFENSE EVIDENCE The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- ARE YOU DEFENDING A COMPUTER CRIME? The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- IS THIS A COMPUTER CRIME? The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- IS THIS A COMPUTER CRIME? The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- IS THIS A COMPUTER CRIME? The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- IS THIS A COMPUTER CRIME? The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- IS THIS A COMPUTER CRIME? The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- IS THIS A COMPUTER CRIME? The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- EXPANDING THE DEFINITION Computer Used To Commit Crime Computer Used To Plan Or Conceal Crime Computer Capable Of Transmitting Evidence Of Crime The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- EXPANDING THE DEFINITION Computer Crime = Crime In Which There Might Exist Computer (Digital) Evidence The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- WHO CARES? Any Criminal Law Practitioner The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- WHO CARES? Illinois Rules of Professional Conduct Rule 1.1(a) (Competence) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation. The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- WHO CARES? ABA Criminal Justice Standard 4-4.1 (a) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- WHO CARES? ABA Criminal Justice Standard 4-6.1(b) Defense counsel may engage in plea discussions with the prosecutor. Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed , including an analysis of controlling law and the evidence likely to be introduced at trial. The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- ANY OBJECTIONS? The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- DEFENDING A COMPUTER CASE Unique Search and Seizure Issues Unique Admissibility Issues Unique Forensic Issues The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- GOVERNMENT EVIDENCE Acquisition Analysis Admissibility The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- ACQUISITION Fourth Amendment Issues Statutory Issues The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- FOURTH AMENDMENT ISSUES Warrantless Searches Search Warrants The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- U.S. v. Carey, 172 F.3d 1268, 10 th Circuit (Kan.), 1999
- U.S. v. Walser, 275 F. 3d 981, 10 th Circuit (Wyo.), 2001
- Consent
- Search Incident To Arrest
- Exigent Circumstances
- Plain View
- Inventory Search
- Automobile Search
- Third Party Consent
- Implied Consent
- Practical Considerations
- Authority To Consent
- Apparent Authority
- Parental
- System Administrators
- Joint Access Or Control
- U.S. v. Smith, 27 F.Supp.2d 1111, C.D. IL, 1999
- Password-protected Files
- Trulock v. Freeh, 275 F.3d 391, 4 th Circuit (Va.), 2001
- “ Parents can consent to searches of their children’s rooms when the children are under 18 years old.”
- Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Computer Crime and Intellectual Property Section, Criminal Division, United States Department of Justice, 2002.
- Parental Consent – Adult Children
- U.S. v. Rith, 164 F.3d 1323, 10 th Circuit (Utah), 1999
- Withdrawal Of Consent
- Scope Of Consent
- Focus Of Search Is Key
- United States v. Carey, 172 F.3d 1268, 10 th Circuit (Kan.) 1999
- Focus Of Search Is Key
- United States v. Sell, 2005 U.S. Dist LEXIS 26452, N.D. Ill., 2005
- Investigation Of Cannabis Offense
- Consent Refused
- Consent Provided During Attempt To Obtain Warrant
- Computer Search Held Beyond Scope
- Accessing Pager Memory
- U.S. v. Reyes , 922 F.Supp. 818, S.D.N.Y., 1996
- Deletion Of Data
- U.S. v. David, 756 F.Supp. 1385, D.C. Nev., 1991
- Pagers
- U.S. v. Romero-Garcia, 991 F.Supp. 1223, D.C. Ore., 1991
- U.S. v. Ortiz, 84 F.3d 977, 7 th Circuit (Wis.), 1996
- Case-by-Case Determination
- Limitations
- Seizure
- Search
- “ The plain view doctrine does not authorize agents to open and view the contents of a computer file that they are not otherwise authorized to open and review.”
- Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Computer Crime and Intellectual Property Section, Criminal Division, United States Department of Justice, 2002.
- U.S. v. Carey, 172 F.3d 1268, 10 th Circuit (Kan.), 1999
- U.S. v. Walser, 275 F. 3d 981, 10 th Circuit (Wyo.), 2001
- Contrast
- U.S. v. Runyan, 275 F.3d 449, 5 th Circuit (Tex.), 2001
- U.S. v. Slanina , 283 F.3d 670, 5 th Circuit (Tex.), 2002
- People v. Phillips , 215 Ill.2d 554, 831 N.E.2d 574, 2005
- Establishing Probable Cause
- Describing Property To Be Searched, Seized
- Execution Issues
- Post-execution Issues
- Evidence That Crime Has Occurred
- Evidence That Evidence Of That Crime Will Be Found At Site
- Nexus Between Location And Crime
- Staleness
- Lack Of Corroboration
- General Insufficiency
- Computer
- Premises
- Establishing Probable Cause That There Is Relevant Evidence On A Computer …
- Computer As “Repository,” Not “Tool”
- Portable Media
- How Does The Government Know There Is Relevant Evidence On A Computer?
- Sometimes, It Doesn’t!
- Investigation
- Creativity
- Indicia Of Residency, Occupancy
- How Do You Know There Is Relevant Evidence On A Computer?
- Sometimes, You Don’t!
- Probable Cause That Evidence Exists In Electronic Format Not Required
- U.S. V. Reyes, 798 F.2d 380, 10 th Circuit (N.M.), 1986
- How Do You Know There Is Relevant Evidence On A Computer?
- Images Of Child Pornography
- U.S. v. Griesbach, 540 F.3d 380, 7 th Circuit (Wis.), 2008
- Establishing Probable Cause That There Is A Computer In The Premises …
- Online Child Enticement
- Online Auction Fraud
- How Do You Know There Is A Computer In The Premises?
- Non-computer Crimes
- Seek Evidence Of The Implicated Offense, Regardless Of The Form In Which It Exists
- U.S. v. Hudspeth, 459 F.3d 922, 8 th Circuit (Mo.), 2006
- Case-by-case Determination
- 4-1/2 Months
- U.S. District Court, E.D. Missouri
- U.S. v. Fazio, 2006 WL 1307614, E.D. Mo., 2006
- 13-15 Months
- U.S. Court of Appeals, 3 rd Circuit
- U.S. v. Harvey, 2 F.3d 1381, 3 rd Circuit (Pa.), 1993
- U.S. v. Fazio
- “ … the affidavit … computer files … can be recovered months or even years after they have been downloaded … deleted or viewed … “
- 2006 WL 130764 at p. 7
- U.S. v. Delatorre, 508 F.Supp.2d 648, N.D. Ill., 2007
- Two-year Between Dates Of Information And Execution Of Warrant Did Not Render Warrant Invalid
- U.S. v. Watzman, 486 F.3d 1004, 7 th Cir. (Ill.)., 2007
- One Year Delay Between Provision Of Information And Issuance Of Warrant Did Not Render Warrant Invalid
- Again, No “Bright Line”
- U.S. v. Strauser, 247 F.Supp.2d 1147, E.D. Mo., 2003
- Yahoo Records
- Email Account Subscribed To CP Site
- 2 Associated, Sexually Suggestive Screen Names
- General Information Re: CP Collectors
- Strauser
- Only Those Interested In CP Would Subscribe And Not Unsubscribe
- Person Undertaking Action = “Collector And Distributor”
- Likely To Have Received And Kept CP From Site
- Protecting Against “ … general, exploratory rummaging in a person's belongings …”
- U.S. v. Alagic, 2007 WL 128947, E.D. Mo., 2007
- Volume Of Data Poses Unique Particularity Issues
- Danger Of General Warrant
- Investigating Financial Crime
- Tax Returns
- Banking Records
- Wife’s Dissertation
- Son’s School Project
- Baseball Coaching Materials
- Courts requiring inclusion of search terms in search warrant
- In the Matter of the Search of 3817 W. WEST END, FIRST FLOOR, CHICAGO, ILLINOIS 60621, 321 F.Supp.2d 953, N.D. Ill., 2004
- Courts NOT Requiring Inclusion Of Search Terms In Search Warrant
- U.S. v. Kaechele, 2006 WL 3510898, E.D. Mich., 2006
- U.S. v. Burns, 2008 U.S. Dist. LEXIS, 35312, N.D. Ill., 2008
- U.S. v. Umgelder, 2007 U.S. Dist. LEXIS, 89719, S.D. Ill., 2007
- Other Means For Dealing With Scope
- Special Masters
- “ Taint Teams”
- U.S. v. Triumph, 211 F.R.D. 31, D.C. Ct., 2002
- U.S. v. Budd , 549 F.3d 1140 (7 th Cir. Ill.)
- 48-day Delay Unreasonable
- No Relief Granted
- State v. Shinohara, 872 N.E.2d 498, Ill.App.Ct. (1 st Dist)., 2007
- Computer Seized 8/24/01
- Warrant Obtained 11/7/01
- Warrant Return Date 11/9/01
- Forensic Exam Completed 1/1/02
- The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- “ Filling In The Gaps” – DOJ
- Beyond Traditional Fourth Amendment Protections
- Varying Levels of Privacy Interests
- Communications Held By:
- Remote Computing Services
- Electronic Communications Services
- “ … provision to the public of computer storage or processing services by means of an electronic communications system.”
- 18 USC 2711(2)
- “ … the ability to send or receive wire or electronic communications.”
- 18 USC 2510(15)
- Classifying Network Services Provider
- Classifying Information Sought
- Electronic Communication Service?
- Remote Computing Service?
- Neither?
- Both?
- “ … . depends on the nature of the particular communication sought.”
- Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Computer Crime and Intellectual Property Section, Criminal Division, United States Department of Justice, 2002.
- E-mail Scenario
- Recipient’s Email/Internet Service
- Sender’s Corporate Email Client
- Basic Subscriber Information
- 18 USC 2703(c)(2)
- Customer/Subscriber Information
- 18 USC 2703(c)(3)
- Content
- 18 USC 2510(8)
- Basic Subscriber Information
- Name
- Address
- Telephone Connection Records
- Session Times and Durations
- Length and Types of Service
- Subscriber Number/Identity
- Means and Source of Account Payment
- Subpoena – 18 USC 2703 (c)(2)
- Opened Emails
- Subpoena, with Prior Notice
- 18 USC 2703 (b)(1)(b)
- 18 USC 2705
- Account Logs, Transactional Records
- Court Order – 18 USC 2703(d)
- Entire Account Contents, Except Unopened Email or Voicemail Stored for 180 Days or Less
- Court Order – 18 USC 2703(d) and compliance with notice provisions of 18 USC 2705
- Content
- Search Warrant
- The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World Public Provider Non-public Provider Voluntary Disclosure Allowed? Mechanism To Compel Voluntary Disclosure Allowed? Mechanism To Compel Basic Subscriber, Session and Billing Information Only if §2702 (c) exception applies Subpoena §2703(d) order Warrant Yes Subpoena §2703(d) order Warrant
- The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World Public Provider Non-public Provider Voluntary Disclosure Allowed? Mechanism To Compel Voluntary Disclosure Allowed? Mechanism To Compel Other Transactional And Account Records Only if §2702 (c) exception applies §2703(d) order Warrant Yes §2703(d) order Warrant
- The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World Public Provider Non-public Provider Voluntary Disclosure Allowed? Mechanism To Compel Voluntary Disclosure Allowed? Mechanism To Compel Opened email, voice mail left with provider; Other stored files Only if §2702 (b) exception applies Subpoena with notice §2703(d) order with notice Warrant Yes Subpoena ECPA does not apply
- The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World Public Provider Non-public Provider Voluntary Disclosure Allowed? Mechanism To Compel Voluntary Disclosure Allowed? Mechanism To Compel Including email, voicemail in electronic storage >180 days Only if §2702 (b) exception applies Subpoena with notice §2703(d) order with notice Warrant Yes Subpoena with notice §2703(d) order with notice Warrant
- The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World Public Provider Non-public Provider Voluntary Disclosure Allowed? Mechanism To Compel Voluntary Disclosure Allowed? Mechanism To Compel Including email, voicemail in electronic storage <180 days Only if §2702 (b) exception applies Warrant Yes Warrant
- Suppression Excluded
- 18 USC 2708
- Civil Actions
- 18 USC 2707
- ANAYLSIS Lab Issues Examiner Issues Examination Issues The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- LAB ISSUES Accreditation Policies/Procedures The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- EXAMINER ISSUES Certification Training Expert Qualifications The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- EXAMINATION ISSUES Policy/procedure Compliance Internal Review Documentation of Work Abnormalities The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- ADMISSIBILITY Relevance Authentication Hearsay Other Objections The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- MISSING EVIDENCE What Kind Of Digital Evidence Should The Finder Of Fact From A Competent Investigation? The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
- A DAY IN THE DIGITAL LIFE … The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World Pointing Out Missing Evidence Presenting Exculpatory Evidence
- CONTACT INFO Craig J. Chval (630) 986-8205 (573) 214-0520 [email_address] www.chvalgroup.com The Chval Law Group, P.C. Digital Lawyers For Today’s Digital World
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