Decision further exposes loophole in Electronic Communications Privacy Act

A federal court in Utah has held that although evidence obtained through illegal interception of wire or oral communication would not be admissible at trial, any evidence obtained through illegal interception of an electronic communication is admissible.

A confidential FBI informant accessed defendant Jones’s email account without his permission and printed out several messages which she turned over to FBI agents. Based on these messages, the agents obtained a search warrant and arrested Jones. Before trial, Jones moved to suppress the evidence contained in the e-mail messages, as well as the evidence derived from the search warrant based on those messages.

Jones argued that Section 2515 of the federal Electronic Communications Privacy Act (“ECPA”) prohibited the court from considering this evidence which he argued was illegally obtained by the confidential informant. Section 2515 provides, in relevant part: “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial . . . if the disclosure of that information would be [prohibited].”

The court rejected Jones’s argument and denied the motion to suppress. Although the ECPA prohibits the introduction into evidence of wire or oral communications that may have been illegally obtained, the court held that the statute specifically excludes electronic communications from the statute’s suppression remedy. “Even though the [ECPA] prohibits the interception and disclosure of any wire, oral or electronic communication, the suppression remedy in §2515 applies only to intercepted wire and oral communications.”

U.S. v. Jones, — F.Supp.2d —, 2005 WL 850991 (D.Utah, April 12, 2005).

Court upholds admissibility of weblog evidence used to convict

Case gives good example of what not to say on one’s weblog.

On May 19, 2002, police in Henderson County, North Carolina investigated an incident where a rock had been thrown off an overpass damaging a rig traveling on Interstate 26. Earlier that day, Gerald Velardi had written in his weblog “I’m going to trash some s**t tonight, maybe my damage will be shown on the news.” Velardi was arrested for the crime of assault with a deadly weapon with intent to kill and sentenced to no less than two years in prison.

At trial, the prosecutor brought up Velardi’s weblog during cross examination. On appeal, Velardi argued that this evidence was gathered as the result of an illegal search and seizure. The appellate court rejected this argument and denied relief to Velardi, as he had not properly raised any objection to the alleged illegal search and seizure at the trial court level.

State v Velardi, 2005 WL 757057 (N.C.App., April 5, 2005).

Internet research by juror no basis for mistrial in Kentucky court

Juror’s research into definitions of culpable mental states did not affect criminal defendant’s substantial rights.

Appellant Ross-Carter was convicted of child abuse and sentenced to six years in prison. She appealed her conviction on several grounds, one of them being that the trial court should have granted her a mistrial after one of the jurors conducted independent legal research on the Internet.

One evening while the trial was in recess, the juror looked up the definitions of culpable mental states on the Internet on her home computer and printed them. Upon learning of this, the judge interviewed the juror and determined that the juror had not shared this information with any of the other jurors. Furthermore, the definitions she had printed out were “precisely” the same as those in the jury instructions. Ross-Carter’s counsel moved for a mistrial, but the motion was denied.

On appeal, the court affirmed the denial of the motion for mistrial. The appellate court held that the trial court did not abuse its discretion in denying a mistrial, which is an “extreme remedy” and that there was no manifest necessity requiring it in this situation. Considering the record as a whole it did not appear that either the outcome of the trial or the defendant’s substantial rights were affected, and therefore the motion was properly denied.

Ross-Carter v. Commonwealth, (Not Reported in S.W.3d), 2005 WL 678539 (Ky.App., March 25, 2005.

Court wrongly took judicial notice of facts contained on government website

The Sixth Circuit has overturned the U.S. District Court for the Southern District of Ohio’s dismissal of a class action lawsuit against the City of Columbus, holding that the magistrate judge improperly considered evidence contained on the city’s website. The magistrate had taken judicial notice of the information contained on the website, but the Court of Appeals held that the website was not a public record containing information the accuracy of which could not reasonably be questioned.

Plaintiffs filed suit against the City of Columbus, Ohio alleging that a mediation program established by the city to handle disputes over bad checks violated the Federal Fair Debt Collection Practices Act and the Ohio Consumer Sales Protection Act. The City moved to dismiss, arguing that the program was neither a “debt collector” under the Federal act nor a “supplier” under the Ohio law, and thus could not be liable under either of the statutes. The magistrate judge granted the motion to dismiss. In reaching its decision, the magistrate judge took judicial notice of information contained on the City’s website, namely, a statement that the program’s purpose was to resolve disputes, not collect debts.

The Court of Appeals overturned the magistrate judge’s dismissal and remanded the case for further proceedings. At issue was whether the judge properly took judicial notice of the information contained on the City’s website. Noting that a district court generally may take judicial notice of the existence of public records, the Court of Appeals held that “a court may only take judicial notice of a public record whose existence or contents prove facts whose accuracy cannot reasonably be questioned.”

The City had argued that the website was a public record simply because it was the record of a public entity. The Court swiftly determined, however, that the plaintiffs had reasonably questioned the accuracy of the information, and that they should have been given the opportunity to introduce contradictory evidence. The magistrate judge’s reliance on the website constituted reversible error.

The court gave a nod to public policy considerations that should prohibit a court from blindly accepting the contents of government websites: “If all online statements by a government agency could be relied upon as true by a court considering a motion to dismiss, government agencies could defuse any complaint alleging improper governmental motives merely by stating an arguably proper motive on their website. Such a result could eviscerate all sorts of fraud, civil rights, and other laws requiring investigations into governmental motives.”

Passa v. City of Columbus, 2005 U.S. App. LEXIS 2832 (6th Cir. February 16, 2005).

Possibility that witness recordings would be uploaded to Internet no justification for withholding from press

In an order granting a journalist’s motion for the government to make available copies of tape recorded conversations that were introduced in a criminal trial, the U.S. District Court for the Eastern District of New York held that the likelihood of the tapes being broadcast over the Internet did not create significant or unique security concerns.

Jerry Capeci, author and publisher of the website Gang Land, sought an order from the court requiring the government to make copies of five tape recordings of conversations which were introduced in a previous criminal trial. The government responded by seeking a protective order citing various concerns, among them the security of witnesses and innocent third parties.

As part of its argument, the government contended that the duplication of the recordings for publication on the Internet would create a different and more significant security risk, apparently because of the Internet’s ability to permit the rapid and widespread dissemination of information. The government rejected this argument and granted Capeci’s request, ordering the government to make the tapes available for copying within seven days.

In rejecting the government’s argument that the likelihood of publication on the Internet creates a special security risk, the court noted the presumption that access to trial evidence should be made available where possible to interested members of the community who are unable to be present in court. The court stated that the capacity of the Internet to distribute the information over a wider area actually speaks in favor of, and not against, equal access to information for web-based journalists such as Capeci.

The court continued by rejecting the government’s argument that there is some inherent difference in the Internet which would give rise to heightened concerns. It noted that first amendment concerns would bar the court from allowing a news organization to publish a sound recording in only certain media (e.g., radio or television) while prohibiting dissemination over the Internet.

U.S. v. Massino, — F.Supp.2d —, 2005 WL 336304 (Feb. 14, 2005)

Use of spyware doesn’t pay in Florida divorce proceeding

Evidence obtained through wife’s use of spyware on husband’s computer to obtain information about extramarital affair not admissible in divorce proceedings.

Just in time for Valentine’s Day, we have a romantic case coming from Florida that interprets a provision of that state’s Security of Communications Act. The case originated in divorce court, and the appellate court considered whether evidence of a husband’s infidelity obtained through the use of a spyware program installed by the wife was properly excluded in the divorce proceedings. The court held that it was properly excluded from consideration.

After marital discord eruped between Husband and Wife, Wife installed a spyware program on Husband’s computer that captures screenshots which are saved on the hard drive for later review. Through these means, Wife discovered Husband’s online philandering with another woman.

After Husband discovered the spyware on his computer, he petitioned the divorce court to exclude the evidence Wife had obtained using the spyware. The court excluded the evidence, entered a final decree, and Wife appealed.

On appeal, the court affirmed that the evidence was properly excluded, because Wife had obtained it illegally under a provision of the Security of Communications Act that makes it illegal for a person to intentionally intercept wire, oral or electronic communications.

Wife asserted that the communications were not illegally obtained, arguing that by the time the communications appeared on the screen they were no longer in transit, and not subject to interception. The court acknowledged that “there is a rather fine distinction between what is transmitted as an electronic communication subject to interception and the storage of what has been previously communicated.” It went on to hold that “the evanescent time period” between the transmission of the communications and their appearance as visible text on the screen was not “sufficient to transform acquisition of the communications from a contemporaneous interception to retrieval from electronic storage.”

O’Brien v. O’Brien, — So.2d —, 2005 WL 322367 (Feb. 11, 2005).

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