Technology Law Blog
The FCCs new Internet Regulatory Plan06/03/2010
Early last month, the FCC made an announcement of its third way approach to classifying broadband services. This is believed to be in response to the recent legal battle the FCC had and lost with internet service provider Comcast.
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3 Google Executives convicted in Italy of privacy violations
03/18/2010
3 Google Executives convicted in Italy of privacy violations
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iPhone Applications for Attorneys
02/22/2010
Finally, the iPhone has come out with some great new features useful to lawyers.
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Tweeting From the Courtroom
01/07/2010
The recent popularity of Twitter and other live-blogging methods has introduced a new avenue in court room journalism. This has been met with both acceptance and reluctance from judges and lawyers.
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Personal devices banned from the cockpit
11/20/2009
New legislation in response to pilots being distracted in the cockpit.
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Tax for Adult Websites
09/30/2009
In late July, several House Democrats introduced a bill that would impose a 25% tax on the revenue of most adult-themed Web sites.
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Cyber Bullying
09/28/2009
According to the National Crime Prevention Council, cyber-bullying is defined as when the Internet, cell phones or other devices are used to send or post text or images intended to hurt or embarrass another person. Studies of cyber-bullying have mostly been interested in its occurrence among middle and high school students, but cyber-bullying also occurs in the workplace.
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Copyright Violations and Social Networking Sites
09/11/2009
Social networking sites have been hotbeds of copyright issues
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Texting behind the wheel
08/28/2009
Last July, six girls who just graduated high school were killed in New York when their car crashed into a tractor trailer. Records show the driver was texting just seconds before the crash. Now, sixteen US states have banned texting while driving. Ohio may be next.
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New tool for Digital Forensics
07/20/2009
As technology continues to prove itself as an indispensable part of our lifestyle, digital forensics is becoming an incredibly important field.
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Dangers of File Sharing
06/01/2009
Something to consider in regards to file sharing. New legislation submitted as a result of leaked files.
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In 2008 there were 100 confirmed security breaches by cyber criminals.
05/21/2009
A recent article in the Washington Post reported that last year the 100 confirmed security breaches committed by cyber criminals included approximately 285 million consumer records, with more than nine out of ten of the compromised records associated with financial institutions. Those are some frightening numbers, considering the entire population of the United States including children is approximately 306 million. In today's world, where you can perform tasks of any nature online, such as buying groceries, ordering a pizza, and handle your finances, security is crucial to preventing the collapse of the Internet as a trusted vehicle for everyday tasks. However, the technology that we rely on rapidly changing, the face of Internet crime is also changing.
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Internet Crime in the 21st Century
04/21/2009
A recent article in the Washington Post reported that last year the 100 confirmed security breaches committed by cyber criminals included approximately 285 million consumer records, with more than nine out of ten of the compromised records associated with financial institutions. Those are some frightening numbers, considering the entire population of the United States including children is approximately 306 million. In today's world, where you can perform tasks of any nature online, such as buying groceries, ordering a pizza, and handle your finances, security is crucial to preventing the collapse of the Internet as a trusted vehicle for everyday tasks. However, the technology that we rely on rapidly changing, the face of Internet crime is also changing.
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France's Creation and Internet Law
04/02/2009
Although the Internet has had an enormous impact on many aspects of our lives and culture, the music industry has suffered as a result. CD sales are reportedly half what they were five years ago. To combat the proliferation of illegal downloading of copyrighted material, France is considering a new law that would establish a "three strikes and you're out [of the Web]" policy, with an initial email warning after the first infraction, a second warning via the postal service, and no Internet for one year for people who continue to illegally download copyrighted content after the second warning. The law, called the Creation and Internet law (loi Création et Internet), would be enforced by Hadopi (Haute Autorité pour la diffusion des oeuvres et la protection des droits sur Internet), an administrative authority set up especially for this legislation to collect information about individuals who choose to download copyrighted material from their ISPs (at the request of the party holding the rights to the material). However, many users and webmasters are not so excited about the idea, and have instituted a blackout protest in response.
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Utah and targeted keyword advertising
03/12/2009
With a number of international occurrences of notable cases over the past few months on the Internet news front, it seems we tend to not even consider individual states' Internet law and the possible implications of such state laws. The Utah state legislature has tried in the past to regulate keyword advertising. Past attempts never found success. In 2004 Utah attempted to ban keyword advertising in adware, but that law was declared unconstitutional. Three years later, the state attempted again to regulate keyword advertising, with the passage of a new law, only to have it repealed the following year.
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Judge Orders Defendant to Decrypt Hard Drive
02/27/2009
A federal judge has ordered a criminal defendant to decrypt his hard drive by typing in his PGP passphrase so prosecutors can view the unencrypted files, a ruling that raises serious concerns about self-incrimination in an electronic age.
In an abrupt reversal, U.S. District Judge William Sessions in Vermont ruled that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, does not have a Fifth Amendment right to keep the files encrypted.
"Boucher is directed to provide...
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The Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act, in brief
02/26/2009
Although a study was released last month by the Internet Safety Technical Task Force that reported a safer Internet than parents and others had imagined. Nevertheless, two politicians from Texas, Jon Cornyn and Lamar Smith, have each filed in the senate and house, respectively, their own versions of the Internet Safety Act, otherwise known as Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act. According to this bill, anyone providing Internet access would be required to keep records of who uses the service for two years. This includes ISPs like Comcast, you (as the wireless network in your own home, when used by several people, is provided to them by you), and the owners of hotels, coffee shops or other businesses where wireless Internet is offered. The implications of this are far-reaching, and bring up discussion of the availability and accessibility of all the various content and medias on the Internet, and who can access them.
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"Hot News" has proprietary value
02/26/2009
Just when it seems like nearly hundred year-old legal doctrine doesn't apply to cases involving the Internet anymore, Associated Press surprises us. The news giant was in federal court on Tuesday, regarding a lawsuit against AHN Media Corp. and All Headline News Corp. for copyright infringement. The trial will continue after Tuesday's ruling that a legal doctrine from May 1918 applies to information on the Internet.
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Italy may force ISPs to block access to some sites
02/19/2009
Italy was back in the news last week, this time over a bill being discussed in the Italian Senate and throughout the Internet. According to Bloomberg.com, if the bill is passed, it will "force Internet service providers to block access to Web sites including Facebook Inc... if they incite or justify criminal behavior..." What is the catalyst that has brought this bill about? The mafia.
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Restricting the Internet - In Italy
02/18/2009
Italy is back in the news this week, this time over a bill being discussed in the Italian Senate and throughout the Internet. According to Bloomberg.com, if the bill is passed, it will force Internet service providers to block access to Web sites including Facebook Inc&. if they incite or justify criminal behavior& What is the catalyst that has brought this bill about?
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Mounting criticism, costs and legal challenges to harsh registry law growing
02/09/2009
The New York Times reports that critics of the federal law designed to track sexual offenders say the law is in danger of collapse due to constitutional and cost objections from states as well as legal challenges from sex offenders and civil rights groups. The Adam Walsh Child Protection and Safety Act, passed by Congress three years ago as one of the toughest child-protection initiatives in the nations history, compels serious offenders to remain on states registry for life, expands the number of crimes for which offenders must register, and requires states to make failure to register a federal felony. Legal challenges have mounted since the laws passage, including a lawsuit filed by an Ohio man convicted 15 years ago of gross sexual imposition who is challenging the laws requirement that he remain on the registry for life, rather than the 10 years required under Ohio law at the time of his conviction....
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Google executives face international defamation charges
02/09/2009
Google is arguably the most powerful brand in the world. Last week in Milan, Italy, four of its executives went on trial over criminal charges of defamation because of a video that appeared on its site. This unprecedented case may begin to define global regulations of the Internet and its use, a landmark in the ongoing development of Internet law. This comes as unwelcome news to Google, whose spokesman told the press that Google should not be held responsible for how third parties choose to use the site.
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Computer owners must exercise responsibility in keeping their account information and networks secure from outside attacks and manipulation.
02/02/2009
Internet security is an ongoing issue in the legal world; simply because certain files are found on a person's computer does not necessarily mean that the owner is responsible for those file being there. However, it is extremely difficult for an individual to avoid taking the blame for crimes that another person may have committed using the individual's computer or account. Computer owners must exercise responsibility in keeping their account information and networks secure from outside attacks and manipulation.
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Accuracy of Voice Stress Analysis is Questionable
01/23/2009
Can you outsmart a polygraph? The classic lie detection instrument that measures galvanic skin response, heart rate, and respiration has starred on various reality shows such as NBC's " Meet My Folks" , in which parents screen potential dates for their daughter using the revered machine. In actuality, it is quite likely that the wrong suitors were eliminated from the show (and the daughter's life), given the fact that the accuracy of a polygraph is only a little more than chance, with most estimates around 60%. Polygraphs only measure physical responses. But what if they measured physiological responses, i.e., aspects of the liar - or truth-teller - that cannot be controlled? Voice stress analysis instruments do just that, but the supposed reliability of this newer method of deception detection may outshine the truth behind its accuracy.
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The Internet isn't so bad after all.
01/16/2009
Dateline NBC's "To Catch a Predator " brought the idea into America's living room. The Internet is a bad place for children. It is sordid, populated by sexual predators looking for their own little Lolita to abuse. However, the New York Times published an article earlier this week summarizing a report by the Internet Safety Technical Task Force that concluded that the Internet is not as full of adults looking to exploit children. This contradicts the notion that there are predators in every corner of the Internet, just waiting for the right minor to come along. What the report does acknowledge as a potential problem is children's use of technology to bully each other, a cyber issue that receives less recognition.
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Internet Law in 2009
01/08/2009
The Internet is without a doubt, an invaluable tool. It can provide us with information on virtually any topic, in almost any language, from a number of different sources, some of which we even trust. The Internet can be used to organize correspondence with colleagues, photographs, shopping wish lists, and even friends. It has only taken a few years for the Internet to become most people's go-to guide for movie listings, local restaurants, and perhaps even the relationship status of a romantic prospect. However, what has not yet been completely established is a way of handling all the information the Internet makes so easy to access. 2009 will certainly bring some changes to Internet law, and hopefully good ones.
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Copyright Infringement
01/02/2009
The future of software piracy is vague. As long as the technology is available, people will continue to copy digital material they enjoy so they can share it others (sometimes for a fee). But copyright laws are in place for a reason, and violating those laws is a crime. It is up to the consumer to make responsible choices and purchases so the right parties get their kudos for creating such great material, but there will always be impostors. Caveat emptor.
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Cell Phone Use in Correctional Facilities
12/18/2008
In recent years, the proliferation of cell phones has revolutionized our quotidian communications with family, friends, colleagues, and, unfortunately, telemarketers. The regulations that apply to cell phones are similar to those of landline telephones, but the portability and small size make the former much more appealing for those whose lifestyle or profession requires frequent communication with others. With added data features, like text messaging, cameras, and even the Internet, the cell phone is an attractive option for almost anyone looking to stay in contact with their acquaintances. However, this poses a problem for prison officials around the world, as cell phones are smuggled into jails, allowing those incarcerated for a variety of crimes to continue to conduct their business or even start riots, unbeknownst to the prison officials who regularly read inmates' mail.
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Cyber Hunting
12/17/2008
Within the past three years or so, hunting via an Internet connection, known as cyber hunting, has cropped up under the heading of some of the less-favorable activities the Internet allows us to do, and it is illegal in most states.
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FCC Plans for Free Internet
12/05/2008
Although millions of people across the United States enjoy the Internet in their homes, libraries, and workplaces, access to the Web costs money. This may change, however, according to a plan created by the Federal Communications Commission (FCC) to make Internet access free.
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Law keeping up with Technology
11/17/2008
Law keeping up with Technology
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Barack Obama and Technology
11/07/2008
The recent election has made many computer-savvy people wonder about the changes that the new president will enact in the technology sector, affecting the way we compute and communicate. President-elect Barack Obama proposed to appoint a chief technology officer (CTO) to the White House, demonstrating his attention to the technology-related issues seen daily in the news and in government. On his new website, Change.gov, he stresses the importance of connecting citizens to cooperate in solving the nation's problems, and emphasizes the potential role of technology in government.
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Wall Street Journal Expressing Concern over out of Proportion Sentences for Child Pornography Possession
11/05/2008
The Wall Street Journal, on October 23, 2008, published a large article quoting from various federal judges about the severity of child pornography possession sentences. No liberal newspaper, the article questions the sanity of imprisoning people for 20 years or more for conduct occurring within their own home, sitting alone in front of their computer. Many of the arguments...
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Internet Privacy and the Government
10/27/2008
Britain's Home Secretary, Jacqui Smith, has announced plans for a central database that would record every email, phone call, and website visit made in Britain. Although the Liberal Democrats party has called this proposal Orwellian , Smith maintains that the database would not include any content of the emails or phone calls, but rather more basic information pertaining to times and email addresses of senders and recipients of electronic messages.
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Can criminal records really be expunged?
10/23/2008
Having a criminal record can be damaging to several aspects of one's life. It can make it especially difficult to find employment; indeed, some jobs are unattainable for individuals who have been in trouble with the law. However, if one chooses to expunge their record, then they will no longer be considered a criminal by potential employers - in theory.
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Is Wireless Internet Free for Everyone?
10/13/2008
Despite what some may believe, the intangibility of the Internet does not prevent it from being stolen from others, or at least its utility. Wireless connections bring the Internet within reach of individuals' computers without the need to physically connect the computer to a modem. However, wireless connections can typically extend over one hundred feet beyond the house or building where they have been set up. If the connection is unsecured - that is, if it is not protected with a password or otherwise - then anybody within range can access that connection.
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Protecting Your Identity Online
10/03/2008
In the summer of 1995, The Net premiered in theaters around the world. Sandra Bullock played Angela Bennett, a computer software analyst who is the victim of identity theft. Those days, phishing might have been construed as attending a Vermont concert to hear some crunchy grooves, Trojan horse referred to the large wooden contraption Laocoön warned his fellow citizens about thousands of years ago, and malware might have been understood as what kids sported to the local shopping center.
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Obscenity Law v. Freedom of Speech
09/29/2008
Anybody can post information on the Internet, and many people do, but being aware of obscenity law and how it applies to United States culture in general is critical when the information is of a sexual nature.
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Email Privacy and Security
09/19/2008
Newswires are buzzing about the hacking of Republican vice presidential candidate Sarah Palin's Yahoo! email account, which brings up the topic of email privacy and security.
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File-Sharing and Copyright Infringement
09/17/2008
Due to the current popularity of Internet blogs and other areas of the web where content is controlled by any regular computer user, it inevitable that much of the information available may be a facsimile of the original source of the information. When the original information has a copyright or trademark, then the individual who took that information from its source and reproduced it for their own purposes did so illegally.
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France calls for an "international Internet police force"
09/08/2008
Besides offering up information one might like to see, like the perfect brownie recipe or an answer to a bothersome question, the Internet also contains information that may be considered extremely offensive, harmful, or even illegal. There are many options available to parents of children who frequent the net, but how can all citizens, especially the victims of child pornography, be protected from offensive material? Various countries around the world are fighting back with legislature to combat the proliferation of illicit and harmful material on the Internet, but some may be going too far.
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Illicit material found during computer repairs may create legal problems for the people doing the repairs.
08/21/2008
Having weak security on your computer opens the door to unwanted material showing up on your hard drive. That can produce difficulties in determining whether a person knowingly put illicit files such as child pornography on his computer or the whether the files were saved there without his knowledge or intention. People performing routine computer repairs as a profession are in a position to stumble across such files in an unwitting clients computer without intentionally seeking them out. Under laws passed within the past year in Texas (Private Security Act) and Michigan (House Bill 5274) could land technical repair people accused of doing computer investigations in prison terms of up to one or four years, respectively, along with hefty damages and fines.
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Social networking profiles are fair game in the legal system
08/15/2008
Social networks make public what was once private information. While this may help some, it may harm others. The already established history of cases in which information from social networking sites influenced the decision serves as a caveat for all those who maintain profiles on sites like MySpace or Facebook: the internet is fair game in the legal system.
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Ohio Supreme Court agrees with Dean Boland and orders his client released pending appeal
08/06/2008
In a stunning ruling in favor of his client, Dean Boland today obtained a rare order from the Ohio Supreme Court that his client be released pending appeal. The client was convicted at the trial court (represented by other counsel), his conviction affirmed on appeal and the case accepted by the Ohio Supreme Court earlier this year and is pending their consideration. While the case was pending, Dean Boland...
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Dean Boland gets dismissal in Federal Child Pornography Case
08/05/2008
Our client contacted us after working with initial counsel for nearly two years on a federal child pornography investigation. Utilizing our experience, expert witness contacts and select private investigators, Dean Boland and his firm persuaded the government to drop its case.
The United States District Court for the Eastern District of Virginia today received a motion by the federal government to dismiss its entire case without prejudice against our firm's client. After an exhaustive investigation, including the use of a computer forensics expert...
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Technology is taking over!
08/04/2008
Be sure that the person that you are trusting with your case is both technologically savvy and willing to stay afloat in our ever changing world.
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Search of Laptops and other Devices at Border Permitted
07/25/2008
There is a fine line between customary administration and unreasonable invasion, and the 9th Circuit, known as one of the more liberal circuits, has decided to cross it...
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Lima News quotes Dean Boland highlighting important legal issue accepted by Ohio Supreme Court
06/01/2008
The Lima News which has been following the David Harrison case for years, published an article outlining the key legal issue in his case. Dean Boland has represented Mr. Harrison just following his conviction for charges that he had previously served his entire sentence on.
The legal issues involved were significant enough for the Ohio Supreme Court to accept the appeal offering Dean Boland his third opportunity in the last 24 months to bring an important technological and legal issue in front of the state's highest court...
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Ohio Supreme Court Accepts the Third Child Pornography related case in 24 months
05/22/2008
The Ohio Supreme Court announced today that it has accepted the third child pornography related case in the past 24 months. Each of the child pornography cases accepted by the Ohio Supreme Court in the past 24 months have been cases in which Dean Boland has represented the defendant.
Obviously, the court sees a need to try and bring the law up to speed with technological change.
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Important Concurrence regarding myth of image distinguishability in digital image cases
05/13/2008
There was a very important concurrence published in a recent decision in the First Circuit by Senior Judge Stahl.
In the concurrence, the judge correctly points out that technology has now advanced to the point where...
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New Concern for Defendants in technology based criminal cases.
03/13/2008
In addition to the stress of being indicted for offenses such as the possession of child pornography or importuning, clients have another concern - attorneys with little or no experience in computer sex crime cases claiming expertise they do not possess...
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Dean Boland's podcast now available on iTunes
02/06/2008
Just as he blazed the trail more than a decade ago by founding one of the nation's first technology and law columns for a metropolitan legal journal, TechLawToday is Dean Boland's regular podcast on technology and law issues. Dean brings his unique experience as a technology attorney, court qualified expert witness...
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Fair Trial Argument in front of the Ohio Supreme Court
02/06/2008
Dean Boland argued in front of the Ohio Supreme Court today for the second time in less than two years. The case was State of Ohio v. Brady. Dean Boland had won victories for his client at both the trial level and court of appeals level.
His client's case was dismissed in its entirety at the trial level and that dismissal was affirmed on appeal.
The Ohio Supreme Court...
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NH Supreme Court Rules - So-Called Morphed Images Legal to Create, Possess
01/28/2008
In a stunning rebuke of the federal government's position on this issue, the NH Supreme Court overturned the conviction of a person for creating and possessing manipulated images of minors and ordered his case dismissed. The case involved a person who took images of minors and placed their heads on the bodies of adults making them appear to be engaged in prohibited conduct. The court ruled...
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Misinformation from Lawyers that should know better
01/18/2008
Knowing that many lawyers across the country are regular readers of this blog, this entry is for you. There is a growing trend among unethical lawyers seeing a potential cash cow in child pornography and importuning cases to pass themselves off as experts. This is being done, primarily, by lawyers obtaining briefs and other pleadings from cases of lawyers who devote their practice to these cases, as I do, and repackaging them into Powerpoint presentations and materials. I have obtained the materials and recorded...
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Curious Issue about Validity of Grand Jury Indictments
12/20/2007
It has come to my attention that federal grand juries are regularly indicting child pornography cases based upon nothing more than the testimony of an FBI agent. This is problematic not because...
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Boland Seeks New Trial in Murder Case after Kluge found to be Ineffective Attorney
12/13/2007
The Lima News ran a story about the motion for new trial in the criminal case involving Tim Moore. Moore is Dean's client who came to him after losing at trial and on appeal resulting from the ineffective representation provided to him by attorney William (Bill) Kluge. Kluge has previously been found ineffective in a death penalty case by...
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Dean Boland wins Legal and Technology Innovation Award
12/03/2007
A black tie gala in Cleveland, Ohio was the site of an award presentation for attorneys distinguishing themselves by their knowledge and use of technology inside and outside the courtrom.
Of the three awards, Dean was awarded the Most Innovative Use of Technology in the Courtroom. The events sponsor, Vestige Limited, described the nominees as "elite legal professionals" who "have helped lead us into this new era."
Among the legal luminaries at the event...
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Georgia Supreme Court Finds Sex Offender Registration Law Unconstitutional
11/21/2007
The Georgia Supreme Court has found the application of the Georgia Sex Offender Registration Statute requiring a registered person to sell their home if a day-care center opens within 1,000 feet of it is a taking of property without just compensation violating the constitution.
The court reasoned that...
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Fingerprint Science Fails Reliability Test in Dutch Research
11/21/2007
A group of Dutch researchers constructed a test on the reliability of finger print analysis. The results were not good for those relying on fingerprints as a means of locating or identifying unique persons. The researchers obtained the fingerprints of several volunteer subjects attending a soccer game...
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Oral Argument at U.S. Supreme Court in U.S. v. Williams
10/31/2007
Just yesterday (10-30-2007) the U.S. Supreme Court held oral arguments in its most significant First Amendment/Contraband Image case since Free Speech Coalition 535 U.S. 234, 122 S.Ct. 1389. Members of the court made some interesting comments about as-applied challenges to the statute...
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Cert Petition on digital image criminal case filed in the United States Supreme Court
10/25/2007
A leading case in Ohio that was rejected by the Ohio Supreme Court has been formally submitted to the United States Supreme Court for their consideration as a case affecting the rights of all Ohio citizens. Dean Boland argues in the petition that...
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Fair Trial Argument Gets Traction
10/15/2007
I recently posted an Ohio Supreme Court brief filed in the case of State v. Brady. I am pleased to report that it has been downloaded from the site more than 75 times by lawyers throughout Ohio and across the country. It is vitally important that...
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New Wire Service Article on Difficulty of defending child pornography cases because of federal law
10/15/2007
An article is running today in newspaper's across the country that highlights the difficulty of defending people charged with possessing child pornography as a result of federal law. It discusses, primarily, the new Adam Walsh Act, but also...
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Brady Case Brief to the Ohio Supreme Court
09/24/2007
In a precedent setting case in Ohio and the country, the Ohio Supreme Court agreed to hear the state's appeal of a dismissal of a 50-count child pornography case. In that case, because the indigent defendant could not receive the services of a digital imaging expert because of the application of federal law to that expert...
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Chat Transcripts Must Be Authenticated
08/30/2007
In all importuning or online solicitation cases, the key initial evidence is the content of chat conversations between...
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Delaware County Case to be Dismissed - Fair Trial Violation Argued
07/02/2007
A state court in Ohio recently ruled that unless the state prosecutor can provide "immunities" to the defense counsel and...
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Landmark Ohio Appellate Court Decision on Fair Trial in Child Pornography Cases
04/17/2007
The 11th District Court of Appeals published its opinion yesterday in State v. Brady. It affirmed the trial court's dismissal of all 50 child pornography counts against Mr. Brady after the federal government had executed a search at the home of Brady's court appointed expert witness. The court had previously issued a protective order entitling that witness to possess copies of the allegedly...
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Court holds that content downloaded at the same time constitutes one incident
04/12/2007
A NY State court recently ruled that the state must prove that multiple contraband images were downloaded at different times in order for a court to impose consecutive sentences. Click below for the entire article.
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Jury Decides, Viewing Contraband Images is not Possessing Them
04/05/2007
A jury in a recent child pornography matter agreed with defense counsel that searching for and viewing contraband images is not equivalent to possessing them. In this case...
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Stunning decision from Florida State Court
02/20/2007
A Florida Court of Appeals has upheld the application of the state's child pornography production and possession statutes to two minors, both at or above the age of consent for sexual activity, for their photographing of same. The decision...
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Unfortunate Decision on Amendments to 18 U.S.C. 3509
01/29/2007
Follow this link for a highlighted and bookmarked version of the recent decision by a district court in Virginia on the constitutionality of the Adam Walsh Act. The opinion demonstrates some technological deficiencies in the hearing presentation...
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Fox News Article - Overzealous Child Porn Prosecution Ruins Family's Life
01/23/2007
This article is a great exploration of the damage that can be done by a prosecution that occurs, as the prosecutor in the article puts it, "because we can." The article tracks not only the...
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Federal Jurisdiction is Everywhere Now
01/18/2007
The story linked here represents the final stage of omnipresent federal jurisdiction. Beginning with the Wickard v. Filburn decision in 1942, the federal government began its march to obtain jurisdiction over all crime. The Supreme Court's recent decision in a medical marijuana case...
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Substitute faces 40 year sentence for pop ads displaying adult pornography
01/16/2007
A substitute teacher in Connecticut was convicted of causing risk of injury to minors for pop up ads seen by classroom students. The ads displayed naked adults and were placed there as a result of a visit to a hairstyling site.
The prosecution claimed the teacher purposefully visited adult pornography sites...
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Circuits split on Internet ban for convicted sex offenders
01/15/2007
A number of courts have ruled upon the propriety of complete Internet bans on convicted sex offenders who are on probation. I have argued for some time that even such restrictions during pendency of cases prior to trial are inappropriate.
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Arizona Teen Nearly Spends Life in Prison over accidental child pornography download
01/12/2007
This article is a must read for attorneys and parents alike. Arizona's child pornography laws are among the harshest in the country. This teenager used a computer loaded with viruses one of which...
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Transcript from 18 U.S.C. 3509 challenge hearing
01/08/2007
It is important to continue challenging the amendments to 18 U.S.C. 3509 that affect discovery in child pornography cases...
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Computer Generated Images
01/05/2007
There is a debate in most child pornography cases whether computer generated images of people, objects, scenes and landscapes can be created such that they are indistinguishable from the real thing. It is important to distinguish...
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C|Net article on Frabizio case
01/04/2007
A well written article on the technological issues of the Frabizio case was posted today on C|net.
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Perils of even reporting accidental download of child pornographic images
12/29/2006
This story follows the case of a man who claims he called the "cybertipline" to report sites from which he downloaded images. He claimed he did not want child pornography images and reported the sites that were provided such materials. His reward? He was indicted.
At trial, he was able produce a person who was depicted in some of the items and she testified she was 18 at the time the images were captured.
This case demonstrates the perils of defense counsel needing to investigate child pornography charges and yet risk running afoul of federal law.
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Adam Walsh Act
12/28/2006
On July 27, 2006, President Bush signed the Adam Walsh Act. It is the most extensive rewriting of child pornography laws since the Child Pornography Protection Act of 1996.
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Brief regarding amendments to 18 U.S.C. 3509
12/26/2006
Click here for a sample brief regarding the constitutionality of the amendments to 18 U.S.C. 3509.
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2nd District Ohio Authentication Rule could help clients
12/23/2006
Two recent second district court of appeals opinions have a not so hidden benefit for your clients in a whole host of circumstances. Both opinions confronted the proper authentication requirements for digital images in criminal cases. These cases represent significant authority for those of you with exculpatory or other helpful image evidence for which you cannot provide the photographer or anyone who was present when the photograph was taken.
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Audio of appellate court oral argument in Fair Trial dismissal of child pornography case available.
12/20/2006
This case is on appeal by the state of Ohio after Dean Boland won a fair trial dismissal of 50 child pornography counts. Dean demonstrated that the enforcement of the federal child pornography statutes, solely against defense attorneys and defense experts, disabled defense counsel and its experts from effectively representing clients in state court. The judge found the client could not obtain a fair trial in that environment. The court of appeals questioning at oral argument phase leads to interesting questions for consideration by that court and, perhaps eventually, the Ohio Supreme Court.
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Ohio Supreme Court argument regarding constitution and digital images available online
12/19/2006
Appellate court opinion in this case. "http://www.deanboland.com/files.cfm?fileID=9"
The entire 43 minutes of oral argument from the recent case regarding Ohio's child pornography statutes and the First Amendment is available online by clicking "http://www.sconet.state.oh.us/videostream/archives/2006/" and selecting the third case under December 13, 2006, case number 2006-0105.
You will need a copy of the free Real player to view the video. It can be downloaded by clicking "http://www.sconet.state.oh.us/videostream/real_download_inst.asp"
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Ohio Appellate Court dismisses case for state's bad faith destruction of videotape
12/15/2006
The defendant in this case was on videotape during a roadside sobriety test. Before having the opportunity to request the tape be preserved, an officer destroyed it in violation of department regulations.
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Columbus Dispatch Reports on Dean Boland's Ohio Supreme Court Argument
12/14/2006
The Columbus Dispatch reported on the precedent setting argument before the Ohio Supreme Court regarding the constitution and digital images. Ohio is the first state supreme court to confront the reality that legal and illegal images of this type are indistinguishable leaving many unwary computer users in danger of accidentally committing a felony.
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Federal District Court finds portions of Adam Walsh Act Unconstitutional
12/13/2006
Among the provisions enacted with the Adam Walsh Act are requirements that courts impose specific conditions of bail upon citizens merely charged with a contraband image related offense.
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PA State Appeals court rules mere browsing does not equal possession
12/06/2006
In a recently published state appellate court opinion, the PA court of appeals ruled that viewing content online does not equal possessing that content even if it is download automatically to a user's hard drive.
This decision reflects a fact of internet browsing. No matter what browser you use (Firefox, Internet Explorer, Safari (Mac OS)) anything seen on your screen is temporarily downloaded to your computer. So, mistakenly visiting a site displaying illegal content means you have it on your machine whether you wanted it or not. This decision, like a few other federal decisions of late, recognize that the existence of such files on a user's computer, alone, is insufficient to establish knowing possession.
Yet another reason to retain the expertise of the right counsel and computer forensic people.
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Stats about sex offenders greatly exaggerated
12/04/2006
A recent article traced back the source, or lack thereof, for many of the common statistics supporting legislation and sentencing schemes applied uniquely to those convicted of sex offenses. It dispelled many myths about these crimes, how victims become victims, rates of re-offending after release from prison, etc. It contained many important points providing some perspective to this controversial area.
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State and Federal Courts Rule - Viewing Images does not equal possession
12/02/2006
In two recent decisions on separate state and federal cases, courts have found that one does not knowingly possess items that are automatically downloaded to his computer by viewing a web page.
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Frabizio Reconsideration
11/29/2006
This is a recent decision by a federal judge finding conclusively that it is impossible, by visual examination, for anyone, even an expert, to distinguish real from altered or computer generated images of people.
This decision is important for several reasons related to digital image cases of this type. It helps push back the myth of the expert who can "know it when he sees it" and supports the recognized fact that digital images have reached the point of indistinguishability.
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False accusation against Parents ruins their lives
11/12/2006
A vengeful person with a digital image and some simple editing skills was able to ruin the lives of two law-abiding parents, have their children temporarily removed from their homes and have their children hear from investigators "your parents are sick."
A nightmare to be sure. It is the all too real risk that digital images pose if counsel for the accused is not knowledgeable about computers and digital image issues both technologically and legally.
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Items in Temporary Internet Folder not Legally Possessed
10/31/2006
The charged citizen here was able to obtain a not guilty by pointing out the technological fact people visit the web sites all the time and do not necessarily intentionally download the content on that site. This story points out again the value of technologically sophisticated counsel and the difference they can make.
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Foley Matter Highlights State Federal Conflict
10/03/2006
The recent resignation of representative Mark Foley of Florida exposes an unresolved conflict with state and federal law on so-called importuning cases.
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The Vagueness Problem
09/29/2006
Discussing the use of pre-trial motions to dismiss for vagueness and their value to trial strategy.
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U.S. v. Frabizio, Government's experts exposed
09/01/2006
In this groundbreaking child pornography defense case, the government's leading digital imaging expert, Thomas Musheno, was exposed as relying upon an FBI only methodology that had no indicia of reliability whatsoever. So many of the federal child pornography cases have been defended by counsel without the necessary technological knowledge to expose these so-called experts. Dean Boland consulted periodically with the federal public defender to assist in cross-examining Musheno.
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Myths about Electronic Discovery
07/28/2006
The use of electronic discovery for both civil and criminal cases is just going to increase. Many attorneys are still reluctant or ignorant of how to use electronic discovery. Many who do not use it are convinced by one or more of the common myths about electronic discovery. This entry seeks to break those myths.
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Digital Images as Evidence-It's the Ohio Supreme Court's Turn to Speak
07/01/2006
The Ohio Supreme Court will hear oral argument on a precedent setting case in Ohio regarding the constitutionality of two of Ohio's three child pornography statutes. Dean Boland was not only qualified as an expert witness in digital imaging in this case, but wrote the successful appellate brief on the constitutional issues. He is also appellate counsel now for the Ohio Supreme Court case.
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The "Jury Can Decide" Cases and Digital Image Authentication
05/15/2006
There is an emerging body of federal and state cases declaring that a jury can still decide whether an image of apparent child pornography is real or not. None of those cases have any expert testimony to rely upon and may well be contradicted by later opinions regarding government experts that are due out later this year. (Specifically, U.S. v. Frabizio).
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Dismissal Motion filed in Double Jeopardy Violation Case
04/15/2006
Following a trial by other counsel, Dean Boland was hired to file and argue various constitutional motions regarding violations of his client's rights.
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Digital Image Authentication Rules-Time for An Upgrade
11/01/2005
The rules of authentication for photographs do not work with digital images. Legal scholars have long agreed with this statement. Prosecutors agree with it, when it excludes evidence helpful to defendants, they argue against a more stringent rule in all child pornography cases.
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RIAA Litigation Update
10/04/2005
The Recording Industry Association of America is currently pursuing file sharing companies to stamp out what they deem to be piracy techology.
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Legal Research Services Protection Act - By Another Name
06/18/2005
Recent legislation in many states is seeking to protect legal research service companies by preventing governments from offering the same information that these services provide.
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Spyware, Adware, Everywhere
03/20/2005
Spyware, Adware and viruses are not just annoyances at your law office. They are also concerns for the handling of cases involving technological evidence.
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Jury Selection and Technology
12/03/2004
As in many aspects of technology and the law, ignoring technology issues when picking your jury can be detrimental.
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Michael Williams article reporting Dean Boland is right
07/06/2004
Article by Law and Justice commentator Michael Williams. He agrees that Dean Boland's argument and technological approach is correct and hints at the danger of potentially innocent citizens being imprisoned.
He notes that "Boland, 37, of Lakewood, is one of a handful of criminal-defense experts in the country with the knowledge to testify about digital-imaging technology..."
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Cleveland Plain Dealer Article - Dean Boland as Expert Witness in Digital Imaging
06/25/2004
Article about Dean Boland's work as an expert witness in digital imaging and his teaching of other lawyers the technology of digital imaging and its application to legal issues in these cases.
Published in the Cleveland Plain Dealer
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Federal Sentencing Guidelines and enhancement factors
01/01/2004
A summary of the sentencing guidelines for various child pornography related offenses along with mitigation factors. Enhancement factors are those that can increase the sentence. Our mitigation experts combine with our presentations at sentencing to attack those factors and present others indicating a minimum sentence is appropriate.
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Links
12/03/2003
Links
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Manage your electronic documents or they'll manage you!
10/01/2002
New York Law Journal article on the management of electronic documents in the law office and for criminal and civil litigation.
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