Monday, June 30, 2008
Day two of this year's National Institute on Cyberlaw started with a very informative session on digital forensics, or what can be obtained from a computer and how that information links people to knowledge. The panel discussed the types of information such as structured and unstructured, various kinds of data, where it is stored on a computer or other device, and how it can be recovered. The uses of this data are also varied. Lawyers need to know about this topic because of evidentiary concerns such as admissibility and reliability, discovery requests and compliance, and client protection.
The next session was a very lively debate on the constitutionality of the President's authorization for the National Security Agency to monitor communications between foreign nationals outside the U.S. and people located in the U.S., to include U.S. citizens. The arguments integrated originalist interpretations of the Constitution, historical uses of presidential power in foreign relations, the Fourth Amendment, the balance of powers between the legislative and executive branches, and the role of the President as the Commander in Chief.
The afternoon breakout session I attended concerned pornography, sexual predators and the Internet. An interesting issue was presented as to whether images of child pornography present in a computer's cache, as opposed to its hard drive, was enough to allow prosecution for possession of child pornography. Both the FBI panelist and the panelist representing the U.S. Attorney's office said that they knew of no prosecutions for possession when the images were only in the cache. A 9th circuit decision (U.S. v. Romm, 455 F.3d 990) that was mentioned concerning such a situation said that there has to be intent to exercise dominion and control over the images for possession to occur.
The last session of the day addressed the downloading of copyrighted material from the Internet. A vice president of the RIAA and the lawyer involved in the only case (Virgin Records, Inc. v. Thomas) in which the RIAA was successful in suing a person alleged to have distributed copyrighted material were on the panel. Although the RIAA won in the jury trial, the judge in the case requested both sides to present briefs on their positions. There is a three-way split in the law the RIAA is using to sue people. The issue is whether simply making copyrighted material available on one's computer is enough to constitute distribution under 17 U.S.C. 106(3). Some courts say it is, some say it is not, and others say that it is if there is intent to make the copyrighted material available as shown by the way it is stored on the computer.