NACDL's 5th Annual Defending the White Collar Case Seminar - "Cyberspace - The Black Hole Where Ethics, Strategy, and Technology Collide," Thursday, October 1, 2009

Guest Blogger:  Cynthia Hujar Orr, President, National Association of Criminal Defense Lawyers

Panel Moderator:  Gerald Goldstein

Panelists: AUSA Joey Blanch, Blair Brown, Marcia Hofmann, Alexander Southwell

Gerald Goldstein grabbed the attention of the NACDL White Collar seminar telling us that each time we hit the send button on the internet a new government exhibit is created.

Blair Brown spoke about the Balco Investigation, Comprehensive Drug Testing, case and its ground breaking opinions.  They answered many previously unanswered questions regarding the operation of the plain view doctrine and appropriate limits and procedures for the execution for computer search warrants. The Baseball Players Association conducted anonymous testing in order to determine whether comprehensive drug testing should be imposed on the sport.  However, a search warrant issued for drug test results for specific athletes and promised to screen and limit the search of the computers to records of specific athletes through off site screening procedures.  The government rejected assistance on site to produce just the records that the government sought.  In fact, the case agent viewed all of the records under the theory that they were in "plain view."  Three separate district judges found the government acted in an outrageous fashion, executing general warrants.  Blair explained the appropriate limits and procedures that the Court held should have been followed instead.

Alexander Southwell explained the government's application of the Computer Fraud Abuse Act to the public's use of social networks in the context of the Laurie Drew case.  Drew had created a fake "my space" account culminating in the suicide of a young woman distressed by the postings from the fake site.  The government pressed charges for formation of a fake account, criminalizing the violation of the terms and conditions of a social network.  Drew was convicted and the court entered a judgment of acquittal from which the government has taken an appeal.  Therefore, the story has not been written on the sweep of the Computer Fraud Abuse Act (CFAA), 18 U.S.C. Section 1030.  He explained the difficulty of the criminal law to keep up with technology and the importance for criminal defense lawyers to push back when the government attempts to apply the criminal law to current social practices.

Marcia Hofmann working for the Electronic Frontier Foundation, a techie ACLU.  She encouraged defense lawyers to reach out to EFF when confronting technical issues in your criminal cases.  She discussed the evolution of the CFAA covering the cases that were the vehicles that expanded its use.  Her discussion opened eyes about conduct that was not traditionally addressed by the criminal law. 

AUSA Joey Blanch discussed child pornography in the age of the internet.  Cases are exploding and proliferating.  Every section of society in every walk of life ends up with people committing these crimes because people think they are anonymous on line.  Blanch told the white collar lawyers that they will have a client with a child pornography case and explained how it could arise. Importantly, she discussed the new child pornography offenses effective in October of 2009.  She also discussed the circuit split on the Mona Lisa defense.  One of the new crimes is the Child Pornography Enterprise offense which creates a 20 year mandatory minimum for participation in child pornography internet groups.  That was just the tip of the iceberg.

Using a hypothetical containing common real life circumstances the group guided the audience through what counsel should do in tough circumstances. 

(ceo)