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RE: [infoguys-list] An Interesting Article.....

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  • Jim Parker
    Yep, interesting indeed. However, although it s true that the Federal statute doesn t provide suppression of illegally obtained electronic evidence, many state
    Message 1 of 32 , Mar 1, 2007
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      Yep, interesting indeed.

      However, although it's true that the Federal statute doesn't provide
      suppression of illegally obtained electronic evidence, many state laws do.
      In Florida, for example, it would be a criminal act.

      Also, there may be invasion of privacy issues in disclosing the
      communications to neighbors, etc. (Disclosure of Private Facts - private or
      embarrassing facts revealed about an individual without relation to a
      legitimate public concern.)

      It will all depend on Amy's persistence and determination, but there's
      nothing like a scorned ex-spouse to ensure that if something bad can happen
      to you, it will.

      Jim



      -----Original Message-----
      From: infoguys-list@yahoogroups.com [mailto:infoguys-list@yahoogroups.com]
      On Behalf Of Ricky Gurley
      Sent: Thursday, March 01, 2007 10:43 AM
      To: infoguys-list@yahoogroups.com
      Subject: [infoguys-list] An Interesting Article.....


      For all of the people in the cyber-investigaitons communicty; you may find
      this news article of interest:

      ----------------------------------------------------------
      "Police blotter" is a weekly News.com report on the intersection of
      technology and the law.

      What: Husband uses keystroke logger to spy on wife's suspected relationship
      with another woman, who sues to prevent the records from being used in the
      divorce case.

      When: U.S. District Judge Thomas Rose in the southern district of Ohio rules
      on February 14.

      Outcome: Rose denies request for injunction preventing the electronic
      documents from being introduced as evidence in the divorce case.

      What happened, according to court documents:
      Once upon a time, tempestuous divorces might have included one spouse
      snooping through the other's private correspondence or eavesdropping on
      private conversations taking place in another room.

      That kind of snooping was, for the most part, entirely legal. But when the
      same kind of snooping happens in electronic form, it can be a federal crime.
      (Last year, Police Blotter covered the case of the Garfinkel divorce.
      Another case involving spyware arose a year
      earlier.)

      That doesn't seem to be the case here. Jeffery Havlicek filed for a divorce
      from his wife Amy Havlicek in Ohio's Greene County Common Pleas Court. Amy
      had been chatting through e-mail and instant messages with a woman named
      Christina Potter. Jeffery suspected that Potter and his wife, Amy, were
      romantically involved in a lesbian "relationship of some sort," his attorney
      would later say in a legal brief.

      Around that time, Jeffery installed some sort of monitoring software on the
      family computer--a Dell Precision 220 that was located in the guest room,
      was used by multiple family members including teenage children, and did not
      have a password on it most of the time. (There is disagreement about why the
      software was installed; Jeffery says it was in part because of his
      daughter's increased use of the Internet.)

      Jeffery has admitted this much. In a sworn affidavit (PDF), he said that he
      installed an unnamed monitoring utility in September 2005, three months
      before his wife moved out of their home. The affidavit said the utility
      "collects keyboard typing, screen shots, and requested access to Web
      sites...The keyboard typing utility logs the time and sequence of
      keystrokes...The screen shot logging feature is similar to hitting the
      'print screen' button on most keyboards. It saves an image of what appears
      on the monitor."

      He also admitted to downloading e-mail from his wife Amy's Web-based e-mail
      account, but claimed it was authorized because she had chosen to save her
      username and password through the browser's "remember me"
      feature.

      Now on News.com:
      Adobe to bring Photoshop online
      House panel grills Sirius CEO on XM merger NASA releases first photos of
      Jupiter from New Horizons
      Extra: $10 wok works as TV satellite dish
      Video: Tom Perkins: HP did not want independent directors In total, Jeffery
      has acknowledged compiling 80 keyboard and Web site log files in HTML
      format, over 2,000 individual screen snapshots in JPEG format, six video
      tapes, six audio tapes, and numerous other files including "24 electronic
      documents from diaries, love letters, etc."

      He planned to use that vast array of electronic evidence as ammunition to
      win his divorce case. Eventually his lawyer showed some of the
      correspondence between Amy Havlicek and Christina Potter to Amy's own
      attorney. In an affidavit (PDF), Potter claims that the correspondence was
      also shown to neighbors and a court-appointed custody evaluator "to harass,
      annoy, and inflict emotional injury on me."

      Potter, his wife's alleged paramour, responded by filing a federal lawsuit
      designed to shut Jeffery up. She asked for an injunction barring any
      "disclosure" or "dissemination" of the electronic documents, including
      preventing them from being used in the divorce case taking place in state
      court.

      The Electronic Communications Privacy Act, a federal law, was violated
      during the recording, Potter claimed. ECPA (18 USC Section
      2511) bans anyone from disclosing "to any other person the contents of any
      wire, oral, or electronic communication" that was obtained illegally.

      Potter lost. U.S. District Judge Thomas Rose said that ECPA does not permit
      courts to disallow such evidence, saying that appeals courts "have concluded
      that Congress intentionally omitted illegally intercepted electronic
      communications from the category of cases in which the remedy of suppression
      is available." He also rejected her request for a broader injunction, saying
      it would violate Jeffery's freedom of speech as protected by the First
      Amendment.

      Rose did say, however, that "disclosure of the information in state court by
      Jeffery Havlicek or his attorney" might be "actionable civilly or
      criminally." He suggested that the "remember me" option probably didn't give
      Jeffery an implied right to view his wife's e- mail messages. And he ordered
      Jeffery to provide Potter, his wife's alleged paramour, with the complete
      set of electronic evidence that he had planned to use in the divorce case.

      Excerpt from Rose's opinion:
      Because the suppression provision excludes illegally intercepted wire and
      oral communications from the courtroom, but does not mention electronic
      communications, several courts, including the Sixth Circuit, have concluded
      that Congress intentionally omitted illegally intercepted electronic
      communications from the category of cases in which the remedy of suppression
      is available.

      With this distinction in mind, the court finds that it does not have the
      authority to forbid the disclosure of the allegedly intercepted
      communications to the state official determining custody of the Havliceks'
      children or any other state court proceeding. This is not to imply, however,
      that disclosure of the information in state court by Jeffery Havlicek or his
      attorney might not be actionable civilly or criminally under 18 USC
      (Section) 2511. In any event, the court's inability to enjoin the
      presentation of this evidence in state court does not resolve the question
      of whether the injunction on disclosing this information in other context
      should issue. Therefore, the court will proceed to consider the
      appropriateness of relief in this case, beginning with plaintiff's chances
      of succeeding on the merits.

      Defendant's response to the motion for preliminary injunction claims that
      the keystroke recording and screen shot recording software do not record
      communications contemporaneously with the transmission of the
      communications. Contemporaneousness was an element originally introduced to
      18 USC (Section) 2511 when the law applied only to wire and oral
      communications...

      We conclude that the term "electronic communication" includes transient
      electronic storage that is intrinsic to the communication process for such
      communications. That conclusion is consistent with our precedent...

      Moreover, the court views the screen shot software as distinct from the
      keystroke software in regards to the interstate commerce requirement. In
      contrast to the keystrokes, which, when recorded, have not traveled in
      interstate commerce, the incoming emails subjected to the screen shot
      software have traveled in interstate commerce. Additionally, there is no
      evidence before the court to allow any conclusion that the technical aspects
      of the instant case result in Potter's claim being defeated by a lack of
      contemporaneousness, even if the court were to find this element
      necessary...

      Defendant raises another hurdle to success on the merits, however, by
      referring to the case of United States v. Ropp, which focuses on the
      requirement in 18 USC (Section) 2510(12) that the interception be of an
      interstate or foreign communication or be of a communication affecting
      interstate commerce. Ropp notes that keystroke software records the entirely
      internal transmission from the keyboard to the CPU, and records all
      keystrokes, whether they initiate signals destined to travel in interstate
      commerce or not. The decision, however, seems to read the statute as
      requiring the communication to be traveling in interstate commerce, rather
      than merely "affecting"
      interstate commerce. It seems to this court that the keystrokes that send a
      message off into interstate commerce "affect" interstate commerce...

      Because the ECPA does not provide for the relief of suppression of illegally
      intercepted electronic communications sought to be used as evidence in a
      court case, and because a balancing of plaintiff's impending irreparable
      harms and the public interest in the requested injunction against
      plaintiff's likelihood of success on the merits of her claims weighs in
      favor of not granting the requested injunction, plaintiff's motion for
      preliminary injunction, Doc. 16, is denied.
      ----------------------------------------------------------
      URL: http://news.com.com/2100-1030_3-6163368.html?part=rss&tag=2547-
      <http://news.com.com/2100-1030_3-6163368.html?part=rss&tag=2547->
      1_3-0-5&subj=news

      Rick.

      Risk Management Research & Investments, Inc.
      "He Who Forgets, Will Be Destined To Remember"

      MAIL BOX: 2101 W. Broadway PMB 326, Columbia, MO. 65203 OFFICE ADDRESS: 607
      N. Providence, Columbia, MO. 65203

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      RMRI-Inc@... <mailto:RMRI-Inc%40mchsi.com>

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      http://rmriinc.blogspot.com/ <http://rmriinc.blogspot.com/>
    • Vicki Siedow
      I m here for you, Jimmy! ;) Vicki Siedow Siedow & Associates Investigations & Legal Support Services 2629 Foothill Blvd. #262 La Crescenta, CA 91214 Los
      Message 32 of 32 , Mar 2, 2007
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        I'm here for you, Jimmy! ;)

        Vicki Siedow
        Siedow & Associates Investigations
        & Legal Support Services
        2629 Foothill Blvd. #262
        La Crescenta, CA 91214
        Los Angeles County
        CA PI License # 22852
        800.448.6431 toll free
        818.242.0130 local
        818.688.3295 fax
        <http://siedow.lawandorder.com/> http://Siedow.LawAndOrder.com
        <mailto:Siedow@...> Siedow@...
        Member NCISS, IWWA

        Need economical legal help?
        Concerned about Identity Theft?
        Check the links on my site, or contact me directly.



        _____

        From: infoguys-list@yahoogroups.com [mailto:infoguys-list@yahoogroups.com]
        On Behalf Of Jim Parker
        Sent: Friday, March 02, 2007 7:30 AM
        To: infoguys-list@yahoogroups.com
        Subject: RE: [infoguys-list] An Interesting Article.....



        <<<< when I auto store a pw, does that imply that i give the world
        permission to access the program?...i would think not.. >>>>

        Dammit!

        First it was Rick Gurley, then Sue Sarkis, and now me and Tom Eskridge are
        agreeing with one another. Pretty soon I'm going to have no one left to
        fight with.

        :o)

        -----Original Message-----
        From: infoguys-list@ <mailto:infoguys-list%40yahoogroups.com>
        yahoogroups.com [mailto:infoguys-list@
        <mailto:infoguys-list%40yahoogroups.com> yahoogroups.com]
        On Behalf Of Thomas Eskridge
        Sent: Thursday, March 01, 2007 7:14 PM
        To: infoguys-list@ <mailto:infoguys-list%40yahoogroups.com> yahoogroups.com
        Subject: RE: [infoguys-list] An Interesting Article.....

        As to florida and I know there is virtually identical in California.the
        reasonably question is of course, when I auto store a pw, does that imply
        that i give the world permission to access the program?...i would think
        not..

        The 2006 Florida Statutes

        815.06 Offenses against computer users.--

        (1) Whoever willfully, knowingly, and without authorization:

        (a) Accesses or causes to be accessed any computer, computer system, or
        computer network;

        Much more redacted for this email..

        815.03 Definitions.--As used in this chapter, unless the context clearly
        indicates otherwise:

        (1) "Access" means to approach, instruct, communicate with, store data in,
        retrieve data from, or otherwise make use of any resources of a computer,
        computer system, or computer network.

        (2) "Computer" means an internally programmed, automatic device that
        performs data processing.

        (3) "Computer contaminant" means any set of computer instructions designed
        to modify, damage, destroy, record, or transmit information within a
        computer, computer system, or computer network without the intent or
        permission of the owner of the information. The term includes, but is not
        limited to, a group of computer instructions commonly called viruses or
        worms which are self-replicating or self-propagating and which are designed
        to contaminate other computer programs or computer data; consume computer
        resources; modify, destroy, record, or transmit data; or in some other
        fashion usurp the normal operation of the computer, computer system, or
        computer network.

        (4) "Computer network" means any system that provides communications between
        one or more computer systems and its input or output devices, including, but
        not limited to, display terminals and printers that are connected by
        telecommunication facilities.

        (5) "Computer program or computer software" means a set of instructions or
        statements and related data which, when executed in actual or modified form,
        cause a computer, computer system, or computer network to perform specified
        functions.

        (6) "Computer services" include, but are not limited to, computer time; data
        processing or storage functions; or other uses of a computer, computer
        system, or computer network.

        (7) "Computer system" means a device or collection of devices, including
        support devices, one or more of which contain computer programs, electronic
        instructions, or input data and output data, and which perform functions,
        including, but not limited to, logic, arithmetic, data storage, retrieval,
        communication, or control. The term does not include calculators that are
        not programmable and that are not capable of being used in conjunction with
        external files.

        (8) "Data" means a representation of information, knowledge, facts,
        concepts, computer software, computer programs, or instructions. Data may be
        in any form, in storage media or stored in the memory of the computer, or in
        transit or presented on a display device.

        (9) "Financial instrument" means any check, draft, money order, certificate
        of deposit, letter of credit, bill of exchange, credit card, or marketable
        security.

        (10) "Intellectual property" means data, including programs.

        (11) "Property" means anything of value as defined in 1s. 812.011 and
        includes, but is not limited to, financial instruments, information,
        including electronically produced data and computer software and programs in
        either machine-readable or human-readable form, and any other tangible or
        intangible item of value.

        History.--s. 1, ch. 78-92; s. 9, ch. 2001-54.

        Copyright C 1995-2006 The Florida Legislature . Privacy
        <http://www.leg
        <http://www.leg.state.fl.us/cgi-bin/View_Page.pl?File=privacy.html&Directory
        > state.fl.us/cgi-bin/View_Page.pl?File=privacy.html&Directory
        <http://www.leg
        <http://www.leg.state.fl.us/cgi-bin/View_Page.pl?File=privacy.html&Directory
        > state.fl.us/cgi-bin/View_Page.pl?File=privacy.html&Directory
        >
        =welcome/&Location=app&Tab=info_center&Submenu=4> Statement . C
        <http://www.leg
        <http://www.leg.state.fl.us/cgi-bin/View_Page.pl?File=contact.html&Directory
        > state.fl.us/cgi-bin/View_Page.pl?File=contact.html&Directory
        <http://www.leg
        <http://www.leg.state.fl.us/cgi-bin/View_Page.pl?File=contact.html&Directory
        > state.fl.us/cgi-bin/View_Page.pl?File=contact.html&Directory
        >
        =Info_Center/help/&Location=app&Tab=info_center&Submenu=4>

        Tom Eskridge, Chief Operations Officer

        High Tech Crime Institute

        28100 US Hwy 19 N, suite 204

        Clearwater Florida 33761

        727-499-7215

        888-300-9789

        www.gohtci.com

        _____

        From: infoguys-list@ <mailto:infoguys-list%40yahoogroups.com>
        yahoogroups.com <mailto:infoguys-list%40yahoogroups.com>
        [mailto:infoguys-list@ <mailto:infoguys-list%40yahoogroups.com>
        yahoogroups.com
        <mailto:infoguys-list%40yahoogroups.com> ] On Behalf Of Bob Hrodey
        Sent: Thursday, March 01, 2007 5:37 PM
        To: infoguys-list@ <mailto:infoguys-list%40yahoogroups.com> yahoogroups.com
        <mailto:infoguys-list%40yahoogroups.com>
        Subject: Re: [infoguys-list] An Interesting Article.....

        Jim Parker, wrote the following at or about 3/1/2007 4:06 PM:
        > <<<< The webmail account is more troubling than the computer, at least
        > it is in my mind. The computer with shared usage, lack of password,
        > etc. is fair game. >>>>
        >
        > Just because something takes place in cyberspace doesn't make it "fair
        > game". There is no special privilege accorded to legally protected
        > communications solely on the basis of where the communication took
        > place, except of course conversations that are directed at the public.
        > The communications between Amy and Christina were clearly intended to
        > be private, otherwise, Amy wouldn't be suing now.
        >
        >
        > <<< You help yourself to the mail, read my bank statements, etc. What
        > law have you broken? >>>
        >
        > Probably none, but there's a big difference between something that is
        > in plain sight and something that you have to 'break in' to steal. If
        > a baker drops the key to his bakery on the way to his car, that
        > doesn't imply authority for you to use the key to enter the premises
        > and eat all his
        pies.
        >
        This analogy is flawed by the fact that Jeffrey & Amy both had access to the
        computer. He didn't break in to access it, he had every right (unless you
        can show me to the contrary in the article) to access it. I don't know where
        this webmail account was situated but I'm looking at this - probably more
        generously than I should but to play the devil's advocate... - as a
        situation where Jeffrey goes into the computer, looks at the web history and
        sees www.womeninsensibleshoes.com. He clicks that link and goes to the site.
        Lo and behold there's a link there for "Sexymail" He clicks on that and
        since Amy is too lazy to enter her user ID and password each time, he clicks
        on it. Wowsa! The list of emails and subject content is right before his
        eyes. That's why I liken this to scanning the mail sitting unprotected on my
        table by a person who has every right to be where he/she is.

        I contend that there is absolutely no question, under the facts outlined
        above, that Jeffrey has done nothing wrong up to that point. It only starts
        to get runny when he clicks on that email to read it and whether or not it
        rises to the level of a crime under these particular circumstance is
        questionable, that's all that I'm saying.

        There is no break-in as you refer to with the bakery or unlocked car since
        both parties have lawful access and use of the computer. If she had not used
        "remember me" we would not be having this discussion. But she did and so we
        will and, likely, just have to agree to disagree.

        Wanna take this private before we get assaulted by the gruesome twosome?

        >
        > <<< I'm not going to argue the moral issue with you. We both consider
        > it wrong but... illegal? >>>>
        >
        > Oh, but moral principals apply to the law too.

        Agreed

        --
        Enjoy,

        Bob
        __________________________________________________________
        Hrodey & Associates Established 1977
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