In United States v. Clarke, the Second Circuit ventured once more into the thicket of internet crime, tangling with statutory interpretation and discovery issues complicated by their technological setting. The panel (Walker, Leval, Carney) gave an expansive read to a child pornography statute, ruling that the defendant “transported” child pornography through an online peer-to-peer network, even though the government moved the files from the defendant’s computer, and the defendant was not aware of the file transfer. In addition, the panel refused the defendant’s discovery request for inspection of law enforcement software based on the facts presented here, and declined to announce a standard for future cases involving similar law enforcement programs. The panel also rejected a bevy of challenges relating to the sufficiency of the evidence and the reasonableness of the sentence, to ultimately affirm the judgment of the district court.
In United States v. Gasperini, the Court (Cabranes, Lynch, Carney) resolved various challenges by Fabio Gasperini, an Italian citizen, to his conviction under the Computer Fraud and Abuse Act of 1986 (“CFAA”). Gasperini was convicted following an elaborate hacking scheme in which he exploited a “backdoor” of certain internet-connected devices around the globe to seize control of the devices, used the compromised devices to search for other vulnerable devices to grow his computer army, and then unleashed his “botnet” of over 155,000 machines to generate “ad click” revenue and launch distributed denial-of-service attacks. Gasperini was ultimately arrested in the Netherlands and tried in the Eastern District of New York.
Law Enforcement Permitted To Obtain GPS Location Data Without A Warrant In A Sex Trafficking Investigation
In United States v. Gilliam, 15-387, the Second Circuit (Newman, Winter, Cabranes) held that, under the exigent circumstances present in that case, law enforcement could use cell phone GPS data to locate a suspect without obtaining a warrant consistent with both the Stored Communications Act and the Fourth Amendment. This appeal presents one of many unanswered questions arising out of cellphone technology. While cellphones are far from new, there are still some questions about how cellphone data can be used in investigations and at trial.
In United States v. Caraballo, 12-3839-cr (L) (August 1, 2016) (Calabresi, Lynch, Lohier), the Court held that “exigent circumstances”—here, suspicion of involvement in a recent murder and potential danger to law enforcement—justified a warrantless “pinging” of defendant’s cell phone to determine his location. The Court accordingly affirmed the district court’s denial of defendant’s motion to suppress statements he made after police located him through a series of “pings” executed by his cell phone carrier.
In United States v. Stavros Ganias, 12-240, the Second Circuit, in a rare en banc ruling jointly written by Judges Livingston and Lynch, sidestepped a complicated Fourth Amendment issue related to the government’s retention of files from a hard drive outside the scope of a warrant, and instead affirmed the defendant’s conviction on the ground that, regardless of whether there was a Fourth Amendment violation, the government reasonably relied in good faith on a later warrant to search those files. The en banc holding reversed the decision of a divided Second Circuit panel that came down nearly a year ago, which reversed the district court’s denial of the motion to suppress and vacated the judgment of conviction. All of the judges on the Court, except for Judge Chin, either joined in the opinion or concurred in the result. The novel and important question raised in this appeal—whether the government can retain electronic files collected pursuant to a search warrant and later search those files for a separate purpose, pursuant to a second search warrant—will need to be addressed in another case or by Congress.