Article: computer crimes



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Id. at 2011 (rejecting the application of the "reasonable person" standard of tort law to criminal law for the analysis of how posts would be understood by a reasonable person to be genuine threats).



n81 Eugene Volokh, The Supreme Court Doesn't Decide When Speech Becomes a Constitutionally Unprotected "True Threat," WASH. POST, June 1, 2015, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/01/the-supreme-court-doesnt-decide-when-speech-becomes-a-constitutionally-unprotected-true-threat/.


n82 See Ashcroft v. Free Speech Coal., 535 U.S. 234, 234-39 (2002). But see United States v. Williams, 553 U.S. 285, 293 (2008).


n83 Reno v. ACLU, 521 U.S. 844, 878-84 (1997).


n84 Id. at 868-69.


n85 See id. at 880.


n86 Id. at 870.

n87 Id. at 872-73. Content discriminations among different types of obscenity or child pornography would likely be subject to strict scrutiny. Cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 387 (1992) (subjecting content discrimination among different types of fighting words to strict scrutiny).



n88 47 U.S.C. § 231 (2012).


n89 ACLU v. Mukasey, 534 F.3d 181, 184 (3d Cir. 2008) (affirming the district court's conclusions that COPA was impermissibly overbroad and vague and not narrowly tailored to advance the government's compelling interest in protecting children from sexually explicit material on the Internet);ACLU v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007).


n90 Telecommunications Act of 1996, Pub. L. No. 104-104, Title V, §§ 501-561, 110 Stat. 56, 133-43 (codified at 18 U.S.C. §§ 1462, 1465, 2422 (2012) and at scattered sections of 47 U.S.C.).


n91 47 U.S.C. § 223(a)(1)(B) (2012).


n92 Id. § 223(d).

n93 Id. § 223(a)(1)(B).



n94 521 U.S. 844, 863-66 (1997) (holding that the CDA violates the First Amendment because it: (a) chills free speech; (b) criminalizes legitimate protected speech; (c) must be narrowly tailored as it regulates a fundamental freedom; (d) regulates the content of speech so time, place, and manner analysis is inapplicable; and (e) is unconstitutionally overbroad).


n95 See id. at 872-73 (citing Miller v. California, 413 U.S. 15, 18 (1973) (permitting states to ban obscene speech to ensure the general welfare of their citizens)).


n96 47 U.S.C. § 223(a).


n97 U.S.S.G. MANUAL § 2G3.1(b)(1)(C).


n98 Id. § 2G3.1(b)(1)(E).


n99 Id. § 2G3.1(b)(1)(A).

n100 Id. § 2G3.1(b)(4).


n101 Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, § 121, 110 Stat. 3009, 3009-26 (amending 18 U.S.C. §§ 2241, 2243, 2251, 2252, 2256, 42 U.S.C. § 2000aa, and adding 18 U.S.C. § 2252A).


n102 18 U.S.C. §§ 2252A, 2256 (2012).


n103 See id. § 2256(8)(C).


n104 Ashcroft v. Free Speech Coal., 535 U.S. 234, 234 (2002) (finding §§ 2256(8)(B) and 2256(8)(D) overbroad and unconstitutional).

n105 Id. (noting that § 2256(8)(B) "bans a range of sexually explicit images, sometimes called 'virtual child pornography,' that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology").



n106 Id. A person who possesses virtual child pornography and advertises it as actual child pornography, however, may be prosecuted. See United States v. Williams, 553 U.S. 285, 293 (2008).


n107 Pub. L. No. 108-21, 117 Stat. 650.


n108 See id. § 503.


n109 535 U.S. 234 (2002) (striking down provisions of the CPPA as overbroad in abridging a significant amount of lawful speech).


n110 Williams, 553 U.S. at 303.

n111 Tatyana Shcherbakova et al., Spam and Phishing in Q3 2015, SECURELIST (Nov. 12, 2015), https://securelist.com/analysis/quarterly-spam-reports/72724/spam-and-phishing-in-q3-2015/ (noting that the average amount of spam in email was 54.19% from April to September 2015). In comparison, the average amount of spam in email in 2012 was 72.1%. Darya Gudkova, Kaspersky Security Bulletin: Spam Evolution 2012, SECURELIST (Jan. 21, 2013), http://www.securelist.com/en/analysis/204792276/Kaspersky_Security_Bulletin_Spam_Evolution_2012.



n112 The Dark Side of Social Media, NEXGATE (DEC. 23, 2015), http://nexgate.com/blog/the-dark-side-of-socialmedia; 2013 State of Social Media Spam, NEXGATE (2013), http://nexgate.com/wp-content/uploads/2013/09/Nexgate-2013-State-of-Social-Media-Spam-Research-Report.pdf (finding social media spam rose 355% in the first half of 2013); see also Tim Worstall, Spammers Make $ 200 Million Out of Facebook, FORBES (Aug. 29, 2013), http://www.forbes.com/sites/timworstall/2013/08/29/spammers-make-200-million-out-of-facebook/.


n113 Pub. L. No. 108-187, 117 Stat 2699 (codified at 15 U.S.C. §§ 7701-7713 and 18 U.S.C. § 1037 (2012)) [hereinafter THE CAN-SPAMACT].

n114 Jeffrey D. Sullivan & Michael B. De Leeuw, Spam After CAN-SPAM: How Inconsistent Thinking Has Made a Hash Out of Unsolicited Commercial E-Mail Policy, 20 SANTA CLARA COMPUTER & HIGH TECH. L.J. 887, 888 (2004).



n115 For a CAN-SPAM compliance guide see FED. TRADE COMM'N, THE CAN-SPAM ACT: A COMPLIANCE GUIDE FOR BUSINESS at 2 (Sept. 2009), http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guidebusiness; see also Rachel Lerner, Best Practices for Running an Electronic Marketing Program, (May 8, 2014), http://ps-law.com/best-practices-running-electronic-marketing-program/.


n116 18 U.S.C. § 1037 (2012).


n117 Id. § 1037(a)(1).

n118 Id. § 1037(a)(2); see United States v. Simpson, 741 F.3d 539, 551 (5th Cir. 2014) (affirming the defendant's conviction for aiding and abetting the transmission of spam under § 1037(a)(2) where the defendant hid spam from service providers and provided server information to an employee who had indicated that he wanted it to send spam).



n119 Id. § 1037(a)(3); see United States v. Kilbride, 584 F.3d 1240, 1257 (9th Cir. 2009) (upholding defendants' convictions under § 1037(a)(3) where defendants, in the headers of their bulk emails, intentionally replaced the email addresses from which the emails were sent with fictitious addresses).


n120 Id. § 1037(a)(4).


n121 Id. § 1037(d)(2).


n122 Id. § 1037(a)(4); see Kilbride, 584 F.3d at 1257-58 (upholding defendants' convictions under § 1037(a)(4) where defendants intentionally place a false contact person and phone number in the domain name registration, which constitutes intentionally decreasing the ability of a recipient to locate and contact the actual registrant).

n123 Id. § 1037(a)(5).



n124 Id. § 1037(d)(3).


n125 15 U.S.C. § 7704 (a)(5), (d)(1) (2012).


n126 See THE CAN-SPAM ACT, supra note 113 (explaining the range of fines and criminal penalties for violations of the CAN-SPAMAct).


n127 Id.


n128 Id. But see Jaynes v. Commonwealth, 666 S.E.2d 303, 313 (Va. 2008) (striking down state statute criminalizing the falsification of email addresses sending unsolicited emails because it was not narrowly tailored to the compelling state interests, as laid out in the federal CAN-SPAM Act, of preserving the efficiency and convenience of email).

n129 Brandenburg v. Ohio, 395 U.S. 444, 449 (1969).



n130 Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-72 (1992).


n131 See HATE SPEECH, supra note 74 (explaining that harassing speech must do more than simply anger or distress to lose constitutional protection).


n132 See id. ("U.S. law does not recognize the notion of 'harassment' directed at a general class of persons.").


n133 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 347, 349 (1974). Apublic official, however, must still prove actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 281 (1964).

n134 See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995); Matthew Mazzotta, Note, Balancing Act: Finding Consensus on Standards for Unmasking Anonymous Internet Speakers, 51 B.C. L. REV. 833, 833 (2010).


n135 Mazzotta, supra note 134, at 839. Anonymous speakers have also been sued for using corporate names as online pseudonyms, registering internet domain names of trademarked corporations, reporting suspected illegal corporate activities to a trade industry website, and sending emails and other electronic communications. Id. at 840; see e.g., Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128, 130-31 (D.D.C. 2009) (analyzing comments about and responses to plaintiff's video posted on Youtube.com); Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231, 234-35 (Ct. App. 2008) (analyzing comments about plaintiff corporation executive posted on financial website). Recently, new social media platforms, like Yik Yak, have brought the collision of anonymous speech and cyber-bullying to the popular press. See, e.g.,Will Haskell, A Gossip App Brought My High School to a Halt, NEWYORK MAGAZINE (Apr. 28, 2014), http://nymag.com/thecut/2014/04/gossip-app-brought-my-high-school-to-a-halt.html; Caroline Moss, Here's What You Need to Know About Yik Yak--The Anonymous Gossip App Wreaking Havoc On High Schools Everywhere, BUSINESS INSIDER (May 5, 2014), http://www.businessinsider.com/what-is-yik-yak-2014-5.



n136 Mazzotta, supra note 134, at 840.


n137 See McIntyre, 514 U.S. at 342 ("[A]n author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of the publication, is an aspect of freedom of speech protected by the First Amendment."); see also Marian K. Riedy & Kim Sperduto, Revisiting the "Anonymous Speaker Privilege," 14 N.C. J. L. & TECH. 249, 251 (2012).

n138 If the anonymous speech has a political element, it will likely be protected under the First Amendment. See McIntyre, 514 U.S. at 342 (striking down an Ohio statute prohibiting distribution of anonymous campaign literature, noting that the First Amendment affords the broadest protection to political expression). However speech on impending attacks of violence or terror is not protected. In Alabama, two teenagers were reportedly charged with making terroristic threats after using Yik Yak to announce forthcoming shootings at local high schools. See Caroline Moss, Here's What You Need to Know About Yik Yak--The Anonymous Gossip App Wreaking Havoc On High Schools Everywhere, BUSINESS INSIDER, May 5, 2014, http://www.businessinsider.com/what-is-yik-yak-2014-5. Similarly, if the speech is related to a copyright infringement suit, rather than defamation, the plaintiff usually has a lower burden to overcome in order to uncover evidence from anonymous actors. See Legal Protections for Anonymous Speech, DIGITAL MEDIA LAW PROJECT, http://www.dmlp.org/legalguide/legal-protections-anonymous-speech (last visited Mar. 7, 2016) (citing Sony Music Entertainment v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004) (holding that peer-to-peer filing sharing "qualifies as speech, but only to a degree"). Courts also usually apply a different test if seeking to use the anonymous actor as a witness rather than uncovering the defendant. See id. (citing McVicker v. King, No. 02:09-cv-00436, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010)).



n139 See Riedy & Sperduto, supra note 137, at 255 (citing In re Anonymous Online Speakers, 661 F.3d 1168, 1176-77, 1178 (9th Cir. 2011)).


n140 United States v. Jones, 132 S. Ct. 945, 958 (2012) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)); see also United States v. Miller, 799 F.3d 1097, 1102 (D.C. Cir. 2015); Lavan v. City of L.A., 693 F.3d 1022, 1027-28 (9th Cir. 2012).

n141 Florida v. Jardines, 133 S. Ct. 1409, 1417 (2013) (citing United States v. Jones, 132 S. Ct. 945, 950 (2012)); Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring) (creating the two prong test). The Fourth Amendment also prohibits obtaining information by physically intruding on a constitutionally protected area. Jardines, 133 S. Ct. at 1417.



n142 Kyllo v. United States, 533 U.S. 27 (2001) (citing Katz, 389 U.S. at 360 (Harlan, J., concurring)).

n143 United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007) (holding that individuals have a legitimate, objectively reasonable expectation of privacy in their home computers);


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