MAY- JUNE 2006 CYBER CRIME NEWSLETTER

Issue 18 News Highlights in This Issue: Table of Contents Features: Search Warrant Language for Cell Phones 2

AGs Fighting Cyber Crimes Laws to Stop Illegal Online Gambling Urged by 49 AGs 5 AG Suthers Attends Spring of Child Solicitation Bill Florida AG Announces Child Predator Sentenced AG Madigan’s Task Force Apprehends Child Predator Major ISPs Unite to Create Database With NCMEC 17 Massachusetts AG Sues Online Gun Dealers AG Cox Announces Arrest of Child Predator Mississippi AG Announces Sentencing of Child Predator Hawaii Legislature Approves Wiretapping Law 23 AG Chanos Announces Arrest of Online ID Thief New Jersey AG Visits Schools on Internet Safety Day AG Madrid’s ICAC Unit Arrests Child Predator New York AG Sues Firm for Installing Spyware Maryland Commercial Electronic Mail Act Upheld 10 AG Petro Unveils Internet Safety Web Page Pennsylvania AG’s Unit Makes Child Sex Ring Arrests AG Myers Files AVC in Unauthorized Web Use Case Online Child Pornography Publication Available 26 South Carolina AG Announces Child Predator Arrest AG Abbott’s Unit Obtains Guilty Plea From Predator Virginia AG Announces Child Pornography Arrest AG McKenna Settles First Can-Spam Suit Windows to Have Free Child Monitoring Software 18 In the Courts 9 Iowa AG’s Subpoena of Customer Disk Relevant Indiana’s Data Security Law Becomes Effective 24 Employee Using Trace Remover Tools Can Be Sued Subpoena Required to Obtain Cell Phone Tracking Data Maryland Spam Law Upheld as Constitutional ISP Has Standing to Enforce CAN-SPAM Act Search Warrant Required to Get Cell Site Data 9 Membership in Pornography Sites Gives Probable Cause Digitally Altered Pornography Clause Overbroad Using Internet Satisfies Interstate Commerce Element Supreme Court Denies Review of Yahoo! Case 16 Arizona Law Requires Solicitation of Minor or Officer Use of Police Decoy Sufficient to Convict Predator Negligence Claim for Failure to Encrypt Dismissed GPS Monitoring of Predator Law Effective in Virginia 24 Being Offended by Web Site Insufficient for Standing ISP Archiving Doesn’t Give Rise to Infringement Using DC-Based ISP Conveyed Personal Jurisdiction Placing Identifying Data Online is Not Surveillance Pornography Subscription Provides Probable Cause 10 Financial Supporters of a Web Site Can Be Anonymous

U.S. Supreme Court Watch 15 Reports Finds Cyber Blackmailing Attempts Increasing 21 Courts Must Use Equity Test in Infringement Cases Cert Denied in Falwell Trademark Infringement Suit Court Denies Review of Yahoo! Jurisdiction Case Powerpoint Slides on Identity Theft Available 26 News You Can Use 17 FTC Tells ICANN That Whois Databases Essential ISPs Unite to Build Database With NCMEC Use of Decoy Sufficient in Child Predator Probe 13 Survey: Cyber, Not Physical, Crime Greatest Threat Attacks on Desktop and Web Applications Rising Microsoft to Include Free Child Monitoring Software Pennsylvania Initiates First E-Notarization Program 21 AOL to Offer Free E-Mail Options to Nonprofits ICANN Plans to Test Non-English Domain Names Spyware Watchdog Group Names Kazaa as Violator DC Seeks Wireless System That Gives Access to Poor Colorado Enacts Online Predator Legislation 24 Paper Claims Chips in RDID Tags Can Carry Virus Majority Wants Banks to Monitor Online Banking US Ranked First in Global IT Study Sponsored Links Most Likely to Contain Spyware 22 Government CIOs Say Security is Top Priority Report: Most Americans Are Anti-Surveillance Researchers Tell Why Phising Scams Still Work Cyber Blackmail Attempts Increasing in 2006 Florida Legislature Mandates AG Cyber Crime Unit 24 Pennsylvania Becomes First E-Notarization State Number of Americans Gambling Online Doubles Hate Groups Prefer Using U.S. Servers Subpoena of Investigated Company’s Customers OK 9 Sponsored Links Most Likely to Contain Spyware

Publications You Can Use 23 Virginia Bans Web Sties Facilitating Child Pornography 24 Legislation Update 23

Research Paper Outlines Why Phising Scams Work 21 Tools You Can Use 26

Hold The Date 26

The Cyber Crime Newsletter is developed under the Cyber Crime Training Partnership between the National Association of Attorneys General (NAAG) and the National Center for Justice and the Rule of Law (NCJRL) at the University of Mississippi School of Law. It is written and edited by Hedda Litwin, Cyber Crime Counsel ([email protected], 202-326-6022).

This project was supported by Grant No. 2000-DD-VX-0032 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office of Victims of Crime. Points of view or opinions in this document are those of the authors and do not represent the official position of the United States Department of Justice.

The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services. Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications.

In the interest of making this newsletter as useful a tool as possible for you, we ask that you keep us informed of your efforts. Additionally, we would like to feature articles written by you. Please contact us with information, proposed articles and comments about this newsletter. Thank you.

SEARCH WARRANT LANGUAGE FOR The first step in obtaining records from a cellular CELLULAR PHONES service provider is to identify the provider. A cellular phone carrier can be queried directly to by Robert Morgester, Deputy Attorney ascertain if they provide service to a known General, Special Crimes Unit Office of the number. The North American Numbering Plan California Attorney General Administration also tracks the numbers that have been assigned to service providers Cellular phones have become the virtual (http://www.nationalnanpa.com ). Since a cellular biographer of our daily activities. It tracks who phone number may now be ported (transferred) by we talk to and where we are. It will log calls, take a consumer to another cellular service provider, pictures, and keep our contact list close at hand. law enforcement should make a number porting In short, it has become an indispensable piece of check. Law enforcement may sign up for the evidence in a criminal investigation. service at (http://www.nationalpooling.com/forms/law/index Want to know where your suspect was last .htm). Saturday? The cellular service provider can provide you with the location information of the The second step in obtaining records from a cellular phone as it relates to the provider=s cellular service provider is a preservation request network. What about the last person your victim to "freeze" stored records and communications called? Both the cellular phone and the cellular pursuant to 18 U.S.C. ' 2703(f). Many cellular provider will keep a record of this. How about service providers maintain records for only a short finding gang member photos associated with their period of time. This request can be used as a gang moniker? It will be located within their directive to third-party providers to preserve cellular phones. records and not disclose the investigation to the suspect. This is an important tool to use to prevent Information relating to a cellular phone will be third-party providers from writing over or deleting found in two places Bin the phone itself and in the data you need while you obtain a warrant. records possessed by the cellular service provider. Currently there are no laws that govern how long The following is offered to provide guidance on a third-party provider must retain logs or other drafting a search warrant for the production of information. Sample preservation orders can be records maintained by the cellular provider. found on cdaa.org. 2

It is also recommended that you contact the G) Physical address of cell sites and RF cellular service provider to ascertain the type and coverage map nature of records kept and any special terms or definitions that the carrier uses to describe those Note: Needed to determine where cell site is records. Any request for records should be located when you receive inbound & outbound or limited to only the records that are needed. Do call origination & termination location. The RF not request all of the categories of records listed coverage map models the theoretical radio unless it is truly needed for your case. Cellular frequency coverage of the towers in the system. phone records can be described in the warrant as You will want to limit this request to a specified follows: geographical area.

A) Subscriber information H) Any other cellular telephone numbers that dial the same numbers as (xxx) xxx-xxxx Note: This should give you the name, address, phone numbers, and other personal identifying Note: If you want to know who calls the same information relating to the subscriber. number the target calls (for example a pager or landline number). Available for only a limited B) Account comments time (45 days).

Note: Anytime the provider has contact with the I) Subscriber information on any cellular customer or modifies the customer's account, a numbers that (xxx) xxx-xxxx dials notation will be made by a service representative on the account. Note: Subscriber information on the carrier's network that is dialing the target. C) Credit information J) All of the above records whether Note: Most providers run a credit report on a possessed by cellular service provider [target of customer prior to activating the account. warrant] or any other cellular service provider

D) Billing records Note: If you anticipate the suspect may be roaming or if the number is roaming in the Note: Do not ask for toll information; that is a provider=s market, you may be able to obtain landline term for long distance. Specify information from other cellular carriers if you period desired. include this language in your description of records. E) Outbound and inbound call detail K) All stored communications or files, Note: This is the real time, current activity that is including voice mail, email, digital images, buddy not yet on the customer's bill. "Inbound" is lists, and any other files associated with user usually available for only a limited time (45 days). accounts identified as: account(s) xxxxxx, mobile numbers (xxx) xxx-xxxx, or e-mail account F) Call origination / termination location [email protected]. Note: Available for a limited time (45 days) and gives location information on cell sites used, Note: Cellular service providers now offer length of call, date, time, numbers dialed. With a similar services to an internet service provider GPS enabled phone, it gives location of phone. (ISP)and maintain the same type of records such as text messaging, e-mail, and file storage for the transfer of data including digital pictures. Limit your request to what you need. 3

L) All connection logs and records of user N) PUK for SIM card # ______activity for each such account including: Subscriber Identity Module (SIM) is a smart card 1. Connection dates and times. inside of a GSM cellular phone that encrypts 2. Disconnect dates and times. voice and data transmissions and stores data 3. Method of connection (e.g., telnet, ftp, about the specific user so that the user can be http) identified and authenticated to the network 4. Data transfer volume. supplying the service. The SIM also stores data 5. User name associated with the such as personal phone settings specific to the connections. user and phone numbers. 6. Telephone caller identification records. 7. Any other connection information, such as SIM cards can be password protected by the user. the Internet Protocol address of the source of the Even with this protection SIM cards may still be connection. unlocked with a personal unlock key (PUK) that is 8. Connection information for the other available from the service provider. Note that computer to which the user of the after ten wrong PUK codes, the SIM card locks above-referenced accounts connected, by any forever. means, during the connection period, including the destination IP address, connection A search warrant for the production of records time and date, disconnect time and date, held by a cellular service provider should always method of connection to the destination computer, include an order for non-disclosure. The cellular and all other information related to the service provider will notify the customer of the connection from cellular service provider. search warrant unless there is a non-disclosure order. This order will delay notification for 90 Note: The above is a standard request made to days and can be extended for an additional 90 ISP to track connection information. Remember days. (See California Public Utilities Commission with the type of cellular service offered today the decision No. 93361 (7/21/1981).) A non- user can send a message from the phone or from disclosure order may be phrased as follows: the associated account via a computer or other access device. ORDER FOR NON-DISCLOSURE OF SEARCH WARRANT M) Any other records or accounts, including archived records related or associated to the It is further ordered that cellular service provider above-referenced names, user names, or not notify any person (including the subscriber or accounts and any data field name definitions that customer to which the materials relate) of the describe these records. existence of this order for 90 days in that such a disclosure could give the subscriber an Note: This is the catch all to use when you want opportunity to destroy evidence, notify everything. This request also includes Aarchived@ confederates, or flee or continue his flight from information. Many companies now Aarchive@ prosecution. records thus allowing for the preservation of subscriber records for a significant time. Now that we have listed what records we are Archived records are usually stored in a spread seeking, probable cause must be shown in the sheet format encompassing a variety of data affidavit for each of the listed items. The fields. You must request the data field name following is sample language justifying the need definitions in order to understand the spreadsheet. for the production of specified records that can be used as a starting point for drafting the search warrant affidavit:

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A) Through experience and training, your Finally, a word of caution. If you use the cellular affiant knows cellular service providers maintain subscriber records to attempt to determine the records related to subscriber information, physical location of an individual=s position, there account registration, credit information, billing are a couple of questions that must be answered. and airtime records, outbound and inbound call detail, connection time and dates, Internet routing The question is call overloading. When the information (Internet Protocol numbers), and maximum call processing capacity of a specified message content that may assist in the cell tower is reached it may be designed to hand identification of person(s) accessing and utilizing off calls to other cell towers. Thus, a tower that the account. the records reflect handled a call may have off- loaded the call to another cellular tower. The B) Through experience and training, your cellular provider will be able to check the cellular affiant knows that the cellular service provider traffic on a specified cellular tower to determine maintains records that include cell site whether or not any calls were off loaded. information and GPS location. Cell site information shows which cell site a particular Second question is whether the records reflecting cellular telephone was within at the time of the the placement of a specified cellular tower=s cellular phone's usage. Some model cellular directional antenna is accurate. Occasionally the phones are GPS enabled which allows the cellular provider may make adjustments to the provider and user to determine the exact cellular towers directional antenna that are not geographic position of the phone. Further, the reflected in the records. Since the physical cellular service provider maintains cell site location of an individual=s position will be based maps that show the geographical location of all upon this directional antenna, its placement cell sites within its service area. Using the cell should be confirmed prior to trial. site geographical information or GPS information, officers would be able to determine the physical location of the individual using the cell phone number (xxx) xxx-xxxx, which according to corroborating sources listed above was/is in use by the suspect.

It is also recommended that you include within the affidavit the authority that allows a search warrant to be served by facsimile (fax) for the production of records maintained outside of California.

A) Your affiant is aware that cellular service provider is located within the State of ______. Pursuant to Penal Code section 1524.2 and Corporations Code section 2105 a California search warrant may be served upon them and they have requested that this warrant be served by facsimile to the attention of ______at (xxx) xxx-xxxx.

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AG INITIATIVES

ATTORNEYS GENERAL FIGHTING CYBER of Indecent Solicitation of a Child, a Class three CRIME felony, punishable by a maximum of five years in the state Department of Corrections. Following the arrest, the ICAC task force and the Winfield police COLORADO executed a search warrant at Murphy’s home and seized his computer. Attorney General John Suthers joined Governor Bill Owens on June 7, 2006 when the MASSACHUSETTS Governor signed HB 1011, which makes online child solicitation a felony. The bill was drafted by Attorney General Tom Reilly sued three Attorney General Suthers’ office and is the Internet dealers, accusing them of selling stun guns, cornerstone of his Safe Surfing Initiative. which are prohibited in Massachusetts. The dealers, Personal Protection Outlet of North Port, Florida; FLORIDA Unique Wholesale, Inc. of Kissimmee, Florida; and We Care Company of Coppell, Texas sold their Attorney General Charlie Crist announced products through auction site eBay. As a result of that Daniel Zankman received the maximum the suit, eBay implemented more extensive sentence of 15 years in prison following his warnings to sellers and buyers of stun guns, and will conviction for lewd and lascivious battery on a child void auctions where the seller is in Massachusetts. under 16 years of age. A joint investigation by Attorney General Crist’s Office of Statewide MICHIGAN Prosecution, the Polk County Sheriff’s Office and the Orange County Sheriff’s Office found that Attorney General Mike Cox announced Zankman seduced a 14-year-old girl that he met on that Scott Dykstra was arrested for using the the Internet. Investigators then posed as a second Internet to attempt to accost and solicit a minor for 14-year-old girl whom Zankman tried to seduce, immoral purposes. Dykstra was charged with four telling the “girl” details of his encounter with the counts of using a computer to commit this crime, first girl in order to establish his experience with which is a 10-year felony. girls her age. Authorities then executed a search warrant on Zankman’s home and found numerous MISSISSIPPI child pornography images, resulting in additional charges still pending. The case was prosecuted by Attorney General Jim Hood announced the Office of Statewide Prosecution and the Ninth that Paul Valentine, a former church youth minister, Circuit State Attorney’s Office. will serve 20 years in prison after pleading guilty to two counts of sexual battery and touching a ILLINOIS teenager for lustful purposes by a person in a position of trust. Attorney General Hood’s cyber Attorney General Lisa Madigan’s Internet crimes unit strengthened the case against Valentine Crimes Against Children (ICAC) task force assisted by gathering the e-mail dialogues between the Winfield Police Department in apprehending Valentine and the child, which began one year William Murphy, who allegedly traveled to a park before any sexual encounters occurred. to have sex with a minor after meeting her online in a chat room. Murphy was charged with one count

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NEVADA NEW YORK

Attorney General George Chanos announced that Attorney General Eliot Spitzer sued Direct Monesha Carter was arrested on charges of theft Revenue LLC, an Internet pop-up advertising and identity theft in connection with the fraudulent company, accusing the firm of secretly installing sale of items via the Internet. An investigation by malicious programs on personal computers and Attorney General Chanos’ Bureau of Consumer sending ads through “spyware” that is already Protection found that Carter allegedly obtained installed. The civil lawsuit alleges that Direct money from purchasers responding to her Revenue or its distributors offered free games, advertisements on the Internet that offered items for browsers or software without mentioning that they sale. The victims sent money to Carter and received would come with VX2, Aurora, OfferOptimizer and nothing in return. The state alleges that Carter other adware downloads that thwarted consumers’ defrauded her victims out of $3,379. Carter is also removal attempts and often reinstalled themselves. charged with one count of felony Identity Theft. OHIO NEW JERSEY Attorney General Jim Petro unveiled a Attorney General Zulima V. Farber new “Internet Safety and Cyber Predator” page on joined Acting Education Commissioner Lucille E. his web site to help parents and educators learn Davy in visiting several schools on Internet Safety what they can do to protect children from Internet Day to help draw attention to the risks posed to safety threats. The page includes tips and detailed young people on the Internet and to offer tips to advice, as well as a resource page with links to tools students, teachers and parents on safe use of the such as i-SAFE and NetSmartz. Internet. PENNSYLVANIA NEW MEXICO Attorney General Tom Corbett’s Child Attorney General Patricia Madrid’s Predator Unit arrested Donald Unkefer, Brian Internet Crimes Against Children (ICAC) Unit Gostic, Brian Nolt and Bradley Doyle during an arrested Jeramie Dante, who is charged with one Internet “child sex sting” operation. In separate count of fourth degree Child Solicitation by incidents, each man used Yahoo.com chat rooms to Computer. An ICAC agent posing as a 12-year-old contact and sexually proposition an undercover girl received a series of sexually explicit messages agent from the Unit. The agent was using the during an online chat on the Yahoo! Instant undercover online identity of a minor-aged girl. messaging service from Dante using the screen name of “wiccanprince1982.” Dante disclosed his OREGON age and the area where he lived and sent photographs of himself. When Dante failed to keep Attorney General Hardy Myers filed an scheduled appointments with the “girl,” ICAC Assurance of Voluntary Compliance with agents confirmed his identity and address by westcoastwagers.net over the site’s unauthorized matching the photographs he sent to motor vehicle use of the Oregon Food Bank’s name in text records. Special agents from the ICAC Unit served message solicitations. The messages claimed a $5 a search warrant on his home where they were able contribution would be made to the Oregon Food to match items in his apartment to items in the Bank for each new player to register with photographs he sent. He was arrested, taken into westcoastwagers.net. Domain name owner Iosif custody and is being held on $50,000 bond. Skorohodov paid Attorney General Myer’s office $5,000 in restitution and investigative costs and

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agreed to abide by Oregon laws governing VIRGINIA charitable solicitations in the future. Attorney General Bob McDonnell announced the SOUTH CAROLINA arrest of Thomas Taveggia for violations of his suspended sentence for 10 counts of reproducing Attorney General Henry McMaster child pornography. The court suspended his announced that agents of the State Law sentence on the condition that he not “access a Enforcement Division (SLED) arrested Bradley computer with Internet access.” Attorney General Coen for Criminal Solicitation of a Minor, a felony McDonnell’s Computer Crime Unit filed a motion offense punishable by up to 10 years imprisonment. to revoke his suspended sentence, alleging that he SLED is a member of Attorney General accessed a computer with Internet access and McMaster’s Internet Crimes Against Children Task viewed pornography on that same computer. The Force. According to the arrest warrant, Coen Richmond Police Department and Richmond City solicited sex over the Internet from a person he Sheriff’s Office participated in the arrest. believed to be a 14-year-old girl but who in reality was a SLED agent. A search warrant executed at WASHINGTON Coen’s home resulted in the seizure of a computer and related items. His bond has been set at Attorney General Rob McKenna $100,000. Members of the U.S. Secret Service, the announced a settlement with the owners of two FBI, the Lexington County Sheriff’s Office and the California companies in the state’s first anti-spam West Columbia Police Department took part in the lawsuit filed under a 2004 federal law. The suit operation. Attorney General McMaster’s office will against AvTech Direct, a marketing firm, charged prosecute the case. the company with sending more than 1,500 unsolicited e-mail messages marketing desktop TEXAS computers to Seattle Public Schools employees. AvTech, which also operates under the name Attorney General Greg Abbott’s Cyber Educational Publishing Services, advertised the Crimes Unit obtained a guilty plea and a three-year computers for MD&I, which then assembled and prison sentence for Rodney Harris, a former shipped them to consumers. AvTech owner Gary restaurant manager, who attempted to meet a child Hunziker agreed to pay $500,000 in civil penalties for sex. Harris pled guilty to online solicitation of a and $10,000 in restitution to the School District. minor, a third degree felony that carries a possible Arlene Sediqzad, an AvTech manager, also agreed punishment of two to 20 years in state prison and a to pay $10,000 in attorney’s costs, as well as a fine of up to $10,000. He will also be required to judgment of $180,000 that was suspended on register with the state as a sex offender. Prosecutors condition that she comply with the terms of the from Attorney General Abbott’s office assisted settlement. MD&I and its owner, Min Hui Zhao Gregg County District Attorney Bill Jennings in the agreed to pay $10,000 to resolve claims. case. Harris was arrested after he arranged a meeting for sex with a person who he thought was a 13-year-old girl but actually was an undercover investigator for Attorney General Abbott’s Unit. His arrest was part of an undercover sweep of two counties by Unit investigators.

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IN THE COURTS

SEARCH AND SEIZURE: if there is no employment contract or INVESTIGATIVE SUBPOENAS company policy that prohibits the use of trace remover programs. Citrin, an State of Iowa v. dotNow.com, Inc., No. employee of IAC who decided to leave 5-977/04-0708 (Iowa Ct. App. March 1, the company, deleted files on his 2006). In an unpublished opinion, the company laptop and then used a special court affirmed a district court ruling program to scrub the files, rendering granting the Attorney General’s them impossible to recover. The application for an order enforcing an company sued under the anti-hacking investigative subpoena issued pursuant statute, but the district court dismissed to the state Consumer Fraud Act. The the case, holding that deleting material defendant ISP had argued that the state from a computer did not constitute unreasonably sought a disk containing “transmission” under the law. its customers in order to run its own randomization program and “go FOURTH AMENDMENT: CELL fishing,” but the state contended that PHONE TRACKING identifying customers who have had contact with an investigated business is In re Application of the United States of key to an investigative inquiry. The America for an Order Authorizing the court agreed with the state, finding that Release of Prospective Cell Site the randomness of a sampling of dotNow Information, 2006 WL 41229 (D.D.C. customers was relevant to the 2006). The magistrate denied an investigation. application by the U.S. Attorney’s office for an order authorizing a cellular COMPUTER FRAUD AND ABUSE telephone company to provide “cell-site ACT: FILE DELETION data” revealing the location of a suspected narcotics trafficker when his International Airports Centers v. Citrin, phone was turned on. Since no statute 440 F.3d 418 (7th Cir. 2006). In one of directly addresses the standards for a the few appellate interpretations of the court’s issuance of such an order, Computer Fraud and Abuse Act, the 7th prosecutors argued that the court had Circuit reversed the district court and authority through a combination of the adopted an expansive view of the law by pen register statute, which governs the applying it to employees' use of trace ability to obtain the numbers dialed from remover tools on the laptops assigned to a telephone, and the Stored them by their employers. In a Communications Act, which permits the unanimous ruling, the court held that an government to obtain computerized employee of a company who is provided records from the provider about a a laptop computer by that company, and telephone’s usage, including subscriber who uses a trace remover tool on that information. They contended that laptop, may be sued civilly, or location information did not constitute prosecuted criminally, for that act, even the content of a communication, which

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by statute would require a warrant, but CAN-SPAM ACT: STANDING AND was equivalent to identifying KNOWLEDGE information, analogous to telephone numbers and subscriber information. Hypertouch, Inc. v. Kennedy-Western The court did not buy the analogy, University, No. 3:04-cv-05203-SI (N.D. finding that existing statutes did not Cal. March 8, 2006). The district court cover locating information, and therefore granted summary judgment on behalf of the government would have to obtain a Kennedy-Western (KWU), an search warrant and demonstrate probable unaccredited online educational cause before locating a target through institution, in a lawsuit brought by cellular telephone signals. Hypertouch, a small California ISP and frequent CAN-SPAM plaintiff, which SPAM LAWS: DORMANT claimed that e-mails promoting KWU COMMERCE CLAUSE violated the CAN-SPAM Act. The first issue was whether Hypertouch qualified Beyond Systems, Inc. v. Keynetics, Inc., as an “Internet access provider” to have 2006 WL 687156 (D. Md. 2006). standing to privately enforce CAN- The district court upheld the Maryland SPAM. The court found that Commercial Electronic Mail Act. Hypertouch qualified because it The statute was challenged by Beyond maintains its own e-mail servers and Systems, an out-of-state advertising provides accounts to users, even though network, which argued that the statute those accounts are free of charge. violated the dormant commerce clause Additionally, since KWU had argued of the U.S. Constitution. Plaintiff that the e-mails were sent by third party Keynetics was an ISP who sued web site e-mail marketers and that KWU didn’t operators claiming they were generating know they were spamming, the second unsolicited commercial e-mails in issue was whether KWU had the violation of the Maryland Anti-Spam requisite scienter to be liable. Although statute. The court held that the benefits Hypertouch had argued that KWU to ISPs and users in reducing strains on directly monitored the e-mail campaign, systems and irritation from clutter the court accepted KWU’s argument created by unwanted messages clearly denying knowledge of the spamming. outweighed any burdens on interstate commerce, and that in enacting the SEARCH AND SEIZURE: CAN-SPAM, Congress expressly PROBABLE CAUSE accorded states the right to regulate false and misleading e-mail transmissions. U.S. v. Gourde, No. 03-30262 (9th Cir. The court relied on Washington v. March 9, 2006). An en banc panel Heckel, 24 P.3d 404 (Wash. 2001), in concluded that police officers may which the Washington Supreme Court search computer hard drives for child upheld that state's nearly identical anti- pornography if the computer owners spam statute against a dormant subscribe to web sites selling those commerce clause challenge. images. FBI agents became aware of “Lolitagurls.com,” a web site selling Internet access to child pornography, with credit card payment to be made through a company called Lancelot

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Security. Agents subpoenaed Lancelot’s of children or digitally altered images of records and learned that Micah Gourde adults to make them look like children. was an active member. An agent then As part of an undercover operation obtained a warrant to search Gourde’s aimed at combating online child residence and computer for child exploitation, Secret Service Agent pornography. The affidavit alleged that Timothy Devine entered an Internet Gourde was a collector of child “chat” room and engaged Williams in a pornography based upon his membership private Internet chat, during which in a subscription-only web site that Williams sent Devine a computer featured child pornography. It further hyperlink containing child pornography. explained that, according to the FBI’s Agents subsequently executed a search Behavioral Analysis Unit, most warrant of Williams’ home, finding child collectors of child pornography rarely pornography on the computer hard dispose of their collections, and even if drives. Williams was charged with one Gourde had “deleted” some files, they count of promoting or “pandering” were not actually erased but kept in material intended to cause another to “slack space” until randomly believe it contains child pornography, as overwritten. Agents executed the well as one count of possession of child warrant and found more than 100 images pornography. Williams filed a motion to of child pornography on Gourde’s dismiss the pandering charge on the computer. Gourde contended that the grounds that this provision of the warrant was invalid because the affidavit PROTECT Act was unconstitutionally failed to show that he had actually overbroad and vague. While the motion downloaded or possessed child was pending, a plea agreement was pornography. However, the court ruled reached whereby Williams would plead the circumstantial evidence satisfied the guilty to both counts but reserve his right test for probable cause because it to appeal the pandering charge. He was demonstrated a “fair probability” that sentenced to sixty months’ imprisonment child pornography would be found on for each charge to be served Gourde’s computer. concurrently. The appeals court found that the pandering provision abridges the PROTECT ACT: DIGITALLY freedom to engage in a substantial ALTERED CHILD amount of lawful speech and was thus PORNOGRAPHY unconstitutionally overbroad. It also found that the provision failed to outline U.S. v. Michael Williams, No. 04-15128 its restrictions with sufficient clarity to (11th Cir. April 6, 2006). An 11th Circuit enable compliance. Williams’ sentence panel unanimously struck down as too on the pandering count was reversed. broad or vague part of the PROTECT The court’s ruling also rendered that Act, a federal law prohibiting the provision of the PROTECT Act offering or advertising of material unenforceable in the 11th Circuit, which presented as child pornography. The covers Florida, Georgia and Alabama. section that the court struck down was Section 2252A(a)(3)(B), which expands child pornography to include images that are not necessarily sexual images of children but either are innocuous images

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CHILD PORNOGRAPHY: ONLINE CHILD ENTICEMENT: STATUTORY CONSTRUCTION REPORTER POSING AS MINOR

U.S. v. MacEwan, No. 05-1421 (3rd Cir. Mejak v. State, No. CV-05-0299-PR April 5, 2006). The Third Circuit found (Ariz. May 24, 2006). The Arizona that the use of the Internet satisfies the Supreme Court unanimously decided interstate commerce element of the that state law requires a person charged federal law prohibiting the receipt of with the crime of soliciting sex from a child pornography, 18 U.S.C. juvenile to have solicited either a §2252A(a)(2)(B). MacEwan was juvenile or a police officer. Television charged with three counts of receiving reporter Lisa Fletcher, pretending to be a material containing child pornography in 13-year-old girl, engaged in an online violation of the above statute, two of conversation in a chat room with Jeremy which involved the Internet. MacEwan Mejak of New York as part of a news pled guilty to the count that did not investigation to show how the Internet involve the Internet and went to trial on can be used to solicit minors for sex. the remaining counts. At trial, although Mejak, believing her to be a teen, set up admitting that he downloaded a meeting to have sex with her and was pornographic images, he argued that the instead met by video cameras. Phoenix government could not establish that, in police subpoenaed the video tapes and compliance with the interstate commerce Fletcher’s laptop, and the county jurisdictional element of the statute, attorney took the case to the grand jury, there was an interstate transmission of securing an indictment on a charge of the pornographic images. He contended luring a minor for sexual exploitation. that the images could have traveled Mejak pled guilty and was sentenced to interstate and thus were beyond the lifetime probation to be served in New reach of Congress under the Commerce York. However, the New York state Clause. MacEwan was acquitted of one probation system would not accept the count on different grounds and found terms of the probation, and the plea guilty on the other. On appeal, the agreement was set aside. Mejak filed a Third Circuit affirmed MacEwan’s motion to dismiss, which was denied by conviction on two counts of violating 18 the trial court. He appealed, first to the U.S.C. §2252A(a)(2)(B). The court Arizona Court of Appeals and then to concluded that the Internet is “a channel the state Supreme Court. Prosecutors and instrumentality of interstate argued it was sufficient that Mejak commerce” and that Congress can believed the person solicited was a regulate the downloading of child minor, but Mejak successfully argued pornography under §2252A(a)(2)(B), that no minor was involved and the even if the transmission never crossed supposed juvenile was a reporter, not a state lines. Because the defendant had police officer. admitted that he downloaded images from the Internet, there was sufficient ONLINE CHILD ENTICEMENT: evidence for the trier of fact to find the USE OF GOVERNMENT DECOY interstate-commerce-jurisdiction element under the statute. U.S. v. Tykarsky, No. 04-4092 (3rd Circ. May 10, 2006). The court determined that when a government agent poses as a

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minor online in an attempt to catch third party hired by the bank to print offenders who participate in “actual or mortgage statements. Two customers attempted persuasion of a minor to whose information was on the stolen engage in illicit sexual activity” (18 computers filed suit, alleging breach of U.S.C. § 2422(b)) or in “traveling for the contract, breach of fiduciary duty and purpose of engaging in illicit sexual negligence. To date there had been no activity (18 U.S.C. § 2423(b)), indication that the stolen information involvement of a minor is unnecessary, had been accessed or misused. The so long as the offender believes the court found no present injury or victim to be a minor. Tykarsky engaged reasonably certain future injury. in explicit sexual discussions with a government decoy through Internet chat ESTABLISHMENT CLAUSE: rooms and instant messaging, requesting STANDING pictures and setting up a sexual encounter with the undercover agent, Caldwell v. Caldwell, No. C 05-4166 who posed as a 14-year-old girl. When (ND Cal. March 13, 2006). The court Tykarsky arrived at the planned meeting, granted defendant’s motion to dismiss, he was arrested and later convicted. On finding that being “offended” by a web appeal, Tykarsky argued that he could site is insufficient to give rise to injury not be convicted of either statute because for purposes of standing. Plaintiff had no minor was involved. The court, sued two University of California looking at legislative intent in § 2422(b), officials, alleging that a web site determined that the inclusion of the maintained by the University’s Museum “attempt” provision indicated that the of Paleontology includes statements that involvement of a minor was show the University’s preference for unnecessary. The court reached the religions whose views do not conflict same conclusion regarding § 2423(b), with evolution, in violation of the First but based its decision on the plain Amendment’s Establishment Clause. language of the statute, noting that Thus, the court did not reach the merits involvement of a minor was not an of the Establishment Cause claim. element. Consequently, the court affirmed Tykarsky’s convictions; COPYRIGHT INFRINGEMENT: however, his sentence was vacated due ISP ARCHIVING to an ex post facto error. Parker v. Google, Inc., 2006 WL DATA SECURITY: NEGLIGENCE 680916, (ED Pa., March 10, 2006). The court dismissed a lawsuit filed by a Forbes v. Wells Fargo Bank, N.A., No. writer who claimed the search engine 05-2409 (D.Minn. March 13, 2006). infringed upon his copyright by The district court granted the bank’s automatically archiving his posting on motion for summary judgment because USENET and providing excerpts from plaintiffs failed to show damages his web site in their search results. The supporting their negligence claim arising court disagreed, finding that under case from the bank’s alleged failure to law, Google’s activities are akin to an encrypt customer’s personal data. ISP, and when an ISP automatically and Computers loaded with unencrypted temporarily stores data so that the customer information were stolen from a system can operate and transmit data to

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its users, the necessary element of Mitchell, Council’s administrator, which volition is absent. was denied, and a cross-petition was filed. A series of orders and contempt COPYRIGHT INFRINGEMENT: orders ensued, with the trial court PERSONAL JURISDICTION finding that Trummel’s continual posting of activities at Council House Virgin Records America, Inc. v. Does 1- constituted “surveillance,” and Trummel 35, Slip Copy, 2006 WL 1028956 was restricted from posting the (D.D.C. April 18, 2006). The district information about Council House court ruled that it had personal personnel on the Internet. Trummel jurisdiction over an out-of-state file appealed, claiming that his Internet sharer because the defendant offered activity was constitutionally protected. sound recordings to the public and was The appeals court upheld the order, but able to download recordings made the state high court found that the trial available by others. Virgin Records court abused its discretion because the America sued 35 John Doe defendants term “surveillance” is not broad enough for copyright infringement relating to to encompass the activity of placing music traded over P2P networks. identifying information under the facts Defendant #18, who was identified by of the case. his ISP Verizon, filed a motion to dismiss the case for lack of personal FREEDOM TO ASSOCIATE: WEB jurisdiction, arguing he did not have SITE FINANCIAL DISCLOSURE sufficient contacts with the District of Columbia. The court held that, by Matthews v. City of Maitland, 2006 WL simply contracting with Verizon, a 733966 (Fla. App. 5 Dist. March 24, “District of Columbia-based ISP,” and 2006). The appeals court reversed a trial using a Verizon facility to trade files, court order and found that financial defendant #18 was “transacting supporters of a web site are entitled to business” in the District. remain anonymous. Michael and Joan Matthews believed that the city of FREEDOM OF SPEECH: Maitland did not follow proper INTERNET POSTINGS procedures when it approved the development of a high rise structure. Trummel v. Mitchell, 131 P. 3d 305 They filed a lawsuit challenging the (Wash. March 30, 2006). The state development, and started a web site Supreme Court reversed the appeals through which supporters could donate court, finding that the trial court’s order funds. During discovery, neither prohibiting Trummel from posting Michael nor Joan would disclose the information on his web site was invalid. names of contributors to the site. The Paul Trummel began feuding with city filed a motion to compel them to Council House, the low-income turn over the names, which was granted residence where he lived. He posted his by the trial court. The appellate court, complaints on his web site, as well as the however, noted the chilling effect that names and home addresses and phone could occur if supporters of political numbers of the administrators. Trummel causes who wished to remain petitioned the trial court for an anti- anonymous risked being revealed in harassment order against Stephen litigation, particularly in the instant case,

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where the names of supporters were not binding courts to issue permanent relevant to the underlying dispute. injunctions against patent infringement Citing the Supreme Court decision in “absent exceptional circumstances.@ NAACP v. Alabama, 357 U.S. 449 (1959) which held that the NAACP did The Supreme Court reversed. In not have to disclose the names of its an opinion written by Justice Clarence members because to do so would violate Thomas, the Court noted that injunctive the members’ right to freedom of relief is equitable in nature and that the assembly, the appeals court found on historical four-factor test for granting an similar grounds that supporters of the injunction requires a showing that (1) the litigation against the city could remain moving party has suffered an irreparable anonymous. injury; (2) remedies available at law are inadequate to compensate for that injury; U.S. SUPREME COURT WATCH (3) considering the balance of hardships between the parties, a remedy in equity OPINION ISSUED: is warranted; and (4) the public interest would not be disserved by a permanent eBay, Inc. v. MercExchange, LLC, No. injunction. The Court concluded that 05-130 (May 15, 2006) those principles also apply to patent infringement cases, and the district court The Court unanimously held that must determine whether to grant or deny when deciding whether to grant a relief. permanent injunction in a patent infringement case, courts must utilize the According to the Court, both the four-part test traditionally applied by district court and the Federal Circuit courts of equity to evaluate the failed to correctly apply those principles. appropriateness of injunctive relief The district court erred in finding that a generally. Petitioners eBay and plaintiff who was willing to license its Half.com operate Internet web sites patents, but did not use its own patents whereby private sellers can sell commercially, was not entitled to merchandise by auction or at a fixed injunctive relief. The Federal Circuit price. MercExchange, a patent holding erred in granting injunctive relief in all company, holds a patent for a “buy-it- cases where infringement was a factor. now” feature that would facilitate the The Court did not decide whether online sale of goods. After unsuccessful MercExchange was entitled to an attempts to license its patent to eBay and injunction, but remanded the case to the Half.com, MercExchange filed suit in district court to apply the four factor the U.S. District Court for the Eastern test. District of Virginia, alleging patent infringement. A jury found that CERTIORARI DENIED: MercExchange had a valid patent and that eBay and Half.com had infringed Lamparello v. Falwell, No. 04-2011 (4th the patent. The jury awarded damages, Cir. August 24, 2005) and MercExchange then moved for permanent injunctive relief, which the The Court denied without court denied. The Federal Circuit comment to hear a dispute over a web reversed, using the Ageneral rule” site criticizing televangelist Jerry Falwell

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for his anti-gay views. Christopher process rights under the Fifth and Lamparello, identified in the pleadings Fourteenth Amendments. The court as a gay man in his 30s, registered granted the defendant’s motion to Fallwell.com in 1999 to show his dismiss, concluding that Yanaki’s aversion to Falwell’s stance. After pleadings did not support the element of several years of demanding in writing state action required in a § 1983 claim. that Lamparello take the site down, On appeal, the Tenth Circuit affirmed, Falwell, who operated the site finding that the plaintiff did not meet the falwell.com, filed suit in U.S. District “color of law” test because the conduct Court for the Eastern District of Virginia complained of could only be attributed claiming trademark infringement. That to private defendants. court ruled in favor of Falwell, barring Lamparello from using the intentionally La Ligue Contre Le Racisme Et misspelled site and ordering him to L’Antisemitisme v. Yahoo! Inc., No. 05- transfer it to Falwell. On appeal, a three- 1302 (9th Cir. January 12, 2006) judge panel of the Fourth Circuit reversed, finding that Lamparello’s site The Court declined was completely different from that of consideration of whether Yahoo! Inc. Falwell’s and did not create enough could use U.S. courts to resolve an “likelihood of confusion” to give rise to international dispute over its display of trademark infringement. Nazi memorabilia. A French judge had ordered Yahoo to remove Nazi Yanaki v. Parr, Waddoups, Brown, Gee paraphernalia from its site, yahoo.com, & Loveless, No. 05-940 (10th Cir., July and had proposed a fine of 26, 2005) approximately $15 million for running an auction site in which users could buy The Court declined to review the and sell items banned in France. Yahoo Tenth Circuit’s opinion that an employer contested the decision in the U.S. did not act “under color of law” and thus District Court for the Northern District did not violate the Constitution when it of California, seeking declaratory obtained an order to search a former judgment that the French court’s order employee’s home and computer. Iomed, was unenforceable. That court found the Inc. filed a complaint in Utah state court order unenforceable in the United States against Yanaki, a former employee, because it would violate Yahoo’s free alleging misappropriation of trade speech rights under the First secrets and breach of a confidentiality Amendment. On appeal, the Tenth agreement. Iomed obtained an ex parte Circuit dismissed the case in a 99-page order directing local police to execute a opinion for lack of ripeness. Although it search warrant of Yanaki’s home and lost, Yahoo did not appeal. Instead, two seize all hard drives and electronic French associations filed a petition for storage media. Yanaki filed a civil certiorari, arguing that the ruling would rights suit in the U.S. District Court for allow Yahoo to try to use U.S. courts to the District of Utah under 42 U.S.C. § avoid foreign judgments. Yahoo, which 1983, alleging that the search violated was not forced to pay the fine, filed no his Fourth Amendment right to be free arguments in the Supreme Court. from unreasonable search and seizure and his procedural and substantive due

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NEWS YOU CAN USE

FTC RESPONDS TO PROPOSED common formula. Each participating WHOIS LIMITS ISP would scan its users’ images for matches. Although each ISP will set its The Federal Trade Commission own procedures on how it uses the (FTC) issued a statement saying that database, the partnership will allow them access to the Whois databases was to exchange their best ideas and critical to law enforcement agencies ultimately develop preventive tools. around the world. Whois databases are online information directories that SURVEY: CYBER CRIME contain contact information about web GREATER THREAT THAN site operators. The statement was in PHYSICAL CRIME response to a recommendation by one of the advisory boards of the Internet Chief information officers see cyber Corporation for Assigned Names and crime as a greater threat than physical Numbers (ICANN) that access to Whois crime, according to an International data be limited to use for “technical Business Machines (IBM) survey of 600 purposes only.” That ICANN report can U.S. manufacturing, financial, health be accessed at care and retail businesses. Of those http://gnso.icann.org/issues/whois- surveyed, 57 percent said they are losing privacy/tf-report-15mar06.htm. more money due to cyber crime than from conventional crime, through lost ISP GROUP TO BUILD DATABASE income, loss of current and potential TO COMBAT CHILD PORN customers and decreased employee productivity. The survey also found Five major Internet service providers that 84 percent believed that criminal (ISPs) joined forces to jointly build a hacker groups are increasingly replacing database of child pornography images, lone hackers as cyber crime perpetrators. as well as develop other tools to help law However, 83 percent of respondents said enforcement prevent distribution of the they were well prepared to combat images. The participants are Time organized cyber crime, with 73 percent Warner Inc.’s AOL, Yahoo Inc., reporting they had upgraded their Microsoft Corp., EarthLink Inc. and antivirus software and 69 percent having United Online Inc., the company behind upgraded their firewalls. Two thirds NetZero and Juno. They pledged a total were implementing intrusion detection of one million dollars to set up a or prevention technologies, while 53 technology coalition as part of the percent were implementing patch National Center for Missing and management systems on their networks. Exploited Children (NCMEC). Plans In addition to the U.S. survey, call for NCMEC to collect known businesses from 16 foreign countries, images and create a unique mathematical including the United Kingdom, were signature for each one based on a surveyed with similar results.

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THREAT REPORT: MORE also plans to eventually allow parents to DESKTOP AND WEB ATTACKS control who communicates with their children through e-mail, messaging and Cyber attackers are continuing to move in their blogs. away from broad attacks on firewalls and routers and are now targeting AOL TO PAY COSTS FOR desktop and web applications, according NONPROFITS’ E-MAIL to the ninth volume of Symantec Corporation’s semiannual Internet America Online (AOL) will offer Security Report, one of the world’s most nonprofit organizations that want to send comprehensive sources of Internet threat e-mail to AOL members two new free e- data. The report, which covers the mail options that have many of the period from July 1, 2005 to December features, including images and web 31, 2005, also said that viruses, worms links, of the company’s premium service and Trojans that can unearth information designed for commercial mass e-mail. from a user’s computer rose six percent The first new service, the Enhanced up to 80 percent of the top 50 malicious White List, is for nonprofits that meet software code threats in the last half of AOL’s anti-spam and e-mail 2005. Additionally, phishing threats requirements, and AOL expects to continued to increase, and a phishing complete tests of the service within 30 attempt was made in every 119 days. Unlike certified e-mail, messages processed e-mail messages, translating sent via the Enhanced White list will not into an average 7.92 phishing attempts be marked as “certified.” The second per day. The report also cited a growing offering, to be ready in 30 days, will threat from robot, or “bot,” networks allow nonprofits to use a third party e- used to launch attacks on computer mail service to authenticate their systems, now up to 1,402 denial of messages. Such services charge a flat, service attacks per day utilizing bots. nonrecurring fee, which AOL has The full report is available on promised to pay. www.symantec.com. Ed. Note: In our March-April 2006 MICROSOFT TO OFFER FREE issue, we reported that a consortium of CHILD MONITORING SOFTWARE non-profit and public interest groups, including Move.On.org, the AFL-CIO, Gun Owners of America and the Microsoft Corp. plans to include free Electronic Frontier Foundation, had software to help parents monitor the protested the plan by AOL and Yahoo to online activities of their children in its charge a fee for guaranteed delivery of upcoming Windows Live offering of bulk e-mails. web services. Windows Live Family Safety Settings is currently scheduled to launch in the summer of 2006, and will ICANN TO TEST NON-ENGLISH allow parents to filter web sites and DOMAIN NAMES receive reports of what their children are doing online. Microsoft already offers a The Internet Corporation for Assigned similar service under its subscription- Names and Numbers (ICANN) outlined based MSN premium. The company a plan for testing domain names in non- English characters in response to a

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change sought by Asian and Arabic winning company will receive an Internet users. The tentative timetable exclusive, eight-year franchise to attach calls for tests to begin in the second half wireless devices to District-owned street of 2006 which would seek to ensure that lights and buildings. It will also get non-English suffixes would not affect some access to the District’s private the current global addressing system. fiber optic network free of charge to The Internet’s current directories use carry wireless traffic toward the Internet. only the 26 letters of the English According to government officials, no language, the 10 numerals and the tax dollars will be involved. Bidding hyphen. companies may submit plans for where they would build the network, how they WATCHDOG GROUP NAMES would charge paying customers and KAZAA AS VIOLATOR what speeds will be offered. The District will not mandate the technology StopBadware.org, a corporate-backed bidders must propose and will give watchdog group that monitors software bidders the option of serving low income for deceptive and abusive practices, residents with landline Internet access named Kazaa, a widely used file-sharing rather than a wireless system. However, program, as a violator of its guidelines in the District plans to require that low its first report. The report said that income residents receive a minimum Kazaa misleadingly advertises itself as speed of 500 kilobits per second spyware-free, does not completely downstream. remove all components from the uninstall process, interferes with PAPER: CHIPS IN ID TAGS CAN computer use and makes undisclosed CARRY VIRUS modifications to other software. The group, which was started by researchers A group of European researchers from Harvard and Oxford universities, affiliated with the computer science also named a video download manager department at Vrije Universiteit in distributed by Movieland.com, a Amsterdam have demonstrated how it is spyware removal program from possible to insert a software virus into SpyAxe.com and Waterfalls 3 by radio frequency identification (RFID) Screensaver.com. StopBadware.org tags. The tags are part of a microchip- receives funding from Google Inc., Sun based technology used in commercial Microsystems Inc. and Chinese and security applications. The computer manufacturer Lenovo Group researchers, led by Andrew Tanenbaum, Ltd. an American computer scientist, presented a paper entitled “Is Your Cat DC TO FIND WIRELESS Infected With a Computer Virus?” at the INTERNET THAT HELPS POOR annual Pervasive Computing and Communications Conference sponsored The District of Columbia government by the Institute of Electrical and plans to ask companies to bid on Electronic Engineers. The paper also building a wireless Internet system that describes how this vulnerability could be will also provide low income residents used to undermine tracking systems; with free Internet access and possibly however, the group has published a set free computers and training. The of steps to help protect RFID chips from

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such attacks. The paper, as well as designed to assess the impact of related materials on security issues information technology on the related to RFID systems, is posted online competitiveness of nations. The study at www.rfidvirus.org. covers 115 economies worldwide and includes a Networked Readiness Index SURVEY: BANKS SHOULD designed to measure the ability of MONITOR ONLINE BANKING countries to make the most of SESSIONS information technologies. The study also noted that 17 of the 36 companies The annual Financial Institution named in the separate WEF’s technology Consumer Online Fraud Survey by RSA pioneers report are based in the U.S. Security found that 89 percent of The WEF is a nonprofit organization that account-holders would like their bank to promotes economic development and is monitor online banking sessions for best known for its annual forum for signs of irregular activity or behavior, business leaders and government policy and 59 percent would like their bank to makers. contact them if something suspicious is detected. The survey, which asked 402 GOVERNMENT CIOS: SECURITY U.S. adults their opinions about online IS PRIORITY banking authentication and e-mail fraud, also found that 73 percent of account Government chief information officers holders believe that financial institutions (CIOs) say they have made progress in should replace username and password establishing information technology (IT) log-in with stronger authentication. security as a priority and expanding Another finding was that, as a direct security awareness among staff, result of scams such as phishing, 79 according to the 16th annual survey by percent of account holders are less likely the Information Technology Association to respond to an e-mail from their bank. of America (ITAA) of U.S. government The survey also shows that many CIOs. However, most CIOs felt that account holders are looking to their they were not moving forward on banks and their Internet service privacy issues. The survey included providers (ISPs) to protect them from interviews with 36 CIOs or assistant phishing. Forty-five percent feel that an CIOs and three government oversight ISP blocking service for phishing would officers. As in the past, it focused on be effective, and 68 percent would like general trends rather than hard data their ISP to offer such a service. The points. In addition to security concerns, survey was conducted by Infoserv, an the CIOs identified as key priorities online market research company. standardizing and consolidating their IT infrastructure, improving project U.S. RANKED FIRST IN WORLD management and examining ways to use INFORMATION TECHNOLOGY managed services from outside vendors. STUDY

The U.S. rose to first position from fifth place in the World Economic Forum’s (WEF’s) Global Information Technology rankings, an annual study

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REPORT: MOST AMERICANS www.bankofthevvest.com (note the ARE ANTI-SURVEILLANCE double “v” instead of the “w”). Presented with this, 91 percent of More than 85 percent of Americans are participants guessed it was legitimate. against or unsure about spyware that When the participants were presented monitors Internet shopping or behavior with a genuine E*Trade e-mail that being placed on their personal directed them to a legitimate site, 77 computers, according to a report entitled percent of participants guessed it to be “Americans: Perceptions About fake. Nearly a quarter of the participants Surveillance,” by the Pokemon Institute, did not look at the address bar, status bar a privacy think tank. Nearly 90 percent or security indicators on the phishing of the respondents to Pokemon’s survey sites. The paper may be accessed at reported that they are not in favor of or http://people.deas.harvard.edu/~rachna/p are unsure about government wiretaps. apers/why_phishing_works.pdf. The survey also found that nearly all of the respondents rejected the idea of the CYBER BLACKMAIL ATTEMPTS government implanting chips in people ON RISE for identification, and 72 percent were also not in favor of electronic tags, such Cyber blackmail attempts rose during as RFIDs, that are embedded in products the first three months of 2006, according that could be used to track identities to a new study by the Kaspersky Lab, an from short distances. However, more anti-virus provider. The study, than 57 percent of respondents said they “Malware Evolution: January to March would not mind if law enforcement 2006,” finds that hackers are moving authorities used hidden cameras to away from stealing personal data to monitor traffic or speeding. The report direct blackmailing of victims. The may be accessed at: report cites cases where virus writers http://i.n.com.com/pdf/ne/2006/surveilla have either encrypted data or corrupted nce_study.pdf. system information before demanding a ransom for safe return of data, with RESEARCH: WHY PHISHING demands ranging between $50 and SCAMS STILL WORK $2,500. The report also finds that hackers are adopting more sophisticated Three U.S. academics published research encryption schemes, and advises users to into why, after years of public warnings, avoid downloading files from untrusted phishing scams still work. For their sources, run up to date anti-virus paper, “Why Phishing Works,” Rachna protection and make regular backups. Dhamija of Harvard University and The report is available at Marti Hearst and J.D. Tygar of the http://www.virsulist.com/en/analysis?pu University of California at Berkeley bid=184012401. conducted tests on a small sample of users. They found that 90 percent of PENNSYLVANIA FIRST E- their subjects were unable to pick out a NOTARIZATION STATE highly effective phishing e-mail. The researchers put together a spoofed Bank Pennsylvania has become the first state of the West e-mail that directed that allows notaries to digitally sign recipients to the phishing web site, electronic documents. The first phase of

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their e-notarization program is limited to followers, according to the eighth annual four counties, but it is anticipated that it report on Internet hate speech by the will expand to the rest of the state after Simon Wiesenthal Center, an the first year. State and local officials international Jewish human rights worked with the National Notary organization. The center had logged Association (NNA) in its development, about 6,000 web sites in the past year and NNA maintains the registry for the used by racists and bigots to incite program. The e-notary seals must be violence. The report said that while issued by a qualified certificate authority much of the material originates overseas, with the ability to suspend and revoke the extremists find it easier and cheaper the seals. Notaries would have to appear to use a site hosted in the U.S. The in person before a county official to center said it has recently been prove identity. Recorders in intercepting an increased number of participating counties will monitor the online terrorism tutorials and how-to program for one year. manuals aimed at sympathizers who might actually be recruited to carry out NUMBER OF ONLINE GAMBLERS attacks. The center passes most of the DOUBLES material on to law enforcement officials.

The number of Americans who gambled SPONSORED LINKS MOST online doubled to about four percent of LIKELY TO HARBOR SPYWARE the population last year, according to a survey by the American Gaming Web sites that pay for sponsored links Association, a trade group that are nearly three times more likely to represents casinos and suppliers. The harbor spyware or adware, or to generate survey found that almost half of the spam, than URLs generated by the people who gambled online said they did search engine’s algorithms, according to so primarily because of the convenience, anti-virus software maker McAffe’s with fewer than 10 percent saying it was SiteAdvisor service. The study, which for the chance to win money. Despite evaluated Google, Yahoo, MSN, AOL the U.S. Justice Department’s position and Ask.com search engines using 1,300 that the law forbidding interstate different keyword searches, found that telephone betting also applies to the about five percent of the links served up Internet, the survey found that only 19 in the first five pages can infect percent of the 552 Internet gamblers computers or plague users with spam. polled thought it was illegal. Internet That figure, which is about one link per gambling worldwide generated about search page, is more than double $12 billion in revenue last year, with SiteAdvisor’s web average of two about half of the sales coming from U.S. percent. SiteAdvisor’s research showed residents. that MSN had the lowest percentage of risky sites at 3.9 percent, while HATE GROUPS FAVOR U.S. Ask.com’s percentage was almost SERVERS double at 6.1 percent. Google, Yahoo and AOL were in the middle, with 5.3, Hate groups around the world often use 4.3 and 5.3 percent, respectively. Internet servers based in the U.S. to send Sponsored links, however, are a big propaganda and instructions to income source for search engines, as

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SiteAdvisor reported that the search offers free plug-ins for Internet Explorer industry made $1.1 billion from and Firefox that overlay Google, Yahoo sponsored sites last year. SiteAdvisor, and MSN search results with color coded which was recently acquired by McAffe, labels that reveal risky sites.

PUBLICATIONS YOU CAN USE

“Status and Needs of Forensic Science “Telephony Considerations of Voice Service Providers: A Report to over Internet Protocol” Congress” This document describes how Voice This report addresses the need for over Internet Protocol (VoIP) allows forensic service providers in the crime voice communications to be transported laboratory. It recommends the creation digitally through a network using of a national Forensic Science Internet Protocol standards. It is only Commission that would discuss issues available online at: such as manpower and equipment http://www.ncjrs.gov/pdffiles1/nij/21297 requirements, continuing education 6.pdf. policies, professionalism and accreditation standards and collaboration “Identity Theft, 2004” among forensic science laboratories. It This bulletin presents data from the is only available online at: National Crime Victimization survey on http://www.ojp.usdoj.gov/nij/pubs- identity theft victimization and its sum/213420.htm. consequences. It is based on new questions about identity theft that were added to the survey in July 2004 and can be downloaded at: http://www.ojp.usdoj.gov/bjs/pub/pdf/it0 4/pdf.

LEGISLATION UPDATE

WIRETAPPING emergency surveillance without a prior court order in certain specified circumstances. On May 8, 2006, the Hawaii Legislature Currently, investigators seeking to wiretap a approved SB 965, which conforms the state’s suspect must petition a judge with the suspect’s electronic surveillance laws to federal statutes. defense attorney present, potentially putting The bill authorizes interception of undercover agents, informants and other people communications if the interception might provide involved in the investigation in danger. The bill evidence of a crime and sets procedures for also establishes a surveillance review unit in the surveillance and interception. It also authorizes Office of the Attorney General, which would be

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responsible for reviewing all applications for CHILD PORNOGRAPHY interception of communications. Virginia’s H.B. 1014, which prohibits ESTABLISHMENT OF A CYBER CRIME intentionally operating a web site to facilitate UNIT the payment for accessing child pornography over the Internet, becomes effective on July 1, The Florida Legislature passed SB 2006. The legislation is intended to penalize 2322/HB 1593, statutorily establishing the Cyber third party billing companies that intentionally Crime Unit in the Office of the Attorney General assist in processing payments for those and making the unit a responsibility of that office. consumers who want to purchase access to child The bill also mandates the unit’s responsibility to pornography. The bill was supported by investigate crimes associated with the sexual Attorney General Bob McDonnell. exploitation of children. The bill would become effective on July 1, 2006. DATA SECURITY

ONLINE SEXUAL PREDATORS On July 1, 2006, Indiana’s new data security law will go into effect, requiring On June 7, 2006, Colorado Governor Bill businesses and database owners to notify Owens signed signed H.R. 1011, making it a affected state residents of data security felony to use the Internet to set up a meeting with breaches. If more than 1,000 people are a child younger than 15 years of age without the affected, the company must also notify the three parents’ permission, It also makes it a felony to major credit bureaus. If a company or database expose oneself or ask a child to expose him or owner fails to comply, the Attorney General can herself over the Internet. The bill also makes sue and seek penalties of up to $150,000. If possession of child pornography a felony. The more than 500,000 people are affected, or if the bill was supported by Attorney General John cost of notifying victims exceeds $250,000, the Suthers. database owner can make its official notification by a posting on its web site or by a news release GPS MONITORING OF CHILD SEXUAL to the media. PREDATORS INTERNET GAMBLING Virginia’s H.B. 846, which mandates three years of supervised probation as part of the On May 25, 2006, the U.S. House sentence for offenders convicted of a serious sex Judiciary Committee approved 25-11, H.R. offense, in addition to mandatory GPS 4777, a bill that would ban much online monitoring, will become effective on July 1, gambling, including bets on sporting events and 2006. The legislation was supported by Attorney games of chance, such as poker. The bill, General Bob McDonnell. sponsored by Representative Bob Goodlatte (R- Wisconsin Governor Jim Doyle signed VA), would update the Federal Wire Wager Assembly Bill 591 on May 22, 2006, which Act, which prohibits gambling over telephone extends lifetime global positioning system (GPS) lines, but currently may not apply to Internet monitoring to serious and repeat child sex gambling because not all web traffic travels predators. The measure requires tracking of over telephone lines. The bill would also anyone on parole, probation or supervised release require banks to block transactions related to for first or second degree child sexual assault that online gambling and would empower state and involved violence or the threat of violence. federal law enforcement agencies to compel Internet service providers to remove or disable

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links to gambling sites. The bill effectively would DIGITAL COPYRIGHTS prevent state lotteries from taking their games online, as no current technology exists that would On June 8, 2006, the House Judiciary keep gambling within a state. Fantasy sports Committee’s Subcommittee on Courts, the leagues would be exempt. The bill is backed by Internet and Intellectual Property approved HR the administration, as well as certain religious 5553, which seeks to amend Section 115 of title groups such as the Southern Baptists Convention, 17, U.S. Code, the complex system of royalties professional sports leagues such as the National governing the music industry by providing for Football League and online auction company digital delivery of musical works. Currently, eBay. It is opposed by casinos, the Poker Players separate licenses exist for the “performance” of Alliance, which argues that poker is a game of a song and the reproduction or distribution of it, skill and should be exempt and the Independent so companies wishing to sell music have to Community Bankers of America, a group of about negotiate separate licenses for each song’s 5,000 small banks, says its members do not have recording. The bill would establish a “blanket the manpower to block all gambling transactions. licensing” system in which those entities would apply for and receive licenses through a “one- NET NEUTRALITY stop shop.”

SECURITY FOR WIRELESS NETWORKS The House Judiciary Committee also approved H.R. 5417, a bill requiring broadband providers to abide by strict Internet neutrality Westchester County, New York became principles. The bill, sponsored by Representative the first in the country to enact a law requiring James Sensenbrenner, Jr. (WI-R), which was local businesses to implement “minimum approved along party lines by a vote of 20-13, security measures,” such as installing a network means that broadband networks would have to be firewall, changing the systems SSID or network operated in a non-discriminatory manner. It is name and disabling SSID broadcasting, to supported by Internet companies such as protect their wireless networks. Enacted on Amazon.com, Google, Microsoft and Yahoo. A April 21, 2006, the new law applies to all competing bill, H.R. 5252, sponsored by commercial businesses that collect customer Representative Joe Barton (R-TX), passed the information, as well as businesses that offer House Committee on Energy and Commerce on public Internet access. Businesses that collect, store and use personal information have 180 May 17, 2006 and gives the Federal Communications Commission (FCC) exclusive days to comply with the law. In addition, authority to investigate violations of Internet Internet cafes and other organizations that offer neutrality principles, but does not include strict wireless access need to prominently post signs advising customers to implement security Internet neutrality mandates. An amendment to H.R. 5252, which would have codified net measures on their systems when accessing the neutrality regulations into federal law and Internet. Those who fail to comply will receive prevented broadband providers from a warning giving them 30 days to remedy the discriminating among Internet sites, was defeated situation. A second violation will result in a in the House by a vote of 269-152. The House $250 fine, and further violations will result in a leadership could try to meld both bills together $500 fine. before a floor vote, or they could permit both bills to go to the floor for votes.

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TOOLS YOU CAN USE

“Avoid Identity Theft: Deter, Detect, Defend” This educational package by the Federal Trade Commission contains presentation powerpoint slides and brochures. It can be viewed by accessing www.consumer.gov/idtheft, and the kit can be obtained by e-mailing [email protected].

“Child Pornography on the Internet” This 102-page publication describes the problem and reviews the factors that increase the risks of Internet child pornography. It then identifies a series of questions that may assist in the analysis of the problem and reviews responses based on evaluative research and police practice. It can be accessed at www.cops.usdoj.,gov/mime/open.pdf?Item=1729

Child Abuse Training & Technical Assistance Center (CATTA) Newsletter The summer 2006 CATTA newsletter features an article on protecting children from Internet perpetrators. The article provides information from the National Juvenile Online Victimization Study, which collected data from Internet-related arrests between July 1, 2000 and June 30, 2001. The newsletter is published by the California Institute on Human Services at Sonoma State University and can be accessed at www.cattacenter.org/pdf/Summer2006Web.pdf Note: The Editor thanks Teena Watkins, Assistant Attorney General in the Office of the Arkansas Attorney General, for information on the newsletter.

HOLD THE DATE!

INTERNET CRIMES AGAINST CHILDREN TRAINING THIS FALL

Don’t miss the in-depth training conference on Prosecution and Innovative Approaches to Internet Crimes Against Children, developed and sponsored by the National Association of Attorneys General (NAAG) and the National Center for Justice and the Rule of Law (NCJRL). It will be held on November 14-16, 2006 at the University of Mississippi School of Law, and air or automobile travel will be reimbursed for all prosecutors from Attorney General offices. Topics to be covered will include social networking sites, ISP record retention issues and legal issues in child pornography investigations. More information will be available in August 2006 so please contact Hedda Litwin, NAAG Cyber Crime Counsel, at 202-326-6022 or [email protected] to receive conference updates.

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