Archive for January, 2010

Legal Issues with Online Investigations: Some background

Friday, January 15th, 2010

As Executive Director and Senior Counsel of the National Law Center for Children and Families, Richard Whidden is most familiar with laws and precedents related to child pornography—but stresses that investigators of other crimes can take away important information, too. “Much of the case law on electronic evidence comes from child porn cases because those are what prosecutors take on,” Whidden says.

During his webinar, “Legal Issues with Online Investigation,” on Thursday, January 21, Whidden will be discussing a sampling of cases from 2009 that had to do with Internet and computer forensics. One of the primary cases, however, has to do not with child pornography but instead with steroids.

Specifically, U.S. v. Comprehensive Drug Testing, Inc. describes forensic procedures relative to search and seizure of electronically stored evidence. Although it applies to the 9th Circuit Court of Appeals’ jurisdiction, it’s likely that other courts will look to the decision when dealing with their own issues of electronic evidence.

The case also illustrates how the process of e-discovery has evolved over the past 10 years. Typically this is difficult to discuss. As Whidden says, “You could have entire symposiums on how the law has changed over the last 10 years, before you even break out the crystal ball on how it will change over the next 10.”

Notably, law changes according to the technology. “We’ve gone from pornographic images of children, to streaming video of abuse taking place,” says Whidden. “Modes of transmission change. Cell phone technology is much more prevalent now, and will continue to evolve.”

Whidden will cover other legal issues, such as the definition of “possession” of child pornography, procedures related to computer related evidence, search and seizure issues, and the difference between state and federal prosecutions. He will not discuss civil cases, only criminal cases because of the higher burden of proof.

Christa M. Miller is Vere Software’s marketing/public relations consultant. She specializes in law enforcement and public safety and can be reached at christa at christammiller dot com.

Some thoughts on Howard Schmidt’s appointment as Cyber Security Coordinator

Wednesday, January 6th, 2010

I first met Howard Schmidt around 1999 at one of the many National Institute of Justice (NIJ) cybercrime programs we eventually served on together. Howard was someone I looked up to and sought advice from when we saw each other. I have always been impressed by his demeanor and his ability to simplify the complex cybercrime problem when he speaks.

So, I thought initially that I should jump out and comment on my friend Howard’s new appointment as the U.S. Cyber Security Coordinator and congratulate him on the appointment.  But, I then I thought I should wait and not be part of the pack.

After the announcement of his appointment, I surfed the Web to see what kind of reaction his appointment would cause in the media and the blogosphere.  What I have seen so far is fairly tame for an Obama appointment. 

For the most part the traditional media have been fairly benign in their response to the announcement. It appears to them it is just another Obama “Czar”. Most seemed interested in his introduction as the new Cyber Security Coordinator through a videotaped presentation on the White House’s website rather than his ability to do the job. 

Indeed, Howard’s overall non-political stances appear to have placed him in the right place at the right time. And his extensive back ground in the cyber crime fighting arena is encouraging for a lot us involved in the cyber crime fight.

But some people are not as encouraged. The attacks on Howard have already started, as evidenced by the comments on Bruce Schneier’s  blog. (Ironic that the very technology he is asked to defend is the same anonymous place used to attack him.)If he was involved as part of the Bush administration, this promises to NOT be an improvement. Others here have correctly observed that it is a position completely set up to fail. Schmidt has never stayed in any one position very long. What has he ever actually accomplished over the years?

By taking this job, Schmidt is able to cash out of eBay without having to pay some taxes on gains he made there.

Howard, like so many in the public eye, takes a beating for being able to stand up and offer themselves to the wolves of criticism.  He is a fine man, a veteran federal and military investigator, an experienced law enforcement officer, and a Chief Security Officer in large corporations.

In other words, he has seen the problems from multiple levels within and from without government. His appointment will give him the opportunity to put a varied background of experience to work on a problem affecting everyone. How many people considered by the Obama administration had a resume to compare? 

So what should Howard focus on and attempt to accomplish? First of all, he could help to define better the understanding in this country of the differences between Cyber-Security and Cyber-Crime. All too often they get melded into the same concept or believed they are the same thing.

Some think that Cyber Security matter are the only issues he has or should deal with. Investigating Cyber Crime is a complex issue with just as many complex, multi-level facets as Cyber Security.  Howard’s clear understanding of the issues related to both give him an advantage. I would just like to see Cyber Crime investigation given the attention it needs and deserves.

Given his background and the infighting amongst the current bureaucrats governing IT security and cybercrime in the United States, Howard has a rough road ahead. Even though he  does seem to want  to remain out of the politics of the job (as evidenced by his release of a videotaped statement rather than a press conference),  many feel the job is all title and no authoritative bite.

With the dissatisfaction of Melissa Hathaway and others that where standing in line or considered for the job this year, I hope the Obama administration gives Howard the latitude and support  to do the work that needs to be done.  Good luck Howard…..