Tampa Criminal Defense Attorney Ron Frey has represented individuals and organizations with respect to cases involving surveillance, alleged crimes and digital evidence for more than 15 years. As technology continues to impact every aspect of our life and grow in an exponential fashion, the amount of digital evidence in any given legal matter has been inflated to degree that sometimes seems unmanageable. Attorney Frey has been involved in a number of cases in federal and state courts that involve multiple terabytes worth of data and digital evidence.

DATA: CRISIS AND OPPORTUNITY

Although cases that involve significant amounts of digital evidence and data present unique challenges, they also offer unique opportunities. An avalanche of data received within a discovery exchange may seem, at first, to indicate evidence of guilt or liability. However, more often than not, much of the data turns out to be redundant or irrelevant. The prosecution would never be able to introduce terabytes of data to a jury. Rather, only a sliver of the whole will be presented. Through a thorough investigatory process, it is possible to determine what is relevant and most likely to be introduced during trial.

SURVEILLANCE

Tampa Computer Crime Lawyer Ron Frey has handled a multitude of cases involving surveillance footage over the last decade and a half. He has watched as the technology has advanced from grainy single angle black and white CCTV recordings, to the modern body worn cameras and high-definition surveillance cameras that are prevalent today. In order to learn more about Surveillance, Crime, and Digital Evidence, The Frey Law Firm presents the following video wherein Attorney Frey explores the impact technological advancement has had upon the criminal justice system and society in general.

Tampa Internet Crime Lawyer Ron Frey discusses Digital Evidence

• Tampa Internet Crime Attorney
• Hillsborough Sheriff Announces Solicitation Arrests “Operation Small Talk”
• Surveillance, Crime & Evidence
• Super Lawyer – 2019
• Computer / Internet Crimes in Both State and Federal Court

Contact The Frey Law Firm, LLC today for a free initial consultation with a Computer Crime Lawyer. Take action.

Given the proliferation of data storage devices, ranging from computers and cell phones, to Fitbits and gaming systems, it should come as no surprise that criminal investigators often focus on securing digital evidence from these devices. Law enforcement utilizes a variety of methods to secure digital evidence, including extracting data, or making a forensic copy of the data from a device. When evaluating the integrity and thoroughness of the investigation, it is important for the defense attorney to consider not only what digital evidence was secured, but also any digital evidence that may have been left uncollected or unpreserved.

Due Process

The United States Supreme Court has ruled that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects an accused from being convicted of a crime when the government fails to preserve materially exculpatory evidence or destroys, in bad faith, potentially useful evidence. California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Evidence is constitutionally material when it possesses “an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Trombetta, 467 U.S., at 489.

Failing to Preserve Digital Evidence

Whenever law enforcement fails to preserve digital evidence in a case, an inquiry should be made in order to determine whether the failure constituted a due process violation. When it comes to data storage devices, it is often the case that law enforcement’s failure to properly preserve the evidence will prevent a defendant or suspect from being able to conduct an independent forensic examination to prepare for trial and present a defense. Further, if the unpreserved evidence was potentially useful, a hearing should be held to determine whether law enforcement exhibited bad faith in failing to protect and preserve the data, or a complete forensic copy of the same.

Motion to Preserve

If you have case involving digital evidence, or evidence from the Internet or an online source, it is important to determine whether the evidence was properly secured and preserved. Further, it may be appropriate for counsel to file a motion to preserve certain evidence to bolster the argument in the event evidence is destroyed, misplaced or corrupted. Attorney Ron Frey and The Frey Law Firm have a great deal of experience representing individuals, companies and organizations in criminal investigations that involve digital evidence and Internet related crimes.

If you have a question pertaining to an issue involving digital evidence or a computer crime, please call The Frey Law Firm for a free initial consultation.

According to reports, a recent survey revealed that the average person has over 27 different passwords for their online accounts. With the rise of applications for every area of life (banking, e-mail, social media, chipotle), this should come as no surprise.

Within the justice system, it is becoming quite common for law enforcement, or other opposing parties, to seek to gain access to a password-protected device, drive or account. In the context of a criminal investigation or prosecution, what happens when law enforcement desires to gain access to a password-protected device?

As a criminal defense attorney, I have represented countless individuals who have been the target of an investigation. Oftentimes, before an attorney is involved, law enforcement will confront a suspect and engage in an interview (interrogation). Through investigative techniques, the agents may attempt to solicit pass-codes or passwords from the suspect. (For many reasons I need not go into here, if a person is ever approached by law enforcement in reference to an investigation, I advise that the person contact an attorney prior to engaging in any discussion with the investigators. Please call The Frey Law Firm at (844) 766-3739 if you find yourself in this situation.)

Despite the fact that there is a constitutional right to remain silent, many, if not most, choose to engage in the interrogation with the investigators. Further, it seems that during the ‘interview’, many, if not most, also provide consent for law enforcement to search their devices or access their various accounts. Oftentimes, suspects will also provide passwords to their computers, phones or accounts.

Should I Provide My Password to the Police?

You have a right to remain silent. The 5th Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. If you arrive at a point where law enforcement is inquiring about a specific password, it is likely that you have already subjected yourself to the interrogative process. Again, prior to making any statements, my advice is to contact an attorney if you are ever approached by law enforcement regarding an investigation.

If law enforcement is seeking a specific password, they are likely suspicious of the contents of the device, drive or account. They are likely seeking items of evidentiary value. Providing a password or consenting for law enforcement to conduct a search not only provides them access to the contents contained within the protected device, drive or account, but providing the password, in and of itself, can also be used as evidence to demonstrate that you had:

1. Knowledge of the device, drive or account at issue;
2. Access; and
3. Control

In addition to evidence of knowledge, access and control, providing a password can also serve as evidence that you have knowledge, access and control of any of the data or contents contained therein. There may be many unknown or unforeseen consequences in light of the avalanche of information that may be contained within a modern device or online account. Of course, if the case proceeds to the courts, the government may attempt to secure an order from a judge to have a person unlock their device. However, that is a different issue that often involves extensive litigation. For instance, courts have ordered defendants to unlock their phones by providing their fingerprint, and more recently, courts have even ordered defendants to provide passwords to encrypted drives. It is likely these rulings will result in continued appellate litigation and may perhaps reach The Supreme Court of the United States.

What Is on Your Phone?

I have represented clients who have been asked by law enforcement to provide a password in order to access the contents of their smartphone. In many cases, the client is rather confident that there is no evidence of any crime or wrongdoing contained within the device. However, it is important to understand the vast amount of data that can be contained within a smartphone. First, it is not simply a smartphone, modern phones are computers and can often store 100’s of gigabytes worth of data. It is not possible to know all of the information that may be within a person’s phone without a full forensic examination. Whether it is call histories, text messages, emails, cache files, location histories, web browsing history, photos, videos, audio recordings, it is not always apparent what information may be on the device and, more importantly, what information may be relevant to law enforcement. For instance, perhaps a forensic exam of the phone would reveal that the suspect was at a particular location at a specific time. That single piece of metadata may be the most important piece of evidence a prosecutor intends to rely upon in order to convict. Alternatively, perhaps there is a specific account that was logged into on the phone and data within the phone demonstrates a login. This information can then be used to attempt to link a specific account to the suspect. The hypotheticals are nearly infinite. What is apparent is that the typical device can contain a wide variety of information with possible evidentiary value and the user may not even realize it. In fact, the user may be totally innocent of any wrongdoing, but digital evidence may point toward the user as a suspect engaged in criminal activity.

What to Do if the Police or Fbi Requests Your Username or Password?

As with any inquiry by law enforcement, you have a right to remain silent. It is generally advisable to exercise your right to remain silent and contact an experienced criminal defense lawyer for advice. There may be rare instances where providing consent is appropriate. However, it is best to seek the advice of counsel first, prior to making such a significant and generally irreversible decision.

The Frey Law Firm has offices in Florida, North Carolina and Ohio. Attorney Ron Frey is licensed in Florida, North Carolina and Ohio and has also represented clients in matters involving digital evidence in multiple other jurisdictions around the country, via pro hac vice admission.

If you or someone you know has been contacted by law enforcement regarding a username, password, encrypted device, drive or account, please do not hesitate to contact Criminal Defense Attorney Ron Frey and The Frey Law Firm, PLLC for a free initial consultation at (844) 766-3739.

When it comes to cases involving allegations of computer crime or Internet crime, especially cases involving allegations involving the possession or distribution of child pornography over the internet or a peer-to-peer program, the authorities generally execute a search warrant at a residence or business in order to gather and secure evidence. Typically, these searches occur very early in the morning and are executed by a joint task force of local, state and federal agents. Although the allegation may not involve any violence or threat of violence, law enforcement does not know what they may encounter during the search warrant execution. As such, they often enter quite aggressively in order to secure the location and ensure no evidence is destroyed and everyone is safe. I have represented hundreds of clients over the years who have been subject to such a search and it is always described as a frightening experience. This blog post will address the common question: What Should you do if the Police or FBI Search your Home or Business?

A Search Alone Can Ruin a Reputation

The execution of a search warrant in a case involving an alleged computer crime often involves a large joint task force. As a result, it is not uncommon for multiple vehicles, police cruisers, evidence trucks, vans, and even mobile computer forensic units to descend upon a person’s residence during the search warrant execution. Needless to say, the presence of the many vehicles, in combination with the number of law enforcement officers, will not go unnoticed by the neighbors, and in some cases, the media.

Inevitably, the questions, rumors and suspicions swirl. The searches can often take a number of hours and can attract quite a crowd at times. Clients have contacted me during the execution of a search at their business or residence and I have often arrived on scene while the search is being conducted. Oftentimes, upon arrival, the first thing I notice is the number of law enforcement vehicles in the driveway and street. Then, the number of officers on the property and, inevitably, the neighbors peering out their window shades or “working” on something in their garage or lawn (essentially observing the scene).

Although a search warrant is executed, it does not necessarily follow that a criminal charge or indictment is going to issue. In fact, in most investigations involving computer crime or Internet crime, there are no arrests made at the time of the search. Instead, evidence is secured, interviews (interrogations) may be conducted and information is gathered. Whether a criminal charge is brought or not, the search alone will immediately draw suspicion and significantly harm the reputation and standing of a person or business.

What to Do if a Search Occurs at Your House or Business?

First, this blog post is not meant to serve as legal advice. Rather, it offers general information that can be considered. However, each and every case, or search, is different and may require a different approach. As such, if your house or business is being searched, or if law enforcement requests permission to search you, your personal property, or your house or business, the most prudent approach would be to immediately contact an attorney for guidance. Here is some basic information to consider if you ever find yourself the target of a search or investigation:

#1: Contact a Criminal Defense Attorney or Request to Contact an Attorney. Every situation is different and needs to be evaluated so an approach can be determined and tailored to the specific circumstances.

#2: Try to Remain Calm and Respectful, no matter what happens or how you are treated. As indicated, the execution of a warrant can be dangerous and law enforcement typically takes an aggressive approach to initially secure the scene. It is important to remain calm and respectful during the process. If there is unjustified treatment or a violation of your rights, that wrongdoing can be addressed at the appropriate time, not at the time of the search.

#3: Know your rights. You have a right to remain silent. You have a right to refuse to consent to a search. However, if law enforcement has a warrant, then they are allowed to conduct a search, with or without your consent. If they do not have a warrant (and no other exigent circumstances exist) you do not need to consent to the search. Please note, if law enforcement does not have a warrant and you do not consent to the search, but they decide to enter or search regardless, you should not do anything to impede them at that point, besides respectfully noting that you do not consent to the search. There are other reasons that may justify their search (exigent circumstances). Again, these are issues that can be explored and litigated in court, not at the scene.

Contacting a Lawyer During the Search Warrant Execution: (844) 766-3739

It is not uncommon for me to receive a phone call from a potential new client who indicates that the FBI or police are in their house or business conducting a search. I generally tell the caller to answer very basic questions for me and I remain cognizant that the investigators are listening to the responses from my client. As such, I usually ask basic questions that will only elicit a yes or no response from my client. Am I on speaker? Can the investigators hear you? Have they indicated you are under arrest or detained? I then advise them they have certain rights. Finally, I ask if I can talk to one of the agents or investigators. These are often fruitful discussions where I can gather information that will help me better understand and assess the situation. I respectfully inquire of the investigator to find out as much information as possible regarding their purpose and their intentions going forward. I gather their contact information for future communication and, at times, I am able to travel to the scene to confer directly with them. These steps are often vitally important, especially if the case proceeds to a criminal charge.

After the Search

During a search, law enforcement may detain a suspect or even make an arrest. Obviously, it is imperative that the person detained or arrested secure counsel as soon as possible. The detained person will have many important decisions to make, including, will the person remain silent or make a statement? Will they consent to further searches? Will they subject themselves to a polygraph examination and other important decisions. An attorney can guide the person through the process, advise, and make a determination as to the best approach.

In cases involving allegations of Internet crime or computer crime, it is quite common for law enforcement to not make any arrests during the search warrant execution. Instead, data storage devices (computers, cell phones, hard drives, anything that can store data and metadata) are searched or taken into evidence. Since forensic examinations can take many months for the government to complete, often they will simply tell the suspect or person searched that they will review the evidence, the investigation is ongoing, and they will contact them sometime in the future. This is when the person has a crucial decision to make!

Some suspects choose to do nothing at this juncture. They hope law enforcement simply never calls back or does not find any evidence of a crime. Or, they simply try to ignore the whole situation, as it is unpleasant. Perhaps they do not want to confront the situation or discuss it with their family or friends. This is almost never the right decision. There are many steps that an experienced computer crime defense attorney can take at this time in order to try to secure the best possible outcome.

Whether you or someone you know has been subject to a search, or arrest, please call The Frey Law Firm for a free initial consultation with Attorney Ron Frey. We are prepared to evaluate your specific situation and advise as to the options available going forward. We can be reached anytime, toll-free, at (844) 766-3739.

Fresh off the controversy surrounding the FBI and the DOJ’s legal battle over the iPhone at the center of the San Bernardino investigation, a federal judge has authorized a warrant that reportedly orders a woman to unlock her iPhone with her fingerprint. The identity theft suspect in the case is required, per the warrant, to comply with the request. According to media reports, it remains unclear why the authorities are interested in the content of the phone. With the continued advances in encryption and security, it is expected that litigation over these issues will continue to evolve, as well as the case law associated therewith.

Smartphones & the 4th Amendment

It is often said that a “man’s house is his castle” and the 4th Amendment is explicit in protecting the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches. Today, there may be no “effect” more sacrosanct than a person’s smartphone or iPhone. A person’s phone can contain the most private and intimate details of a person’s life:

• family photos
• geolocation data
• financial information
• hobbies, interests
• religious beliefs
• political perspectives
• friends
• communications
• health
• business documentation …… and the list goes on and on.

Today, a Forensic Examination of a Person’s Phone May Be Considered More Intrusive Than a Thorough Search of Person’s Home.

Expect continued litigation and debate. The battle between the right to be secure in their effects against unreasonable searches, the right to remain silent and the right to not be compelled to incriminate oneself will continually the ability of the government to investigate criminal activity intensifies. The principals that have guided 4th Amendment jurisprudence for centuries can be applied to the ever-changing landscape of digital technology and encryption. However, there will be “hard cases” and “hard cases make bad law.” For instance, precedent set from a decision involving a terror suspect can, and most certainly would, be applied in other, relatively less serious and controversial cases, as well as in other ways that are simply not foreseeable. Whether it is an order to provide access to a phone via a fingerprint, a pass code, or a retina scan, the implications are serious for the government, the individual suspect and society as a whole.

The Smarttress

In the market for a smart mattress that alerts your mobile phone whenever someone is using your bed in a questionable way? Well, of course, there’s an app for that. The smart mattress, advertised as the Smarttress, is currently being marketed and sold by Durmet, a Spanish Company. Billed as the first mattress that detects deception, the Smarttress has sensors within the springs that detect vibration and also has detectors that monitor contact zones. The information and data is then transmitted to an app on the user’s phone. According to the company’s website, the mobile phone application has many features that measure and present the data collected, including a speedometer, graphs that indicate the intensity and impact per minute and pressure points within the mattress. Regardless of your opinion of the Smarttress, the trajectory is apparent, more of the everyday “things” that surround us will soon be brought online. The implications of the expansive interconnectedness of “things” are numerous and impact everyday life in many ways.

The Internet of Things

Physical objects (such as mattresses) that are embedded with software, sensors, and network connectivity to share data, are collectively being identified as “The Internet of Things”. From coffee makers and refrigerators, to vodka bottles, cars and houses, more everyday objects are coming online and scheduled to be connected in the future. The possibilities are endless.

Coming to a Courtroom Near You

When it comes to the justice system, whether a civil case or a criminal case, evidence matters. The more evidence that is available for a jury to review, the more accurate the result will likely be. The Internet of Things provides a potential treasure trove of data that may make or break a client’s case or save a Defendant from a wrongful conviction. For example, it was not long ago when an alibi defense could be presented by way of testimony, or perhaps a receipt, or even a time card. Now, if a suspect has an alibi, it would be the rare case that the alibi could not be established by way of objective digital evidence. First, there are digital cameras nearly everywhere in our society that can capture a person’s location. Second, the most basic smart phone can be geolocated via cell towers or can contain data that can be extracted forensically to identify locations at various points and times. Going forward, maybe something as innocuous and unsuspecting as a mattress or coffee maker could be used to establish a person’s location on a specific date and time (My client was in bed at that time and I can prove it). Connected devices can serve as “witnesses” and evidence for the defense or the prosecution. Recently it was reported that data extracted from a person’s Fitbit was used in a case to demonstrate that the individual was not as active as they claimed to be prior to an injury sustained.

Going Forward

It is important for attorneys to think outside the box and consider the digital evidence that surrounds their client’s case. If you need to establish or confirm a timeline of events, you have to consider the evidence that may be available from the connected objects in the ever expanding Internet of Things that is currently engulfing our society.

Digital technology has played an increasingly important role in the justice system. One of the many challenges when dealing with digital evidence is the sheer volume of data that can be contained in a single hard drive or flash drive. There can be thousands of files nested within each other, which can amount to literally hundreds of pages of discovery. It can also take hours to review the data, most of which can be completely irrelevant to the case.

So what is a criminal defense attorney supposed to do with the overwhelming amount of information? How can we use it to our advantage?

It is important to remember that the government has the burden of proof in criminal cases. It is their job to investigate, manage, and decipher all of that information in order to build a case. Just as you would have difficulty managing the entire scope of the data, so would the government.

Exploring the “Biography” of the File

Whether it is a financial crime or an online sex crime investigation, attorneys can capitalize on the unmanageable amount of data by delving deeper into the ”biography” of a data file. Each digital file has a history, a story, a narrative. With the help of experts, you can understand when it was created, where, its migration, and many more. Using this biographical approach during cross examinations can allow for easier presentation to the judge and jury.

Important questions to consider during cross-examinations regarding a particular file:

• What is the file name and its path?
• When was it first created?
• How did it end up on the user’s computer?
• Would a user know what files are being downloaded?
• Was the file viewed? For how long, when, and by whom? How can you tell?
• Was the file ever deleted?
• What did your investigation reveal regarding the activity of the file?

When law enforcement officers take the stand to testify their findings, you can take this opportunity to reveal what they really do not know (which is common) and what they cannot answer forensically. This is not surprising, given the difficulty of managing and even recalling information from such vast amounts of data.

Ask Questions – But Know the Answers

Don’t forget that you should never ask a question to which you do not know the answer. Always be prepared by consulting with experts and obtaining a better understanding of the data.