Is this a dating website scam, or am I about to get arrested? As an internet sex crime defense lawyer, I am regularly contacted by people who have found themselves in variations of the following generalized hypothetical situation:

“I was on a dating website, or Craigslist, and I met a female who is 26 years-old. Her profile indicated she was 26 and she told me she was 26 in our online chats. I had no reason to disbelieve her regarding her age and everything appeared completely legitimate. Well, we hit it off and communicated online for a period of weeks. We spent time chatting and exchanged photos. Some of the photos sent were in various states of undress.

Well, to my dismay, I was just contacted by a person who claims to be her father. I was shocked to learn from him that she is not 26, but is apparently only 16. He is extremely upset and hostile. He says she has been traumatized by these events and has sustained expenses in the form of medical and psychiatric bills. He says if I don’t send him money to pay the expenses, he will go to the police and have me arrested. He has all of my information, including pictures I sent and the chats engaged in. He wants me to make payments via gift cards or money orders. What should I do? By the way, I am married and employed and I don’t want anyone to know about this! What should I do?”

The frequency of these types of inquiries are indicative of the success this scam must be achieving. Unlike many scams, this one is likely particularly effective as it creates a great deal of fear, anxiety and uncertainty in the individual who falls prey to it.

See our page on Sextortion Charges and Accusations, Explained.

The following questions typically arise:

• Is this a scam, or, is this real?
• Did I commit a crime? Is there real criminal exposure? Or, is this just someone trying to make a quick buck?
• What information does this other person or group of people have?
• Is my employer going to find out about this? What about my co-workers?
• Will my family and friends find out about this situation?
• What is going to happen to the content that was transmitted? What about the photos that were sent out?
• If I send the money, or gift cards and money orders, will this all go away?
• Can I go to the police or law enforcement to address this? But if I go, will I be the one who gets in trouble even though I don’t believe I did anything wrong?
• Am I in danger?

If I pay the money that is being demanded, how do I know the other person will not come back and request more? Is paying the money even legal for me to do? Is it legal for them to request?

If I pay the money, can law enforcement still get involved and arrest me?

These are legitimate and real questions that often arise in these situations. Often, individuals who find themselves in these circumstances do not know where to turn, or who to consult. Further, the stress, anxiety and panic often overwhelms their decision-making process.

As an internet sex crime defense attorney, I have represented many individuals who have found themselves in these types of situations. There are generally many steps to the representation.

How To Handle Internet Sex Crimes

First, it is important to understand the client’s background, history and characteristics. Next, a comprehensive understanding as to the history with the alleged dating site “victim”, if any. Then, a determination must be made as to whether the information points to this situation being a scam, or something that may be a real situation with a potential real victim associated therewith and the potential criminal or civil liability that may be forthcoming. Finally, a determination as to what exposure, if any, the client may have.

Once all of the information is conveyed, reviewed and understood, a strategy tailored to the client’s circumstances and goals can developed and implemented. Since every individual presents with unique circumstances, it is important to develop an effective strategy geared towards the specific details of each matter.

If you, or someone you know, believes they may be the victim or target of an online dating scam, please contact The Frey Law Firm for a free initial consultation with Internet Sex Crime Attorney Ron Frey.

In Packingham v. North Carolina, the Supreme Court unanimously struck down a North Carolina law that made it a felony for registered sex offenders to engage in certain internet activity.

Attorney Ron Frey is licensed in North Carolina; see our page on North Carolina internet crime defense.

The court stressed that the “sweeping law” would bar those on the registration from visiting sites such as Facebook & Twitter, but also a multitude of sites ranging from Amazon to WebMD, as well as the sites of many media outlets. This has the effect of broadly preventing the engagement of first amendment speech, without advancing the state’s goal of protecting the public from recidivist offenders.

The court recognized that social media plays a vital role in our society and noted that “Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”

What the Court Generally Held, and Why It Still Matters

The case, decided on June 19, 2017, involved N.C. Gen. Stat. § 14-202.5, which made it a felony for a registered sex offender to access commercial social networking websites that permit minors to create accounts. Justice Kennedy wrote the opinion of the Court, joined by four other justices. Justice Alito, joined by Chief Justice Roberts and Justice Thomas, agreed that the law was unconstitutional but wrote separately, and Justice Gorsuch did not take part, so the judgment was 8-0.

Even assuming the law was content neutral, the Court generally held that it failed intermediate scrutiny because it was not narrowly tailored to serve a significant governmental interest. The Court described social media as part of “the modern public square” and found that the law burdened far more speech than necessary. At the same time, the Court said a state may generally enact more specific, narrowly tailored laws, such as laws prohibiting contacting a minor or using a website to gather information about a minor.

At the time of this writing, Packingham is still cited when courts consider internet restrictions, including conditions of federal supervised release. Some federal appeals courts, such as the Second and Third Circuits, have relied on it in setting aside broad internet bans that were not tailored to the individual case. Others, such as the Eleventh Circuit, have generally viewed it as distinguishable when a restriction is limited to a term of supervised release and tailored to the offense. How these issues apply in a particular case generally depends on the facts, so it is wise to discuss them with Attorney Ron Frey.

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 necessarily 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 wise to seek the advice of counsel first, prior to making such a significant and generally irreversible decision.

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, LLC for a free initial consultation 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.

Questions About Unlocking Your Phone for Police

What should I do if police ask me to unlock my phone?

You can ask to speak with a lawyer before unlocking a phone or providing a passcode, fingerprint or face scan. What an officer may request, and what a court may later order, depends on the circumstances, the jurisdiction and any warrant or court order. The law in this area is not the same everywhere and continues to develop. Attorney Ron Frey of The Frey Law Firm, LLC can discuss the situation during a Free Initial Confidential Consultation at (844) 766-3739.

Can police require me to unlock my phone with my fingerprint or face?

Not necessarily. Courts have not treated this issue the same way in every jurisdiction, and the result can depend on how the request or order is made. A news report about an older court order should not be assumed to control a current case. A lawyer can review the actual request and the law that applies now.

Is a passcode treated the same as a fingerprint or face unlock?

Not always. A passcode is something a person knows, and a fingerprint or face scan is a physical feature, so courts may analyze those requests differently. Any distinction, and the outcome, can depend on the jurisdiction and the facts. Because this area of law continues to change, the analysis should be based on current law rather than an older news account.

With the prevalence of technology, law enforcement officials today are devoting a significant amount of resources into investigating sex crimes on the internet and over social media. Law enforcement officials are currently employing efforts to monitor social networks, social media, peer-to-peer file sharing programs, forums, and more.

Common ways that law enforcement officials identify alleged online offenders:

• Creating a fake online profile, which is then used to communicate with potential suspects
• Monitoring file sharing offerings over peer to peer (p2p) networks
• Overtaking websites that contain contraband in order to monitor visitors to the site

Complexity of Online Sex Crime Investigations

Once law enforcement officials identify a suspect, the online investigation can yield a vast amount of digital evidence, which can make it difficult to manage and even harder to interpret. The burden of proof is on the government and the investigators must forensically process and understand the evidence against the charged individual or organization.

How Online Sex Crime Investigations Generally Unfold

At the time of this writing, many online sex crime investigations generally begin in one of two ways. Some are proactive, such as undercover operations in which officers communicate online while posing as someone else; the federally funded Internet Crimes Against Children (ICAC) Task Force program describes its member agencies as conducting both proactive and reactive investigations. Others are reactive and start with a report. Under federal law, 18 U.S.C. § 2258A, online service providers that become aware of apparent child pornography, now commonly referred to as child sexual abuse material (CSAM), on their platforms are generally required to report it to the National Center for Missing & Exploited Children’s CyberTipline. Reports about CSAM and online enticement can also come from members of the public.

Once investigators have a username, an account, or an IP address, they generally ask the service provider for more information. Under 18 U.S.C. § 2703, basic subscriber records, such as a name, address, and assigned IP address, can generally be obtained with a subpoena, while the contents of messages and files generally require a search warrant or other court process.

If investigators believe a particular person is involved, they generally seek a warrant to search the home and devices. The U.S. Supreme Court has held that police generally need a warrant to search the data on a cell phone, even after an arrest. Seized devices are then generally examined by forensic examiners, and how that data was collected and interpreted is often a central question in the defense. Attorney Ron Frey generally reviews each of these steps closely.

It is important to consult an attorney if you are under investigation or arrested for an internet sex crime charge or computer crime. Attorney Ron Frey has substantial experience defending clients charged with internet sex crimes, and can work with forensic professionals to help defend you against any allegations you may be faced with. Contact the firm today!