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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Crimes - Internet Library of Law and Court Decisions - Updated March 29, 2008

179 Misc.2d 903 (Criminal Crt., City of NY, February 9, 1999)

Court holds that posting a threatening message to an Internet newsgroup, which is read by the person threatened, constitutes Aggravated Criminal Harassment in the Second Degree in violation of New York Penal Law Section 240.30.  The Court accordingly denied defendant’s motion to dismiss this charge, which accused defendant of posting a death threat against complainant on an Internet newsgroup.

186 Misc.2d 441 (2d Dept., 2000)

Second Department holds that the creation of a website that invites users to contact complainant for sex, which causes third parties to contact complainant via a telephone number provided on the site, constitutes aggravated harassment in the second degree in violation of New York Penal law section 240.30.  As a result, the Second Department affirms defendant’s conviction of aggravated harassment as a result of his involvement in the creation of such a website.

The Second Department did overturn defendant’s conviction for criminal contempt in the second degree, arising out of his purported violation of an order of protection, prohibiting contact with the complainant.  The Court held that such conviction could not stand, because the website at issue was created prior to the issuance of the order of protection, and its continued maintenance was not clearly prohibited thereby.

Case No. 98-2083 (N.Y. App. Div., 4th Dept., June 18, 1999)

The Fourth Department held that New York Penal Law §235.22 did not run afoul of either the First Amendment or the Commerce Clause of the United States Constitution. This statute makes it a crime for an individual to use a computer system to engage in communications with a minor which both "disseminate[] graphic images to [the] minor depicting nudity, sexual conduct or sadomasochistic abuse that is 'harmful to minors'", and "importunes, invites or induces a minor to engage in sexual activity." In reaching this conclusion, the court rejected defendant's contentions that Penal Law §235.22 was overbroad, vague or an impermissible content-based regulation on protected speech. Quite the contrary, held the court, the statute was "a precise means of accomplishing the Legislature's objectives" of protecting children from "high-tech cybersex abuse and actual sexual abuse."

QDS:22310325, 1999 N.Y. Misc. Lexis 425 (Sup. Ct. N.Y.Co., July 24, 1999)

Court holds that permitting New Yorkers, from their home computers, to access and use Antiguan-based computers to engage in gambling activities, violates New York State's prohibitions on gambling within New York, as well as the Federal Wire Act (18 U.S.C. section 1084(a)), the Travel Act (18 U.S.C. section 1952) and Interstate Transportation of Wagering Paraphernalia Act.

Respondent Golden Chips Casino Inc. ("GCC") is an Antiguan corporation licensed to operate a land-based casino in Antigua. GCC is also a wholly-owned subsidiary of respondent World Interactive Gaming Corporation ("WIGC"). GCC promotes a service which permits individuals, via their home computers, to access and use computers located in Antigua to gamble. Before a user can begin gambling, he must first wire funds to GCC in Antigua (which funds are credited to an account in his name) and download software from respondent GCC's website. He is then asked to supply GCC with his "permanent address." Provided the user provides respondent with an address from a state in which land-based gambling is legal, he is permitted to start gambling. It does not matter whether this is in fact the user's true address or not, as respondent takes no steps to verify the accuracy of the information supplied by the user. Once approved, the user can engage in gambling activities from his home.

GCC promoted the availability of this gaming service at its web site, on the Internet, and in a "national gambling magazine."

GCC was aided in these activities by its corporate parent, WIGC, which , according to the court, is GCC's "alter ego." WIGC is a Delaware corporation with its corporate headquarters in New York, from which location it "operated its entire business." Many of these New York activities aided the parties' gambling enterprise, including editing versions of the gambling software at issue, contacting a third party for the purpose of obtaining graphics for that software, and purchasing both the servers and software used to run respondent's activities. According to the court, "the evidence also indicates that the individuals who gave the [Antigua] computer commands operated from WIGC's New York Office." To make matters worse, respondent WIGC engaged in the unlicensed solicitation, primarily via "cold call", of investors for its activities from its New York headquarters.

Based on these activities, the court determined that respondents were "doing business in New York for purposes of acquiring personal jurisdiction" and that "even without physical presence in New York, WIGC's activities are sufficient to meet the minimum contact requirement of International Shoe Co.".

Finding respondents subject to the court's jurisdiction, the court went on to hold that their activities ran afoul of various New York State statutes designed to prohibit gambling in New York. In so doing, the court rejected respondents' argument that the gambling at issue took place in Antigua, where it was legal.

The act of entering the bet and transmitting the information from New York via the internet is adequate to constitute gambling activity within New York State.

This determination was consistent with New York Penal Law 225.00(2) which provides that "if the person engaged in gambling is located in New York, then New York is the location where the gambling occurred."

The court held that respondents' acts violated the prohibitions on gambling contained in New York Penal Law 225.05. The court further held that "by hosting this casino and exchanging betting information with the user, an illegal communication in violation of the Wire Act [18 U.S.C. section 1084(a)] and the Travel Act [18 U.S.C. section 1952] has occurred. ... Gambling conducted via the Internet from New York to Antigua is indistinguishable from any other form of gambling since both the Wire Act and the Travel Act apply to the transmission of information into a foreign country." Thus, the court held that "the Wire Act bars citizens from engaging 'in the business of betting or wagering knowingly using a wire communication for the transmission of interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers.'" The court determined that as a result of the violations of these and other laws, the State was entitled to injunctive relief, as well as restitution, penalties and costs.

281 F.3d 1130 (10th Cir., February 22, 2002), cert. denied, 537 U.S. 845 (2002)

10th Circuit holds that a University professor has no reasonable expectation of privacy in an office computer supplied for his use by the University which employed him.  This result was mandated by the University's computer policy, which provides both that the University may inspect such computers at any time to ensure their appropriate use, and that the University is the owner of everything stored in such computers.  As a result, the court held that the seizure of these images did not violate defendant's Fourth Amendment rights, given his lack of a reasonable expectation of privacy in this computer.  The 10th Circuit accordingly affirmed the denial of defendant's motion to suppress the introduction of child pornography found in files defendant attempted to delete from his computer hard drive and upheld defendant's agreement to plead guilty to violating 18 U.S.C. §2252(a)(5)(b) based on his possession of child pornography.

Docket No. 00-1574, 260 F.3d 68 (2d Cir., July 31, 2001)

The Second Circuit affirmed the conviction of defendant Jay Cohen of conspiracy to, and substantive violations of, 18 U.S.C. §1084, which, inter alia, prohibits the use of wire communication facilities to transmit wagers in interstate or foreign commerce. The Second Circuit held that defendant violated this statute by using both the Internet and telephones to transmit calls from bettors in New York, where gambling is illegal, to World Sports Exchange in Antigua, where gambling is legal, during which transmissions bets were placed. Defendant was sentenced to a term of 21 months in prison.

206 F. 3d 392 (4th Cir., February 28, 2000)

Fourth Circuit holds that various warrantless searches of the defendant employee's computer did not violate his Fourth Amendment protections against unreasonable governmental search and seizures. The Fourth Circuit remanded for reconsideration that portion of the lower court's determination that upheld a search of the defendant employee's office and computer pursuant to a warrant where the searching officials, contrary to its terms, failed to leave the warrant for the employee after completing their search.

No. 06-3094 (10th Cir., April 25, 2007)

Affirming the decision of the District Court below, the Tenth Circuit, by a 2-1 margin, holds that the defendant’s ninety-one year old father had apparent authority to consent to the government’s warrantless search of defendant’s password protected computer.  The computer was located in defendant’s bedroom in his father’s house.  The Court reached this result notwithstanding the fact that defendant’s father neither used the computer, nor knew the password thereto.  As a result, the Tenth Circuit affirmed the denial of defendant’s motion to suppress the evidence of child pornography found during the resulting search, and affirmed defendant’s conviction for violation of 18 U.S.C. Section 2252(a)(4)(B), which prohibits the possession of materials depicting minors engaged in explicit sexual conduct.

The Tenth Circuit holds that an individual with apparent (but not actual) authority can give valid consent for a warrantless governmental search of another’s computer.  An individual has such apparent authority when, examining the totality of the circumstances, the facts available to the officers at the time they commenced their search would lead a reasonable officer to believe that that individual had authority to consent to such a search based on that individual’s relationship to the object searched.

There was a strong dissent by Judge McKay, who would have held, under the circumstances, that the officers had a duty to inquire as to whether the computer was password protected and, if so, whether the party consenting to the search knew the password or had access to the computer in question.  As the government neither made such inquiry, nor knew the password in question, the dissent would hold that defendant’s father did not have apparent authority to consent to the alleged search.

151 F. Supp. 2d 82 (D. Maine, June 25, 2001)

Court denies defendant's motion to suppress both pornographic images obtained from the hard drives of two University computers located in a computer lab that defendant used, and logs pertaining to the usage of such computers.  In so doing, the court rejected  defendant's claim that he had a reasonable expectation of privacy in such hard drives, holding that "there is no generic expectation of privacy for shared usage of computers at large."  As defendant did not advance any evidence to support his claimed expectation of privacy, the court denied defendant's motion to suppress.

Crim No. 02-13-B-S (D. Maine, May 10, 2002)

Magistrate Judge issues report, recommending denial of so much of defendant's motion to suppress which sought to prevent use of various pornographic images found in the recycle bin of a University computer, in a personal computer maintained by defendant at his home, and in a computer used by defendant at his place of employ.  In so holding, the Magistrate Judge determined that defendant did not have a reasonable expectation of privacy in either the University or office computers, so that their searches did not violate the Fourth Amendment.  The court further held that the search of defendant's home computer was made pursuant to a validly issued search warrant.

Quick Hits

People of the State of New York v. Melisa Fernino
851 N.Y.S.2d 339 (N.Y. City Crim. Crt., February 13, 2008)

Court denies defendant’s motion to dismiss a misdemeanor complaint charging her with three counts of Criminal Contempt in the Second Degree in violation of NY Penal Law Section 215.50(3).  The Court held that defendant’s utilization of Myspace to transmit a Myspace ‘friend request’ to complainants violated an order of protection that prohibited the defendant from having any contact with the complainant. 

In reaching this result, the Court rejected defendant’s argument that she could not be found guilty of violating the order of protection because she did not contact the complainant – rather, Myspace did.  Said the Court:

The defendant should not be exculpated because she, instead of contacting her victim directly, used the MySpace Mail Center Friend Request Manager …  In this case, the defendant used MySpace as a conduit for communication prohibited by the temporary order of protection issued by the Family Court.  The Myspace Friend Requests fall within the court’s mandate that ‘respondent shall have No contact with [complainant].’ …  that request was … a contact and no contact was allowed by the order of protection.  It is no different than if the defendant arranged for any agent to make known to a claimant ‘your former friend wants to communicate with you.  Are you interested?’

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Kathleen Smith v. Alan Smith
24 A.D.3d 822, 804 N.Y.S.2d 854 (3rd Dept., 2005)

Court holds that “aggravated harassment in the second degree [in violation of New York Penal Law section 240.30] may be committed by sending harassing or threatening messages by email.”

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