As cell phones and digital cameras become more and more prevalent, an ever-growing percentage of our world gets committed to virtual film each day. It is hard to get a device now that lacks some capacity to record the world around it, and the convenience of doing so has started to conflict with the ever-present security concerns that are a reality in our society today. Photographers ranging from professional journalists to curious passersby have made the news recently for run-ins with law enforcement, and since everybody's first instinct when they see something interesting these days is to whip out their smart phones, it is worth discussing where and when it is appropriate to do so.

First up- still photography. This is the easier category. The basic rule is that anywhere you are allowed to be as an anonymous citizen, you are allowed to photograph. This includes airports, subways, city streets, and government buildings. The clearest exception to this rule is that you are not allowed to photograph someone where they have a reasonable expectation of privacy. For any potential paparazzi out there, this means that just because you can see into someone's bedroom through a window and two mirrors while standing on a public street, it does not give you permission to snap away for devious monetary gain. Also, even though you can see a government airstrip a mile away from behind a barbed wire fence, the tall men in dark suits won't take kindly to you hauling out your ultra-telephoto lens in order to get a better look. Good summaries of the rights of photographers can be found here http://www.usatoday.com/tech/columnist/andrewkantor/2005-12-29-camera-laws_x.htm and here http://www.krages.com/phoright.htm

Unfortunately, despite many laws protecting citizens, law-enforcement officers occasionally get overzealous when trying to do what they think is right. One case that made the news for it's sheer absurdity was that of Duane Kurzic, who was wrongfully detained for taking innocuous pictures in an Amtrak station. The kicker was that he was actually taking pictures for a contest sponsored by Amtrak (http://www.nytimes.com/2010/07/28/nyregion/28about.html ) that specifically asked for pictures of their trains and stations. 

The question is whether or not police officers have a reasonable expectation of privacy when conducting their standard duties. A judge ended up ruling “no” in a decision in Maryland late last year, in which a man's cameras and computers where seized after he posted a video of a traffic stop online. But similar prosecutions have popped up in other states, as there has been no decision about the issue on a federal level. Some states, like Connecticut, are being proactive and specifically addressing these cases with new laws.

The video of a m an named Narces Benoit w ho happened to witness a police shootout in Miami went viral yesterday- the video shows officers pursuing and drawing weapons Benoit him after he left the scene, shouting that he was not allowed to be recording. http://www.dailymail.co.uk/news/article-2000366/Moment-cop-pointed-gun-head-innocent-witness-filmed-shooting-Florida.html (Warning the video in the article is fairly graphic.)

In short: use common sense, know your rights, and don't be afraid to stand up for them.

Edit: A relevant story broke the day after this blog post was published- http://www.huffingtonpost.com/2011/06/08/chicago-district-attorney-recording-bad-cops_n_872921.html

VPR Internationale v Does 1-1017

In this technological era, online piracy is a very common problem for many businesses. One issue that clouds prosecution in this area is the anonymity granted by internet. Often the only form of identification attached to an illegal act is an IP address. An IP address is a unique number assigned to any device hooked up to the internet. Unfortunately for persecutors, a single IP address doesn't mean a single person. Usually, the device that is plugged directly into the internet some form of router which then broadcasts to a household, a coffee shop, or an entire wing of an airport. This means that an unsecured home network, for instance, could be used by a neighbor to illegally download pirated movies, and it would be the innocent, yet careless, party that would be accused.

There is no phone book of IP addresses. If a content provider decides that they want to pursue a lawsuit against an IP address, they have generally had to ask the Internet Service Providers (ISP) for the contact information associated with the IP (often not the information of the actual perpetrator), which the ISP may or may not decide to provide. In the past, though, content providers have been able to subpoena the information from the ISPs, leaving the accused to challenge the validity of the forceful collection of private data themselves.

In a ruling this past month, however, a judge has refused to uphold the request for such a subpoena, claiming that the privacy concerns of the owners of the affected IPs outweigh the vague benefits claimed by the litigant companies. In VPR Internationale v DOES 1-1017, a Canadian adult film company is suing more than a thousand unnamed defendants for copyright infringement for disseminating their products through the popular file sharing program BitTorrent. VPRI has only the IP addresses used in the offense, and sought to ascertain the identities of offenders by subpoenaing the relevant contact information. The judge,  Judge Harold A. Baker, refused to grant the subpoena requests, citing lack of proven jurisdiction, since not a single actual person has been named in the suit. He also referenced this article article from MSNBC which details the struggles of a man accused of distributing child pornography after a neighbor used his unsecured internet connection to obtain such materials. Despite the fact that he was guilty only of ignorance, the man had all of his electronics seized and was treated like a vile criminal due to the nature of the case. His reputation in the community was permanently tarnished simply based on the fact that his contact information was subpoenaed on account of his IP address alone.

This case will not proceed any time soon, as the prosecution has no way to find out the identities of any of the defendants. Obviously people who break the law online should be brought to justice, but seems that, for now, these IP based “fishing expeditions” will not be used to do it.

There have recently been a couple of updates in the ongoing saga of the infamous Duke Lacrosse Case that are worth mentioning.

Some background: in 2006 a female escort named Crystal Gail Magnum accused three Duke University lacrosse players of raping her at a house party. The case stirred up a hornets' nest of racial tension all over the country as the facts became more and more muddled. Eventually it came to light that Mike Nifong, the prosecuting attorney in the case, was acting as a so-called "rogue prosecutor" who was more concerned with making a high-profile conviction than with actually dispensing justice. Specifically, he was using intimidation tactics to get his own version of the truth out of people while withholding and concealing potentially exculpatory evidence. Nifong removed himself from the case, was disbarred, and then convicted of contempt of the court, for which he served one day in jail When all was said and done, the Duke lacrosse players were exonerated and no charges were filed against Magnum, as Nifong had taken most of the blame for the wrongful prosecution.

In 2007 the affected players sued both Mike Nifong and the city of Durham for, among many other things, depriving them of their constitutional rights as citizens. Nifong and the city both attempted to get the case dismissed on the grounds that the Durham police department was only doing its job in trying to get potential criminals convicted. It is a complicated matter. Due to the the adversarial nature of our justice system, prosecutors must be expected to do their most in going after the indicted, since they can be sure that the defending lawyers will be trying their hardest to thwart them. But where exactly can the line be drawn between pursuing a conviction for justice and pursuing a conviction for personal gain?

And when that line is crossed, the matter of liability is hard to pin down as well. In this case, each defendant is trying to shift the blame to another. Nifong himself is immune in his role as prosecutor, but some of the actions he took, a ruling this March has said, go above and beyond that role. For instance, the suit alleges that Nifong told his campaign manager that the case would provide him with millions of dollars in free publicity. The legal considerations in this case are so complicated, that it took four years for a judge to even decide which charges to dismiss and which to keep. U.S. District Judge James A. Beaty Jr. decided in a ruling on March 31 that certain parts of the civil suit could move forward. But he dismissed others of the Duke students' claims, such as that of intentional infliction of emotional distress. The case will proceed as Evans v. Durham, 07-00739, U.S. District Court, Middle District of North Carolina (Durham).

Another strange twist has been that Magnum, the escort who has initially accused the players, has recently been indicted on murder charges for fatally stabbing her boyfriend. 

Connick v. Thompson was a supreme court case decided on March 29, 2011, overturning an appellate court decision that upheld a $14 million decision in favor of a man wrongfully sentenced to death and imprisoned for eighteen years.

The two parties involved were John Thompson , the wrongfully accused, and the District Attorney’s Office of Harry F. Connick , who was the DA during Thompson's original trial. Thompson was arrested in 1985 for murder, and was later also charged with armed robbery. The trial for the robbery occurred first, during which prosecutors withheld vital information that would have exonerated Thompson. Specifically, blood evidence found at the scene of the crime did not match types with Thompson's blood. In accordance with Brady v. Maryland , a SCOTUS case from 1964, exculpatory evidence (consequently known as “Brady material”) must be released to the defense if it could have an effect on the verdict or resulting sentence of a trial.

As a result of this breach in due process, Thompson was found guilty of the robbery before the murder trial took place. Thompson's lawyers decided that his credibility had been tainted so much by this conviction that he should not take the stand in his own murder trial, and so could not impeach the credibility of the witnesses against him. Thompson was found guilty of murder and sentenced to death. Just weeks before his scheduled execution, after all appeals had been exhausted, Thompson's lawyers found the withheld information, and got the convictions for both crimes thrown out in 1999 and 2002. Thompson was quickly acquitted of both charges in retrials and released in 2003 after eighteen years of wrongful imprisonment.

In 2005, Thompson sued the DA's office of Harry F. Connick under 42 U. S. C. §1983 for deprivation of constitutionally guaranteed rights. Specifically, Thompson claimed that the DA's office had failed to provide adequate training to its attorneys regarding the release of so-called Brady material. Previous suits have held that, in order for such claim to be valid, the lack of training must constitute “ deliberate indifference to the rights of person s...” The court found that, since there was not a clear pattern of indifference by the DA's office, and since attorneys are reasonably expected to be trained and educated concerning Brady materials in law school, the facts of the case did not meet this criterion, and thus overturned the lower court's award of $14 million dollars, one million for each year spent on death row (which had reached $20 million with interest), in a 5-4 decision with a concurring opinion written by Justice Scalia and a strongly worded dissenting opinion by Justice Ginsburg.

This case highlights some of the issues with the adversarial form the American system of justice takes. It might seem strange that there even needs to be a specific rule requiring a prosecutor to reveal evidence that could prove a person's innocence, but in a system where both sides are ethically obligated to do their best to win for their side, it's easy to see how either side might lose track of the end goal of the courts – to ensure that guilty are punished and the innocent protected. And while withholding exculpatory evidence is unquestionably evil, it is certainly not always the case that it is done with ill intention, or with any intention at all. A prosecutor could very easily succumb to cognitive bias and undervalue a piece of evidence's importance in a trial or utility to the defense, since it is his job to look at things from the other side.

This case may show to be important and oft-cited in the future, and could establish a foundation for cases determining the liability of prosecutors in the inevitable false-positives of the justice system.

The decision: http://www.law.cornell.edu/supct/html/09-571.ZS.html

The dissent: http://www.law.cornell.edu/supct/html/09-571.ZD.html

An op-ed by Thompson:  http://www.nytimes.com/2011/04/10/opinion/10thompson.html