The Three C’s (Computers, Crime, and Corrections)

Probation and parole officers know about drug users and what to look for right? We test for drugs, we look for unexplained cash, and obviously for drugs. Well, recently, it was announced that the FBI had arrested the alleged leader of Silk Road,  a website on Tor, involved in the illicit drug trade. I am not talking about the sale of “fake pot” (“Spice,” “K2,” “Blaze,” and “Red X Dawn”) which I mentioned way back in 2011.  I am talking about an open market for real marijuana, heroin, cocaine, literally any drug you can name it.

What are Tor and Silk Road,  what are their “urls” and how can I get there? Well, you can’t get there from here. Additionally, you also need to understand something about bitcoins, the digital currency used to buy and sell drugs and other contraband on the underground. Let me give you some information and some hints to help bring you up to speed. First, let talk about Tor, which stands for The Onion Router Network.   Tor was developed with funding from the U.S. Navy and allows users to surf the Internet anonymously. The user must download some free software to access Tor. If a used properly, Tor makes it very difficult to identify who a user is or what they are doing online. So difficult in fact, that the National Security Agency (NSA) considers it … “[s]till the King of high secure, low latency Internet anonymity” and that “[t]here are no contenders for the throne in waiting”. Well Tor also has an area, called “hidden services”, where users can set up websites. These websites can only be found while one is using Tor and have dominion ending in .onion.  So folks can set up hidden websites on a network where user’s activities can’t be traced. One final comment, Tor is not itself illegal to use or have. Yep, that is a perfect place to set up an illegal drug market.

Okay, now where do bitcoins come in? Well bitcoins are currently not regulated. They are in many ways untraceable and can be converted back and forth from regular currency. Additionally, bitcoins are maintained in an electronic wallet, which can be stored on a cell phone (there are apps for that after all). Finally, bitcoins have real value, trading in the area of $135 to $137 for one bitcoin. Are you following this? A hidden website for illegal markets, on a network where your activities can’t be traced, where you can buy things with an unregulated currency that is difficult to trace and very portable. It is a perfect environment for 21st criminal behavior!

In my previous drug-cyberspace related article, I provided some suggestions for probation and parole officers. Let me add a few to consider in light of the possibility of supervised offenders using Tor to get drugs, either for personal use or for sale:

• Be aware of offenders with packing boxes/envelopes either an excessive amount for shipping or discarded packing containers.  Pay attention to where the packages are being set or received from. Out of country or out of state addresses might be a read flag, unless your offender is on E-Bay selling beanie babies. Consider having discarded packages tested for traces of drugs, such as with a canine drug detector.
• Bitcoins are not illegal and can be used for legitimate purposes. Currently, monthly supervision reports ask for income, expenses, bank balances, etc. in dollars. So you are going to have to periodically make a separate inquiry about bitcoins. Start with tech savy and youthful offenders. Also ask those with anti-government views. Does your offender have any and how much? What are they doing with them and where are they getting them? These are valid supervision questions, particularly in light of their value and the potential to easily use them for illegal purposes.
• Check their devices for electronic wallets that are used to handle bitcoin transactions. They can be stored on any computer, including smart phones. Be aware they can also be stored online.
• If your are looking only at the browser history during your computer searches, be aware that Tor browsing history is not going to show up in the normal history. The Tor website can be accessed from a normal browser, that is how you get the software. Visiting the Tor website will show up in browser history, provided they haven’t cleaned their history.  However, accessing the Tor network is a different matter. Tor comes with bundled with a specific browser, currently Firefox, which connects to the network. This Tor configured browser could be anywhere on a device. There is even a portable application for using Tor from USB device. If you can do text searches, consider Tor (exact),  onion, and Vidalia (Tor creates a folder called Vidalia) . If you suspect your offender is using Tor for illegal purposes, also seek guidance from your local law enforcement computer unit. A computer forensic unit can help you find what they might be doing on Tor, provided you have a device for them to examine.

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Today I was notified by the Federal Probation and Pretrial Officers Association (FPPOA) that I am the 2013 Recipient of the Great Lakes Region Thomas E. Gahl Line Officer of the Year. The award recognizes & honors Federal Probations/Pretrial Officers, who make a significant contribution and provide outstanding services to the field of corrections. The Great Lakes Region is comprised of Wisconsin, Illinois, Indiana, Michigan and Ohio. This particular regional award is named after Thomas E. Gahl, a U.S. Probation Officer, who was killed in the line of duty. Thanks again, I am truly honored.

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I plan on answering that question as it relates to community corrections in a few days. For now, check out my thoughts on this topic at this article: Policing the Silk Road: Is Law Enforcement Ready?. You are not going to want to miss my thoughts on this topic!

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Clear back on February 4, 2013, I gave some predictions for the coming year. I never finished my thoughts, getting waylaid by co-writing a book on Internet investigations. Sorry about that.  One of my last comments was… “what about the remainder of my 2013 predictions, such as sex offender Internet restrictions?”  It would obviously be silly to continue on with my Nostradamus imitation this late in the year. But what about my ending comment concerning Internet restrictions? Where are they?  As luck would have it we had a lot movement on Internet restrictions that warrant mentioning.

Before I go into these recent developments let me play a bit of catch up here on some cases which did not get previously mentioned by me.  All of the cases deal with First Amendment concerns regarding sex offender Internet restrictions and/or requiring disclosure of Internet identifiers as part of sex offender registration.  The first case, Doe v. Nebraska, 898 F. Supp. 2d 1086 – Dist. Court, D. Nebraska 2012, also concerned a Fourth Amendment issue.  

Doe. V. Nebraska was decided October 17, 2012, and was a Federal district court decision which struck down various sections of Nebraska 2009 sex offender restriction law. The enacted law was very broad and had covered both sex offenders who had completed their entire sentence as well as those serving a sentence (probation, imprisonment, or parole).  The Court struck down the law’s requirement that sex offenders disclosure their Internet identifiers as part of registration, concluding it violated the First Amendment. Additionally, the Court struck provisions that banned sex offenders from social networking websites, instant messaging, or chat room service that could be used by minors, again finding this provision violated the First Amendment.  Finally, the Court struck down provisions requiring “consent” to search and/or monitoring for sex offenders who had completed their sentence, concluding it violated the Fourth Amendment. However, the Court did NOT strike down the search/monitor provisions for those on probation or parole.

The next case occurred on January 11, 2013. On that date a U.S. District Court Judge granted the plaintiff’s motion for an injunction, blocking enforcement of California’s Proposition 35, which required registered sex offenders turn over a list of their Internet identifiers and service providers to law enforcement. (Case 3:12-CV-05713-TEH, Doe v Harris) This matter is now before the 9^th Circuit. 

On January 23, 2013, the 7^th Circuit in Doe v. Prosecutor, Marion County, Indiana, 705 F. 3d 694 – Court of Appeals, 7th Circuit 2013, struck down an Indiana law that criminalized sex offenders using  social networking websites or  instant messaging or chatroom programs that they knew could be accessed by minors. However, POLITICO’s  Tal Kopan (2013) correctly noted “The court was careful to note that its opinion does not prohibit including Internet restrictions as part of terms of release from prison for other sex offenders.”  

Okay, that brings you up to speed for what happened during this month.  On August 20, 2013, a North Carolina Court of Appeals struck down a law that made it a new crime for sex offenders to access social networking sites.(State v. Packingham, NC: Court of Appeals 2013). This is no surprise considering what occurred in Nebraska and Indiana. (Hello, Louisiana, are you listening? See Internet Restrictions Still A Viable Option )

The last case I want to bring up is Bykov v. Rosen, Wash: Court of Appeals, 1st Div. 2013, Court of Appeals of Washington, Division One, which was decided August 12, 2013. By the way, this case did not involve a sex offender.  Bykov was convicted of one count of e-mail harassment and was sentenced to  21 days and placed on probation with the following restriction: “Do not use any device connected to the Internet, be subject to search by probation, and cooperate by providing access.”  Bykov appealled contending the Internet restriction was an unlawful restraint because it infringed on his rights to freedom of speech, freedom of association, and freedom to receive information under the First Amendment. His appeal was rejected. The Appellate Court noted in part:

Restricting him from further access to the instrumentality of his crime during his supervisory period was reasonably related to his crime, and it was a reasonable means of discouraging repeat offenses.”

Did you get that last part, “a reasonable means of discouraging repeat offenses?”  Restricting Internet access has always been seen primarily as a risk management condition. Now many of you might argue that the U. S. v. Kevin Mitnick,  145 F.3d 1342, 9^th Circuit, 1998, was an early example of imposition of Internet restrictions as deterrence. But in that decision there was broad statement by the 9^th Circuit, which held that the restrictions were … “reasonably related to legitimate sentencing goals.”  Deterrence, although  one of many sentencing factors noted 18 USC § 3553, is not specifically cited as a rationale. I think an argument could be made that many of the conditions imposed in Mitnick’s case were really about community protection. He was after all considered a “dangerous” hacker. In Bykov,  the Washington Appellate Court singles out Internet restrictions as a “deterrent” sentence. Maybe it is just me but I thought that was very intriguing. 

As I have repeated said, legislatures would do well to allow courts and parole authorities the discretion, if they chose to impose such restrictions, without mandating wholesale prohibitions based solely on the status of “sex offender.” Internet conditions/restrictions on community corrections cases (probation, parole, supervised release), properly crafted have been repeatedly upheld. The Bykov case signifies that separate and apart from managing cyber-risk, an Internet restriction can be punishment that deters future Internet misconduct. The idea that someone could be punished by Internet restrictions, regardless of the risk they pose, is I think, a new sentencing wrinkle. It will be interesting to see how far it goes. For now, I have a cigar burning somewhere. (Again, sorry about my extended hiatus. But I am sure you will pardon my absence when you take a look at Todd Shipley’s and my efforts on Investigating Internet Crimes, 1st Edition: An Introduction to Solving Crimes in Cyberspace, due out in November 2013)

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Art Uncategorized Internet restrictions, sex offenders

Dear Readers:

For the last six months I have been busy working and have neglected this blog. I am sorry for that but it was for something I feel strongly about. My attention has been devoted to writing another book, this one with Todd Shipley, a  retired Detective Sergeant with over 30 years of law enforcement and civilian experience performing and teaching Internet and digital forensic investigations. I believe our book titled Investigating Internet Crimes, 1st Edition: An Introduction to Solving Crimes in Cyberspace,will be extremely useful for not only law enforcement but those in community corrections. The text describes in detail how to not only locate online information but also how to capture, preserve it and document it in a manner so that it can be used for evidence. Both Todd and I are very pleased with our efforts and believe it will very useful resource for those who must investigate online malfeasance. We have established a blog for the book and have also created a Facebook page.  Please check the blog  for coming details and updates and of course “like” our book on Facebook. The book is set to be released by Elsevier in November 2013, only a few months away! As I have this important text wrapped up, look for my posts to this blog to start back up again. Thank you for your understanding and support.

Sincerely,

Art Bowker

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APPA Webinar : Managing the Risks Posed by Offender Computer Use
Only $10. Date June 5, 2013, Time: 2:00pm-3:00pm (GMT-05:00) Eastern Time (US & Canada)

This webinar will discuss the 2011 American Probation and Parole
Association issue paper on managing the risks posed by
probationer/parolee computer use. Topics covered will include issues
with computer and Internet use by probationers and parolees or those
on supervised release; computer management; distinctions between
computer monitoring and searches; and an overview of inexpensive
monitoring tools for community supervision officers.

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Last year about this time I gave some predictions based upon some things that were happening in 2011. I discussed mobile phones in prison, online drug sales, gambling, victimization as possible trends in 2012. Well, how close I was to the mark on these issues a year later? I am going to tease you a bit in this first of a two part examination of how I did and my predictions for the coming year. Lets start with mobile phones being a problem in prisons. At the time I wrote my 2012 comments, the FCC was I believe about a year into discussing promising solutions for blocking mobile phones in prison. One such solution was technology based, called, “contraband cell phone capture.” Jamie Barnett of the FCC described it as: …

designed to capture cell phones calls inside the prison, analyze whether the calls are from legitimate devices or not, and prevent completion of calls from unauthorized cell phones, in effect making those cell phones useless to inmates.”

That was rolled out at the start of 2011, a full year before my comments were made about mobile phone problem in prison. So the question is what occurred in 2012?  Did these technology solutions take hold, eliminating the mobile phone prison problem as an issue in 2012? Well, I don’t recall any high profile inmates like Charlie Manson being caught with a phone in 2012, which is a good thing.  In October of 2012, CA unveiled its plan, which seems to be based on the technology approach noted above. Wow, CA implements its plan almost three years after FCC highlighted the technology. Interesting that the article that discusses the new CA plan referenced that the same technology was reportedly unsuccessful in MS.    If I had to guess I would say states are having trouble paying for this new solution.

It sounds like Georgia doesn’t have such a system. The Atlanta Journal-Constitution reported on January 1, 2013, that in one Georgia facility mobile phones were being used to export money of inmates family members. Basically, it worked like this. The inmate’s family would get a text message, plus picture of their family member from inside the facility from other inmates. The message was pay up or your loved one is going to get beat up or killed. This reportedly happened to three different families. GA prison officials could not substantiate these cases, but noted that cell phones were a continuing problem in their facility.  Sounds like for some reason (maybe financial), this issue seems to be getting addressed at the speed of a glacier. (And yes I saw the report of Brazilian prisoners using a cat try to smuggle, cell phones,  saws/drills, a headset, a memory card, cell phone batteries and a mobile phone charger into the facility. Interesting world we live in ain’t it!)

One thing that was interesting about prisoner communications, legitimate that is, was the FCC Notice of Proposed Rule Making, dated December 28, 2012. The FCC is looking at reducing the cost for prison telephone calls. Basically, they are asking for comment about eliminating the per call charge and capping the per minute charge at between $.20 to $.25. One concern is this will negatively effect the telephone money maker for some prisons, who are suffering through trying financial times. We can only wonder if reducing the cost for these calls might make some contraband mobile phones less appealing. Clearly, this issue is not resolved and is a continuing problem for prisons.

Last year I discussed the illegal or questionable trends of online drugs and guns sales with an observation about the easy of purchasing both online. I specifically noted the number of gun sales online was increasing and doubted there would be any real legislative movement to curb or stop this as it was an election year.  Well at least on the drug front there was some good needs. On October 4, 2012, Reuters reported the FDA, working with international regulatory and law enforcement agencies shutdown over 18,000 illegal pharmacy websites and seized 3.7 million doses of counterfeit medicines worth an estimated $10.5 million.” So there clearly is an enforcement action, at least regarding online illegal drug sales. What about guns? Well, unfortunately, one of the all to0 many mass murder cases (Colorado movie theater massacre) involved the suspected killer’s online purchase of over 6,000 rounds of ammunition. Seems like it should be a lot harder to purchase guns and drugs online than it is. We will see if next year I can report a new law or two on this disturbing trend.

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I got notified today that the American Probation and Parole Association is giving me the 2013 Sam Houston University Award. This award is presented to an individual who has published an article concerning probation, parole or community corrections, which provides new information and insight into the operation, effectiveness or future of the community corrections profession. They noted… “Not only have you published an article, you have been prolific in the number of articles you have published.” Most if not all of the stuff I have written this year has been on cybercrime. It has been a good day!

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Art Uncategorized cybercrime, parole, probation, Sam Houston State Univerisity

Well readers it has been a very busy past few weeks in the cyberspace world and corrections. Where do I begin?  Lets start with the Corn-huskers state, ie,  Nebraska. On October 17, 2012, a federal judge  struck down parts of Nebraska’s new sex offender law, which criminalized the use of social networking sites by sex offenders and also required them to notify the state when they posted material online. The judge also struck down provisions that required registered sex offenders, who were no longer on supervision, to submit to computer monitoring/searches by law enforcement. One issue the judge did not rule on, determining the issue not “ripe”, was a challenge of  the provision requiring a parolees consent to computer searches and use of monitoring software. The decision was very detailed and based upon a hearing in which numerous witnesses testified. Part of the decision noted that much of the language of the statute was “over-broad and unduly burdensome.”  It can be found here.

Now lets go to the sunshine state, California. First off, last week state’s electorate approved Proposition 35, which in part required registered sex offenders provide all their Internet identifiers and the names of their  Internet service providers to law enforcement. The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) promptly filed suit to block the law and an injunction was granted by a federal court pending a decision on the law. Then on  November 8, 2012, it was reported that a California appellate court held a 15-year-old juvenile sex offender can’t be completely prohibited from using Facebook, Twitter, or other social-media sites because his offense didn’t involve the Internet. The court noted he had a First Amendment right to use social media and chat rooms. However, in the same ruling the appellate court  found that prohibitions for him from visiting porn Web sites or using software or tools that could hamper probation efforts to manage his computer use were okay.

Finally, let us go across the seas to the United Kingdom.  A court there ordered an Internet ban on a sex offender and the appellate court found the order  “unreasonable”, overturned it, and ordered the offender to provide Internet history to police instead.  It is being seen as indicating that Internet access is a “fundamental human” right there.

Facebook, the U.S. Department of Labor, the National Association of Colleges and Employers (NACE), DirectEmployers Association (DE), and the National Association of State Workforce Agencies (NASWA) created the ‘Social Jobs Partnership.’ The partnership’s goal will be to facilitate employment for America’s jobless through the use of social networks.

Cool uh? Something to help the unemployed, including ex-offenders, find jobs is a good thing.  But wait, Facebook has a user policy that prohibits  convicted sex offenders from accessing their site. So does that mean that at least 747,408 citizens can’t use a job search resource that was developed with government assistance? By the way the number is likely to be higher than that as Facebook’s policy prohibits “convicted sex offenders”, not just those required to register. Additionally, there are states that have legal statutes that bar sex offenders from social networking sites. How will they be able to use this government partnership program?

Now in fairness, Facebook isn’t actually hosting the job listings.  It is just providing the search feature. But still, it would seem likely that one would need access to Facebook’s site somewhere along the line to use this new service. If a sex offender accesses the service, will they be violating Facebook’s user agreement? Would they be violating a state law somewhere? Who knows? The government has been pushing for employment for offenders because studies reflect it reduces  recidivism, including among sex offenders. Yet, this new government partnership is being run with the aid of a Internet Service Provider that excludes sex offenders from using its site. We want to do all we can to reduce recidivism among sex offenders right? I think this is going to give the ACLU another argument against laws that provide wholesale Internet restrictions for sex offenders. How do you bar all sex offenders access to a government sponsored resource that helps them get a job, make a living, support their family, etc.? But yet how do you keep high risk “predators” from abusing this legitimate access to get at victims? Lot of questions ah?

Here is my suggestion, quit the wholesale legislative restrictions on Internet access. Stop the shotgun approach to managing risk.  Instead provide legal authority for courts and parole authorities to tailor these restrictions based upon the individual needs/risks of a particular case.  This would apply to only supervised offenders and not those whose served their sentences long ago. For what is worth, I don’t see an issue with requiring Internet identifiers being provided as part of sex offender registration. I note that neither did the 10th Circuit Court of Appeals in Doe v. Shurtleff, as long as they were not made public, which is also okay by me. The Supreme Court declined to hear an appeal of that decision by the way. I also don’t have a problem with sentencing enhancements for repeat offenders again using computers and Internet to commit crimes.

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Art Legal Updates, Supervision

My regrets, as I have been meaning to write these last few weeks, particularly with so much that is going on in the world. For instance, we had the recent middle-east riots, reportedly triggered by the  anti-Islam YouTube®  video. We can debate back and forth about whether the YouTube®  video was the real cause of the violence or merely another catalyze to an already volatile situation. Some might argue it was the digital equivalent of yelling “fire” in a theater populated by the world. In the states, as a free society, we tend to be a bit more thick skinned, at least that is the hope.

As we witnessed events unfold it came to light that the purported video source was someone who was prohibited from Internet access due to their correctional status.  The person has been arrested and is facing proceeding to determine if they have violated the terms of their supervision.   Some might argue that the real purpose of the arrest and hearing is to stifle free speech. Others are more on point, that exercising free speech is not the issue. The real issue is offenders can’t lie and violate lawful restrictions while under supervision. We don’t know all the facts of this case. In the end it is in the judge’s hands.

Many of you know I find the whole idea of computer/Internet restrictions intriguing. In this case the person was not allowed online without permission. Media reports are a bit sketchy about computer management conditions imposed in this case, such as use of monitoring software/hardware or searches. Clearly the conditions directed that supervision efforts were to also encompass “cyberspace.”  The question is what conditions or tools were available to help manage the cyber-risk?

While this offender faces a hearing, I read with fascination a story about how another probation officer located a missing juvenile offender using Facebook.® The thing that caught my eye was not that officer used the Internet as an investigative tool. After all, it makes perfect sense that a juvenile probation officer would turn to a media that so many of today’s youth use to communicate and socialize. What caught my attention was that this officer had to use her personal computer as she was prohibited from accessing the Internet from work. So on the one hand you have a world wide story involving a supervised offender’s Internet access, yet this officer’s department prohibits their employees from Internet access at work. Hell, maybe they thought they might view YouTube® videos and start tearing up the place. But seriously, in light of today’s environment, where actions done on the Internet can literally have worldwide consequences, why are probation and parole officers still being prohibited from accessing the Internet from work?

The fact is some officers are being asked to manage offender risk in cyberspace without tools and/or training. It is like being asked to write a movie review but instructed to wear dark sunglasses and ear muffs during its showing. I call it the “see no evil hear no evil” supervision philosophy. To make matters worse officers doing these off hours investigative activities could subject themselves to added risks, such as exposing one’s personal social networking connections to their caseload. Corrections has got to make up their mind. Either they are going to supervise offenders, including in cyberspace, and use all tools at their disposal or turn over this function to law enforcement or the mass media to report on the major supervision violations.  One of the reasons I haven’t written earlier is  I was busy attending the American Probation and Parole Association’s Summer Training Institute, which had over 1,000 in attendance. It was a very professsionally done conference and I was particularly pleased that there were three well attended workshops dealing with managing offender computer risk. Hopefully, more agencies will get the idea that supervision does not end with the “brick and mortar” world of yesterday.  For now I know I left a cigar lit somewhere. Be safe out there.

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Art Supervision