binary codeUnauthorized access to computer systems, commonly known as “hacking,” undoubtedly causes significant damage to individuals and businesses around the country. As often happens, however, the law has had difficulty keeping up with new technology. Federal law prohibits a wide range of computer fraud-related activities, but most offenses require proof that a defendant acted with intent, which is the most difficult mental state for prosecutors to prove. Perhaps as a result, some prosecutors have developed creative strategies to pursue alleged hackers. In one recently filed case, federal prosecutors have charged an individual under the federal hacking statute with no allegations that he personally engaged in any hacking activities. Instead, they essentially allege that he developed software with the intent that it would be used by hackers. United States v. Huddleston, No. 1:17-cr-00034, indictment (E.D. Va., Feb. 16, 2017).

Congress first enacted a criminal statute related to computer fraud, found at 18 U.S.C. § 1030, in 1984. It has amended this section numerous times over the years, perhaps most notably in 1986 with the Computer Fraud and Abuse Act (CFAA). That bill significantly expanded the legal definition of “computer fraud.” The original 1984 law made it a federal crime to access computer systems of the federal government or a financial institution without authorization. The CFAA added provisions about unauthorized access, or access that exceeds granted authority, to any “protected computer,” which it defined to include nearly any computer whose use affects interstate commerce. 18 U.S.C. §§ 1030(a)(4) – (6), (e)(2)(B).

Federal prosecutors are not accusing the defendant in Huddleston of hacking anybody. Instead, the alleged conduct leading to the indictment consisted solely of developing a software tool reportedly used by hackers. According to the indictment, the defendant created a “remote administration tool,” or “remote access trojan” (RAT), a type of software that allows a user to take control of someone else’s computer without their knowledge or consent. This RAT has allegedly been used in multiple cyberattacks around the world. Prosecutors allege that the defendant created this software for the specific purpose of making it available to hackers.

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syringeAccidental drug overdoses are a major cause of death in the U.S. The class of drugs known as opioids, which includes many prescription painkillers, is reportedly responsible for most of the increase in overdose deaths in many parts of the country. Since these drugs are legally categorized as controlled substances, people may hesitate to seek medical attention for themselves or others, for fear of arrest and criminal charges. More than half of the states in the U.S. have enacted “9-1-1 Good Samaritan” laws, which shield people from criminal liability for minor drug possession if they go, or take someone, to a hospital or another medical facility because of an overdose. Texas is not among the states that have enacted this type of law, but even in some states that have, some police departments are reportedly simply finding different ways to charge people with criminal offenses.

Texas law establishes penalties of varying levels of severity for the possession of a controlled substance (POCS), depending on the type and amount of controlled substance involved. See Tex. Health & Safety Code § 481.115 et seq. A person is not subject to criminal liability if they have a valid prescription for the controlled substance in their possession, unless they have far more in their possession than is authorized by their doctor. Texas does not have many other exceptions from liability for POCS, and it does not have a 9-1-1 Good Samaritan law.

At least 37 states and the District of Columbia have enacted 9-1-1 Good Samaritan laws. Ohio’s POCS statute, for example, does not apply to a person who, “in good faith…seeks or obtains medical assistance for another person who is experiencing a drug overdose,” or “who experiences a drug overdose and…seeks medical assistance for that overdose.” Ohio Rev. Code §§ 2925.11(B)(2)(a)(viii), (B)(2)(b). The purpose of this exception is to encourage people to call for help or go to the hospital in the event of an overdose.

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AyahuascaThe federal system of drug laws in the U.S. is very simple and straightforward with regard to some substances and extremely ambiguous for others. Drugs categorized in Schedule I of the Controlled Substances Act (CSA) are effectively banned for any and all purposes. Organizations may apply to the Drug Enforcement Administration (DEA) for a religious exception, which would allow the use of certain scheduled substances for specific religious purposes. Ayahuasca, also known as yagé, is a tea made using plants from South America that contain a psychedelic compound. It is gaining popularity in the U.S. In late 2015, an organization claimed to have obtained the legal right to use ayahuasca in religious ceremonies, but the DEA appears to have had other ideas. The organization halted its activities, and the legal status of ayahuasca remains unclear.

The CSA categorizes controlled substances in five schedules, with Schedule I being the most restricted. This includes a psychedelic compound called N,N-dimethyltryptamine, or “DMT.” 21 U.S.C. § 812(c)(I)(c)(6), 21 C.F.R. § 1308.11(d)(19). Ayahuasca is a tea made using leaves from two plants:  a vine commonly known as ayahuasca and a shrub known as chacruna. Ayahuasca leaves contain compounds that interact with naturally occurring DMT in chacruna, resulting in a tea that people can drink in order to feel the effects of the DMT. The ayahuasca plant itself is therefore not illegal under the CSA, but the chacruna plant, and any product that includes chacruna leaves, would be considered a Schedule I controlled substance.

The DEA can grant exceptions to its regulations after receipt of a written petition. 21 C.F.R. § 1307.3. The agency’s director has broad discretion to grant or deny such a request. The Religious Freedom Restoration Act (RFRA) prohibits the government from “substantially burden[ing] a person’s exercise of religion” without demonstrating the measure is the “least restrictive means” of pursuing a “compelling governmental interest.” 42 U.S.C. § 2000bb-1. The U.S. Supreme Court ruled in favor of a church in a RFRA case involving ayahuasca, holding that the federal government’s seizure of the tea did not serve a compelling government interest. Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418 (2006).

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Juvenile Justice DepartmentThe Texas juvenile justice system operates in parallel to the criminal system. It provides a means to deal with unlawful activity by minors, while also recognizing that they are not adults. Under current law, the juvenile justice system’s jurisdiction ends when a person turns 17. A bill that recently passed the Texas House of Representatives, HB 122, would raise this to 18. Supporters of the bill argue that this will better serve both 17-year-olds and the general public.

The purpose of the criminal justice system is a matter of interpretation—to some extent, it is about punishment, and to some extent about rehabilitation. The juvenile justice system’s purpose is not ambiguous at all. Its goals, as defined by the Texas Juvenile Justice Code (JJC), include “remov[ing]…the taint of criminality from children committing certain unlawful acts,” “provid[ing] treatment, training, and rehabilitation,” and “provid[ing] for the care, the protection, and the wholesome moral, mental, and physical development of children.” Tex. Fam. Code §§ 51.01(2)(B), (2)(C), (3).

The JJC currently defines a “child” as anyone who is at least 10 years old but younger than 17 and any 17-year-old who “engaged in delinquent conduct…as a result of acts committed before becoming 17 years of age.” Id. at § 51.02(2). A child may remain subject to the jurisdiction of a juvenile court after turning 17 if they are part of a proceeding that began before that birthday or one that is based on conduct that occurred earlier. Alleged criminal acts committed after their 17th birthday will be subject to the criminal justice system’s jurisdiction. Tex. Pen. Code § 8.07(b).

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Rates of opioid addiction and of deaths resulting from accidental overdoses have increased substantially in many parts of the country. The statistics suggest that it has not reached “epidemic” levels in Texas, but it is still a vitally important issue. The government, at the state, local, and federal levels, must balance the enforcement of drug laws and the promotion of addiction treatment. The impact of this balancing act varies significantly from one location to another and over time in any single location. Texas continues to pursue enforcement quite aggressively but is also committing resources toward treatment. At the federal level, a recent executive order from the White House establishes a commission to study federal drug enforcement efforts, but it indicates no drastic change in policy. Meanwhile, the government’s rules regarding opioids, in a purported effort to combat the rising addiction and overdose rate, may be harming patients dealing with chronic pain.

Hydrocodone-paracetamol-5-500The term “opioid” can refer broadly to drugs derived from the opium plant, such as morphine, and synthetic drugs that produce similar effects, such as oxycodone and hydrocodone. Opioids are commonly prescribed for pain relief after injuries and surgeries, as well as in longer-term pain-management regimens. Most opioids are classified as Schedule II controlled substances. Like Schedule I substances, they have “a high potential for abuse,” but Congress and the Drug Enforcement Administration (DEA) have determined that Schedule II substances have some “currently accepted medical use.” 21 U.S.C. § 812(b). The opioids mentioned above, such as morphine and oxycodone, are classified in Schedule II, along with codeine and others. 21 C.F.R. § 1308.12(b)(1).

According to the Centers for Disease Control and Prevention (CDC), over 33,000 people died in 2015 due, in some part, to opioids. The number of annual overdoses has reportedly quadrupled since 1999. The state with the highest death rate from overdoses in 2015 was West Virginia, with 41.5 per 100,000 people. The rate in Texas was much lower and actually decreased by over three percent from the previous year. New CDC guidelines issued in 2016, in cooperation with the DEA, prioritize non-opioid therapies. These guidelines are not mandatory for physicians, but they have reportedly led to a significant decrease in prescriptions for pain patients, perhaps by creating apparent incentives for doctors to avoid prescribing opioids whenever they can.

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LingonberriesLaws addressing the possession and sale of marijuana may vary significantly among states, thanks to numerous changes in recent years. Courts may continue to apply harsh penalties in some states but not others. In a recent decision, the Louisiana Supreme Court affirmed a particularly harsh sentence for marijuana possession. State v. Howard, No. 2015-KO-1404, slip op. (La., May 3, 2017). The chief justice criticized the court’s decision in a dissent, noting both the “rapidly relaxing social attitudes” and “changing laws (even in Louisiana) providing more lenient penalties relative to marijuana possession.” Id. at 1 (Johnson, C.J., dissenting).

Texas laws dealing with marijuana possession can be difficult to untangle. The severity of a possession charge mainly varies based on the amount in question. Possession of two ounces or less is punishable as a Class B misdemeanor, while possession of more than 2,000 pounds is punishable by life imprisonment. Tex. Health & Safety Code § 481.121. The statute requires proof that a defendant possessed the marijuana either knowingly or intentionally.

The sections that define the offense of “manufacture or delivery” of a controlled substance, meaning one other than marijuana, include “possess[ion] with intent to distribute.” See, e.g. Tex. Health & Safety Code § 481.112(a). Intent to distribute is not expressly included as part of either possession or delivery of marijuana in Texas. Id. at §§ 481.120, 481.121. That said, evidence of intent to distribute may be used as an aggravating factor to impose a harsher sentence.

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deleter folderCriminal records can cause problems for a person long after their case has ended and they have paid their debt to society. Background searches are now a common feature in employment, housing, and other important areas of society. Under certain circumstances, it is possible to remove information about a criminal case from the public record with an expunction or seal information from public view with an order of nondisclosure. These types of relief are usually only available in cases that ended in an acquittal, an executive pardon, or the successful completion of a deferred prosecution plan. Some people are now attempting to expunge records of convictions in cases in which the U.S. Supreme Court has ruled the underlying statute unconstitutional. This does not fit neatly into the letter of most expunction laws, but it seems consistent with those laws’ spirit.

An expunction, also known as expungement, removes information about a case from court records and law enforcement files, including the actual destruction of the physical file. This includes records relating to a person’s arrest, detention, and charge or charges. An order of nondisclosure prohibits public officials from releasing information about a criminal case. Texas allows expunction of records in cases in which a trial ended in an acquittal, a pardon was issued after a conviction, or any type of clemency was granted based on “actual innocence.” Tex. Code Crim. P. Art. 55.01(a). For cases that never proceeded to trial, Texas allows expunctions when the charges were dismissed, no community supervision was ordered, and a sufficient period of time has passed. Major felony offenses are generally not eligible for expunction or nondisclosure.

Up until 2003, 14 states in the U.S., including Texas, had criminal statutes prohibiting “homosexual conduct,” also known as “sodomy laws.” Texas made it a Class C misdemeanor to “engage[] in deviate sexual intercourse” with a member of the same sex. Tex. Pen. Code § 21.06. The U.S. Supreme Court ruled that this statute violated substantive due process rights under the Fourteenth Amendment. Lawrence v. Texas, 539 U.S. 558 (2003). The ruling overturned a prior ruling affirming a similar law in Georgia, Bowers v. Hardwick, 478 U.S. 186 (1986). The Lawrence ruling effectively invalidated these laws in all 14 states. As of 2014, however, the laws remained on the books in 12 of these states, including Texas.

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Gastineau ChannelThe current legal status of marijuana, from a nationwide perspective, is at best highly uncertain. Several states have legalized the drug for recreational use. One of these states, Alaska, has controversially brought criminal charges against an outspoken advocate for marijuana legalization. According to prosecutors, the individual engaged in conduct that was prohibited by state law at the time, even though a ballot measure legalizing most or all of those activities was already scheduled to take effect. This raises questions about whether prosecutors should continue zealous enforcement of laws that a state’s voters have rejected but that momentarily remain in force.

The federal government still imposes the highest level of restrictions on the drug. 21 U.S.C. § 812(c)(I)(c)(10). Most U.S. states have allowed its use for, at minimum, medical purposes under a doctor’s care. The federal government’s policy for the past several years has been not to interfere in states with legal medical or recreational use, provided that those states’ law enforcement activities fit with federal priorities. As of late 2016, eight states have legalized cannabis:  Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington. Several more have “decriminalized” it, meaning that offenses are considered civil infractions, rather than criminal offenses.

In November 2014, voters in Alaska approved a ballot measure legalizing the possession of up to one ounce of marijuana. The state has had a less restrictive view of marijuana for some time. More than 40 years ago, the Alaska Supreme Court ruled that the state constitution’s guarantee of the right to privacy included a right to “possession of marijuana by adults at home for personal use.” Ravin v. State, 537 P. 2d 494, 511 (Alaska 1975). Unlike other states that had authorized marijuana use for medical and other purposes, however, Alaska never established a system for the authorized distribution of medical marijuana. People in the state could possess the drug, but it was not clear how they could legally obtain it.

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Telecommunication AntennasThe question of whether police must obtain a warrant for historical cell-site location information (CSLI) has received considerable attention in recent years. The Fourth Circuit Court of Appeals, ruling en banc, recently held that the government does not violate the Fourth Amendment by obtaining CSLI without a warrant. United States v. Graham (“Graham II”), Nos. 12-4659, 12-4825, slip op. (4th Cir., May 31, 2016). The court based its ruling on the third-party doctrine, which holds that individuals have no reasonable expectation of privacy in materials or information that they have voluntarily turned over to a third party. It partly overturned the ruling of a three-judge panel that held that police violated the defendant’s Fourth Amendment rights. United States v. Graham (“Graham I”), 796 F.3d 332 (4th Cir. 2015).

The U.S. Supreme Court articulated the third-party doctrine in United States v. Miller, 425 U.S. 435 (1976), which held that a defendant had no reasonable expectation of privacy in records maintained by two banks where he had accounts. It expanded the doctrine to telecommunications technology when it held that the warrantless use of a pen register to record the numbers of outgoing phone calls did not violate the Fourth Amendment. Smith v. Maryland, 442 U.S. 735 (1979). The recent Graham decision used multiple citations to Smith.

Numerous methods of tracking the location of mobile devices exist, but historical CSLI is one of the simplest, least-intrusive methods. Cell-service providers allow users to access their mobile networks through a system of cell towers. Mobile devices periodically emit a signal that these towers use to determine the most effective means of routing calls to that device. Cell-service providers retain all of the data obtained from mobile devices, and this data can indicate the location of a particular device at a specific time.

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Border RegionThe U.S. Supreme Court has identified numerous exceptions to the Fourth Amendment’s requirement that law enforcement officers obtain a warrant before conducting a search of, or seizing, a person or their property. The “border search exception” is of particular concern in west Texas, but it affects people all over the country’s border and coastal regions. Federal law gives immigration and border patrol agents the authority to search people and their property near U.S. borders for the purpose of enforcing federal immigration and criminal laws. The border region, as defined by immigration authorities, is bigger than one might think, extending 100 miles inward from the nation’s borders and coastal areas.

U.S. Customs and Border Protection (CBP) operates stations throughout the border region, such as the Sierra Blanca Border Patrol station in Hudspeth County, Texas. These facilities are intended to intercept people violating immigration law, and they also serve other law enforcement purposes. Agents have wide latitude under federal law to conduct warrantless searches “within a reasonable distance from any external boundary of the United States,” 8 U.S.C. § 1357(a)(3), and to make arrests for suspected federal crimes. Federal immigration authorities have interpreted “reasonable distance” to mean “within 100 air miles” since the 1950s. 8 C.F.R. § 287.1(a)(2), 22 Fed. Reg. 9808 (Dec. 6, 1957).

Permanent highway checkpoints, intended to stop vehicles and question drivers and passengers, do not inherently violate the Fourth Amendment, according to the U.S. Supreme Court in United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Border patrol agents are permitted to detain a person without a warrant if they have reasonable suspicion of an offense such as drug smuggling, United States v. Montoya de Hernandez, 473 U.S. 531 (1985); and to conduct thorough vehicle searches to look for drugs and other contraband, United States v. Flores-Montano, 541 U.S. 149 (2004).

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