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2ND CIRCUIT ORDERS REVIEW OF MONITORING NEW YORK — A concern that the Southern District of New York Probation Department’s monitoring of a convicted child pornographer’s computer may violate the Fourth Amendment has prompted a federal appeals court to order a review of different techniques for tracking the defendant. The Second Circuit U.S. Court of Appeals instructed a sentencing judge to explore the privacy implications of both computer monitoring and filtering techniques proposed by probation officials who want to ensure that Brandon Lifshitz is prevented from downloading pornographic images of children. The ruling in United States v. Lifshitz, 03-1221, written by Judge Robert Katzmann, concerned the so-called special needs exception to the Fourth Amendment’s requirement of probable cause to search and seize based on reasonable suspicion that a crime has been, or is about to be, committed. Lifshitz pleaded guilty in 2001 to receiving child pornography on his computer. After hearing from three specialists who had different opinions on his mental state, including one who said he suffered from schizoid personality disorder, Judge Patterson sentenced Lifshitz to three years’ probation without a prison term. Judge Patterson ordered the defendant to consent to the installation of systems that allow the Probation Department to “monitor and filter” computer use. He said Lifshitz must consent to unannounced examination of his computer equipment and the removal of the equipment for a more thorough investigation. Defense counsel objected, saying the U.S. Supreme Court’s decision in Griffin v. Wisconsin, 483 U.S. 868 (1987), established, at a minimum, that probation officials need reasonable suspicion to conduct a search. The government argued that there was no need for reasonable suspicion because of the nature of Lifshitz’s crime. — New York Law Journal VERMONT LAW TO GOVERN N.Y. IBM SUIT NEW YORK — A Westchester, N.Y., judge has ruled that a teenager with birth defects can sue IBM in New York under the laws of Vermont, where the young woman’s father worked in an IBM factory and allegedly contaminated his pregnant wife with chemicals. The ruling by Supreme Court Justice Joan Lefkowitz establishes tort rights for Vermont plaintiffs among those suing IBM in New York over chemicals at its plants in East Fishkill, N.Y., and Burlington, Vt. A New York appeals court ruled earlier that children of fathers who worked in IBM’s New York plant cannot sue IBM alleging that they were subjected to toxic chemicals in utero. The children had claimed they came in contact with the chemicals when their fathers had sex with their pregnant mothers. Justice Lefkowitz said that the Vermont plaintiffs will be able to bring such claims because Vermont tort law differs from New York’s. More than 200 plaintiffs in New York, California and Minnesota have sued IBM, Union Carbide and other chemical companies over workplace safety in IBM’s plants, alleging that they or their unborn children were exposed to harmful chemicals. Sixty of the plaintiffs, whose cases were filed in New York, are children of former workers who allege they were born with birth defects as a result of their parents’ exposure. Two plaintiffs reached undisclosed settlements with IBM as their cases approached trial, including one earlier this month. — New York Law Journal

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