Editor’s note: This is the first in a two-part series.

Leonard Deutchman Leonard Deutchman

In my January 2018 piece, “An E-Discovery Opinion That’s Boring: Have We Come That Far?I discussed how the opinion in Winfield v. New York, 2017 U.S. Dist. LEXIS 194413 (S.D.N.Y. Nov. 27, 2017) was, paradoxically, exciting because it was boring. Because e-discovery opinions involved technical matters that were outside of the understanding of the typical judge or attorney, I observed, such opinions tended to be exciting regardless of the legal issue that underlay them.

The Pennsylvania Superior Court’s opinion in Commonwealth v. Ayyakkannu Manivannan, 2018 PA Super. 112 (May 4, 2018), illustrates this point even better than Winfield did, as the legal issue underlying it is basic and simple. This trend of opinions involving simple legal rules made complex, if at all, by the discussion of how such rules apply to digital technology, suggests that legal minds understand enough about digital technology and how it fits into rules of evidence and other legal principals that we no longer have to start from the very beginning, legally or technically, when digital technology gives rise to legal issues.

Background

The appellant appealed from the judgment of sentence of four and one-half years of probation, imposed following a jury trial resulting in his conviction of five counts of unlawful use of a computer, 18 Pa.C.S. Section 7611(a)(2) and one count of harassment, 18 Pa.C.S. Section 2709(a)(7). In August 2011, the putative victim, Faith Beck, began to work with the appellant at the U.S. Department of Energy’s (DOE) National Energy Technology Laboratory (NET Lab) located in Morgantown, West Virginia, where the appellant also lived. The two began a romantic relationship, during which Beck occasionally used the appellant’s computer to access her email account. In 2013, the appellant helped Beck (complainant) enroll in a one-year graduate program at Pennsylvania State University and secured funding for the tuition through the DOE. In November 2013, Beck began a romantic relationship with fellow student Partha Mishra and endeavored to end her romance with the appellant. Within the next few months, the appellant contacted Beck daily by phone calls, text messages, emails and Skype.

One night, Beck and Mishra were sitting in her car when the appellant pulled up behind them. Beck drove to a local police station, with the appellant following, where she confronted the appellant and told him to stop following her. She reported the incident, as well as the appellant’s repeated contacts of her, to Pennsylvania State University police officer Jessica Meyer. Beck also testified that, in March 2014, the appellant sought a meeting with her under the guise that she was meeting her supervising professor, only to find the appellant to be the sole other person in attendance. Following this incident, Beck secured funding for her program from the university so that she no longer needed to work at NET Lab under the supervision of the appellant.

In April 2014, Beck informed the DOE that she would not be returning to her position at NET Lab. In July 2014, she and Mishra planned a weekend trip to Falling Water, located approximately an hour from Morgantown, West Virginia. There, she was advised by two individuals with whom she was familiar that the appellant was there. Suspicious that the appellant’s presence was more than mere coincidence, Beck spoke with her mother and learned that the accommodation information for the weekend trip was forwarded to her mother from Beck’s email address, although Beck did not send the emails herself. Two emails were forwarded to Beck’s mother, and both were dated July 2, 2014. The first email contained a room reservation at a bed and breakfast for the night before the trip to Falling Water, while the second email contained reservation details for a hotel room on the date of the visit to Falling Water. A third email, also sent on July 2, 2014, was forwarded to Beck’s sister and contained a G-chat instant message conversation between Beck and Mishra that contained sexual content.

Beck and Mishra investigated Beck’s email account settings, particularly her account history, and discovered that from June 22, 2014, to July 18, 2014, her account was accessed 21 times from 13 different internet protocol (IP) addresses located in: Boston, Massachusetts; Boulder, Colorado; Houston, Texas; Metairie, Louisiana; San Francisco, San Jose and Los Angeles, California; and, Morgantown, West Virginia. They took screenshots of this suspicious account activity, and Mishra forwarded the screenshots to Officer Meyer. Beck’s email account had been accessed five times from IP address 98.239.142.39 in Morgantown. Receipts submitted to the DOE established that the appellant was on a business trip in Los Angeles from June 29, 2014, to July 6, 2014, which corresponded to the four times Beck’s email was accessed from Los Angeles and once from an indeterminable location in the state of California.

Officer Meyer testified that upon receiving the screenshots from Mishra, she utilized the website Geektools.com to determine the internet providers corresponding to the 13 IP addresses identified in the screenshots. Based upon her search results from Geektools.com, Officer Meyer secured from the trial court a series of particularized subpoenas to each internet provider for the subscriber information during the dates and times reflected on the corresponding screenshots. Comcast was the only internet service provider that returned subscriber information in response to the subpoenas; specifically, Geektools.com identified Comcast as the internet provider for the IP address 98.239.142.39 in Morgantown, West Virginia.

During Officer Meyer’s testimony, the commonwealth attempted to introduce a faxed letter on Comcast letterhead addressed to Officer Meyer which outlined that IP address 98.239.142.39 belonged to the subscriber defendant on five of the times Beck’s account was accessed without her permission, between July 12 and 18, 2014. These five instances of access were cited as the basis for the appellant’s five charges of unlawful use of computer. Additionally, the letter listed the appellant’s home address in Morgantown as the service address and included the defendant (by his last name) as one of the email user names associated with the account. The Comcast letter, dated Aug. 29, 2014, did not indicate an individual author.

The appellant timely objected to the admission of the Comcast letter because it was unsigned, and an original of the document was required under Pa.R.E. 1002. As certification for the letter, the commonwealth provided the trial court with a separate, faxed, boilerplate Pa.R.E. 902(11) declaration dated April 18, 2016, that gave no context for the document its signor purported to certify. The declaration made no reference to Comcast or the Comcast letter, was not attached to same, and the date stamp indicated the document was faxed to Pennsylvania State University Police on April 18, 2016. The commonwealth presented no evidence that certification accompanied the Comcast letter. The appellant also objected to the certification, because it was tendered separately from, and may not even belong to, the letter, and because an original of that document was likewise required under Pa.R.E.1002. The trial court overruled the appellant’s objection, and the Comcast letter was admitted into evidence.

In April 2016, the appellant was convicted of the aforementioned charges. The Superior Court overturned the conviction.

Legal Issues

On appeal, the appellant presented the following issues for review regarding the evidence presented at trial (he also objected to a point in sentencing, which objection the court sustained but which had no effect because he had been awarded a new trial based upon the evidentiary objections). First, did the trial court err by admitting into evidence the Comcast letter, the only evidence linking the appellant to the IP address allegedly used to “hack” into the victim’s Gmail account, where the commonwealth failed to authenticate the letter under Pa.R.E. 902(11) properly, the letter was inadmissible hearsay, and admitting the letter violated the appellant’s right to confront the witnesses against him under the U.S. Constitution? Second, did the trial court err by admitting printouts from the website GeekTools.com identifying Comcast as the service provider for the IP address allegedly used to “hack” into the victim’s Gmail account, where the printouts and testimony about their contents were inadmissible hearsay? Third, was the lay testimony of Beck, Mishra, and Officer Meyer legally sufficient to prove beyond a reasonable doubt that someone using IP address 98.239.142.39 unlawfully accessed Beck’s Gmail account five times on July 12, 17, and 18, 2014, as required for the convictions for unlawful use of a computer under 18 Pa.C.S. Section 7611(a)(2)? What is so interesting about the opinion is that, paradoxically, it is not that interesting: the legal and technical issues have become so well understood that a dissertation thesis no longer need be written about them to make them accessible to the reader.

In next week’s article, I’ll discuss the letter and the authentication process, and the role of GeekTools.com in the case.

Leonard Deutchman is vice president, legal for KrolLDiscovery, which he helped build into the largest e-discovery provider in the United States. Before joining KrolLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney’s Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cybercrime, fraud, drug trafficking and other offenses.