Wednesday, July 19, 2017

“Engaging in a Child Exploitation Enterprise,” the Laptop and Forfeiture

“Engaging in a Child Exploitation Enterprise,” the Laptop and Forfeiture

This post examines a recent opinion from the U.S. District Court for the Western Division of North Carolina: U.S. v. Chase, 2017 WL 1966747 (2017). The U.S. District Court Judge who has the case begins the opinion by explaining that
THIS MATTER is before the Court on the United States of America's Motion for Preliminary Order of Forfeiture. The United States requests, pursuant to 18 U.S. Code § 2253(a)(3)Fed.R. Crim. P. 32.2(b), and the Special Verdict (Doc. 99) on forfeiture, that this Court order forfeiture of the following properties that the United States contends constitute properties used or intended to be used to commit or promote the commission of the Count One 18 U.S. Code § 2251A(g) offense of engaging in a child exploitation enterprise and the Count Three 18 U.S. Code § 2251(d) offense of advertising child pornography:

• One ASUS laptop, serial number E1N0CV090739012 (hereafter, “ASUS Laptop”);
• One Cruzer 128GB thumbdrive (hereafter, `Cruzer Thumbdrive’); and
• The real property at 3570 15th Avenue, SW, Naples, Florida, identified in a deed to Steve Chase and Barbara Chase, husband and wife, recorded at Book 2337, Page 0771 of the Collier County Clerk of the Circuit Court, also known as Parcel 37988440001, and more particularly described as follows:

THE EAST 105' OF THE EAST 180' OF TRACT 90, UNIT 27, GOLDEN GATE ESTATES, ACCORDING TO A PLAT THEREOF RECORDED IN PLAT BOOK 7, PAGES 17 AND 18, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA.
(hereafter, `Naples Residence’).
U.S. v. Chase, supra. If you would like to learn more about criminal forfeiture in federal criminal cases, check out this article.
The opinion goes on to explain how, and why, the prosecution arose:
On August 19, 2015, a Grand Jury in the Western District of North Carolina returned a Second Superseding Indictment (Doc. 31; hereafter, `Indictment’) against Defendant and others, charging Defendant with, inter alia, engaging in a child exploitation enterprise as set forth in Count One; a conspiracy to advertise child pornography as set forth in Count Two; advertising child pornography as set forth in Count Three; transporting child pornography as set forth in Count Four; transporting child pornography as set forth in Count Five; transporting child pornography as set forth in Count Six; and possessing child pornography as set forth in Count Seven.

The charges were based on Defendant's role as administrator of a worldwide child pornography website known as `Playpen’ on the TOR network on the so-called `dark-web.’ The Government contends that Playpen facilitated the worldwide sharing of in excess of approximately 100,000 in images among in excess of 150,000 Playpen users.

The Indictment also contained a `Notice of Forfeiture and Finding of Probable Cause’ whereby the Grand Jury found probable cause that the Naples Residence was subject to forfeiture. Defendant resided at the Naples Residence during the course of the offenses. Further, the Naples Residence was titled to Defendant and his deceased spouse.
U.S. v. Chase, supra.
The opinion then explains that Chase
pled not guilty and elected a jury trial. Ahead of trial, the Government filed a Notice of Proposed Jury Instructions and Verdict Sheet (Doc. 88) and a Trial Brief (Doc. 90), informing Defendant and the Court that the Government intended to pursue forfeiture of, not only the Naples Residence, but also the ASUS Laptop and Cruzer Thumbdrive, all such forfeitures based on the allegation that Defendant used these items to promote his Count One, Count Two, and Count Three offenses. Defendant elected (Doc. 89) to retain the Jury to decide forfeiture.
U.S. v. Chase, supra.
The District Court Judge went on to explain that
[d]uring the criminal trial, the Government introduced and the Court admitted evidence that established, among other facts, the following:

• On multiple occasions, from the Naples Residence, Defendant logged-in to an email account that he used to register Playpen;

• On at least one occasion, from the Naples Residence, Defendant accessed a PayPal account that he used to fund Playpen;

• On multiple occasions, from the Naples Residence, Defendant logged in to Playpen; and

• At execution of a Search Warrant by law enforcement at the Naples Residence, Defendant fought entry by law enforcement and, once law enforcement entered, law enforcement discovered the ASUS Laptop on, logged-in to the server hosting Playpen with Defendant logged-in as Playpen administrator, with the Cruzer Thumbrive inserted into the ASUS Laptop. Further, law enforcement discovered on the ASUS Laptop a browser history that reflected a history of access to the administrative forum of Playpen. Law enforcement also discovered passwords and administrative instructions for Playpen on the Cruzer Thumbdrive.
U.S. v. Chase, supra.
The opinion goes on to explain that
[b]ased on, among other evidence, the above-referenced evidence, the Jury found (Doc. 98) Defendant guilty on all counts except for Count Two, on which the Jury was instructed not to return a verdict should the Jury find Defendant guilty on Count One. As to the Count One offense, the Jury found that predicate offenses included advertising child pornography from 2014 through 2015; transporting child pornography on February 1, 2015; transporting child pornography on October 12, 2014; transporting child pornography on September 26, 2014; and possession of child pornography on August 19, 2014 and February 17, 2015. Simply put, the Jury found Defendant guilty of numerous egregious crimes, wide-spread in their duration and impact.

Further, following brief argument by the Government and Defendant, the Jury also returned a Special Verdict (Doc. 99) for forfeiture of the Naples Residence, ASUS Laptop, and Cruzer Thumbdrive. The Special Verdict constituted a finding by the Jury that there was a nexus between Counts One and Three, and the properties. The Government now requests that this Court issue a Preliminary Order of Forfeiture for these same items.
U.S. v. Chase, supra.
The District Court Judge then goes on to outline the “legal conclusions” that he has decided apply to the facts in this case. U.S. v. Chase, supra. He begins by explaining that
Title 18 U.S. Code §2253(a)(3) and Federal Rules of Criminal Procedure Rule 32.2(b)(1)  provide for preliminary forfeiture of property used or intended to be used to commit or promote violation of the child exploitation enterprise statute as charged in Count One and a violation of the advertising child pornography statute as charged in Count Three. Forfeiture is appropriate upon a court finding of a nexus, or connection, between the property and the violations. Fed. R. Crim. P. 32.2(b)(1)(A). The finding may be based on evidence already in the record and any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable. Fed. R. Crim. P. 32.2(b)(1)(B). The burden of proof on forfeiture is preponderance of the evidenceSee, e.g., United States v. Cherry, 330 F.3d 658, 669 (U.S. Court of Appeals for the 4th Circuit 2003). Here, the preponderance standard is easily satisfied.

Specifically, at the trial of this matter, the Government introduced evidence, detailed above, that, on numerous occasions, Defendant accessed an email account from the privacy of the Naples Residence so that he could operate Playpen; that Defendant accessed a PayPal account from the privacy of the Naples Residence so that he could operate Playpen; that, on numerous occasions, Defendant accessed the Playpen server from the privacy of the Naples Residence; and that Defendant was operating Playpen via the ASUS Laptop and Cruzer Thumbrive, in the privacy of the Naples Residence, when law enforcement executed the Search Warrant. Further, the Jury returned a Special Verdict of forfeiture based on this evidence.
U.S. v. Chase, supra.
The judge concludes his opinion by explaining that the
Government submits that such evidence, along with the Verdict and Special Verdict, are more than sufficient to establish by a preponderance of the evidence that the assets were used or intended to be used to commit or promote the commission of the Count One and Count Three offenses. 18 U.S. Code § 2253(a)(3); see also United States v. Ownby, 926 F.Supp. 558, 566 (U.S. District Court for the Western District of Virginia 1996 (Overruling defendant's objection that forfeiture of residence in which he used computer to possess, receive, and transport child pornography was excessive; reasoning that `it is clear that the privacy afforded by the dwelling was essential to Ownby's commission of the charged offenses.’), aff'd, 131 F.3d 138 (4th Circuit Court of Appeals 1997) (Table); United States v. Wilk, 2007 WL 2263942, at *1 (S.D. Fl. Aug. 6, 2007) (same in case of forfeiture of residence when in excess of 90 images were on computer in home); cf. United States v. 7046 Park Vista Road, 537 F.Supp.2d 929, 940–41 (S.D. Ohio 2008)(determining, on Government's summary judgment motion in civil forfeiture case, that residence in which Section 2251 and 2251 and 2252 occurred was forfeitable). The Court agrees.

It is, therefore ORDERED:

1. Based upon Defendant's convictions, the trial evidence, the Verdict, and the Special Verdict, the United States is authorized to take and maintain possession of the following property belonging to Defendant, and the property is hereby forfeited to the United States for disposition according to law, provided, however, that such forfeiture is subject to any and all third party claims and interests, pending final adjudication herein:

• One ASUS laptop, serial number E1N0CV090739012;

• One Cruzer 128GB thumbdrive; and

• The real property at 3570 15th Avenue, SW, Naples, Florida, identified in a deed to Steve Chase and Barbara Chase, husband and wife, recorded at Book 2337, Page 0771 of the Collier County Clerk of the Circuit Court, also known as Parcel 37988440001, and more particularly described as follows:

THE EAST 105' OF THE EAST 180' OF TRACT 90, UNIT 27, GOLDEN GATE ESTATES, ACCORDING TO A PLAT THEREOF RECORDED IN PLAT BOOK 7, PAGES 17 AND 18, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA.

2. Pursuant to 21 U.S. Code §853(n)(1), the Government shall publish notice of this order; notice of its intent to dispose of the property in such manner as the Attorney General may direct; and notice that any person, other than the Defendant, having or claiming a legal interest in any of the above-listed forfeited property must file a petition with the Court within thirty days of the final publication of notice or of receipt of actual notice, whichever is earlier. This notice shall state that the petition shall be for a hearing to adjudicate the validity of the petitioner's alleged interest in the property, shall be signed by the petitioner under penalty of perjury, and shall set forth the nature and extent of the petitioner's right, title or interest in the forfeited property and any additional facts supporting the petitioner's claim and the relief sought. The United States may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in property that is the subject of this Order of Forfeiture, as a substitute for published notice as to those persons so notified.

3. Upon adjudication of all third-party interests, this Court will enter a Final Order of Forfeiture.

SO ORDERED.
U.S. v. Chase, supra. 

Monday, July 17, 2017

The 2200 Emails, the Injunction and Cyberstalking

This post examines a recent decision the District Court of Appeal of Florida – Second District issued in a civil case: Scott v. Blum, 191 So.3d 502 (2017). The court begins the opinion by explaining that
Randy Scott challenges the order enjoining him from cyberstalking. He contends that the petitioner below, Frederic A. Blum, failed to provide evidence of the statutory elements required for entry of an injunction against cyberstalking. Mr. Scott also contends that the order is overly broad and impedes his First Amendment right to free speech. We agree that Mr. Blum failed to meet his evidentiary burden and reverse. As a result, we do not reach the First Amendment issue.
Scott v. Blum, supra.
The Court of Appeals goes on to explain how, and why, the case arose:
Mr. Blum filed a petition for injunction for protection against cyberstalking. Mr. Blum is a process server and a member of the National Association of Professional Process Servers (NAPPS). Mr. Scott is a former process server and former member of NAPPS. At the hearing on the petition, Mr. Blum testified that Mr. Scott sent emails about Mr. Blum and Mr. Blum's family, partners, and former employees to 2200 NAPPS members. The emails consisted of links to articles, blog posts, or videos. In some instances, the articles or blog posts were written by Mr. Scott.

 The tenor of the emails, articles, blog posts, and videos was derogatory, and the allegations within them were potentially damaging to Mr. Blum's business and reputation. Copies of the emails supported Mr. Blum's testimony.

Mr. Blum testified that none of the emails were sent directly to him but that he knows about them because they were forwarded by the recipients to him or he received phone calls about them. The emails, articles, blog posts, and videos did not contain threats against Mr. Blum. 

However, Mr. Blum claimed that the content of the emails, articles, blog posts, and videos caused him emotional distress; he had trouble sleeping and eating, the emails were constantly on his mind, and he constantly had to defend himself to people.

Mr. Scott testified that his emails discussed many people within NAPPS or connected to NAPPS and were not directed at Mr. Blum.

The trial court granted the injunction without findings or conclusions. The order is a form order with no conditions specific to the facts of this case.
Scott v. Blum, supra.
The Court of Appeals goes on to explain that
Section 784.0485(1), Florida Statutes (2014), provides that `[f]or the purposes of injunctions for protection against stalking under this section, the offense of stalking shall include the offense of cyberstalking.’ Section 784.0485(1)(d) defines cyberstalking as `engag[ing] in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.’ Harassment is `a course of conduct directed at a specific person which causes substantial emotional distress . . . and serves no legitimate purpose.’ §784.048(1)(a).

Thus, cyberstalking is harassment via electronic communications. See Murphy v. Reynolds, 55 So.3d 716, 717 (Fla. 1st District Court of Appeals 2011). In order to succeed in a petition for injunction against cyberstalking, the petitioner must establish that a series of electronic communications directed at the petitioner caused substantial emotional distress and served no legitimate purpose. `Whether a communication causes substantial emotional distress should be narrowly construed and is governed by the reasonable person standard.’ David v. Textor, 189 So.3d 871, 875 (Fla. 4th District Court of Appeals 2016); accord Leach v. Kersey, 162 So.3d 1104, 1106 (Fla. 2d District Court of Appeals 2015) (`In determining whether substantial emotional distress occurred, the courts look to the standard of a reasonable person in the petitioner's shoes’).
Scott v. Blum, supra.
The opinion goes on to explain that
`[w]here comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person.’ David, 189 So.3d at 875 (citing Chevaldina v. R.K./FL Mgmt., Inc., 133 So.3d 1086, 1091–92 (Fla. 3rd District Court of Appeals 2014)).

In Horowitz v. Horowitz, 160 So.3d 530, 531 (Fla. 2d District Court of Appeals 2015), this court stated:

`Mr. Horowitz's Facebook posts do not meet the statutory definition of cyberstalking for two reasons. First, the posts were not `directed at a specific person.’ § 784.048(1)(d). The testimony showed that Mr. Horowitz posted the information to his own Facebook page. Screenshots of the posts admitted into evidence confirm that they were posted to Mr. Horowitz's page and that Mrs. Horowitz was not `tagged’ or mentioned, nor were the posts directed to her in any obvious way.'

`Likewise, the emails here do not meet the statutory definition of cyberstalking. The emails were not `addressed’ to Mr. Blum, and nothing indicates that Mr. Blum was an intended recipient. Cf. Branson v. Rodriguez–Linares, 143 So.3d 1070, 1071 (Fla. 2d District Court of Appeals 2014) (concluding that sending more than 300 emails to the petitioner constituted evidence of stalking); Bacchus v. Bacchus, 108 So.3d 712, 715 (Fla. 3rd District Court of Appeal 2013) (`Even harassment of the wife through third parties would be insufficient to warrant the imposition or extension of an injunction.’)'.
Scott v. Blum, supra.
The Court of Appeal went on to explain that
Mr. Scott did not communicate words, images, or language via email or electronic communication directly to Mr. Blum. Cf. Thoma v. O'Neal, 180 So.3d 1157, 1160 (Fla. 4th District Court of Appeals 2015) (`We . . . agree with the trial court that sending the flyer to the Victim's home was an incident of harassing behavior.’). The videos do not constitute evidence of the communication of `words, images, or language . . . directed at a specific person, causing substantial emotional distress to that person. See Chevaldina, 133 So.3d at 1091–92 (quoting § 784.048(1)(d)). The emails sent to 2200 NAPPS members do not constitute words `directed at a specific person' for purposes of the cyberstalking statute simply because they are about Mr. Blum. See David, 189 So.3d at 875. Nor did Mr. Scott “cause to be communicated” words, images, or language via email or electronic communication to Mr. Blum.

Further, `[t]hat [the articles and videos] may be embarrassing to [Mr. Blum] is not at all the same as causing him substantial emotional distress sufficient to obtain an injunction.’ See id. The same is true for the emails sent to the NAPPS members. Mr. Scott did not make any threats to Mr. Blum's safety. See id. Mr. Blum's distress relates to his business reputation and personal reputation among his colleagues.

 A reasonable person would not suffer substantial emotional distress over the emails, articles, blog posts, and videos at issue. That the articles written by Mr. Scott contain false allegations or embarrassing information is not a basis for a cyberstalking injunction.
Scott v. Blum, supra.
The Court of Appeal went on to conclude the opinion with these comments:
`Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, `DON'T BUY HERE! ONLY LEMONS FROM THESE CROOKS!’ Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.'

Chevaldina, 133 So.3d at 1092 (addressing an order enjoining tortious interference, stalking, trespass, and defamatory blogs).

Reversed.
Scott v. Blum, supra. 

Friday, July 14, 2017

Robbery, the Photograph and the Authentication of Evidence

This post examines a recent decision from the Court ofAppeals of New York: People v. Price, 2017 WL 2742214 (2017). The court begins the opinion by explaining that
[p]n this appeal, we are asked to determine whether the People proffered a sufficient foundation at trial to authenticate a photograph—purportedly of defendant holding a firearm and money—that was obtained from an internet profile page allegedly belonging to defendant. We conclude that the People's proof fell short of establishing the requisite authentication to render the photograph admissible in evidence.
People v. Price, supra.
The opinion goes on to explain that
Defendant was convicted by a jury of two counts of robbery (Penal Law §§ 160.15[4]; 160.10[1] ). At the trial, a witness testified that he was conducting milk deliveries with the victim when he noticed—from his vantage point inside the delivery truck—that someone was holding a gun about a foot away from the chest of the victim, who was standing outside the truck. After exchanging words with the gunman, the victim threw a handful of cash from his pocket to the ground. The gunman's accomplice gathered the money and the two robbers fled. The witness never saw the gunman's face and was unable to identify defendant at trial as either of the perpetrators.

Following this testimony, the People informed the court that they intended to introduce a photograph that was`found on the internet,’ which purportedly depicted defendant holding a handgun.1 According to the People, the victim would identify the gun in the photograph as the weapon used during the robbery, and a detective would identify defendant as the individual holding the gun in the picture. Defendant objected to the admission of the photograph in evidence, arguing that the People had not proffered a sufficient foundation establishing the authenticity of the photograph as a fair and accurate representation of defendant holding a gun and that the photograph had not been altered. In response, the People contended that the necessary foundation would be established through proof that the photograph was obtained from a publicly available web page that bore an internet profile associated with defendant's surname and photographs of him. Over defendant's renewed objection to the sufficiency of the proffered authentication, the court ruled that the photograph would be admissible in connection with the proposed testimony.
People v. Price, supra.
The Court of Appeals then goes on to explain that
[t]hereafter, the victim testified to the circumstances of the robbery, and he identified defendant as the gunman. The victim described the firearm used in the robbery as a 9–millimeter automatic with a silver rectangular feature on the top of the barrel, but he admitted that he had no prior familiarity with firearms. When shown the portion of the photograph obtained from the website depicting the gun, the victim testified that the gun looked “similar” to the gun used in the robbery, but he could not identify the gun in the photograph as the one held by the robber.

A police detective subsequently testified that she found the photograph in question on the website “BlackPlanet.com.” The detective had searched defendant's surname `Price’ and, after scrolling through several pages of results containing approximately 50 internet profiles—the usernames of which incorporated the term `Price’—the detective s`w a public profile that contained several photographs of defendant and had the user name “Price_ OneofKind.’ There was no reference to defendant's full name on the profile page and, while the detective testified that the profile page listed the purported user's age and hometown, she did not testify as to whether any of this information matched defendant's pedigree information. Nor were any of the pages containing this pedigree information introduced to connect defendant to the specific user of this website.
People v. Price, supra.
The Court of Appeals then points out that the
photograph at issue was posted to the internet profile page several months before the robbery. The detective testified that the individual in the photograph holding the handgun “look[ed] like” defendant. She explained that she had printed the photograph from the internet website, and she asserted that the printout was a true and accurate depiction of the photograph she observed on the website. However, the detective admitted that she did not know who took the photograph, when it was taken, where it was taken, or under what circumstances it was taken. Nor did she know whether the photograph had been altered or was a genuine depiction of that which it appeared to depict. Nevertheless, after the photograph was admitted into evidence over defendant's objection, the detective identified defendant as the individual in the picture.
People v. Price, supra.
The Court of Appeals then addresses another issue, noting that during
[d]uring summations, the People urged the jury to conclude that the photograph was taken from an internet profile page belonging to defendant, and they emphasized that the victim `recognized’ the gun depicted in the photograph as the one held by the gunman. Following deliberations, the jury found defendant guilty of both counts of robbery.

Upon defendant's appeal, the Appellate Division affirmed the judgment of conviction, holding that “the People laid a proper foundation for admission of the photograph, it was relevant to the issue of the defendant's identity as the gunman, and its probative value outweighed any prejudicial effect” (127 A.D.3d 995, 996, 4 N.Y.S.3d 924 [2d Dept 2015] ). A Judge of this Court granted defendant leave to appeal (25 N.Y.3d 1206 [2015]).
People v. Price, supra.
Having outlined what happened at Price’s trial, the Court of Appeals took up the arguments he made on appeal, beginning with this argument that
the trial court erred by admitting into evidence the photograph obtained from the internet because the People failed to sufficiently authenticate it. Defendant contends that the People's authentication proffer was lacking because the victim could not identify the firearm in the image and because the People presented no evidence that the photograph was genuine and had not been altered. The People argue in response that the photograph was sufficiently authenticated by the detective's testimony that the printout was a fair and accurate representation of the image shown on the internet profile page, combined with the indicia suggesting that the profile belonged to defendant.
People v. Price, supra.
The court went on to analyze the extent to which the photograph at issue had been properly authenticated, explaining that
`[i]n order for a piece of evidence to be of probative value, there must be proof that it is what its proponent says it is. The requirement of authentication is thus a condition precedent to admitting evidence” (United States v. Sliker,751 F.2d 477, 497 [2d Cir1984]; see 1–4 New York Evidentiary Foundations § A [2016] ). `Accuracy or authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it’ (People v. McGee, 49 N.Y.2d 48, 59 [1979] ). We have explained that `[t]he foundation necessary to establish [authenticity] may differ according to the nature of the evidence sought to be admitted’ (id.). For example, mere identification by one familiar with an item of evidence may suffice where the item is distinct or unique (see People v. Julian, 41 N.Y.2d 340, 343 [1977]. see e.g. People v. Flanigan,174 N.Y. 356, 368 [1903] ). Where a party seeks to admit tape recordings, authenticity may often be established by testimony from a participant in the conversation attesting to the fact that the recording is a fair and accurate reproduction of the conversation (see People v. Ely,68 N.Y.2d 520, 527 [1986]; People v. Arena, 48 N.Y.2d 944, 945 [1979]). In addition, testimony establishing a chain of custody may suffice to demonstrate authenticity in other circumstances (see e.g. Julian, 41 N.Y.2d at 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310; Amaro v. City of New York, 40 N.Y.2d 30, 35 [1976]; People v. Connelly, 35 N.Y.2d 171, 174 [1974]; see also People v. Patterson, 93 N.Y.2d 80, 84 [1999]; Ely, 68 N.Y.2d at 528, 510 N.Y.S.2d 532, 503 N.E.2d 88). Ultimately, `the availability of these recognized means of authentication should ordinarily allow for and promote the general, fair and proper use of new technologies, which can be pertinent truth-yielding forms of evidence’ (Patterson, 93 N.Y.2d at 84, 688 N.Y.S.2d 101, 710 N.E.2d 665).
People v. Price, supra.
The opinion continues, explaining that
[w]ith respect to photographs, we have long held that the proper foundation should be established through testimony that the photograph `accurately represent[s] the subject matter depicted' (People v. Byrnes, 33 N.Y.2d 343, 347 [1974]; see Patterson, 93 N.Y.2D AT 84; New York Evidentiary Foundations § I [2016]; Prince, Richardson on Evidence § 4–212 [2008]; Fisch on New York Evidence § 142, at 82–83 [2d ed 1977] ). “Rarely is it required that the identity and accuracy of a photograph be proved by the photographer. Rather, since the ultimate object of the authentication requirement is to insure the accuracy of the photograph sought to be admitted into evidence, any person having the requisite knowledge of the facts may verify,’ or an expert may testify that the photograph has not been altered (Byrnes, 33 N.Y.2d at 347, 352 N.Y.S.2d 913, 308 N.E.2d 435; see Patterson, 93 N.Y.2d at 84, 688 N.Y.S.2d 101, 710 N.E.2d 665).

The People failed to authenticate the photograph through any of these methods at trial, as the victim was unable to identify the weapon as that which was used in the robbery,and no other witnesses testified that the photograph was a fair and accurate representation of the scene depicted (see People v. Marra, 21 N.Y.3d 979, 981 [2013], affg 96 A.D.3d 1623, 1625–1626, 946 N.Y.S.2d 783 [4th Dept 2012]; Byrnes, 33 N.Y.2d at 347, 352 N.Y.S.2d 913, 308 N.E.2d 435; Alberti v. New York, Lake Erie & W. R.R. Co., 118 N.Y. 77, 88 [1889]; see also Zegarelli v. Hughes, 3 N.Y.3d 64, 69 [2004] ) or that it was unaltered. Indeed, the People do not claim, on appeal, to have satisfied the traditional authentication requirements.
People v. Price, supra.
The courr goes on to explain that
[r]ather, the People argue that authentication of the photograph by a witness with personal knowledge of the scene depicted or through expert testimony is unnecessary in cases such as this, where the photograph at issue is obtained from an internet profile page that the People claim is controlled by defendant. To that end, the People point out that courts of several other jurisdictions have adopted a two-pronged analysis for authenticating evidence obtained from internet profiles or social media accounts. This approach allows for admission of the proffered evidence upon proof that the printout of the web page is an accurate depiction thereof, and that the website is attributable to and controlled by a certain person, often the defendant (see e.g. State v. Jones, 318 P.3d 1020, *5–*6 [Kan Ct App 2014]; Smoot v. State, 316 Ga.App. 102, 109–111, 729 S.E.2d 416, 425–426 [Ga Ct App 2012]; United States v. Bansal, 663 F.3d 634, 667 [3d Cir2011]; Tienda v. State, 358 S.W.3d 633, 642 [Tex Crim App 2012] . The courts that have adopted this approach have generally held that circumstantial evidence, such as identifying information and pictures, may be used to authenticate a profile page or social media account as belonging to the defendant. Relying on these out-of-state cases, the People contend that the detective's testimony identifying and describing the profile page she found on BlackPlanet.com, combined with her testimony that the printout was an accurate representation of the photograph displayed thereon, provided sufficient authentication evidence to allow admission of the photograph. We disagree.
People v. Price, supra.
The court goes on the conclude the opinion by explaining that
[a]ssuming without deciding that a photograph may be authenticated through the method proposed by the People, the evidence presented here of defendant's connection to the website or the particular profile was exceedingly sparse.3 For example, notably absent was any evidence regarding whether defendant was known to use an account on the website in question, whether he had ever communicated with anyone through the account, or whether the account could be traced to electronic devices owned by him. Nor did the People proffer any evidence indicating whether the account was password protected or accessible by others, whether non-account holders could post pictures to the account, or whether the website permitted defendant to remove pictures from his account if he objected to what was depicted therein. Without suggesting that all of the foregoing information would be required or sufficient in each case, or that different information might not be relevant in others, we are convinced that the authentication requirement cannot be satisfied solely by proof that defendant's surname and picture appears on the profile page. Thus, even if we were to accept that the photograph could be authenticated through proof that the website on which it was found was attributable to defendant, the People's proffered authentication evidence failed to actually demonstrate that defendant was aware of—let alone exercised dominion or control over—the profile page in question (see United States v. Vayner, 769 F.3d 125, 132–133 [2d Cir2014]; Commonwealth v. Williams, 456 Mass. 857, 869 [2010]; compare Jones, 318 P3d at *6; Moore v. State, 295 Ga. 709, 713, 763 S.E.2d 670, 674 [2014]).
People v. Price, supra.
The Court of Appeals went on to conclude the opinion by explaining that
[i]n sum, the People failed to demonstrate that the photograph was a fair and accurate representation of that which it purported to depict. Nor—assuming adoption of the test urged by the People (or some variation thereof)—did the People present sufficient evidence to establish that the website belonged to, and was controlled by, defendant. Thus, although the decision of whether to admit or preclude evidence generally rests within the discretion of the trial court (see Patterson, 93 N.Y.2d at 84, 688 N.Y.S.2d 101, 710 N.E.2d 665), admission of the photograph here lacked a proper foundation and, as such, constituted error as a matter of law. Furthermore, on the facts of this case, we cannot conclude that the error was harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 242 [1975]).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Order reversed and a new trial ordered.
People v. Price, supra.