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Judge limits email access for Duquesne Heights couple charged with hacking

| Tuesday, Aug. 28, 2012,

Living without Internet access on a smartphone may be inconvenient, but blocking access for people charged with computer hacking doesn't violate their constitutional rights, a federal judge said on Monday.

“It doesn't take Oliver Wendell Holmes to figure that out,” U.S. District Judge David Cercone said during a hearing on bond conditions for a Duquesne Heights couple charged with hacking a local law firm's computer.

Lawyers for Alyson and Jonathan Cunningham argued that sending and receiving emails on their smartphones is essential to the web design business of Jonathan Cunningham, 28, and job search efforts for Alyson Cunningham, 24.

“It's a severe limitation on his liberty to take away his cellphone,” said Assistant Federal Public Defender Marketa Sims, who represents the husband.

The judge said the restriction isn't comparable to keeping them in jail or demanding an excessive bond.

“We survived without smartphones for thousands of years,” Cercone said. “I don't have one.”

Sims and attorney James Brink, who represents the wife, argued that the government hasn't met its burden of showing that allowing them email use would pose a threat to the community.

Assistant U.S. Attorney James Kitchen said the government isn't denying them email access, just unmonitored access.

“They have computers they can use for email,” he said.

A federal grand jury in June indicted the Cunninghams and Matthew James West, 20, of Esplen of conspiring to steal employee financial information from the computer server of a law firm — identified only as “VG” in the indictment — that had fired Alyson Cunningham.

The Cunninghams and West are free on $10,000 unsecured bonds, but a condition of their pretrial release is that they have no unmonitored Internet access.

Pete Gawlinski, a federal probation officer, said his office has installed monitoring software on their computers, but the only option for smartphones is to disable Internet access.

“Generally, the smartphones are a nightmare because we can't monitor them,” he said.

Cercone told Gawlinski to find out whether there is a way to allow email access while blocking other Internet access on smartphones.

The Cunninghams declined comment after the hearing.

Brian Bowling is a staff writer for Trib Total Media. He can be reached at 412-325-4301 or bbowling@tribweb.com.

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