More on: Audio Recordings

Seventh Circuit Addresses Audio Recordings and the First Amendment

Law Technology News

by Joshua A. Engel | 05/17/2012

Whenever a public figure speaks, smartphones and audio devices are there to record. The Seventh Circuit recently addressed the First Amendment limitations of this action in ACLU of Illinois v. Alvarez.

From EDD Update:

7th Circuit Holds Cell Phone Videos Are Protected

Every time a public figure speaks these days, smartphones are there to record the speech.

A key question: Is this legal?

That was the issue addressed last week by the Seventh Circuit Court of Appeals. The case isAmerican Civil Liberties Union of Illinois v. Alvarez, 7th Cir. No. 11-1286 (May 8, 2012).

The court reviewed a challenge to the Illinois eavesdropping statute, which makes it a felony to audio record "all or any part of any conversation" unless all parties to the conversation give their consent, and includes any oral communication regardless of whether the communication was intended to be private.

In Chicago, citizens had started a "police accountability program," which included plans to openly make audiovisual recordings of police officers performing their duties in public places and –- a fact that makes the statute applicable -- speaking at a volume audible to bystanders. When persons involved in the program feared prosecution, the ACLU challenged the eavesdropping statute on First Amendment grounds on their behalf.

The court held that the statute, in these circumstances, violated the First Amendment.

Read the full article on LTN online.

The image is in the public domain

More Frequent Fliers at the Court. New Supreme Court Decision Continues Trend of Taking Criminal History of Suspects into Account in Miranda Cases.

In 2011, I published an article in the Seton Hall Circuit Review on the Supreme Court’s recent Miranda decisions:  Frequent Fliers at the Court, 7 Seton Hall Circuit Review 303 (2011).

In that article, I reviewed four Supreme Court cases interpreting Miranda that featured suspects with significant prior interaction with law enforcement and the criminal justice system:  Montejo v. Louisiana, Florida v.Powell, Maryland v. Shatzer and Berghuis v. Thompkins.  I observed that “while the original Miranda decision held that the atmosphere of a custodial interrogation generates ―inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely, these later decisions shift the focus from the atmosphere to whether the individual suspects were actually compelled to make incriminating statements.” 

The four decisions all concerned the waiver of Miranda rights.  The article examined the increased consideration of the criminal background of suspects, whether implicit or explicit, by the Supreme Court and lower courts in determining whether a Miranda waiver is made in a knowing, intelligent and voluntary manner. I concluded:  “By implicitly – and, someday, probably, explicitly – taking the criminal experience of the suspect into account along with the totality of the circumstances surrounding the interrogation, the Court may be engaging in a more realistic review into whether a waiver and statement were uncoerced.”

The Supreme Court decided another Miranda case involving a frequent flier recently:  Howes v. Fields  In Howes, the issue was not a waiver of Miranda rights, but whether the suspect was in “custody” and therefore was entitled to receive Miranda warnings prior to an interview.  The suspect in Howes was serving a sentence in jail (for disorderly conduct!) when he was escorted to a conference room and interviewed about an alleged sexual offense.  He was told that he was free to leave; he subsequently confessed to the crime. 

The Supreme Court concluded that, despite the fact that he was incarcerated, the defendant was not in custody for Miranda purposes.  This is because, when examining the totality of the circumstances, the Court believed that incarcerated persons “live” in prison and can return to the daily prison life. 

Later, I will more closely examine the entire opinion.  But what caught my eye initially was the Court’s willingness to take an incarcerated defendant’s familiarity with the criminal justice system into account in the analysis of whether the defendant in in custody ofr Miranda purposes.  The Court noted that “a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release.”  The Court also noted that a prisoner “knows that the law enforcement officers who question him probably lack the authority to affect the duration of the sentence.” 

The Howe decision, thus, appears to be consistent with the long-term approach of the Supreme Court in taking the subjective knowledge and experience of suspects into account in deciding Miranda cases.  Key among the subjective knowledge and experience of suspects is a familiarity and experience with the criminal justice system.

Constitution 3.0

From EDD Update.


Jeffrey Rosen is the co-editor (with Benjamin Wittes) of a new book from The Brookings Institute, Constitution 3.0: Freedom and Technological Change. A constitutional law scholar, Rosen addresses the effect of changing technology on constitutional issues, and recently was interviewed on NPR. 

Rosen claims that “lawyers at Facebook and Google and Microsoft have more power over the future of privacy and free expression than any king or president or Supreme Court justice.”

In the book, Rosen suggests that new technologies, such as GPS tracking, are “challenging our Constitutional categories in really dramatic ways . . . And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today.” 

Rosen seems to point to two ways in which technology has changed the perception of privacy, at least how the Fourth Amendment is concerned. First, there is the consideration of the amount of privacy people can expect in public places.  Second, there is the difference between short-term and long-term surveillance. 

In the book, leading legal scholars were asked to imagine technologies and hypothetiucal situations that might be developed in the next few decades that would challenge current thinking about constitutional privacy protections. One scenario he describes is particularly interesting:  websites such as Google post video from live surveillance cameras online and archive those videos in a database. Add in facial recognition abilities of Facebook, and it could be possible to search for the location of individual persons at any given time.  The challenge is the police could use this surveillance without any apparent Fourth Amendment limitations because no government action would be involved in obtaining the data.

Listen to the NPR interview.

Personal Experience with Find My Friends

From EDD Update.

TMI or Life Saver?

I learned last week that too much information from tech can be a bad thing.

Apple last month released the “Find My Friends” feature on iPhones.  This featrure allows users to view the current locations of other users — who agree — on a map. While sold as a way to track and meet up with friends, I am guessing that the feature is most popular with families. 

Predictably, last month stories started to appear that one of the great uses for “Find My Friends” is the discovery of cheating spouses. One person posted on a web site that he had used the feature to discover that his wife was with another man when she had claimed that she was at a friend’s house in another part of town. 

One commentator noted:

I am sure at this very moment that John Grisham is calling his agent and musing about a new novel — set somewhere in Mississippi — where the plot will turn on the cheery new functions of an iPhone 4S. The plot will, no doubt, turn on whether planning such a ruse would constitute admissible evidence. . . .

Quite soon, I feel sure that happy couples will be making their promises at the front of churches and include this wording: "Till death do us part. Or till I discover that my sleazy little spouse has been secretly following my movements with an adorable little Apple app.

An author in Forbes took a more ominous view of the technology:

Will being given technology tools that make law-enforcement-style surveillance so easy a baby could do it transform us (more than Facebook already has) into a society of spies? Just as we expect everyone to have a Facebook account, perhaps we’ll start expecting everyone to volunteer their whereabouts at all times, as part of the “social OS.” If a friend (or a spouse) chooses NOT to be tracked, will we assume they are up to no good?

My own story is less exciting. We use “Find My Friends” and have found it useful for much more mundane purposes, such as calculating when someone on the road will be home from work. Earlier this week, I was picking up the kids because my wife had an appointment in another city. I called my wife but she did not answer, so I checked where she was on Find My Friends.  To my shock, her location was at the local hospital. I checked again, got the same result, and did a quick U-Turn to head to the hospital.

Then story has a happy ending — she had stopped at a jewelry sale by the hospital auxiliary.  But for about 10 minutes I was panicked and worried.

The moral of the story is obvious.  At the risk of sounding like Andy Rooney, maybe sometimes we really were better off before we had all of this technology.

Lycurgus Group Publishes White Paper on Penn State Investigations

The Lycurgus Group has just published a White Paper on the Penn State Investigations.  The White Paper is available here.

The White Paper continues to look at the Penn State sexual abuse scandal.  The facts and allegations, because so well reported and continuing to develop, will not be repeated here. This may be, as Boston Globe columnist and ESPN contributor Bob Ryan suggests, “the single biggest story in the history of college sports.”  The Lycurgus Group joins the hopes and prayers of others that the victims in this matter can find some sense of justice.

While it is too early in the legal process to draw any definitive conclusions about where the fault should fairly lay, it is not too early for Institutions to begin to answer the question about how similar mistakes can be avoided in the future.  The purpose of this White Paper is to examine the potential conflicts of interest inherent when Institution’s conduct internal investigations sensitive of high profile allegations of wrongdoing and to propose the use of external investigators as a viable solution in extraordinary situations.

In some instances, the reliance on internal staff is appropriate based on the nature of the allegations.  However, two recent incidents at Penn State – allegations of wrongdoing by a climate research scientist and the sexual abuse allegations involving a former football coach who maintained ties to the Institution – illustrate that when the institution faces potentially serious allegations, the better course is not to use of internal staff, whether in the compliance office or otherwise, to conduct the investigation.  The use of internal staff may create the appearance of a conflict of interest because the staff is not independent from the Institution.  In addition, internal staff may not have the resources or experience necessary to conduct a thorough investigation of serious allegations. 

Fellows from the Information Society Project at Yale Law School have just published an article on the upcoming GPS tracking case before the Supreme Court.

Fellows from the Information Society Project at Yale Law School have just published an article on the upcoming GPS tracking case before the Supreme Court.

Priscilla Smith, Nabiha Syed, David Thaw and Albert Wong are the authors of "When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches," 121 Yale. J. Online 177 (2011).  I highly recommend it.

The authors argue that “the use of GPS surveillance for prolonged monitoring without a warrant cannot pass muster under the Fourth Amendment.” They suggest that in evaluating new technologies, “wherever a new technology carries the potential for police abuse, the Court has allowed its use only as guarded by the warrant requirement, placing a check on the unlimited discretion otherwise afforded officers.” 

In particular, the authors suggest that the Supreme Court distinguished between technologies that merely enhance human senses (such as binoculars) and technologies that operate independently of humans (such as heat sensors).

This analysis would seem to suggest that GPS tracking of a vehicle is permissible without a warrant – after all, the GPS tracker merely does what a officer conducting traditional surveillance could do – not the location of a vehicle on public streets.

However, the authors suggest that there “is a vast technical valley between old technologies used by police officers, which merely assist in tailing suspects, and modern GPS surveillance technology, which automates tracking and surveillance.”

They point to two unique aspects of GPS tracking: 

(1) “Once the GPS tracking device is installed, it can operate autonomously over a prolonged period of time without human involvement, independently determining and remotely transmitting positional data twenty-four hours a day.” 

(2) “The electronic storage of gathered location data allows the data to be stored forever and considered at any time in the future alongside data collected from other citizens.”

I generally agree with this argument, and wrote last spring that “people have a reasonable expectation of privacy in the totality of their movements over the course of a period of time. . .  [and Courts]  are likely to conclude that the use of a GPS tracking device on a vehicle constitutes a search within the meaning of the Fourth Amendment.

The authors add a unique perspective on this case, suggesting that while there is no evidence of mass surveillance using GPS tracking yet, “circumstances might trigger” law enforcement to conduct such activities, pointing to a possible “terrorist attack by enemies (either foreign or domestic) whose ethnicity, religious affiliation, political persuasion, or other characteristics catalyze fear of or animus toward a particular minority group.”

Originally posted on EDD Update

New iPhone Leads to Fourth Amendment Violations???

So . . .  Apple released a new iPhone.

The most interesting aspect of the Apple story is the measures it takes to protect its intellectual property. In an effort to protect the new iPhone, Apple may have run up against the Fourth Amendment.

CNET reported  that Apple security personnel enlisted the help of the San Francisco police in locating a lost iPhone prototype. The iPhone was allegedly lost by an Apple employee at a bar in late July. The iPhone was tracked to a home. Apple security personnel and the police officers then went to the home. With the police standing by, the Apple security personnel searched the home, as well as a car and computer. 

The homeowner told reporters that the people who came to his house looking for the phone identified themselves as police (not Apple employees). He claimed that he never would have allowed Apple employees to conduct a searched.

The San Francisco Police are reported to have stated that “four SFPD Officers accompanied Apple employees to the . . . home. The two Apple employees met with the resident and then went into the house to look for the lost item. The Apple employees did not find the lost item and left the house.”

Of course, a lawsuit has now been threatened. Does it have a chance? Assuming that the consent for a search was invalid because of deception (a big assumption, perhaps), then the Fourth Amendment could have been violated. The general rule is that the Fourth Amendment” is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official. United States v. Jacobsen,  466 U.S. 109, 113 (1984).  However, the Court has also held that a person may be deemed a “state actor” when he has acted together with or has obtained significant aid from state officials. Lugar v. Edmondson Oil Co.,  457 U.S. 922, 937 (1982).

In this case, there is certainly a good argument that the Apple employee were acting as state agents in conducting the search. This would make them liable under the civil rights laws for any violations of the Fourth Amendment rights of the homeowner.

Finally: to add intrigue and a whiff of conspiracy to the story:  the video surveillance tape of the bar has been erased.  

This post originally appeared on the EDD Update blog.

Image: Apple