Thursday, December 30, 2010

Ohio Gun Case

Many have asked me my view of the recent Ohio Gun case. They soon regret asking.

The Supreme Court of Ohio upheld a state law that eliminated most local gun-control ordinances. The opinion is here.

I don't have a lot to say on the issue at this time that could be interesting to most people. Sorry. The opinion is based on the Home Rule Amendment to the Ohio Constitution. That Amendment is unique to Ohio. Like Federal Jurisdiction, only some people really enjoy talking/reading about this issue. And by "some" I mean "a very few tortured souls." While I count myself among the tortured souls, I won't subject any readers to this.

NY Magistrate Judge (Again) Refuses to Allow Government to Obtain Cell Site Information Without a Warrant

A Federal magistrate judge in New York has refused to issue an order requiring a cell phone company to provide cell site information about a customer to the government. The information was sought for a criminal investigation. The Order is here.

In his order, Magistrate Judge Orenstein stuck with his previous view that the Fourth amendment requires that the government obtain a warrant for the information. Interestingly, his previous opinion was reversed. But Magistrate Judge Orenstien is convinced he is correct, and believes that recent opinions bolster that view.

The Magistrate Judge points to opinions that deal with important Fourth Amendment issues presented by the retention of cell site information by cell phone users. In particular:

  1. The Fourth Amendment does not apply because the location records at issue are held by a third party service provider rather than by the subscriber whose movements they reflect. See here on the blog for a recent post on this issue.
  2. The Fourth Amendment does not apply because a cell phone users voluntarily expose information about their location and therefore have no reasonable expectation of privacy in such records. See here on the blog for early thoughts on this, for example.

In doing so, Judge Orenstein drew a parallel between the information retained by cell phone companies and emails held by a provider. The Magistrate Judge relied upon the recent opinion from the Sixth Circuit holding that people had a reasonable expectation of privacy in the emails, even though they did not maintain physical possession of the messages. See here on the blog for a discussion of that decision. Some observers (who remain nameless) had suggested that this opinion was limited because the court believed emails were like regular mail. But I think the opinion has broader application in shaping the expectation of privacy in electronic data, regardless of where the data is maintained.

An important final point. This decision does not mean the government can never get the information. It just means the government must obtain a warrant, which requires probable cause.

Friday, December 24, 2010

On the Government Defense of New TSA Procedures Against Fourth Amendment Claim

The Justice Department has filed a brief that address, in part, the question of whether the new TSA procedures are permissible under the Fourth Amendment.

A copy of the brief filed in the Court of Appeals is on Wired. Warning: you have to wade through a lot of administrative law to get to the Fourth Amendment stuff.

The government claims that it is entitled to "significant deference" in its security decisions. This is true, but difficult to assess without a security clearance.

The interesting factual claim is that "the severity of AIT screening procedures' interference with individual liberty is limited." This may be too much, as the public response demonstrates. A better claim is later in the brief: "AIT screening [is] as minimally intrusive as possible to effectively detect the threat."

For a doctrinal standpoint, I think it is interesting that the government barely mentions the idea that passengers consent to a search by attempting to board a plane.

For what it is worth, as I have mentioned before, I think the TSA has not violated the Fourth Amendment. (That does not mean I think they have a good or effective policy – I leave that for others.)

Thursday, December 23, 2010

Court Rules That There Is No Expectation of Privacy in the Contents of a Cell Phone Loaned to Someone Else

If you lend someone a cell phone, do you maintain an expectation of privacy in the contents? This is, all of a sudden, a hot topic.

A recent Fourth Circuit Opinion (per curiam) address this issue. The case is Casella v. Borders. ( had this earlier)

This is a civil Section 1983 case. The plaintiff had nude pictures of herself on her cell phone. (Why do people continue to do this???) She then lent her phone to her boyfriend. When boyfriend was arrested, the police searched the contents of the phone incident to an arrest. (If you are interested in the legality of a cell phone search incident to arrest, see this article.) The officers discovered the pictures. Worse, an officer then announced over the radio system \"that the private pictures were available for [public] viewing and enjoyment."

The issue before the court was whether the plaintiff had a reasonable expectation of privacy in the images after she lent her phone to the boyfriend. The court said no. The court reasoned that she did not exercised a right to control the cell phone or its contents after giving the phone to the boyfriend. The court said, "undoubtedly hoped and intended that the images would not be viewed by anyone other than [the boyfriend], but hopes and intentions do not make Fourth Amendment rights."

This case may be unique, but the lesson is clear: don't lend out your cell phone. I think that the law may eventually evolve towards a concept of expectation of privacy based on access, not physical possession, of data. But we are not there yet.

Court Upholds TSA Search That Discovers Child Pornography

There is a vigorous debate about the effectiveness of TSA procedures in combating terrorism. But it looks like the TSA is at least pretty good at catching child pornography. (And child pornographers are probably one of the few groups less sympathetic than terrorists!)

I previously wrote about the admissibility of evidence found by the TSA during airport searches. At the time, I wrote that the government can use evidence found by TSA employees without violating the Fourth amendment so long as the TSA employees are detecting possible terrorism and not trying to detect other crimes. My starting point was a Hawaii child pornography decision.

A recent Florida state court reached the same conclusion. The case is Higerd v. State of Florida. Thanks to for the initial link.

In this case, the defendant was trying to fly from Florida to Colorado. The TSA officer swabbed the back for explosives, and also opened an accordion-type folder found in the suitcase and swabbed it. Later, following TSA protocol, the bag was selected randomly for a further physical search. During the random search, a TSA officer flipped through the papers in the accordion folder. This was, according to the TSA agent, pursuant to "TSA protocol." The TSA officer discovered incriminating photographs. Law enforcement was contacted and, after a warrant was obtained, child pornography was discovered.

The court reviewed the TSA protocol and determined that it "was no more intrusive or extensive than necessary." The court explained:

TSA's protocol required officers to physically open a certain number of randomly selected bags, swab the inner contents, and test the swabs in one of the explosive detection machines. The TSA officer's testimony was that she discovered several photographs while thumbing through a large file. TSA's protocol reveals that the TSA officer had the discretion to flip through the papers found in Appellant's bag while conducting the open bag search in lieu of swabbing every piece of paper. Thus, without more evidence proving that such a search was unnecessary given the current technology, we hold that the search was no more extensive or intrusive than necessary in light of current technology.

The court believed that, unlike in the Hawaii case, the TSA officer did not go beyond a search for weapons or explosives.

The challenge from these cases is that the record is incomplete. We know that the TSA has a protocol to conduct searches of papers. What we don't know – and maybe can't for national security reasons – is whether this protocol is reasonable based on the possible threat posed. We also don't know whether how much discretion is given to TSA officers by the protocol and whether the exercise of that discretion was reasonable.

As a prosecutor, I was always frustrated with police officers who would answer a question about why something was done with, "because we can," or "because we have a policy." (Example: "Why did you order the defendant out of the car?" Answer: "Because a Supreme Court decision says I can.") This is because most law enforcement policies and protocols give substantial discretion to the officers, and why that discretion was exercised in a certain way is often important. (Better answer: "Because I saw him reach into the glove box as I pulled him over and then he started at me as I approached, so I was concerned he had a weapon.")

Wednesday, December 22, 2010

Are Cell Phone Records “Essential to a Person’s Existence?” Murder Defendants in Massachusetts say “Yes.”

Cell phone records are apparently important in murder case Middlesex County, Massachusetts. (Disclosure: I used to work for the Middlesex DA office.)

The case apparently involves a drug deal gone bad. Three men, aged 17 to 21, allegedly lured a man to a parking lot for a drug deal, then shot him during while attempting to rob him. Lots of media coverage on this – mostly because one of the defendants is a high school student. See the Boston Globe here and here, for example.

According to recent news reports, the defense is attempting to prevent prosecutors from obtaining the defendants' cell phone records, including phone numbers dialed, calls received, cell tower locations, and signaling information. The DA believes that the cell phone records will demonstrate that the defendants communicated in order to plan the crime.

The defense is arguing that the records may not be obtained without a warrant, and suggested that "cell phones are 'essential' to a person's existence."

However, the judge seemed skeptical. He responded to a defense claim that people would not know that cell phones could be used to track movements with this question: "Is there anybody left in America who doesn't know that? When you use an electronic device, it leaves a trail?"

This case seems to present a situation where the Fourth Amendment is not implicated. Even if the defendants are correct, the government is apparently only seeking records about a discrete period of time in order to investigate a specific crime. The cell phone records, therefore, are not likely to reveal intimate details about any of the defendants' lives. In my view, that does not trigger the warrant requirement of the Fourth Amendment. See here for more links and some further thoughts on this.

Tuesday, December 21, 2010

Do You Have a Reasonable Expectation of Privacy in the contents of Your Phone if Someone else Pays the Bills?

The ownership of a cell phone is becoming increasingly important in determining whether a user has a reasonable expectation of privacy in the contents and records.

Determining who actually owns and controls a phone can be confusing, and the answer can lead to very different results. This is illustrated by a recent Pennsylvania case, Commonwealth v. Benson.

The Benson case involves a robbery of a seventy-seven year old woman in her home in Pennsylvania. The defendant broke into her home. When she returned home, he grabbed her, her on a sofa, and demanded money. He attempted to lock her up and stole various items, including jewelry, a gift card, and cash.

The issue that caught my eye was the use, at trial, of cell phone call records. The phone in question was owned by the defendant's girlfriend. The defendant was, however, the primary user of the phone. The girlfriend gave come records to the police, and the police later obtained additional records from a search warrant issued to the cell phone provider.

This case is the mirror image of a recent Texas case I wrote about. The issue in the Texas case was whether people maintain a reasonable expectation of privacy when they allow someone else to use their phone. The issue in this case was whether the defendant had a reasonable expectation of privacy in the contents of a cell phone owner by another.

The Fourth Amendment analysis begins with a 1979 Supreme Court case, Maryland v. Smith. In that case, the court held that the police do not need a warrant to obtain telephone numbers from a phone company because, like bank records and other business records, they are provided voluntarily to a third party (i.e. the phone company).

A Pennsylvania twist to this case is that the Pennsylvania Supreme Court does not follow Smith in interpreting the Pennsylvania constitution, and requires that the police obtain a warrant for phone records. So under Pennsylvania law, a person has a reasonable expectation of privacy in his own cellular telephone records. But, does a person have a reasonable expectation of privacy in the telephone records when somebody else owns the phone? The answer, according to the Benson court, is no. The court said:

while [the defendant] had use of the telephone, the bills in question were not his telephone bills. The telephone in question was [his girlfriend's] and she is the one who received and had the obligation to pay the telephone bills containing the records of telephone numbers dialed. [The defendant] had no legal right to request or control access to the information from the telephone company because he was not the owner of the telephone. He had no legitimate expectation of privacy in them.

My take is that the answer is not as simple as the Pennsylvania court suggests. Many people use phones on shared family plans. It is hard to imagine that person has no reasonable expectation of privacy in cell phone records if the spouse is the main account holder and pays the bills.

Cell Phone Photo Corroborates Drug Tip

An Indiana court recently held that a photograph taken on a cell phone can corroborate a child's allegation of drug dealing by her mother's boyfriend. The case is Hurst v. State.

The child told her father that her mother's boyfriend was dealing marijuana. The child texted a photograph to her dad of marijuana in the home. The father contacted the police and showed the texted photograph to an officer. Based on the information from the child and the photograph, the police obtained a search warrant. Marijuana was charged and the defendant (mother's boyfriend) was charged with dealing and possession.

The defendant tried to suggest that the search warrant was not supported by probable cause, because, in part, the information reported by the father was not corroborated. (The police had, it turned out, spoken to the child, but this information was not included in the affidavit used to obtain the search warrant.) The court disagreed, holding that the "texted photograph viewed by the officers corroborated [the father's report.]

I mention this case because the court seemed to suggest that the cell phone photograph was especially reliable because the "date and time information . . . indicated that the picture had been taken recently." A lot of cell phones now also capture location information with then photographs, so I expect that law enforcement will seek to use this data to support probable cause in the future.

Monday, December 20, 2010

What is More Important – Physical Possession of an Electronic Device, or a Password?

An unpublished opinion out of Texas raises an issue of standing to challenge the search of the contents of a cell phone – and then suggests interesting future questions about the use of passwords and encryption. The case is Young v Texas.

This case involves a complicated and illegal relationship between a student and an older woman. It started then the woman checked a student out of school on a number of occasions. This was done, apparently, without the permission of the student's parents. The parents stopped the practice and contacted requested that the student's teachers notify them immediately "if they noticed any odd behaviors."

Later, the student's math teacher confiscated a cell phone from the student because she could see that he was sending or receiving text messages during class. Later, when the teacher turned on the cell phone, she found text messages of a sexual nature and contacted the police.

The actual ownership of the phone was a little confusing. There was some testimony that the student's mother paid the bills for the cell phone service. The student testified that the phone belonged to the defendant and that she let him borrow it. The defendant also left a message for the teacher claiming that she owned the phone.

The issue on this case involves standing -- whether the defendant has the right to contest the search of the phone. The short legal question is whether the defendant has a legally protected expectation of privacy.

The court started with the assumption that the defendant believed that the contents of the phone was private. But that is only half the analysis. The defendant must also show that the expectation of privacy is one that society recognizes as reasonable. The court answered the second question, "no." The key factor for the court was that the defendant did not have possession of the phone when it was confiscated.

The interesting aspect of the decision, I believe, is that the court did not consider the fact that the defendant gave the cell phone to the student conclusive. Rather, the court also considered whether the defendant to steps to protect the information inside, like through the use of a password. I have written about passwords and encryption elsewhere, as I expect this to be one of the most important issues in dealing with the Fourth amendment and Technology going forward. The reasoning of the Texas Court, perhaps, suggests a court might be willing to look beyond physical possession of an object to determine whether an expectation of privacy is reasonable. For example, if I lend a thumb drive to somebody else, do I still retain a reasonable expectation of privacy in password protected files?

Friday, December 17, 2010

A “Very Cool” Issue -- Cell Phone Searches Incident to Arrest

Professor Kerr recently posted about cell phone searches incident to arrest. His starting point was a Georgia case. You can find my comments on the decision, along with a link to the text of the decision, here.

The issue is, when police arrest someone, can they search the entire contents of a cell phone on the arrestee's person? I have been writing a lot on this issue, and will be publishing an article soon in the Memphis Law Review on the issue. You can find it here.

Professor Kerr refers to this issue as "fascinating" and "very cool" – who knew?

Kerr recognizes that the old doctrine of searches incident to arrest, which applied to wallets, address books, and pagers, may not be applicable to a cell phone. He writes:

Ten years ago, analogizing a cell phone to a wallet made a lot of sense. You could easily take the wallet precedents and just apply them to cell phones. But as cell phones change, it's not so clear that the analogy still works. Smart phones carry a ton of information, the equivalent of a desktop hard drive from a few years ago. And fast-forward to 10 years from now, when it seems quite likely that cell phones (or whatever people are carrying with them by then) will store even more stuff and keep more records than today. What rule applies over time? If the rule needs to change at some point, exactly when should it change? Or is change needed? Right now courts are divided on the question, with some courts drawing the analogy between cell phones and physical storage devices and other courts saying that the storage capacity and records kept on a cell phone makes them substantially different from physical devices.

Kerr suggests that the search is permissible. I tend to agree with the view that information stored on electronic devices should not be subject to the traditional search incident to arrest doctrine.

Here is where Kerr gets the big money. He connects the dots between this issue and the recent Sixth Circuit opinion on emails. Both, he writes, cases suggest that courts are keeping a "very careful eye to ensuring that the analogies work so as to maintain the basic balance of Fourth Amendment protection as technology changes."

Thursday, December 16, 2010

More on the Court Ruling that Emails are Protected by the Fourth Amendment – Encryption and Passwords

As promised, more on the recent email decision from the Sixth Circuit. This opinion is getting lots of media attention. A nice summary is here.

One of the key issues going forward will be encryption and password protection.

The New York Times has reported that Federal law enforcement and national security officials want legislation to require all services that enable encrypted communications (like Blackberries) to be able to comply if served with a wiretap order. I wrote about that issue here.

Passwords and encryption, especially when emails or documents are stored in the cloud, is probably the strongest possible evidence that a person has a subjective expectation of privacy in the contents of the documents. And it could provide a nice, easy, dividing line for courts to distinguish between those electronic messages and documents a person wants to keep private, and those the person does not care as much about keeping private.

The follow-up issue will be whether the Fifth Amendment protects a person from disclosing a password or encryption key to the government. Usually, passwords are thought to be like keys and fingerprints – not covered by the Fourth Amendment because they are considered to be physical evidence, not a testimonial admission. However, it is not hard to imagine the government arguing at a trial that because a person knew a password, the person wrote or received a document, or wanted to keep it secret. In this case, the Fifth Amendment may be implicated. Read more details here.

Wednesday, December 15, 2010

Court: Emails Protected by Fourth Amendment

An important new case about the Fourth Amendment and e-mails.

The Federal Sixth Circuit Court of Appeals has held that government agents violated the Defendant's Fourth Amendment rights by compelling his e-mail provider to turn over emails without first obtaining a warrant. A copy of the opinion is here. You can read news/summaries here and here.

(The court did not suppress the evidence, because the agents relied in good faith on provisions of the Stored Communications Act. I won't get into this aspect of the decision today.)

In this case, the government seized approximately 27,000 of the defendant's private emails. The government acted pursuant to the Stored Communications Act, which permits the government to obtain e-mails that are "in electronic storage" without obtaining a warrant.

The email provider had been preserving copies of the defendant's incoming and outgoing emails in response to a preservation request by the government, and turned them over without providing notice to the defendant.

The court held that the Fourth Amendment applied, and a warrant was required. The defendant clearly intended that "his emails would be shielded from outside

scrutiny." This is probably not very controversial. The important question, however, is whether that expectation of privacy is one society is prepared as reasonable.

The opinion notes how much of a person's life can be revealed by e-mails:

Since the advent of email, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away. Lovers exchange sweet nothings, and businessmen swap ambitious plans, all with the click of a mouse button. Commerce has also taken hold in email. Online purchases are often documented in email accounts, and email is frequently used to remind patients and clients of imminent appointments. In short, "account" is an apt word for the conglomeration of stored messages that comprises an email account, as it provides an account of its owner's life. By obtaining access to someone's email, government agents gain the ability to peer deeply into his activities.

The court concluded that, like letters and phone calls, "email requires strong protection under the Fourth Amendment." The fact that the emails were stored maintained and stored by a third party was irrelevant to this analysis – this email provider was thought to be like the Post Office.

The most important aspect of the decision, to me, is that the court recognized that electronic communications are not like traditional business records – bank records, phone call records, etc . . . – because of the amount of information that can be revealed about a person.

This is an important decision. The recognition that the government's attempts to obtain a significant amount of information about a person triggers Fourth Amendment protections is similar to the broader theme apparent in cell phone and GPS tracking cases.

More to follow.

Interesting Thoughts from NY about Cell Phone Tracking Data

A New York attorney who specializes in e-discovery has posted an article about the recent cell tower case from Texas at

You can find my original summary and comments about the opinion here and here.

The author believes that the court "reasoned incorrectly as to the application of the Fourth Amendment to cell tracking information" and " overlooked a basic point of Fourth Amendment jurisprudence."

For the author, the key point is that the cell phone company, and not the government, collects the tracking data. I think he is correct – up to a point. My evolving view is that the government acts outside of the Fourth Amendment in acquiring tracking data about a specific discrete period of time. However, when the government acquires a significant amount of data about a person's activities over an extended period of time, a distinct right to privacy is triggered and a warrant is required – even if the data is in the hands of a third party – like cell phone data – or publicly available – like GPS trackers.

Friday, December 10, 2010

TSA Protesters Don’t Understand the Fourth Amendment

An article in a Salt Lake paper about a planned protest of TSA procedures illustrates why we need more calm education about the Fourth Amendment instead of attention grabbing lawsuits and hyperbole.

In the article, the organizer is quoted:

The 4th Amendment explicitly states that we have a right to be free from searches and seizures. I see the backscatter machines, the pat downs, the 3 oz. restrictions on fluids, as completely egregious and in conflict with Constitutional rights ... to be free from having to submit to any searches and seizures to participate in commerce with any other party.

A couple of things wrong here:

First, the Fourth Amendment protects against unreasonable searches and seizures, not any search and seizure.

Second, the Fourth Amendment applies to government actions regardless of whether the subject of the search is engaged in commerce or not. Different concepts. And the Commerce Clause deals with the relationship between national and state interests, not the protection of individual rights, anyway.

The point is: this is an issue for a vigorous policy level debate about the level and type of security that is appropriate for airports. Unless and until the TSA changes procedures, the Fourth Amendment is not implicated, and trying to apply it just adds to the confusion.

The debate about airport security is interesting and vital. It will be most effective if it sticks to policy, not con law.

Thursday, December 9, 2010

New TSA Lawsuit – This Isn’t Helping!

I guess everybody is trying to get attention by suing the TSA.

The Rutherford Institute – a civil rights organization that was behind Paula Jones lawsuit against Bill Clinton – has filed a lawsuit against the TSA. Their press release can be found here.

The lawsuit claims that the TSA procedures violate the Fourth Amendment.

As I posted earlier, I don't think the TSA procedures violate the Fourth Amendment. These lawsuits have very little chance to succeed.

I have a growing concern that as people and organizations try to take advantage of the media frenzy about TSA procedures, we are missing a moment to have some deliberate and thoughtful education about the Fourth Amendment. The Harvard student lawsuit is not helpful. This one seems worse. The President of the Rutherford Institute is quoted as suggesting that the TSA procedures "violates human dignity and the U.S. Constitution, and goes against every good and decent principle this country was founded upon." Give me a break!

Hyperbolic rhetoric may be useful in fundraising appeals, but it does not help the public discourse about how we balance civil rights against what is a very real threat from terrorists.

Wednesday, December 8, 2010

More on Government Watching Commercial Transactions

Previously I wrote about a government program to monitor credit card purchases and other commercial activity.

I saw that this was mentions at Wired and on Andrew Sullivan's blog.

The bottom line: any one transaction is not private. But the privacy rights of citizens, and the Fourth Amendment, perhaps, is implicated by the aggregation of data.

Law Review Article on Fourth Amendment and TSA Searches

More on the TSA.

A University of Mississippi Law School student has published an article in the Richmond Journal of Law and Technology on the constitutionality of the TSA use of full body scanners.

The article is titled "Bending Broken Rules: The Fourth Amendment Implication of Full-Body Scanners in Preflight Screening."

In the article, the student argues that "the danger of terrorist attacks alone provides insufficient justification under the Fourth Amendment for the wholesale application of full-body scanners. All methods of screening used by the TSA must strike a difficult balance of thwarting and deterring hijackings without violating the Fourth Amendment." The conclusion:

the TSA should not use full-body scanners unless a TSO has individualized suspicion that a passenger is carrying contraband that poses a threat to air security. . . . Considering the intrusiveness of full-body scans, courts should require probable cause as the level of individualized suspicion. Although requiring probable cause to conduct a full-body scan forecloses the use of fullbody scanners for suspicionless primary screening, it neither unduly hinders the TSA's counterterrorism efforts nor prevents the use of full-body devices. . . . Additionally, to comply with the Fourth Amendment, courts should require TSOs to exhaust less intrusive screening methods before resorting to a full-body scan. While no clear judicial mandate exists requiring that TSOs exhaust less intrusive means, courts consistently include the non-intrusiveness of magnetometers as a factor in determining the reasonable use of such devices for preflight searches. Reciprocally, the highly intrusive nature of full-body scans should render them unreasonable when conducted without individualized suspicion or before exhausting less intrusive measures.

I have written about the TSA procedures here and here. I think the article reaches a wrong conclusion. The TSA searches are permissible under the Fourth Amendment because they are an administrative action reasonably designed to counter a terrorism threat. These threats are real. The scanners are needed to prevent terrorists from hiding explosives in places where magnetometers and traditional TSA procedures cannot detect.

The TSA procedures may be the subject of a good policy debate: how much intrusion on the privacy of private citizens, and how much money should be spent for security are good policy questions and I am glad to see a vigorous debate on these issues. I just don't believe that the Fourth Amendment is implicated in that debate.

Tuesday, December 7, 2010

Cell Phone Search Permitted by Georgia Court

A Georgia appeals court has held that the Fourth Amendment does not prohibit the police from conducting a warrantless search of the contents of a cell phone after the arrest of a suspect.

The case is Hawkins v. State.

In Hawkins, the police were given a cell phone by a woman who claimed that she had observed numerous text messages about narcotics. The phone belonged to her son. The police then received a text message on the phone from the defendant, who seemed to be trying to purchase some pills. The officer exchanged texts with the defendant and set up a buy at a local restaurant.

The defendant arrived at the location, and was observed apparently sending another text to the phone. She was then arrested while in her car for unlawfully attempting to purchase a controlled substance. The police proceeded to search the vehicle and found her cell phone inside her purse. The officer searched the contents of the cell phone and discovered copies of the text messages that he had exchanged with her.

The defendant claimed that the search of the contents of the cell phone in this context violated her Fourth amendment rights.

The court rejected this argument. The court relied upon the Supreme Court in decision in Gant. In Gant, the Court reconsidered the scope of a search of a vehicle incident to arrest. The explained that under when a person is placed under arrest, the police may search incident to arrest the space within an arrestee's immediate control to prevent the suspect from grabbing a weapon or destroying evidence. The Gant decision did not address the ability of the police to open containers found on the suspect, like a wallet, purse, address book, or cell phone.

The Georgia court held that the Gant decision permits the police to search, incident to an arrest, any object "in which one reasonably might find the specific kinds of evidence of the crime of arrest that the officer has reason to believe may be found in the vehicle." In the case, the court reasoned that the officer had every reason to believe that evidence of the crime, "in the form of the text messages" would be found in the vehicle.

the court rejected a claim the electronic nature of the information required a different result. The court said:

That the text messages were stored in electronic form in [the defendant's] cell phone, rather than in plain view, does not deny the officer the right to discover them. When an officer is authorized to search in a vehicle for a specific object and, in the course of his search, comes across a container that reasonably might contain the object of his search, the officer is authorized to open the container and search within it for the object. The pertinent question, in this case, then, is whether a cell phone is enough like a "container" to be treated like one in the context of a search for electronic data that might be stored on the phone. We think it is.

The Georgia court referred to other federal court decisions which permitted the search of a cell phone found on an arrestee. The court acknowledged that "cell phones and other mobile electronic data storage devices, however, are unlike traditional 'containers' in several respects." However, the court suggested that the police were only required to reasonably search for evidence they have "good reason to believe [is] stored on the cell phone."

The Chief Judge and others did not join in this aspect of the decision. Some of the judges felt that the Ohio opinion in State v. Smith was persuasive. One judge wrote:

I disagree with the majority's decision to analogize a cell phone to other types of "containers" so as to allow its electronic contents to be searched as part of a search incident to arrest. . . . Many modern cell phones "contain a wealth of private information such as recent-call lists, emails, text messages, and photographs." Technological advances allow the storage of and access to more and more data on small devices capable of and indeed routinely being transported on their owners' persons, and such devices increasingly are designed and able to perform functions similar to those performed by computers. This capacity of electronic devices such as cell phones to store and access vast amounts of private information in an easily transportable format distinguishes such devices from the types of "containers" that Georgia cases have deemed subject to a warrantless search incident to arrest. Unlike devices that store and access electronic data, containers designed or used primarily for physically holding objects are limited in their capacity by their physical dimensions.

As I have written elsewhere on the blog, I think the Ohio decision is unique and represents a trend in the law. I am publishing an article soon on this issue. You can find it here.

The Ohio opinion, I believe, is remarkable because it departed from long-standing precedent that a search incident to arrest includes the ability to search the contents of any container found on the person. Courts have historically imposed very few restrictions on the ability of law enforcement to search the contents of containers found on an arrestee, even when the container is locked. However, a cell phone is different from traditional container because the technological sophistication and nature of modern cell phones has created a heightened expectation of privacy. My view is that courts need to develop a new framework for sophisticated electronic devices. Under this new approach, certain information stored on electronic devices would not be subject to the container doctrine. Rather than examining the particular capabilities of an electronic device, courts should determine whether the information that would be disclosed is the type of information that would reasonably lead to the disclosure of personal information typically covered by the right of informational privacy.

Friday, December 3, 2010

Can the Government Track Credit Card Use in Real Time?

An article I found today claims that "Federal law enforcement routinely tracks individuals through their credit cards, cell phones, car rentals and even store customer loyalty programs without obtaining a warrant." I don't know if this is accurate or how wide-spread the practice is.

The interesting Fourth Amendment issue is aggregation of data. Almost all of the data described are transaction records maintained by third parties. The information would, thus, seem not to be private or subject to a reasonable expectation of privacy.

However, as with GPS tracking data, the issue is whether the aggregation of a substantial amount of personal data creates a unique privacy concern. By gathering all of this transaction data, the government can obtain a detailed picture of a person's life, and habits, including, medical, or financial information or political or religious views. This would likely include information a person has a right to keep secret, and about which an individual has a reasonable expectation of privacy.

CNN Article “Connects the Dots” on Location Searches

A nice article on the CNN web page.

I appreciate that the article connects the concerns about law-enforcement putting GPS devices on cars, and whether the government needs a warrant to obtain cell phone company location records.

Thursday, December 2, 2010

Harvard Law Students File Lawsuit Against TSA Practices – Claim it is “Terribly Boring”

Two students from Harvard Law School – my alma mater – have filed a lawsuit against the TSA.

I am looking for a copy of the complaint, but it appears that the students claim that the security use of scanners or pat-downs without reasonable suspicion or probable cause violates the Fourth Amendment.

I have a strong disagreement with one of the students, however. One of the students was quoted in Bloomberg saying:

"We honestly don't have much to say that would be of general interest, . . . So much has been said about this issue in the last month, and while we think we have some solid legal theories, they would be terribly boring to anyone but a lawyer."

As I mentioned elsewhere, I think that this challenge is not likely to be successful for two reasons:

  1. TSA is given wide latitude to conduct warrantless searches under the administrative search doctrine.
  2. Passengers consent to the search when they choose to fly commercially.

The more interesting question in the future will be whether the TSA decides to extend their authority to searches of the contents of electronic devices. Until that time, the TSA is likely solidly within its authority.

Putting aside the likely lack of success in court, I don't think most non-lawyers find this issue "terribly boring." Speaking personally, I have worked hard to make Fourth amendment issues accessible to non-lawyers. My experience is that most people find the issue of cell phone searches and GPS tracking interesting because it impacts their lives. The same is true with TSA screenings – wiretaps of suspected terrorists overseas is abstract. Airports screenings is a common occurrence.

This is one of those "teachable moments" for lawyers – instead of denigrating the issue as "terribly boring" to non-lawyers, we should be grabbing the opportunity to explain why these issues touch everyone's lives.

Wednesday, December 1, 2010

Ohio Appeals Court Permits Warrantless GPS Tracking

The Ohio Twelfth District Court of Appeals has just issued an opinion upholding the warrantless use of a GPS tracking device by the police. The case is State v. Johnson.

In Johnson, the defendant was suspected of trafficking in cocaine. The police attached a GPS device to the defendant's van when it was parked on the street outside his apartment, and then tracked it through a website.

The police observed that the van was in Chicago, and made arrangements for local law enforcement to observe the vehicle. The defendant was observed placing a package in his van, and a car with Ohio plates was also observed at the scene. The van then was followed back to Ohio. Once in Ohio, law enforcement stopped the vehicles for minor traffic violations. A canine alerted on the vehicle, but no drugs were recovered from the van. However, drugs were found in a hidden compartment on the other car traveling from Illinois. The defendant told the police, "you guys got me," and later confessed. Officers also discovered that one of the keys on the defendant's key ring opened the hidden compartment in the other car that contained the drugs.

The defendant challenged the use of the GPS device without a warrant. The court rejected this argument. The court relied on Supreme Court cases holding that "there is no reasonable expectation of privacy in the exterior of a car," and that "one's travel on public roads does not implicate Fourth Amendment protection against searches and seizures." The court also noted that the defendant "did not produce any evidence that demonstrated his intention to guard the undercarriage of his van from inspection or manipulation by others."

The court rejected an argument that the advanced technology of a GPS device was different. The court said:

the defendant "parked his van on a public street, did not take any precaution to exert a privacy interest over it, and then openly traveled on the road where any onlooker could see his movement and arrival. . . . More importantly, the information gathered from the GPS device shows no more information than what detectives could have obtained by visual surveillance. [The] Detective testified that he would sporadically log onto a secure website and view the position of [the defendant's] van, but could tell nothing more from the GPS report than the approximate location of the van or how long it had been at a location. This same information could have been ascertained had a member of law enforcement tracked Johnson or employed surveillance techniques that require no technology. There is no question that following a suspect on a public road is not a search that implicates the Fourth Amendment and, scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise. (Citations omitted.)

Lots has been, and will be, written on this topic. You can find a good start here on this blog.

It will be interesting to see if the Ohio Supreme Court gets this case. The Ohio Supreme Court has previously applied the Fourth Amendment to emerging technology, such as when it found that the search of a cell phone violated the Fourth Amendment.

Tuesday, November 30, 2010

More on TSA Searches of the Contents of Computers. It Isn’t Done, But Is It Permisssible?

I have been trying to do some follow-up on whether the TSA can search the contents of computers. Here is the previous post.

I am not aware that the TSA conducts any searches of the contents of computers, cell phones, etc . . . The TSA blog earlier this year explained that Customs may do this, but not TSA:


Can TSA Copy Your Laptop Hard Drive and Search Your Files?

I read comments every now and then about how TSA officers at checkpoint and baggage locations can search the files on your laptop and can also confiscate your computer and copy your hard drive.

This is not true. In fact, we blogged about it back in February of 2008.

Our officers might visually inspect your laptop and perform an explosives trace detection test, but that's it. Our officers don't even turn computers on during inspection.

So where are the reports coming from? They're coming from people who have had their laptops searched by U.S. Customs and Border Protection (CBP). For more details on CBP's mission, check out this post from the recently retired Deputy Commissioner at U.S. Customs and Border Protection, Jayson Ahern.

So where is the confusion taking place? Well, many passengers often confuse CBP with TSA. Why? They have uniforms with the Department of Homeland Security patch and some people automatically assume they are TSA officers since they're working in an airport capacity. TSA and CBP officers have different uniforms. The CBP uniform is navy blue, while the TSA uniform is more of a royal blue. You will only interact with CBP when you're coming into the country.


Blogger Bob

TSA Blog Team

The blog post does not answer the important legal question: could the TSA do what CBP does, if it wanted to? (Here are some quick prior thoughts on customs searches.)

In general, TSA searches are permissible under the administrative search doctrine. The TSA role of preventing terrorist attacks on airplanes is a significant governmental interest, and the procedures are designed to promote that interest. In addition, passengers consent to the search when they choose to fly commercially. Once the search is conducted, the Fourth Amendment does not prohibit the government from using as evidence any other contraband discovered within the permissible scope of the search – for example, cocaine in the pocket of a passenger discovered during a pat-down.

A recent case from Hawaii suggested that there may be a limit, however. U.S. v. McCarty, 672 F. Supp. 2d 1085 (D. Hawaii 2009).

In McCarty, the defendant checked two pieces of luggage for a flight to Honolulu. The TSA screening of luggage noticed a "dense object," and the employees conducted a manual inspection of the luggage. The employees pulled out a laptop, and an envelope. (The employees testified that "some of its contents fell out of the bag and onto the table," although the testimony was later found to be "inconsistent" by the court.) The envelope included photographs of nude children. The TSA employees called the police. An officer reviewed the photographs and arrested the defendant for promotion of child abuse.

The court concluded that the search of the envelope exceeded the TSA authority:

As an initial matter, the court recognizes that . . . TSA employees could legally search the . . . bag for explosives and weapons. In fact, it was for precisely this purpose that [the employee] began her search -- the x-ray machine had alarmed on the laptop and a dense item and [the employee] was trained to clear the bag by identifying the items causing the alarm. The court further recognizes that [the employee's] inadvertent discovery of some of the photographs did not itself extend the search beyond its valid purpose . . .

The court cannot conclude, however, that the search of the . . . bag was limited to ensuring that it did not pose a safety risk. Rather, the testimony evidences that the TSA employees, at some point, clearly exceeded the scope of their administrative search and began to search for evidence of child pornography. And the government has failed to prove that, during the course of the lawful administrative search, TSA employees discovered evidence supporting a finding of probable cause that Defendant possessed child pornography.

The key to the decision is that, at some point, the TSA employees shifted focus from detecting possible terrorism to detecting other crimes. At that point, the administrative search exception no longer applied, and the search violated the Fourth Amendment. (The decision discusses a possible search for "sheet explosives," which I won't address.)

However, this suggests that in the future, a search of the contents of an envelope or a computer could be justified by a TSA belief that that contents of the envelope or the computer were related to preventing terrorism. For example, if the TSA, based on experience, had a belief that possible terrorists often communicate through e-mail or other electronic devices, then this belief could be used to justify the search of the contents of a computer.

Fourth Amendment Protections in West Virginia

Interesting take from a West Virginia Newspaper on the warrantless use of GPS tracking devices by law enforcement:

Many Americans worried about authority granted to law enforcement agencies to battle terrorists. But using measures such as GPS tracking for lesser offenders is simply unacceptable.

So . . . the paper seems to be saying that the Fourth Amendment only applies to less serious crimes?

Monday, November 29, 2010

DC Circuit Denies En Banc Review of Maynard GPS Tracking Decision – Supreme Court Next?

Sorry I missed this over Thanksgiving. The DC Circuit denied en banc review of the Maynard decision.

There is a decent chance of Supreme Court review here, I would think. Prior to August 2010, based on the Supreme Court's decisions in Knotts and Karo, the Federal courts that have considered the question of GPS monitoring had universally permitted the placement and use of the devices on public streets. On the Circuit Court level, the Seventh, Eighth and Ninth Circuits explicitly permitted warrantless GPS tracking. Lots, including links to prior Supreme Court decisions, can be found elsewhere on this blog.

Virginia AG Weighs In On School Cell Phone Searches

The Virginia Attorney General has provided an opinion to school districts about student cell phone searches. In response to concerns about cyberbullying, school districts have been viewing the content of student cell phones. The Virginia AG concluded that "searches and seizures of students' cellular phones and laptops are permitted when there is a reasonable suspicion that the student is violating the law or the rules of the school." A copy of the opinion is here.

I posted a couple of times before about this issue. See here, for example. I am beginning to think this will become a bigger issue than I originally thought.

The Virginia AG opinion is correct -- as far as it goes. School administrators have substantial authority to enforce school rules and laws on school property. However, the opinion does not address the most important issue – whether school officials can use access based on the investigation of a violation of a school rule to search through the entire contents of a student's cell phone. I think that courts will have a greater reluctance to permit school officials to look at photographs and messages on cell phones unrelated to the original excuse for seizing the cell phone.

Wednesday, November 24, 2010

Can the TSA Search The Contents of Computers

Domestic TSA practices have received a lot of attention recently.

But a more far reaching issue may be the ability of border agents to search the contents of computers and smartphones without a warrant.

I wrote about this issue previously. But a recent case, United States v. Rogozin again brought it to my attention.

In this case, the defendant was driving into the United States. The customs officer thought the defendant was acting suspicious, and referred him for a secondary screening. The agents searched the vehicle, as well as the contents of a digital camera, computer, video camera and cell phone. All of the devices contained photos of small children in sexually suggestive positions. The defendant was released and the government conducted a forensic inspection of the laptop at the ICE office. Based on finding child pornography during this inspection, the officers applied for a warrant to search the computer.

Routine border searches for contraband are permissible under the Fourth Amendment without reasonable suspicion or probable cause. The court refused to suppress the evidence from the laptop because the defendant conduct at the border stop "were sufficient to create reasonable suspicion in the mind of [the] inspector . . . which would justify examining the laptop during the secondary inspection." The court did, however, suppress the evidence from the other devices, reasoning that the government held them for too long without seeking a warrant.

This opinion does not really address the core Fourth Amendment issue: whether a border search permits agents to search the contents of an electronic device. In this case, while the defendant may have acted suspiciously, there does not appear to be evidence to support the belief that contraband was contained on his electronic devices.

This will be an important issue – as I suspect that the TSA at some point will claim the authority to search through the contents of computers and cell phones, as well.

Refresher on GPS Tracking and Fourth Amendment; And Recent Decision from Massachusetts

A lot has been written on GPS tracking – both on the blog (here and here and here, for example) and the media (here and here, for example). The warrantless use of GPS tracking devices is one of the cutting edge issues in Fourth Amendment law today, I believe.

A bit a refresher on the law may be worthwhile here. The leading case is United States v. Knotts. In that case, the defendant and his co-conspirators were suspected of manufacturing methamphetamine. Law enforcement officers contacted the chemical company where the conspirators purchased their chemicals for the manufacture of the drug. With the consent of a chemical company, officers installed a tracking device inside a five gallon drum of chemicals. When Knotts' co-defendant purchased the drum of chemicals, officers were able to made the purchase officers were able to follow the car, "maintaining contact by using both visual surveillance and a monitor which received the signals sent from the beeper."

The Supreme Court held that a warrant was not required to track the vehicle using the type of device at issue in Knotts. The Court reasoned that, for Fourth Amendment purposes, no reasonable privacy interest exists in the movement of a vehicle traveling on a public roadway because drivers voluntarily convey to the public their location and direction of travel. The key to the analysis in Knotts is the premise that persons have no legitimate expectation of privacy in their location if they could lawfully be viewed by law enforcement. The Court explained:

Visual surveillance from public places . . . would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but on the use of the beeper to signal the presence of [the] automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.

Implicit on this premise is that law enforcement is permitted to use technology to enhance permitted visual surveillance. The Court compared the use of the beeper to the use of a searchlight in a previous decision to observe contraband on the deck of a ship. The use of other technology, such as helicopters, airplanes, and satellites is merely just another enhancement of visual surveillance.

Although a first view of Knotts seems to suggest that the Court would approve the warrantless use of GPS devices, the Knotts Court stopped short of permitting the type of surveillance permitted by GPS devices. The warned that the opinion did not reach "dragnet type law enforcement practices." Justice Stevens wrote a concurring opinion to emphasize his view that there was a limit to police use of technology. He said, "Although the augmentation in this case was unobjectionable, it by no means follows that the use of electronic detection techniques does not implicate especially sensitive concerns."

Prior to august 2010, based on Knotts, the Federal courts that have considered the question of GPS monitoring have universally permitted the placement and use of the devices on public streets. State courts were divided, but those courts seeking to limit the warrantless use of GPOS devices generally relied on their own state constitutions rather than finding a Fourth Amendment violation. However, in August 2010 the DC Circuit decided United State v Maynard. The Maynard court found that the warrantless use of a GPS tracker over an extended period of time violated the Fourth Amendment. The court distinguished Knotts on the grounds that "the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil." The court explained:

It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.

According to the Maynard court, the difference between discrete and long-term surveillance is significant because "the whole of one's movements . . . . reveals more -- sometimes a great deal more -- than does the sum of its parts."

That background makes the decision by Judge Young in Massachusetts very interesting. In United States v Sparks, the FBI was investigating the defendant for a series of a bank robberies. On the same day, the FBI had initiated surveillance through the use of an affixed GPS device on the defendant's car, another bank was robbed. According to the court, the Agents soon "found themselves in the most fortuitous of positions:" they ob served suspects matching the description of the bank robbers get into the car. The GPS device allowed the car to be located on I-95 and the police initiated a stop, but the suspects fled on foot. The defendant's wallet was found in the car, and the GPS device on the car indicated that the vehicle was near the defendant's apartment on the morning of the robbery.

Relying on Knotts, the Sparks court concluded that the monitoring of the GPS device on the defendant's vehicle "does not implicate any privacy interests and cannot be considered a search." The court reasoned that the GPS device, like the tracker in Knotts, merely augments the sensory abilities of law enforcement officers. The court found the reasoning of Maynard "legally unconvincing." The judge was critical of the decision:

The court in Maynard, however, leaves police officers with a rule that is vague and unworkable. It is unclear when surveillance becomes so prolonged as to have crossed the threshold and created this allegedly intrusive mosaic. What's more, conduct that is initially constitutionally sound could later be deemed impermissible if it becomes part of the aggregate. Finally . . . a rule prohibiting prolonged GPS surveillance due to the quantity or quality of information it accumulates would also incidentally outlaw warrantless visual surveillance and this Court is unwilling, and unable, to extend the reach of the Fourth Amendment that far.

There is a factual distinction between Sparks and Maynard that bears emphasis: the GPS device in Sparks was used over a short period of time to reestablish visual contact with the defendant. In contrast, in Maynard the surveillance was continuous over a period of weeks. However, I think it is more important that Judge Young did not find the reasoning o. However, I think it is more important that Judge Young did not find the reasoning of Maynard persuasive.

Is Sparks an indication that the reasoning of Maynard is not likely to be followed? We will see . . .

Thursday, November 18, 2010

Firesheep raises Question About Expectation of Privacy in Public Wireless Networks

The latest "development" is cybersecurity is a program call "Firesheep." This program allows someone to access the accounts of other users on an open network -- such as at Starbucks, McDonalds, or my neighbors. (BTW, there is a an add-on call "blacksheep" that can detect if someone is trying to use Firesheep.

PC World recently published an article discussing whether People using Firesheep may be breaking federal wiretapping laws.

The best answer was from a professor at Harvard: "I honestly don't know the answer."

The answer seems to depend on whether a person has a reasonable expectation of privacy in information transmitted over a public Wi-Fi connection. If the answer is no, then there is generally no wiretap violation.

I am not so quick to dismiss the idea that people have an expectation of privacy even when using a public connection. People generally access password protected sites, and often use encrypted connections if conducting business or commerce. Moreover, access to a person's account would not only possibly reveal the information transmitted in this one session, but all other information stored in an account.

If there is not expectation of privacy, then someone could argue that a single access over an open Wi-Fi connection would act as a waiver of any confidentiality in the password to e-mail or Facebook accounts. I don't think this is correct.

For these reasons, people likely have a greater and more reasonable expectation of privacy in information transmitted over public Wi-Fi, and the use of Firesheep is likely illegal.

Why Does the Supreme Court Have “Fuzzy, Unweildy Rulings?” A Comment to the New York Times Article on this Subject.

Interesting article in the New York Times on the Supreme Court. The important point: "In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts."

The article offers various explanations for this situation. The use of law clerks, for example is discussed, but the focus seems to be on a desire for greater majorities on the Court:

Critics of the court's work are not primarily focused on the quality of the justices' writing, though it is often flabby and flat. Instead, they point to reasoning that fails to provide clear guidance to lower courts, sometimes seemingly driven by a desire for unanimity that can lead to fuzzy, unwieldy rulings.

The article misses one very important reason this is happening: the Court is packed with very smart lawyers who have never been committed trial lawyers or judges and, as a result, have little appreciation for what trial judges and attorneys need. While some have served on jobs that would expose them to trials, that is the exception, not the rule, and there is little to think that they spent a significant amount of time in jobs that required them to try cases and/or appear in trial court on a regular basis. Here is a summary of Supreme Court experiences (detailed biographies here):

  • Chief Justice Roberts: Clerked for Court of Appeals and Supreme Court, Worked for Justice Dept. and White House, practiced law focusing on Supreme Court practice, and served on Court of Appeals.
  • Justice Scalia: Law professor, General Counsel of the Office of Telecommunications Policy and Chairman of the Administrative Conference of the United States. Served on Court of Appeals.
  • Justice Kennedy: Law professor, served for Judicial Conference of the United States. Served on Court of Appeals.
  • Justice Thomas: Served as an Assistant AG, in-house counsel, and Legislative Assistant to Senator John Danforth before serving as Assistant Secretary for Civil Rights in Department of Education and as Chairman of the U.S. Equal Employment Opportunity Commission. Served on Court of Appeals.
  • Justice Ginsburg: Law clerk on District Court, worked numerous jobs, including for the American Civil Liberties Union. Served on Court of Appeals.
  • Justice Breyer: Law clerk on Supreme Court, Special Assistant to the Assistant U.S. Attorney General for Antitrust and Assistant Special Prosecutor of the Watergate Special Prosecution Force, Counsel to Senate Judiciary Committee. Law professor. Served on Court of Appeals.
  • Justice Alito: law clerk for Court of Appeals. Assistant U.S. Attorney, U.S. Attorney, and Assistant to the Solicitor General. Served on Court of Appeals.
  • Justice Sotomayor: Assistant District Attorney and private practice. Served on District Court and Court of Appeals.
  • Justice Kagan: Law clerk on Court of Appeals and Supreme Court. Private practice, law professor and dean. Counsel to President Clinton. Served as Solicitor General.

The result is that you have a Supreme Court filled with justices who have read about trial, seen them on movies, and perhaps watch Law & Order. I don't intend to diminish the experience of any Justice, or suggest that they are not qualified. The focus of lawyers who practice on the Courts of Appeals and in more policy making positions is different than the focus of trial lawyers. In the policy-oriented position, there is a greater premium on getting the "right" answer and on intellectual consistency. This leads to decisions with less specific bright-line rules, and more cases without any real guidance, or simply an instruction to balance of host of factors.

An example is the Gant case. There, the Court over-turned a 28 year old precedent that permitted the search of a vehicle after the arrest of an occupant. As Justice Alito noted in dissent, even if the old rule was not 100 % correct intellectually, it had proven to be "eminently workable," and had "engendered substantial law enforcement reliance." And this is not a liberal-conservative thing. In the Montejo case, the Court overturned 23 year old precedent that prohibited police from initiating contact with defendants after arraignment. As Justice Stevens noted in his dissent, the "simple, bright-line rule [from the prior decision] has done more to advance effective law enforcement than to undermine it."

Trial lawyers, I believe, place a greater value on having a rule that is straight-forward and easy to apply. Rigid rules, trial lawyers believe, have the benefit of informing police, judges, defense lawyers and prosecutors with specificity as to what they may do and what evidence is admissible. This specificity benefits all parties, and outweighs the loss of "intellectual rigor" in any particular case because fact intensive analyses are burdensome, unpredictable and lead to timid law enforcement and lawyering.






Wednesday, November 17, 2010

NYT Editorial: Searching Your Laptop

The New York Times recently published an editorial on laptop searches by customs officials. It is worth a read.

The editorial highlights the fact that border agents are permitted under the Fourth Amendment to conduct searches of the contents of laptops. while no cases have been decided on the issue, this also likely includes the ability to search the contents of smartphones, and may even permit the search of documents and e-mail stored on external servers that could be accessed by these devices. This has been permitted because persons entering the country have a diminished expectation of privacy, and courts have been reluctant to distinguish between containers potentially holding physical materials, and containers holding electronic materials.

The editorial recognizes that "There is . . . a big difference between government agents scanning items for explosives or looking through a suitcase full of clothing, and searching through the hard drive of a laptop computer containing work papers, financial records, e-mail messages and Web site visits." The editorial also refers to a Ninth Circuit ruling upholding the ability of border agents to search computers as "disappointing," and calls for legislative action.

The Fourth Amendment issue is whether traditional Fourth Amendment doctrines, like the doctrine permitting virtually unlimited border searches, or the doctrine permitting the search of the contents of containers incident to an arrest, apply to modern electronic devices. In applying these old doctrines, courts often draw analogies to physical objects, such as footlockers and file cabinets. However, going forward, the hope is that courts begin to recognize the differences between the physical objects that people held twenty or more years ago, and modern handheld electronic devices.

The key, I believe, is that computers, hard drives, flash drives, and cell phones have a unique ability to hold vast amounts of diverse personal information. As I have noted elsewhere on this blog (here and here, for example) and in a paper I am publishing soon, the better course is for courts to review whether an examination of the contents of the device is reasonably likely to lead to the discovery of the type of intimate details about a person. If the answer is yes, then a warrant should be required before law enforcement examines the contents of an electronic device.

Applying this to the border searches of laptops noted by the New York Times editorial: searches for physical evidence should continue to be permissible as before; however, if the examination of the contents of a person's e-mails, text messages, documents, and photographs could provide an observer with potentially unlimited information about the device's owner, including personal, medical, or financial information or political or religious views, then the warrant requirement of the Fourth Amendment applies.

Tuesday, November 16, 2010

An Engineer Weighs In on Warrantless GPS Tracking

Omari Christian, an Engineer, has written on GPS tracking from an Engineer's perpsective.  He quotes Stockycat.  See his blog here.

His conclusion focuses a lot on the difference between tracking on public and private property.  As I have written elsewhere, I think the real concern is the aggregation of data.  Here is an example.

Monday, November 15, 2010

Ohio Attorney Writes Lexis Article on DC Circuit GPS Tracking Cases

Michele Berry, a fellow Ohio attorney, has posted an article on Lexis about the DC Circuit GPS tracking case, Maynard. The article (for Lexis subscribers) is here.

In the article, Ms. Berry suggests that "the Maynard decision provides plenty of guidance and authority for how to craft creative arguments in analogous Fourth Amendment situations." She points to the use of cell tower information and the contents of e-mails.

An important caveat, I think, from this decision. The argument from Maynard is focused on the fact that the aggregation of data raises unique privacy concerns. I think it this is significant, as law enforcement attempts to focus in on where a person is at a particular moment in time, or the address information from a single e-mail, are more likely to be upheld by the court.

You can find the article I am publishing on this issue here.

New Supreme Court Case on the Exclusionary Rule

The U.S. Supreme Court agreed to decide another Fourth Amendment exclusionary rule case: Tolentino v. New York, 09-11556. Details are on Scotusblog.

According to the decision in the New York Court of Appeals, the defendant's vehicle was stopped by NYPD for playing music too loudly. The police checked his information on the computer, and discovered that his license was suspended. The defendant was then arrested for driving with a suspended license.

The defendant made a creative argument. He suggested that if the initial stop by the police was unlawful, then any information they discovered as a result of that stop – including his identity -- cannot be used in a prosecution. However, the court rejected this argument, finding that when a violation of the Fourth Amendment leads only learning the identity of a suspect, suppression is not appropriate. This is supported, according to the NY court, by the fact that the records checked on the computer were already in the hands of the government.

Although this Court has not been very supportive of the exclusionary rule, my initial thought is that the defendant has a good argument here. The purpose of the exclusionary rule is to discourage unlawful police conduct. While the government is permitted to require a person provide identification to a police officer, permitting the use of evidence in this case will encourage police to engage in unlawful conduct to "check" on the identity of suspects.

Saturday, November 13, 2010

Volokh Conspiracy Survey on Cell Phone Knowledge

Prof. Kerr recently posted the results of an unscientific survey of user awareness of cell phone technology on the Volokh Conspiracy blog.

Take the unscientific results for what they are worth, but 95% of respondents indicated that they were aware that cell phone providers could obtain location data from cell phones.

In a previous post, I had criticized an aspect of a court decision from Texas about government access to cell phone tower data. I had pointed out that the decision contains an interesting discussion about whether cell phone users voluntarily convey their location to the cell phone company. As Prof. Kerr points out, this is significant from a Fourth Amendment perspective, because information voluntarily conveyed to third parties is not protected by the Fourth Amendment. This rule applies to, for example, banking records and phone numbers dialed.

I wrote: "While some people may be naïve about how cell phones work, I think there is a growing understanding that a cell phone user may be tracked either through cell tower information or the GPS device built into the phone."

This survey provides some – again, very limited – support for this assertion.

Friday, November 12, 2010

What others Are Saying About GPS Tracking – Part II

There has been a lot on this blog about GPS tracking, so I thought I would look at what others have been saying. See here and here on the blog, for example. For more details, see here for a draft of an article I am publishing on the topic this winter.

Professor Hutchins published last spring a nice article on this issue in the Richmond Law Review. I regret that I only stumbled upon it now.

This article was written before the DC Circuit opinion in Maynard. Professor Hutchins suggests "intrusiveness" should be "the benchmark for assessing and defining the existence of a search under the Fourth Amendment." More: " intrusiveness should be clearly defined to require an examination of two factors: the functionality of a challenged form of surveillance and the potential for disclosure created by the device."

A key to this analysis is that Professor Hutchins would divide electronic surveillance devices into "sense-augmenting" devices and "extrasensory" devices. This approach is intriguing, and deals with the aggregation of data problem by suggesting that a court should examine "the extent of information potentially revealed by the surveillance device."

What Others Are Saying About GPS Tracking – Part I

There has been a lot on this blog about GPS tracking. See here and here on the blog, for example.

The Berkley Technology Law Journal posted a short article last week on this issue, Privacy Expectations in the Use of GPS Tracking Devices: United States v. Maynard.

In this article, Musetta Durkee observes that GPS tracking is different in kind, not just degree, from discrete observations:

As with most aggregations of information where the individual pieces of information, on their own, would be meaningless, when taken together these pieces reveal patterns of information that convey more than the individual pieces. As such with the aggregation of an individual's movements over a prolonged period: previously private information, in which our society recognizes an expectation of privacy, becomes public. In the case of GPS tracking devices, this private-turned-public information thereby is made available to authorities without a warrant.

Durkee addresses a key criticism to this analysis, mainly "how would law enforcement know, before actually reaching the threshold where an individual's privacy has been breached, when patterns of behavior, instead of discrete acts, are being revealed?" His conclusion that a legislative solution to the question of GPS tracking is premature, I believe. This is because the law is too unsettled on this matter. As long as law enforcement has a fairly strong argument that the warrantless use of GPS tracking devices raises no Fourth Amendment issues, then law enforcement and homeland security interests can push hard to be exempted from any legislation on this issue.

My view remains that GPOS devices implicate the Fourth Amendment. GPS devices permit law enforcement to conduct surveillance beyond a targeted investigation into a certain crime and could permit law enforcement to undertake surveillance of a particular individual over an extended period of time in the hope of piecing together evidence of illegal conduct that was not suspected prior to the surveillance. Especially where the cases involve sustained and long-term surveillance of a targeted individual unrelated to any particular criminal action, no reasonable person would expect to be the target of such a massive police surveillance operation. Accordingly, because the use of these devices infringes on a legitimate expectation of privacy, the use of these devices constitutes a search which, absent the present of another exception, requires a warrant.

For more details, see here for a draft of an article I am publishing on the topic this winter.

Wednesday, November 10, 2010

Idaho Court Notes Conflicts About the Warrantless Use of GPS Tracking

An Idaho Court of Appeals has refused to hold that a warrant is required for the use of a GPS tracking device.

The case is State v. Danney. The police suspected that the defendant was involved in marijuana trafficking. The police placed a GPS tracking device on his vehicle when it was parked outside his business. Using the device, they tracked the vehicle making a trip to California, and then initiated a traffic stop when it returned to Idaho. a drug dog alerted on the vehcile, and a subsequent search revealed marijuana.

Because the defendant did not raise the issue of the constitutionality of the use of a GPS device in the trial court, his conviction could be overturned only if the use of the device was a fundamental error. The court concluded it was not because "To the extent that it has been addressed, the jurisprudence in this area is conflicting." The court then cites to a number of opinions both permitting and prohibiting the warrantless use of the devices.

Tuesday, November 9, 2010

New Case on School Cell Phone Searches

The High School Journalists I wrote about previously may have been on to something.

In a case decided earlier this month, a federal district court considered whether the search of a cell phone by school officials violated a student's Fourth Amendment rights.

The case is J.W. v. DESOTO COUNTY SCHOOL DISTRICT, Civil Action No. 2:09-cv-00155-MPM-DAS, United States District Court, N.D. Mississippi, Delta Division. A copy can be found here.

In this case, the students was observed using the cell phone by a district employee; a violation of school rules. The phone was confiscated. A school employee then viewed the photographs on the phone, and found pictures of the student dancing in his home bathroom and one photograph of another student holding a B.B. gun. The school accused the student of having "gang pictures." At a disciplinary hearing, a police officer testified that he recognized gang signs in the photographs and the student was a threat to school safety.

The student later sued for violation of his Fourth Amendment rights. In particular – and of interest here – the student claimed that while the school could confiscate the cell phone when the student violated the rule against use, "the pictures were personal and expressive in nature and taken at home, and were therefore protected by the Fourth Amendment. . . . No school rule gave R.W. notice that by bringing his phone to school, his personal information would be subject to search by school officials."

The court rejected this claim. The court relied reasoned that in a school setting, a search is permissible if it is reasonable under all the circumstances. In this case, the court held that if the student was observed using the phone, then it is reasonable to determine why the student was using the phone.

I am curious to see how other courts handle this issue. It may be a stretch to suggest that sending or receiving a text or call in school – in violation of the rules – can permit school officials to search through the contents of a student's personal life. And as more of a our personal lives live on our cell phones, the greater the opportunity for government officials to rummage through that life looking for bad acts unrelated to the original excuse for seizing the cell phone. Indeed, the court was troubled by this aspect of the case, writing, "The court thus has serious concerns regarding the school district's actions in this case." And suggested that the District settle in a footnote, adding: "The court is confident that the school district acted with the best of intentions when it expelled [the student], but it must recognize that there are limits (including in its own rules) upon the power of school officials to police the private lives of their students."

Monday, November 8, 2010

More on Abandoned Cell Phones

More follow-up to the question about whether police can lawfully search the contents of an abandoned cell phone.

A January recent case out of the South Dakota Supreme Court illustrates this issue. State v. Thunder, 777 N.W.2d 373 (S.D. 2010).

In this case, the defendant lived in a room in a house rented by others. He had a bed, a television, and other personal items in this bedroom. There was no key to the lock to his room; instead he opened the lock using a wire hanger. He was asked to leave the home on several occasions. After the final time, the tenants used a wire hanger to open the door to the defendant's room to clean it out. There, they found an old cell phone that the defendant had been using as an alarm clock and camera. The tenants took the phone and activated it. While using the phone, they found images and videos that appeared to depict the sexual abuse of girls from the area.

The police were notified, and an officer viewed the videos on the phone. The defendant was subsequently convicted of rape and the production of child pornography.

The Fourth Amendment issue is whether the police could view the images and videos on the cell phone without a warrant. The defendant argued that "he had a reasonable expectation of privacy in the cell phone because he kept it amongst his personal belongings in a locked bedroom." However, the court rejected this argument, in part because he had abandoned the phone. (The Court also relied upon the fact that the Defendant did not have permission to use the phone in the first place.)

I remain troubled by an analysis that finds there is no expectation of privacy in the contents of abandoned cell phones. Experience suggests that people maintain a reasonable expectation of privacy in the contents even in lost or abandoned cell phones. The South Dakota Court did not really address this aspect of the issue.

Saturday, November 6, 2010

GPS Jammers. Implications?

A quick new thought about GPS tracking.

A recent article about military GPS devices mentioned that they had anti-jamming capability. This caused me to poke around the Internet a bit, and I discovered that there is a growing market in civilian GPS jamming devices. A good example is this UK company. A good summary of why these devices pose risks is here.

First thing to know: use of the devices are illegal under U.S. law. Unlike radar detectors, for example, the devices transmit a signal, which means they are covered by the FCC and various Federal laws. Foxnews has a decent article about the issue here. Here is the most important paragraph:

[T]hey're unquestionably illegal to buy and use in the United States. The FCC is bullish about pursuing anyone who buys a GPS jammer and will prosecute and jail anyone who uses one. Yet they're easily bought online, and their proponents say they should stay that way. Fox News was able to buy GPS jammers for as little as $50 from numerous online sources.

What to make of this from a Fourth Amendment standpoint. Two initial undeveloped thoughts:

First, the growing market for these devices is some evidence the privacy interest in the information gathered by a GPS tracking device is well understood and significant.

Second, the use of these devices by a criminal is likely to backfire. I think that if law enforcement put a device on a vehicle (with or without a warrant), and then it became obvious the device was being jammed, that provides probable cause to search the vehicle to find the illegal device.

(My original post on the issue is here, but check out the archive for lots of information on this issue.)