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.)

Friday, November 5, 2010

More on the Recent Cell Tower Tracking Decision from Texas

An update to my earlier post on the Texas cell phone tracking decision. A copy of the decision can be found here.

The decision contains an interesting discussion about whether cell phone users voluntarily convey their location to the cell phone company. This is significant from a Fourth Amendment perspective, because information conveyed to third parties is not protected by the Fourth Amendment. This rule applies to, for example, banking records and phone numbers dialed.

In the Texas decision, the court held that unlike bank records or the phone numbers dialed, cell site data is not knowingly conveyed by the cell phone user. This is because, the court reasoned, when a user turns on the phone cell site data is generated automatically by the network.

I am not sure this is sustainable reasoning. 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.

Thursday, November 4, 2010

Private GPS Tracking Can Be Stalking

A follow-up to an earlier post about a student finding an FBI GPS tracking device on his car.

A Jacksonville newspaper reports that police arrested a man a charge of stalking after he placed a GPS tracking device on his estranged wife's car. He also allegedly tampered with her Facebook account, stole her underwear, and monitored her home computer use. She became suspicious when, she said, he always seemed to know how to find her.

While private use of GPS tracking devices does not implicate the Fourth Amendment, it can constitute stalking. I prosecuted a case in 2004 in which the defendant had a GPS device placed on his estranged wife's car. He also violated a protection order, destroyed two cars, left threatening messages, and had a camera pointed at her desk at work. The irony of that case was that the defendant was required to be on GPS tracking as part of his sentence. The GPS tracking was key to proving a violation of his probation and resulted in a prison sentence.


Can School Administrators Search Cell Phones?

A high school newspaper has highlighted an element of cell phone searches that I had yet to consider: the ability of school officials to search the contents of student cell phones. Kudos to the Sharon High School Talon!

The student paper suggests that "If you break the school rule of using your cell phone during school hours, your right to the Expectation of Privacy policy is thrown out the window. However, the administration is not allowed to confiscate or look through your phone if it is not visible or being used."

I enjoy some of the straight-forward reasoning of High School students: "Whether or not it is legal doesn't matter to me; it's morally and ethically wrong" said one student. Another was more practical: "I just take out my battery when they take my phone, and so should you."

So what is the law on this? Can a school search the contents of a student cell phone, like it can search the contents of a backpack or locker? In the recent Redding case, the Court held that the strip search of a student to find a prescription drug violated the Fourth Amendment. The Court explained that a standard of reasonable suspicion applies to a determination of to determine the legality of a school administrator's search of a student, and that any search must be reasonably related to the legitimate school objectives and not excessively intrusive. This means, in plainer English, that a school administrator can conduct a limited search when there is a "a moderate chance of finding evidence of wrongdoing."

Under this standard, school administrators probably cannot conduct random searches of the contents of cell phones. However, they can probably search the contents of a cell phone if there is reason to believe that the phone is used for criminal activity, such as bullying, sexting, or threats to safety. However, like with the strip search case, there is a limit to the actions of school administrators. The nature of the suspected illegal activity – both in terms of threat to student safety and the exact use of the phone – will govern how much of the contents of a cell phone can be examined. For example, an allegation of a threatening phone call probably cannot justify a review of the photographs on a cell phone.

Wednesday, November 3, 2010

Case from Texas on Cell Phone Data May Expand Reasoning from GPS Tracking Cases

Our friend at has the text of an opinion from the Southern District of Texas about the ability of law enforcement to access cell site data

In this decision, the court acknowledged that "caselaw developments have been outstripped by advancing technology."

The court makes two main arguments in support of requiring a warrant.

First, the court suggests that the information is subject to constitutional protection because it can reveal information from inside a house. The court relies on the suggests that the information is subject to constitutional protection because it can reveal information from inside a house. The court relies on the Kyllo decision, in which the Supreme Court invalidated the use of thermal imagers to gather information from inside a home. I think this argument is not persuasive. The Kyllo Court held that the use of such devices without a warrant violated the Fourth Amendment because the devices were not readily available to the public and the devices revealed information about the interior of a residence that could not be obtained by the naked eye. The problem is that cell phone data is easily distinguishable from thermal imagers. Cell phones commonly, now, contain GPS tracking capability that is readily available to the public. For example, AT&T offers the ability to track the whereabouts of family iPhones.

I also believe that the emphasis on the interior of the home is less valuable in the electronic age, as more and more data is stored outside of the home by third parties.

Second, the court relies upon the recent Maynard decision involving GPS tracking. I have written about this decision a number of time. See here, 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. Although the court finds that Maynard is "not essential" to its decision, it does find that it is "instructive, and provides additional support and alternative grounds for this decision." In Maynard, the DC Circuit held that the use of GPS tracking required a warrant because, even though the vehicle was visible by the public on the street at all time, the cumulative nature of the data obtained from the devices could reveal the type in intimate details about a person's life protected by the Fourth Amendment.

In fact, the court felt that the information from cell phones was more intrusive than the GPS device, because "the phone can be monitored indoors where the expectation of privacy is greatest. By contrast, the GPS device in Maynard revealed no information about the interior of a home or other constitutionally protected space."

Again, I think that the focus on indoor v. outdoors misses a bigger point. The better reason this information is protected by the Fourth Amendment, I believe, is that the disclosure of this information permits the type of sustained and long-term surveillance of a targeted individual, perhaps unrelated to any particular criminal action and likely to reveal intimate details about the person's life, is beyond the scope of a search permitted by other Fourth amendment cases.

Tuesday, November 2, 2010

Supreme Court to Look Again at the Exclusionary Rule and Traffic Stops

Another interesting case taken by the Supreme Court, Davis v. United States. The scotusblog page is here.

The facts of the case are not too complicated. The defendant was a passenger during a routine traffic stop. When the driver failed field sobriety tests, the police asked the defendant to step out of the car. The police later determined that the defendant had provided a false name, and arrested him for that offense. The [police then searched the vehicle, and found a gun in the defendant's jacket pocket.

The problem is that this case occurred during a significant change in the law by the Supreme Court. Under the old law – as expressed in Belton – the search of the jacket pocket was not a Fourth Amendment violation. However, in 2009 in Arizona v Gant the Supreme Court changed the law about automobile searches. In that case, the Court held that police officers may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

In other words, the search was permissible under the existing Supreme Court precedents, but now appears to be unconstitutional.

The question presented in the petition for cert. was: "Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional." In plain English, this means: should the court throw out the evidence even though the police acted in accordance with the Supreme Court cases in effect at the time?

My initial guess is that the defendant has an uphill battle here. The purpose usually cited behind excluding evidence from a trial for constitutional violations is to deter wrongful police actions. In this case, the police acted in a reasonable belief – based on the existing Supreme Court cases – that their conduct did not violate the Fourth Amendment. So nothing would be gained by excluding the evidence from the defendant's trial in this case.

Monday, November 1, 2010

Is custody objective or subjective? Supreme Court Grants Review in New Miranda Case

The Supreme Court has granted review in a new Miranda case, J.D.B. v. North Carolina (09-11121). The details are on scotusblog. In this case, the juvenile was a suspect in a burglary investigation. The police came to his school, and he was taken from class to a conference room. An investigator, assistant principal, an assistant principal intern, and the school resource officer were present. The door was closed, but not locked, and the juvenile agreed to answer questions about the crime. He was not provided with Miranda warnings. He confessed, was told that he was free to leave, and then provided a written confession.

The North Carolina court held that the juvenile was not in custody for Miranda purposes, so no warnings were necessary prior to questioning. In reaching this conclusion, the court held that the question about whether someone is in custody depends on whether a reasonable person in the position of the suspect would believe himself to be in custody or that he had been deprived of his freedom. This is, according to the court, an objective inquiry that does not take the age or mental capacity of the suspect into account.

This case is interesting because courts have consistently considered the age and background of defendants in determining whether a Miranda waiver is knowing, intelligent, and voluntary. In Fare v.Michael C., for example, the Supreme Court considered an argument by a juvenile that he had been unable to understand his rights. The Court, in rejecting this argument, noted that the juvenile had "considerable experience with the police" and that he had "a record of several arrests," had served time in a "youth camp," and was on probation. Even in situations where defendants have more limited mental capabilities, prior experience with the criminal justice system can be considered a significant factor in finding that defendants voluntarily waived their Miranda rights. Other courts have relied upon the prior criminal justice system experience of defendants to overcome concerns stemming from below average intelligence.

Accordingly, it appears that the question about waiver is subjective. It will be interesting if the Supreme Court applies the same test going forward to custody.



Sex Offender Who Had Removed His GPS Tracking Device Turned Himself In on Live TV

The limits of GPS tracking of offenders on parole or probation – usually sex offenders – was illustrated in a dramatic fashion in California the other day.

A sex offender removed his GPS device, then turned himself in on live television last Thursday. The Huffington Post has the video here. The offender said, "(I wanted to) do the appropriate thing and man up about it . . . I was paranoid, sir, and basically I got scared — and I cut it off."

By coincidence, a newspaoaer article published today illustrates this point nicely. The Quad City Times posted an article highlighting the use of the system to monitor offenders in Iowa. The piece is fairly positive, quoting the officer in charge of the system saying, "This is the future of corrections." The article, however, contains the story of two sex offenders who cut off their GPS tracking devices. One person was caught about a week later, the other was caught two weeks later in Texas.

I have written about GPS tracking of offenders here and here, including raising of the question of protections of the data accumulated by these devices.

This situation illustrates an importation limitation with GPS tracking of offenders. The offender cut off the device on Monday, and by Thursday he still had not been found by law enforcement. The lesson is that while GPS can be an effective tool in some situations, it does not provide all that much security against an offender who is committed to re-offending. As use of these devices grows due to budget constraints and other factors, this is important to keep in mind. As a prosecutor, we used to joke that a request for GPS monitoring by a person on bail was really a request for a head start.