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.