Constitution 3.0

From EDD Update.


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

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

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

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

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

Listen to the NPR interview.

Personal Experience with Find My Friends

From EDD Update.

TMI or Life Saver?

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

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

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

One commentator noted:

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

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

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

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

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

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

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

Lycurgus Group Publishes White Paper on Penn State Investigations

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

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

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

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

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

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

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

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

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

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

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

They point to two unique aspects of GPS tracking: 

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

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

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

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

Originally posted on EDD Update

New iPhone Leads to Fourth Amendment Violations???

So . . .  Apple released a new iPhone.

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

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

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

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

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

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

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

This post originally appeared on the EDD Update blog.

Image: Apple

Constitution Day

I will be speaking at Rosemont College for Constitution Day.

The title of the talk is:  We the Ppl of the Internet @ge:  The intersection of the Constitution and Social Media.

Ninth Circuit's take on GPS tracking

A Golden Gate law student posted an article about the Ninth Circuit's take on GPS tracking -- a case that gets lost in the Maynard hype.  She writes:

The Supreme Court has recognized that law enforcement’s utilization of more advanced forms of technology threatens to diminish the privacy guaranteed by the Fourth Amendment. To avoid this, courts should “take the long view, from the original meaning of the Fourth Amendment forward,” so as to protect the rights and privacy
interests of the public.  While courts cannot read the Fourth Amendment as confining law enforcement to the technology and tactics available in the eighteenth century, privacy concerns raised by fantastic technological advances oblige the Supreme Court to watch closely to safeguard fairness in the federal court system.

LTN published a new article:

The Social Media/First Amendment Face Off

Joshua A. Engel All Articles

Law Technology News

June 07, 2011

Image by clipart.com

Social Media sites have become a significant source of evidence for federal and state criminal investigators. News reports, for example, have described the manner in which federal investigators have been seeking warrants for the Facebook accounts of targets. One person who faced criminal charges after the search of his account complained, "To be honest with you, it bothers me . . . Facebook could have let me know what was going on. Instead, I got my door kicked down, and all of a sudden I'm in handcuffs."

Read the full article here.

Sorry for Slow Posting

Apologies to followers.  I have been traveling, and then we had a death in the family.  So I have been out of touch.  Regular posting will resume shortly.

Ironic? Federal Government Opposes Effort to Obtain Evidence from Facebook.

One of the endearing qualities of many government lawyers is a total lack of irony.

The Atlanta Journal-Constitution reports that federal prosecutors have opposed the efforts of a criminal defendant in a sexual assault case from obtaining information from the victim’s Facebook page. 

The defendant claims that the woman’s Facebook account contains information that could be helpful to the defense.  The federal prosecutor opposed the subpoena served “calling it a fishing expedition and an invasion of the woman's privacy.”

I have no opinion about this particular issue without knowing whether the information sought is relevant to the case, or a violation crime victim rights and rape shield laws.  However, I have noted elsewhere that the federal government likes to obtain information from Facebook about defendants.  So, perhaps it is strange to see the government arguing the other way in this case.

Limewire Verdict Could Hinder Innovation

The founder of Limewire admitted that his service likely violated copyright law.

Or so say the headlines.  But in reality all he did was say that he took a position in an area of where the law was not completely clear.  He said:  "I didn't think our behavior was inducing [copyright infringement]. I understand that a court has found otherwise."

This came up in a copyright case brought against Lime Wire by the Recording Industry Association of America. 

A large verdict in favor of the RIAA could have some very serious chilling effects on innovation.  The application of law to emerging technology is always unsure.  This doesn’t mean that innovators and entrepreneurs should not be able to take risks.  Rather, people reasonably should continue to push the envelope of legal limits.  If they are wrong, they should stop.  But forcing them to pay large judgments serves no legitimate purpose.

Florida Courts Expresses Skeptcism of Searching Cell Phones Incident to Arrest. But Allows The Search Anyway!

A Florida District Court of Appeals has questioned the existing Supreme Court doctrine which allows searches of cell phones incident to arrest.  This issue has been getting a of of attention recently (especially from me).

The case is Wood v. Florida.

In this case, the police found incriminating evidnce on the defendant’s cell phone after he was arrested  But for the arrest, the police would have had no justification to search the cell phone. 

The court believed that it was bound by the Supreme Court's decision of United States v. Robinson, 414 U.S. 218, 234 (1973), in which the Court held containers – in this case, a coigarette package, found upon a person incident to arrest may be searched: 

We recognize that . . . many of the federal and state courts that have addressed this issue have found whether or not a cell phone may be searched incident to arrest is contingent upon whether or not a cell phone is a "container" as contemplated by Robinson . . .[ W]hether or not a cell phone is properly characterized as a traditional "container" is irrelevant to whether or not it is searchable upon arrest. The Supreme Court has clearly and repeatedly found that anything found on an arrestee or within an arrestee's immediate control may be searched and inspected upon arrest. There is nothing in the language of any of these cases that would permit this court to find an exception for cell phones.

The court clearly was not comfortable with this conclusion:

While we feel we are bound by the Supreme Court precedent, we recognize appellant's concern that cell phones contain a vast amount of personal information. However, courts have found the broad language in Robinson permits searches incident to arrest of wallets, purses, date books, and other similar items that contain the same types of personal information stored on a cell phone. . . .   However, we express great concern in permitting the officer to search appellant's cell phone here where there was no indication the officer had reason to believe the cell phone contained evidence. The bright-line rule established by Robinson may have been prudent at the time, given the finite amount of personal information an arrestee could carry on his or her person or within his or her reach. However, the Robinson court could not have contemplated the nearly infinite wealth of personal information cell phones and other similar electronic devices can hold. Modern cell phones can contain as much memory as a personal computer and could conceivably contain the entirety of one's personal photograph collection, home videos, music library, and reading library, as well as calendars, medical information, banking records, instant messaging, text messages, voicemail, call logs, and GPS history. Cell phones are also capable of accessing the internet and are, therefore, capable of accessing information beyond what is stored on the phone's physical memory. For example, cell phones may also contain web browsing history, emails from work and personal accounts, and applications for accessing Facebook and other social networking sites. Essentially, cell phones can make the entirety of one's personal life available for perusing by an officer every time someone is arrested for any offense. It seems this result could not have been contemplated or intended by the Robinson court.  We would also note that the rationale related to text messages and phone call logs concerning automatic deletion is not applicable here because there was no argument or evidence presented that photographs are subject to automatic deletion.

In light of theses concerns, the court certified the following question to be one of great public importance:

DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE'S PERSON AT THE TIME OF A VALID ARREST, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME?

I am not familiar with Florida appellate practice – can someone with experience explain the practical significance of this question.

Seventh Circuit Rejects Argument That Police Need Warrant For GPS

The Seventh Circuit stated that use of GPS devices by law enforcement is a “Fourth Amendment frontier.”  The court then rejected a claim that a warrant is required before the police may place a GPS device on a car.  The case is U.S. v. Cuevas-Perez.

In this case, federal and state law enforcement officers suspected that the defendant was involved in a drug distribution operation. As part of the investigation, they attached a GPS tracking unit to the defendant’s Jeep. 

The most notable aspect of the decision is the court’s rejection of the argument that GPS devices are “different and more intrusive than those addressed in prior [Supreme Court] cases.”  The court said, “we do not consider this particular advancement to be significant for Fourth Amendment purposes in general: real-time information is exactly the kind of information that drivers make available by traversing public roads. The historical data gathered and stored on comparatively primitive GPS devices is actually less akin to the publicly-exposed information on which the Fourth Amendment permissibility of GPS tracking is based.” 

I have previously argued that the Supreme Court’s cases were inapplicable because they were based on old technology.  The concurring judge was more explicit in rejecting this argument:  “Make no mistake, concerns over privacy in the information era may make it appropriate to reconsider the principles used for determining whether law enforcement activity constitutes a search within the Fourth Amendment's meaning. The dissenting opinion cogently makes the point. For now, however, the path for lower courts is clear: the holding of Knotts [the old Supreme Court decision] governs GPS monitoring. The practice of using these devices to monitor movements on public roads falls squarely within the Court's consistent teaching that people do not have a legitimate expectation of privacy in that which they reveal to third parties or leave open to view by others.” 

Judge Wood, dissenting, argues:  “Prolonged GPS surveillance, like a surreptitious wiretap, intrudes upon an individual's reasonable expectation of privacy by revealing information about her daily trajectory and patterns that would, as a practical matter, remain private without the aid of technology. This sort of constant monitoring at a personal level gives rise to precisely the "dragnet" effect the Supreme Court identified in Knotts . . .” 

An excellently written decision on both sides.  I highly recommend that anyone interested in this issue read the whole thing.

More: If I am arrested and the police can search my phone, do I have to provide the password.

One of the recurring questions I receive involves passwords for cell phones.  The question is:  if I am arrested and the police can search my phone, do I have to provide the password.  I answered the question very briefly on the EDD Blog.


Professor Gershowitz at the University of Houston has written a detailed law review article on this very subject:   “Password Protected? Can a Password Save Your Cell Phone From the Search Incident to Arrest Doctrine? 96 Iowa L. Rev. 1125 (2011).  The online version is here.  In the article he writes that the police "may request or even demand that an arrestee turn over his password without any significant risk of the evidence on the phone being suppressed under the Miranda doctrine or as a Fifth Amendment violation."


Professor Gershowitz is an early expert on the legal implication of smartphones.  His article is worth a read.

h

ttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669403

Dropbox Makes Files Available To Law Enforcement. Is a Warrant Needed?

While up late with the baby one night recently, I came across a discussion on Dropbox providing information to law enforcement. 

The claim is:

"As set forth in our privacy policy, and in compliance with United States law, Dropbox cooperates with United States law enforcement when it receives valid legal process, which may require Dropbox to provide the contents of your private Dropbox," . Furthermore: "In these cases, Dropbox will remove Dropbox's encryption from the files before providing them to law enforcement." 

The unanswered question is what type of valid legal process is required.  One possibility is that Dropbox will provide files in response to a subpoena, which the government can easily issue in most investigations.  The other possibility is that Dropbox would require a warrant before providing the information.

Whether a warrant is needed turns on whether there is a reasonable expectation of privacy in files stored on Dropbox.  On the one hand, by uploading files on Dropbox, people are taking a risk that the files may be disclosed.  This is because the user is voluntarily providing the files to a third party.  On the other hand, by encrypting the files and requiring a password to access some of them, users may have a much greater expectation of privacy than in files that are made publicly available.

As noted here, some courts have held that the government must obtain a warrant before accessing emails stored by third parties.  The question for some court will be whether this rule applies to services like Dropbox.

Did You Remember To Welcome Our New Computer Overlords?

My wife reminded me that I forgot to pay special attention to April 19, 2011.

On this date, Skynet was implemented.  Of course, the attack against humanity doesn’t occur for a few days.   Huffington Post has more info here.

Skynet, from Terminator lore, was a defense department computer system.  Apparently, it becomes self-aware and objects to the efforts of humans to disconnect it.  Nuclear war, death, destruction, and human enslavement follow. 

What lesson can be learned for those of us who care about privacy rights and government action:  it could always be worse!

The Atlantic Asks: Is it the Size of the Device, or How You Use It?

I apologize for the bad taste of the title of this post.  But I couldn't resist.

The Atlantic published a nice article about cell phone searches.  From a legal standpoint, no new ground is covered.

However, the author suggests a new philosophical approach to how we look at cell phones – whether as traditional containers or something different:

What's really at issue here is whether it's the size of the digital device that matters or the amount of information it contains. It's a classic case where if you think about it in terms of the atoms -- the stuff -- you get one answer but if you think about it in terms of bits you get another. The phone is small, so it is easy to have it "immediately associated" with you. But the information it contains is vast and wide-reaching and valuable.

The battle points out just how tuned our laws are to our bodies. Remember the wingspan rule or the plain view doctrine, which presupposes a certain resolution for your eyes? These things only make sense in the world of atoms. And we don't yet have new rules for that other, constantly growing world of bits.

The best way to look at this, I suggest, is to acknowledge that courts are struggling with when the difference in degree becomes a difference in kind.  The key question is whether the aggregation of personal data found on modern cell phones makes them somehow distinct from traditional boxes of papers or file drawers.

New Law Technology Article: When Can Police Search Cell Phones?

In Law Technology News:  Courts Struggle With Searches of Smartphones.

Apple Denies Tracking Users. Promises Changes.

According to news reports, Apple denies that it is tracking the location of iPhone users. Apple posted a release on the issue.

I am working on a longer piece on the implications of the revelation that iPhones store location information.

It is still hard to tell exactly what is going on, or why this was done.

Apple denies that it was tracking users. OK. Probably true. But this does not change the more important fact that the iPhone was storing the data for a long time, and that the data allowed anyone with access to determine the past location of users.

An Expert on Smell. Really.

Every now and then I am reminded about how much fun being a lawyer can be.


This is a bit off the technology beat, but is worth a mention.  Fourthamendment.com has a link to a case from Alaska where the defense successfully challenged a search warrant.  Read it here.


In this case, the defense called an expert on smell and taste.  The expert wrote a book titled, The Handbook of Olfaction and Gustation.


What a great  answer the attorneys in that case had to the question:  "anything interesting happen at work today?"

Life Is Better With All This Technology.

The Forbes technology blog channels Andy Rooney.  “Life was better before we had all of this technology,” he said every week on 60 Minutes.

In this case, a former paralegal is nostaligic for the days when Supreme Court briefs had to be set at an old-fashioned printer.  He describes it as one of his “great joys.”

Yes, life was better back then.  Except it wasn’t. 

The physical process of having briefs printed no longer involves hours at the printers setting and resetting type and getting covered with ink.  But more importantly, the modern process is both superior in its ability to allow last minute substantive changes and edits, and cheaper.  The costs of lawyers and paralegals spending hours at a printer, not to mention the cost of the type itself, must have been so astronomical that only the most deep pocketed clients could afford the service.

This story illustrates how technology – but reducing costs and enabling lawyers to spend time on substantive work – has improved the world. 

Federal Government Is Using Search Warrants to Obtain Facebook Data -- Why This Is Good News

The federal Government has started to obtain search warrants to access the Facebook accounts of suspected criminals.  According to news reports, the Federal Government has sought a “few dozen search warrants for Facebook accounts nationwide since May 2009.”

One criminal was quoted saying, “To be honest with you, it bothers me.”

The reports include the predictable concerns about constitutional and evidentiary issues.  What is unclear is how often Facebook and other similar sites receive requests for information, and how it responds to those requests that do not rely upon a search warrant.

Nonetheless, this report is good news.  The battle over privacy rights, the Internet, and emerging technology is not so much a battle about information that is obtained, but how the government is able to access that information.  The reports that the government is seeking search warrants rather than obtaining the information without any judicial oversight is evidence that courts and the government are recognizing the significant and reasonable privacy interest in this data.

iPhones Track Location -- What Are The Fourth Amendment Implications?

News reports from England suggest that iPhones and iPads keep track of where users go.  The information is kept on a file that is backed up on the user’s computer.

The file created by the iPhone apparently contains the latitude and longitude of the phone's recorded coordinates along with a timestamp.

Obviously, this is a huge threat to privacy -- anyone who accessed the iPhone or the computer it syncs to, whether through theft, snooping, or otherwise, could discover details about the owner's movements.

So what are the Fourth Amendment implications of this?  A couple come quickly to mind.

First, if law enforcement is able to access an iPhone legally – whether as a result of an arrest of the owner or if the phone is abandoned – then current law in most locations would allow the police to access this data.

Second, law enforcement may argue that it can access this information anytime without a warrant.  This argument is based on the same justification for putting a GPS on a person’s car without a warrant:  a person has no expectation of privacy wherever they can be seen by the public.

I will post more on this later.

Ohio Court Rules That Officer Cannot Answer A Suspect's Cell Phone

An Ohio Court has held that the police may not use a suspect’s cell hone after an arrest.

The case is State v. Todd.

In this case, the defendant was observed by police walking near the report of a possible burglary.  The 911 caller stated that he "just didn't fit the area."

The suspect put his hands into his pockets while talking with the police.  The officers asked if he had any weapons.  The defendant put his hands into his front pocket and pulled out two cell phones, a digital camera, some foreign coins, and jewelry.

When questioned about the phones, the defendant stated that he had purchased one of the cell phones the night before and that he had not had time to delete the stored numbers on the phone.  The officer dialed the last number on one of the phones.  No one answered.  However, a few moments later the phone rang and the officer answered.  The caller indicated that the phone belonged to the defendant. 

The officer placed the defendant under arrest and found a number of stolen credit cards in his pockets.  During an interview, the defendant admitted to committing a burglary and receiving stolen property. 

The defendant’s conviction was reversed.  The court held that a protective patdown for weapons may have been permitted; requiring the defendant to empty his pockets violated the constitution.  However, the search may have been justified because there was probable cause to arrest the defendant for trespassing.  Thus, the officer was permitted to search the defendant incident to an arrest retrieve the cell phone.

But that is not the end of the analysis.  The actions of the officer in searching the phone by dialing the last number and then answering the phone when it rang is not permitted.  This search exceeds what is permissible under a search incident to arrest, according to the Ohio Supreme Court. 

Juror Texting During Trial -- Not Enough for a Mistrial!

A Kansas court reviewed the implications of jurors texting during a trial.

The case is State v. Mitchell.

The defendant was on trial for aggravated burglary.

During the trial, the defendant’s attorney observed one of the jurors slumped down in her seat below the rail in front of the jury box.  He could not see her hands, but presumed that she was texting.  The bailiff stated that the juror was texting during jury selection, and that her focus was down towards her lap during the trial.

The court did not grant a mistrial.  Instead, the judge admonished the jurors collectively to make sure their cell phones were turned off, not just set to vibrate.

The question became whether the juror was communicating with someone outside of the court during the trial.  In this case, because the judge did not question the juror about her actions (and the defendant did not request this), there was not enough evidence of improper communications to declare a mistrial.

The Kansas court did suggest that courts should consider prohibiting access to cell phones during all trial proceedings.  

Cell Phone Is Not (Always) A Criminal Tool

An Ohio court has affirmed that a cell phone, by itself, is not considered a criminal tool – even when possessed by a drug dealer.

The case is State v. Brooks.

The defendant was charged with various drug offenses, including trafficking.  During a traffic stop, the police found “a ‘little baggie of marijuana,’ two cell phones, and $24 in [the defendant’s] left coat pocket.”  Inside his car, the police found 12 individual smaller bags containing single pieces of crack cocaine, all packaged in a larger plastic bag.

The court reversed a conviction on the charge that the cell phone was a “criminal tool” used to support drug trafficking.  The court, citing another recent opionion, said:  “The ubiquitousness of cell phones is such that the mere possession of a cell phone is not ipso facto proof that it was used in drug trafficking.”   

In the future, the prosecution will probably have to introduce cell phone records or text messages that appear to support drug transactions using the phone.

Articles Published

A copy of my article on GPS tracking, COURTS RE-EXAMINE THE APPLICATION OF GOLDFINGER-ERA ELECTRONIC TRACKING CASES TO LAW ENFORCEMENT USE OF GPS TRACKING DEVICES, is now available in the Richmond Journal of Law and the Public Interest here.

A copy of a piece I wrote for the Law Technology News, DOES POLICE USE OF GPS DEVICES NEED SUPREME COURT GUIDANCE? is now available online here.

Virginia Judges Question Whether Extensive GPS Surveillance is Permissible

A panel of a Virginia Court of appeals had an opportunity to rule on the warrantless use of GPS devices.  The Court punted, deciding the case on other grounds.  But one of the judges wrote an interesting concurring opinion.

The case is Foltz v. Commonwealth.

In this case, the defendant was convicted of abduction with intent to defile.   The Defendant challenged the use of evidence obtained through the use of a GPS device placed on his work van.

The defendant, a registered sex offender on probation as a result of prior convictions, including rape, was a suspect in a series of sexual assaults in Northern Virginia.  The sexual assaults appeared to be similar to the crimes committed by the defendant.

His employer provided him with a van which he was permitted to drive to his home.   On February 1, 2008, the officers attached a GPS to the defendant’s work van.  On February 5, 2008, the police determined that the defendant’s van had been in the vicinity of a sexual assault.  They then began traditional surveillance.  The officers observed the defendant start to assault a woman and arrested him.  The defendant was convicted of his crime for this assault.

The court did not reach the GPS issue.  Instead, the court concluded that the officers could legitimately have conducted the traditional surveillance and thus, legally, obtained the visual evidence used to obtain the conviction. 

This decisions appears to be correct.  I won’t bog down the blog with a discussion of “fruits of the tree” doctrine.  Instead, lets move to the interesting discussion that occurred within the concurring opinions.

Two of the judges would have addressed the use of the GPS devices “squarely.”   In their opinion, they note that “The government could potentially abuse this technology in an Orwellian manner by truly invading the private lives of individuals without any constitutional justification.”  However, “the particular facts of this specific case simply do not even raise such concerns.” 

The judges would have allowed the warrantless use of GPS devices in this case because the van was not owned by the defendant.  More significantly, the van “was parked on a public street when the police attached the GPS device to the van.”  The judges reasoned that because the van was visible to the public, the “GPS device . . . did not expose anything that was not already visible and freely accessible to the public.” 

Here is what I think is significant.  The judges did not rely completely on the principal that simply because a van is visible to the public, the use of GPS devices without a warrant is always justified.  Instead, the judges distinguished this case from cases where the police track “the defendant's unrestricted driving of his personal vehicle for a number of weeks.” 

Another Judge addressed these arguments in another concurring opinion.  This judge also noted the distinction between the discrete use of GPS to solve a crime, and the tracking of people.  He wrote:

we are not talking about the “public” events of a single evening, but rather the comprehensive observation or electronic tracking that takes place over a period of days, weeks, or months. While it is reasonable to expect that anyone might witness any one of such a series of public activities or events, it does not follow that one cannot reasonably expect that a particular person or group would not be privy to all of them. Similarly, one might reasonably expect something as intensely personal as their genetic profile to remain private even if such a profile could in principle be extrapolated from residual DNA left upon a glass or fork "abandoned" in a public restaurant. Thus,  . . . private (and thus protected) facts may be extrapolated from the aggregation of individual public events or from a technologically assisted analysis of “public” objects or information.

Hot Topic: Another Note on GPS Tracking.

Another law student has written a Note about GPS tracking.  This article is from the Fordham Law Review.  It was written by Kaitlyn Kerrane and titled:  Note: Keeping Up With Officer Jones: A Comprehensive Look at the Fourth Amendment and GPS Surveillance.

This Note concludes that “a reasonable expectation of privacy exists in both the installation and monitoring of a GPS unit in light of several considerations: property interests, public exposure, the nature of the police intrusion, and the type and quantity of information obtained.” 

The author notes that in Knotts, the Court did not consider the quantity of information obtained through the use of a tracking device.  In noting that some courts have “disregard[ed] the increased intrusiveness of GPS technology compared to the older beeper technology” the author may be seeking too broad a rule.  It is possible, for example, to use a GPS device to conduct discrete and limited monitoring.  This likely, in my view, does not implicate the Fourth Amendment.  It is only when the law enforcement uses GPS over an extended of time that the privacy interests of the subjects are impacted.  

Police Search of an Abandoned iPhone Ruled Unconstitutional

I have posted warnings about not abandoning your cell phone.  Believe it.

A new example is found in a Colorado opinion, People v. Schutter.  But in this case, the court found that the phone was not abandoned and that a police search was, therefore, unconstitutional.

The defendant in this case was charged with various felony drug offenses.  The evidence was obtained after his home was searched pursuant to a warrant that relied on information discovered during an examination of his iPhone. 

The defendant had accidently locked his iPhone in a convenience store restroom.  When he approached the store clerk and asked for help in retrieving his cell phone, the clerk said that he was too busy at that time and that the defendant would have to come back later.  An hour later, when the defendant had not returned, the clerk turned the phone over to police officer. 

The officer answered incoming calls and reviewed text messages.  When the defendant when to the police station to try to retrieve the phone, the police refused.  The police later obtained a warrant to conduct a more complete search of the phone. 

The court first observed that the police would be justified in conducting at least some limited inspection of lost property to discover the owner's identity.  However, in this case the defendant's iPhone was neither abandoned, lost, nor mislaid such that the police would have had any need to identify the owner.  Rather, the police knew that the owner had inadvertently left the iPhone in a restroom, knew precisely where it was, and sought its return from both the clerk and the police. 

The dissenting judge challenged these facts, writing:  “the defendant left the store without making any arrangements with the clerk for recovering the phone. He did not ask the clerk to retrieve the phone, nor did the clerk make such a promise. He did not inquire into when the clerk would no longer be busy. He did not leave his name or a way in which he could be contacted if the phone were retrieved. Nor did he ever return to the convenience store. In sum, the defendant left the convenience store despite the fact that his phone was in a public space that was only temporarily locked.” 

The take away?  The Defendant in this case was successful in a close case.  If the defendant had a passcode on the iPhone, for example, this would be a much clearer case.  But everyone should be aware that if a phone is left behind, the finder may look through the contents (sometime legitimately).

GPS Decisions Are Consistent With A Traditional Fourth Amendment Approach -- But Some Disagree.

An American University Law Student has published an interesting note on the Maynard decision. 

The Note by Bethany Dickman is titled, Note: Untying Knotts: The Application Of Mosaic Theory To GPS Surveillance in United States v. Maynard,  60 Am. U.L. Rev. 731 (2011).

I want to highlight one aspect of the Note.  Ms. Dickman argues that the Maynard decision is an example of the “mosaic theory” of the Fourth Amendment.  Under this theory – perhaps over-simplifying a bit – a number of otherwise permissible techniques can, in the aggregate, constitute an impermissible search for Fourth Amendment purposes.  Dickman explains:  “privacy may exist in the aggregate of one's movements, despite their inherently public character.” 

This theory is likely a nice description of the state of affairs.  However, I remain unconvinced that the Maynard decision, and other decisions holding that the use of GPS tracking devices, represent a leap towards a new theory or approach to the Fourth Amendment.  From a practical standpoint that is undesirable, as it would upset the expectations of law enforcement, judges, prosecutors, and defense attorneys.

In my view, the decisions invalidating the use of GPS devices, like Maynard , are limited to the precise situation.  The mosaic approach to the Fourth Amendment would be inappropriate in other contexts, such as a review of cell phone call records.  Instead, these decisions are best understood, I believe, as part of the traditional recognition by courts that technological advances in surveillance techniques have made possible intrusive government interference with privacy without a physical invasion.   The protections provided by the Fourth Amendment, as the Supreme Court has often recognized, change to meet new technology.  

It is important to remember that the use of GPS tracking devices for long-term surveillance is not merely an enhancement of the type of surveillance traditionally conducted by police, as no police agency could deploy the skill and resources to, undetected, record the type or amount of information provided by a GPS tracking device.  Under traditional Fourth Amendment approaches, a warrant is required because no reasonable person would expect to be the target of such a massive police surveillance operation.   

German Politician Learns About His Own Cell Phone Tracking Data

An article this weekend illustrates the extent of location monitoring possible with cellphones.  The phones use GPS and other technology to determine the location of the user at a given time, and the cell phone companies retain much of this data.

A German politician, after much legal wrangling, obtained this location data from his cell phone provider.  In a six-month period the company recorded and saved his location longitude more than 35,000 times.

One interesting question is why the cell phone companies choose to retain this data.  The government does not require them to do so, and is likely isn’t necessary for billing purposes for most users.  Safety reasons may require access to instant or recent data, but would likely not require the long-term retention of the data.  The government likes to access this data for investigative purposes.

The article hints that the data “could be lucrative for marketers.”  This seems to be useful only if patterns of behavior are detectable from stored data.  AT&T, according to the article, works with a company that uses anonymous location information “to better understand aggregate human activity.”  The company’s website claims that its product “enables companies to understand customers and anticipate needs in order to deliver accurate recommendation, personalization and discovery.” 

For example, if the company learns that a person goes to a coffee shop every day at 8:30 on the way to work, a competing coffee shop could send a text message or advertisement at 8:15 each morning.

It is unclear in America how this information could be obtained by customers.

Emails From Wisconsin Professor Are Protected By Right of Academic Freedom

A constitutional issue concerning emails has arisen in the Wisconsin Union debate.  According to news reports, the Wisconsin state Republic Party has requested copies of the emails from a history professor who had spoken and written critically of the Republican governor.  “There is an academic freedom issue here,” he said in the report.

The issue is whether there is a First Amendment right to "academic freedom," and whether a subjecting a professor’s emails to state open records laws violates that right.  The argument in favor of this conclusion is that requiring the production of the emails will have an unduly chilling effect on academic freedom and free speech.

I think that the academic freedom issue here outweighs the interests in the provision of the records, and that the professor has a good argument that his emails are protected by the First Amendment.

The Supreme Court has recognized the crucial role universities play in the dissemination of ideas in our society.  In doing so, it recognized academic freedom as a “special concern of the First Amendment.”   In a 1967 case, Keyishian v. Board of Regents of University of New York, the Court said:  “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”  And, in the famous Baake case on affirmative action, the Court said:  “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.”

In 1957, the Court in Sweezy v. New Hampshire, considered a college professor's refusal to answer questions about the content of his lectures and his knowledge of the Communist party.  A plurality of the Court concluded:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

I think that the Wisconsin Professor has a good argument that the First Amendment protects his emails from disclosure.  The state argument is the open records law is a reasonable regulation that assists in good government.  This is undoubtedly correct, although the interest is less substantial than when applied to primary and secondary schools. 

A key feature of academics – and part of the reason public universities grant tenure – is that academics serve a state interest by engaging in scholarly research and debate.  There is no doubt that emails exchanged with colleagues contain ideas that are not only controversial but in the developmental stage.  Likely, a professor will suggest an idea to a colleague, only to later reject the idea upon further deliberation or the receipt of comments.  Requiring a professor to disclose emails will have a significant chilling effect on this exchange of ideas.  This is especially true when the professor is discussing controversial or high profile issues.

I hope that the professor in Wisconsin considers a fight against this request.