Equilibrium Adjusting and GPS Devices – A New and Interesting Approach

Professor Kerr at GW has posted a new article describing what he calls the “equilibrium-adjustment theory” of the Fourth Amendment.  He explains in the abstract:

The theory of equilibrium-adjustment posits that the Supreme Court adjusts the scope of protection in response to new facts in order to restore the status quo level of protection. When changing technology or social practice expands government power, the Supreme Court tightens Fourth Amendment protection; when it threatens government power, the Supreme Court loosens constitutional protection.

Professor Kerr suggests an interesting theoretical approach – although the practical application for attorneys may be limited.

I am particularly interested in what Professor Kerr writes about GPS tracking devices.  I have written that I believe this issue is on the cutting edge of how courts think about new technology and expectations of privacy.  For those who are new to the issue, I posted a summary of the law in this area here, and you can find an upcoming law review article I am publishing on the issue here.

Kerr appears to suggest that courts will reign in the warrantless use of GPS tracking devices by police in an effort to maintain the current balance of power between police powers and privacy.  He writes:

The important insight for our purposes is that courts are highly attuned to whether use of a particular technology upsets the preexisting balance of police power. Courts address the role of the Fourth Amendment in regulating these new technologies with a careful eye to retaining the prior balance. As the new technology expands government power based on a prior rule, judges step in with new interpretations of the Fourth Amendment to cabin that new power and retain the status quo. The judges decide how the Fourth Amendment applies by engaging in equilibrium-adjustment: They adjust the level of protection so that the new technology does not significantly upset the preexisting balance of power . . . Sense-enhancing tools such as GPS devices . . . are the easy cases to show the role of equilibrium-adjustment. The dynamic is a stark one, and opinions explicitly discuss how those technologies expand government power and the need to counter that effect.

The challenge of Professor Kerr’s approach is that the courts remain divided on the GPS tracking issue – many courts continue to allow the warrantless use of GPS tracking devices on the theory that the devices merely record electronically what the police can observe with their own eyes.  The better conceptual approach – perhaps not inconsistent with what Professor Kerr suggests – is to continue to look at this issue not from the government power side of the equation, but from the changing nature of expectations of privacy in the digital age.  The most important consideration going forward, I believe, will be whether the aggregation of otherwise legally obtainable data raises new and unique privacy concerns.

Ohio Defendants Raise GPS Tracking Claim

The Columbus Dispatch recently posted an article describing a couple of defendant who were caught by the warrantless use of GPS devices.

The two men have cases in both Franklin and Fairfield Counties involving a string of home-invasion robberies. According to the Dispatch, a deputy placed the device on a car registered to one of the defendants after they were linked by investigators to the crimes. The car's movements were monitored until it was linked to another crime, and then used to track the defendants to an apartment.

The prosecutor in one of the cases summarized the government position is easy to understand terms:

If the sheriff's office had sufficient manpower, it could follow a car 24/7 without a warrant. . . . In essence, you're doing with a GPS device what you could do with officers if not for manpower issues.

One Ohio Court has already ruled that the GPS devices can be used without a warrant. That case involved tracking over a limited period of time related to a specific allegation of criminal conduct. This case, which involves monitoring over an extended period of time, presents a different situation, however. My thoughts can be found here and in an upcoming law review article here.

Silly Season For The TSA and the Fourth Amendment

I had hoped that the recent attention being paid to new TSA security measures would create an opportunity for education about the Fourth Amendment. I thought we were in a real Teachable Moment.

Further evidence suggests that the Moment is passed.

• A 21-year-old University of Cincinnati student decided to protest TSA procedures by stripping down to his shorts at an airport. He had a portion of the Fourth Amendment written on his chest. He was arrested, but disorderly conduct charges were later dropped. My favorite part is that the guy apparently has a groupie:

  Tobey did not appear in court [when the charges were dropped], but someone who supports him, yet has never met him, appeared to show her support. Catherine Crabill says she drove down from the Northern Neck for the hearing.

• A company is selling underwear with the Fourth Amendment printed in metallic ink, so that it (allegedly) can be viewed by screeners. Images can be found here. The TSA makes the classic mistake of parents of young children by engaging. In a blog post the TSA says:

  If there is something shielding an area and we don't know what's under it, we have to conduct a pat-down. So basically, passengers should be aware that the use of these types of products will likely result in a pat-down. Some might think this is TSA's way of getting back at clever passengers. That's not the case at all. It's just security.

I stand by my original thoughts. Most protesters of the TSA don't really understand the Fourth Amendment and people are trying to take advantage of a media frenzy to help themselves. That said, I do admire the sense of humor of some of the folks described above.

 

 

Oakland Editorial Criticizes California Cell Phone Decision

An editorial in the Oakland Tribune is very critical of the recent California Supreme Court decision permitting the search of the contents of a cell phone incident to arrest.

The key lines:

The court did not seem to understand the difference between a smart phone and an article of clothing or other objects on or near an arrested suspect. Smart phones are quite different. They are minicomputers that hold vast amounts of information and have direct access to home computers. In effect, a smart phone can be a mobile office that contains private personal information that should not be subject to search and seizure without a warrant. Allowing police to seize and search the cell phones of anyone they arrest on the spot without a warrant flies in the face of the purpose of the Fourth Amendment. Anyone can be arrested on suspicions of even a minor offense. If that is all that is required for a police officer to search someone's personal records, including business documents, e-mails and photos, without a warrant, it is reasonable to expect considerable abuse of privacy.

The editorial goes on to praise the Ohio decision holding the opposite. My take and more links here.

 

Is There A Right to Informational Privacy? After Supreme Court Decision We Still Don’t Know

The Supreme Court previously had suggested that an individual had a constitutional privacy "interest in avoiding disclosure of personal matters." Whether this right exists – and important issues like whether the right of nondisclosure of personal information is limited to an area of life protected by either the autonomy branch of the right of privacy or by other fundamental rights – remains frustratingly unclear.

The question about the extent of that right came before the Court is a case decided yesterday. In the case, NASA v Nelson, federal contract employees claimed that parts of a standard employment background investigation violate this right. However, the Court declined to address whether and to what extent the right to informational privacy exists. Instead, in an opinion by Justice Alito, the Court assumed that the right existed for purposes of this case, and then determined that the rights of the employees had not been violated because the government's interest in conducting background checks was sufficient.

In the context of advanced technology, I believe that this right to informational privacy exists and includes not only those personal rights traditionally thought of as fundamental, but also medical information, sexual activity, and financial information.

I don't know if the majority of the Supreme Court shares this view. But I know that at least two Justices – Scalia and Thomas – assuredly do not. Justice Scalia's concurrence mocks the idea of informational privacy, calling it "absurd" and invented "out of whole cloth."

Wikileaks Investigation Exposes Flaw In Current Thinking About Emails

A Cato Institute post argues that our electronic surveillance laws are in need of an overhaul. No real news there.

The post starts by discussing the Wikileaks investigation. I am not going to express an opinion about the Wikileaks matter.

But the post does suggest how email is different from electronic mail – and that the recent Sixth Circuit opinion on government access to email may have oversimplified the analysis. I'll explain.

In the Sixth Circuit case, the court held that the government could not access the content of emails held by a third party without a warrant. I described the case here and here. One of the arguments raised by the court is that emails are like letters delivered by the Post Office, and therefore should have the same protections. Some commentators have suggested that the this is the central analogy in the case. Using this analogy, "outside of the envelope" information, like addresses, post marks, and, return addresses are not considered to be private.

However, the Wikileaks investigation demonstrates that this analogy breaks down. The Wikileaks investigators did not seek the contents of communications, only "outside of the envelope" type information. The post notes:

The D-order disclosed this weekend does not appear to seek communications content—though some thorny questions might well arise if it had. . . . But the various records and communications "metadata" demanded here can still be incredibly revealing. Unless the user is employing anonymizing technology—which, as Soghoian notes, is fairly likely when we're talking about such tech-savvy targets—logs of IP addresses used to access a service like Twitter may help reveal the identity of the person posting to an anonymous account, as well as an approximate physical location. The government may also wish to analyze targets' communication patterns in order to build a "social graph" of WikiLeaks supporters and identify new targets for investigation. . .

The Fourth Amendment lesson is obvious: applying "real world" legal rules to the "digital world" is never uncomplicated.

NJ Newspaper Describes FBI Cell Phone Tracking Unit

The Record, a New Jersey newspaper, has posted an article about the growing ability of law enforcement to trace locations with cell phones.

The article describes some successes for law enforcement. The article also notes that the FBI formed a "a dedicated unit, the Cellular Analysis and Survey Team, in late 2009." According the article, the "unit provides technical assistance, case support and training to federal, state and local law enforcement officers around the nation."

An EFF attorney raises the usual privacy concerns:

Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, said the government's reliance on warrantless cell tracking is cause for alarm. "People should be concerned because, whether they realize it or not, they're carrying a tracking device in their pocket," Bankston said. "And phone companies are collecting data about where your phone is located, even when you're not using it, that can reveal a really intimate portrait of how you spend your days and nights, where you go, who you associate with."

"This is a new cache of highly sensitive information. And we think that being able to go into the past and see everywhere you've been based on your cellphone's location is just as invasive as, say, wiretapping your phone calls, which clearly is protected against by the Fourth Amendment."

I agree that the privacy concerns are real – but the Fourth amendment analysis needs to be more precise than simply a concern about where a person is at a particular time. As I have noted elsewhere on the blog, there is a difference between an investigation of a discrete incident or crime, and the general tracking of a person. This is because people generally don't have an expectation of privacy in their location if they could be viewed by the public. However, when the aggregation of tracking data holds the possibility of revealing intimate details of a person's life, then there is a reasonable expectation of privacy and the Fourth Amendment is implicated.

 

 

 

Does the Supreme Court’s Lack of Trial Experience Create Amusing Fourth Amendment Confusion?

Slate has an amusing article about Supreme Court oral arguments in some criminal law cases yesterday. The article underscores what I think is the most important thing to know about the Supreme Court as it handles criminal law cases: the Justices collectively have very little trial court experience. I made this point last November in greater detail.

My favorite paragraph from the Slate article:

Here's Chief Justice John Roberts, for example, describing the average jailbreak: "I assume the ordinary prison escape is—I don't know—over the wall, under the tunnel, or, you know, while the guard's looking a different way." Justice Anthony Kennedy wonders aloud: "This may be a bit rudimentary, but can you tell me why isn't the evidence always being destroyed when the marijuana is being smoked? Isn't it being burnt up?" And then Justice Antonin Scalia expounds on the need for zealous police enforcement powers, up to and including the right to search your home without a warrant, because, as he explains, "there are a lot of constraints on law enforcement, and the one thing that it has going for it is that criminals are stupid."

From reviewing the transcripts, the broader Fourth Amendment issue that the Justices seem to be struggling with is how police (and lawyers) will react and testify in court as a result of the Supreme Court's ruling. This is the type of issue that requires more attention to the experiences of trial lawyers and prosecutors, not just really smart Supreme Court experts.

Is Encryption of Cell Phones the Answer?

PC World has posted an article about security for cell phones in light of recent court decisions.

The most interesting aspect, for me, was the use of encryption. This will, I predict, be one of the most important emerging law and technology issues over the next five years.

The article mentions that IT personnel can encrypt text message data "so that it isn't immediately available to anybody without the passkey, thus forcing authorities to seek a warrant should they want to view it." However, Federal law enforcement and national security officials want to require all services that enable encrypted communications to be able to comply if served with a wiretap order. I wrote about that issue here and here.

In my view, passwords and encryption, especially when emails or documents are stored in the cloud, is key because it demonstrates that a person has a subjective expectation of privacy in the contents. Others – notably Professor Kerr – disagree.

Good Advice from Dallas Cops

A Dallas newspaper article has noted that California and Ohio have different opinions about the legality of a search of a cell phone incident to arrest.

I thought the deputy quoted at the start of the article had good advice:

A recent California Supreme Court decision says police do not need search warrants to examine the cell phones of those under arrest. But local judges and a deputy chief for the Dallas Police Department say officers should obtain warrants before reading the contents of cell phones. Until the privacy issue is decided by the U.S. Supreme Court, "it's safest for us to go ahead and get a warrant," said Dallas police Deputy Chief Craig Miller. He said Dallas officers generally ask suspects for permission to search their phones and, if denied, obtain a warrant.

This matches the advice I used to give to officers when I was a prosecutor or advising law enforcement. Of course, this advice was not always followed . . .

New Cell Phone Search Cases Raises Problem of Destroying Data

The Fourth Amendment Blog has a link to an interesting cell phone search case from a federal court in Georgia.

The court held that the contents of a phone could be searched incident to arrest. This follows California and not Ohio.

The court also suggested that "exigent circumstances" could justify a warrantless search of a cell phone. The case involved an iPhone, and the court said that there was "a sufficient basis . . . . to conclude that there was a risk that the phone could be remotely locked, or that the data on the phone could be remotely deleted, thus implicating the need to preserve evidence."

Whether or not this is true – and photos, messages, etc . . . are now likely to be backed up on another computer or in the cloud – this reasoning opens up a big exception for the police. Previously, the focus has been on phones seized during an arrest. However, exigent circumstances exist regardless of whether there has been an arrest – and in theory could be used to justify the seizure of a cell phone from a person even when there is no probable cause for an arrest.

Welcome Lycurgus Group

Announcement time. The Lycurgus Group is up and running!

Hopefully, you have noticed the new logo for the Lycurgus Group above the entries.

The Lycurgus Group is a new consulting firm. We aim to be a leading provider of internal investigation services and public safety consulting. Among many strengths, the Lycurgus Group has some of the most experienced personnel available to provide the best available advice on security issues, including:

R. Michael Taylor. Taylor has more than 25 years of law enforcement and government relations experience. Taylor has extensive experience in the legislative arena and possesses in depth knowledge of the legislative and political process. He has relationships with key individuals in local, state and federal government and an ability to communicate issues and perspectives successfully to them.

Michael McCann. McCann has more than 30 years of experience in law enforcement including administration, leading operations, sensitive investigations and multi-jurisdictional efforts. McCann recently served as Chief of Staff of the Ohio Department of Public Safety. As a detective, McCann McCann led investigations relating to homicides, serious crimes against people and suspicious disappearances as well as Critical Incident Response Team investigations. In 2002, he was selected as Police Officer of the Year.

I am serving as Vice President and General Counsel. I am excited because I can turn my dedication to the law and commitment to public safety to helping businesses and other agencies deal with security and public safety issues.

My email there is engel@lycurgusgroup.net.

Check out our webpage: www.lycurgusgroup.net. Click here if you are curious about the name, "Lycurgus." Or give us a call at 614-859-9570.

Some Reaction to California Cell Phone Ruling

An article on msnbc.com quote an expert as saying, "The ruling opens up disturbing possibilities, such as broad, warrantless searches of e-mails, documents and contacts on smart phones, tablet computers, and perhaps even laptop computers." The article continues:

Rasch, former head of the Justice Department's computer crime unit, pulled no punches in his reaction to the ruling. "This ruling isn't just wrong, it's dangerous," said Rasch, now director of cybersecurity and privacy at computer security firm CSC in Virginia. "It's remarkable, because it simply misunderstands the nature of these devices." The door is open for police to search the entire contents of iPhones or other smart phones that people routinely carry, he said. "In fact, I would be shocked if police weren't getting instructions right now to do just that," he said.

A blog on Forbes.com compares the Ohio and California decisions: "But if you're concerned about the police perusing the contents of your smartphone without a warrant, you might prefer to spend your time further east in the Buckeye state."

And our friend on fourthamendment.com writes, "The court seems handcuffed by its constitutional limitations on following SCOTUS cases. It is hard to believe this is the court that came up with the gay marriage case a few years ago. I go with the dissent on this one because the Supreme Court's cases all predate technology, and a cell phone is more like a computer than a mere "small spatial container."

 

California Court Allows Cell Phone Searches -- Declines to Follow Ohio

The California Supreme Court has held that police may search the contents of a cell phone incident to arrest. The case is People v. Diaz.

The Court disagrees with the conclusion I reach in (shortly) forthcoming a law review article. Comments about this "very cool" issue are all over the blog.

The Diaz case involved a controlled purchase of drugs to an informant by the defendant. The defendant was arrested. At the Sheriff's station, a detective seized his cell phone. The police later searched the phone's text messages and discovered a text allegedly setting up the deal. When confronted with this message, the defendant confessed to selling drugs
The government claimed that the search of the phone was legal based on the :search incident to arrest" doctrine. Under this doctrine, the police can search an arrestee, and the area within the immediate control of the arrestee, for weapons and objects that might aid an escape. The police may also search for evidence of the crime, on the theory that the arrestee might otherwise destroy the evidence. This doctrine has been extended to allow the search of physical containers found in the possession of an arrestee, including wallets, purses, and address books. In the electronic age, this container doctrine was originally extended to include the contents of a pager.

Most federal courts to review this matter have also permitted the police to search the contents of a cell phone. However, the Ohio Supreme Court in State v. Smith departed from this view. The court reasoned that a cell phone is different from a traditional container because the technological sophistication and nature of modern cell phones has created a heightened expectation of privacy.

The California court disagreed with this reasoning. The court said that a phone was like the clothing or a cigarette packet in a person's pocket. In doing so, the court rejected the idea that the character of the cell phone made the previous decisions inapplicable. The court said, "there is no legal basis for holding that the scope of a permissible warrantless search of an arrestee's person, including items immediately associated with the arrestee's person, depends on the nature or character of those items."

Even "small spatial container[s]" that hold less information than cell phones may contain highly personal, intimate and private information, such as photographs, letters, or diaries. If . . . "a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf [has] an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attaché case", then travelers who carry sophisticated cell phones have no greater right to conceal personal information from official inspection than travelers who carry such . . . information in "small spatial container[s]." And if, . . . differing expectations of privacy based on whether a container is open or closed are irrelevant to the validity of a warrantless search incident to arrest, then differing expectations of privacy based on the amount of information a particular item contains should also be irrelevant. Regarding the quantitative analysis of defendant and the dissent, the salient point of the high court's decisions is that a "lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have" in property immediately associated with his or her person at the time of arrest (ibid., italics added), even if there is no reason to believe the property contains weapons or evidence. . . .

The California court also expressed a concern that courts would have difficulty determining whether the storage capacity of a particular electronic device would be "constitutionally significant."

The final analysis from the court is that an arrest triggers a "loss of privacy" that extends to "beyond the arrestee's body to include personal property." The California court explicitly declined to follow the Ohio Supreme Court.
I think the California court missed an opportunity here. I will post more analysis, and some links to comments from others, later.

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