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.